i understand that the court is fully aware of the facts of the case and i'll skip a recitation of the facts unless the court which  find that there was no duty to consider the plaintiff or shareholder status that would reach that conclusion the court had to first ignore the title of the document which was free social contract it had to ignore the recitals which specifically stated that it was the desire of the physician to engage in certain duties and to be considered for election to shareholder status and they had to ignore section position was scheduled to be reviewed for shareholder status in particular incorporating the bylaws which it specifically says all report rated it would make the third monday to find that there was no duty to review the plaintiff or shareholder status in addition the opinion itself contains contradictory whole the court first makes the factual finding that quote his eligibility for shareholder status is to be considered and quot and then a few lines later makes the legal holding that the two thousand and seven agreement is unambiguous and that be the issue of damages we would you agree that even though your client alleges that he was imminently qualified to be considered and would have been you know  consider it so they didn't even go to the next step of may all right in my girls my suggestion is if they didn't make him why would he have any recourse if they didn't make him if they had followed their contractual beauty and had considered fair and have made you know after having considered all the evidence that he put forward and then in their judgement they chose not to make  contract it for this right you know it it's up there he's asking for it because he had any gas and earned it he earned the right they said that he would be and then they pulled the rug out from under him and said that it couldn't be so are we dealing with a situation where we we would say you're right they breached the contract but unfortunately you can't demonstrate that i hope the porters does not make that hol improper i think it would be improper if they had not evaluated him and made that terminations based on  they may be able to sidor their interest but if they were acting in a good faith way they wouldn't be motorbike motivated by their self interest they would not be motivated by what both parties expect an exercise of broad discretion just as what occurred in this case that's pursuant to woodstock l l c versus city woodstock and discretion must be exercised so that it is with proper motive not arbitrary capricious or in a manner trying to give proper meaning to the broad discretion that's or clear but that's not my client's doing it's the defendant's contract a bit contract in essence states that after the probationary period of two years that the position would be evaluated at the first clinic shareholder meeting and incorporating the bylaws that that would have been the third monday in january two thousand and ten that should have been evalu in the contract the court should have permitted poor old evidence to explain the terms if if the court believed that it was subject to multi good morning your honor may please the court peterson for defendant apple eason let me know if you can hear me i'm fighting a call that have been losing my voice i'll try to keep keep it up for you i'm here today on behalf of the defendant carle foundation hospital and the karl health carrying for the clinic as it's referred to in our papers we think this is a pretty simple case before you today that boils down to whether the two thousand seven employment agreement between doctor a car and a car all clinic required that the clinic consider him for shareholder status by a date certain that date that plaintive this suggesting is january of two thousand and ten and if they were required to consider him at that point are there any damages that would flow from the failure to consider that would be sufficient to state a claim we think backed the contract makes clear when totality that there is no obligation to consider him for shareholder status by any gate certain and that there could be no damages in any event by a failure to simply consider him with respect to the duty of good or yes he was treated exactly the same as all other previous o c s were treated and the the clinic shareholders did not act in bad faith arbitrary capricious lee when they made the decision that it was in the no i would say that he was treated like everybody else which sort of would to me takes it outside of the realm or arbitrarily or capriciously the shareholders considered their obligations to the organization and to each other as they were looking at a to disagree that that's what it says it says that section four point one which you were referring to i believe is a provision in the contract that refers to the terms of the contract and how the contract is going to be terminated in four point two and the what what it actually says is that the full time employment begins in january twentieth and will continue for a period of two years plus an additional time not to exceed sixty days beyond the date of the first regularly scheduled clinic shareholder meeting at which his eligibility is considered it doesn't say his eligibility is going to be considered at any particular meeting it just says he has to keep working for sixty days means that you can work for us for at least two years that's the minimum period of time it would take in order to be eligible for a shareholder status under the bylaws which are were paraded into the agreement the two years is the minimum there's nothing in the bylaws that says we have to put you up at this first meeting after you hit your two year anniversary it just says whenever we consider you which ever meeting and the bylaws say that shareholder candidacy has to be considered at a regularly scheduled meeting as opposed to a special meeting and so i believe that's what it's referring to at whichever regularly scheduled meeting we consider you you've got sixty days either week we collect you and you've got sixty days to make your contribution become a partner shareholder associate of the organization or you've got sixty days to negotiate a new employment agreement or find another opportunity it is all that that says there's nothing in here that says just agreed that that's what that paragraph means i think that it says you get sixty days from whatever meeting it is consider at which it is considered it doesn't say i don't believe that the ad which is modify considered for that purpose now in two thousand and nine carl made the decision that it was not going to elect any new shareholders because it was going to enter into a merger so that he  so so in january of two thousand and ten there was a merger he knew he wasn't going to be considered at that point he knew in two thousand and nine he wasn't going to be considered and he negotiated a new agreement with the merged organization in february of two thousand and ten what it said it's  t that he was going to be an employee of carle foundation and he worked under that agreement for some time prior to his termination claiming that they failed to bring this action in the timely fashion now that's not our claim our our claim is that there was no our position is that the contract does not say what he says it says the recital for example l  regarding his commencement of his work then the question is that the other members refer to t i think it's perfectly acceptable under the terms of the contract they get the contract provides carl the sole discretion he started the recital the recital says dr a car wants to be a partner here and carl has the sole discretion to make that decision which is what the recital says the recital to quote says whereas physician desires to assume the duties and obligations of a clinic previous sosia position and to be considered in the clinic sole discretion for election  subscription but if the record shows that the trial judge says i have the discretion then that's a different situation than we are not i would disagree that they're not you know they're no longer exercising their sole discretion i think they're continuously exercising their sole discretion we're not going to make you a partner we're not going to make you partner we're not going to make you can make anybody else partner and i think that is exactly what your discretionary c made a part i think it does your honor i think they had sole discretion whether it was based on his qualifications or it's not in the interest of the business to bring on another partner they had sole discretion and i to make that decision at any point in time you know that the earliest point that dr a car could be even have some expectation of being considered was after a two year anniversary so if i'm assuming i'm correct there was a consideration that if we bring dr ocar or anybody else in that impacts our business interests as shareholders of the organization and there's nothing in this contract that says we have to consider dr ocar based on his performance on his criteria eligibility as a doctor on his medical background there's there's nothing in here that guarantees that it's their sole discretion and if they decide that the only criteria we want to use is what's in the best business interest of the shareholders in the strange proposition for carroll be arguing that we wrote the looser a promise into our country but that's not our position your honor you've asked me to assume that promise isn't there there's no further question thank you i don't see any th entitled to be put in the same position as you would have been for the breach i think is the will soon be a solo i think i also think that this would be lost profits he had the ability on one day to have a profit but then when they made the unilateral decision that they were going to consider anybody else that opportunity was taken away and as i think the court is suggesting tha certainly had value that that certainly had a value to the plaintive he had the opportunity and he would have presented his evidence that he was entitled to shareholder denial of the opportunity certainly had value to  point i would also add to your honor there opportunism is not a valid grounds for the denial of good faith in fact the cases that i mention including the southbank