may i please the court counsel my name is jean bender and i'm the attorney for mesa communications group l l p the appellant in this matter and although mesa has raised several issues on appeal probably the most interesting issues involve the question of the and they they claimed that he and i had entered into that contract as the agent of our client we claimed that our client was not a party to that contract and we prevailed on that issue at trial so in  the contract was void for lack of consent by the on our part of our client but there was actually a contract and his brother my  and it's hard pleasure to be here i would first of it especially based on some of the questions posed by the court explain the factual context of this entire relationship a little bit better because it is very confusing in the this was a cell phone project basically some communications had the licenses that are necessary in order to establish this death work of cell phone the cell phone operation  the new piano i they were washington companies from the state of washington and i were to good guys from the state of washington and jim and mike beatty was a two person company they'd really had no experience in the cell phone or power business before they were up construction guys why do you hire pardon i where they hire because they were friends with the owners of summit and then some of them wanted them involved then mesa got wind of of this operation through kent state and there was a dispute as to why he was fired i think the evidence one very good view of the evidence the one i think the jury  accepted because the vice president lied about some telephone records and we caught him impeached him on that issue was the candidate was hired because he had made contact with some of and ken statement is the gentleman that m who had the perjury conviction who lied on his resume and was a pretty trustworthy fellow mason knew about that either before or around the time of or immediately after hiring him they kept in anyway and the reason record demonstrate that mesa thought this was a going to be a big deal henschel going to increase their power ownership by a factor of two was going to double i'm confused about something that you're not and i got this right to  great that i'm concerned about right and the way and the understanding with some it was that if he and i didn't perform then they could kick him out of the out of the project and evidently in maces interest to get rid of  this malice that is referred to is not typical malice or ill will it defined it as an intentional doing of a wrongful act without justification or excuse they don't have to pay to breyer just like right now a lot of interference with contract cases involve those facts but in montana that's not the standard under under montana case law it defines the elements as just what i've said that the second point i want to make is that in this case we've got an intentional destruction of documents and there is an inference that the jury can draw as a result of that intentional that was what i was kind of fastening on is as you heard when i ask questions of your adversary why isn't for answers good enough well the e mails have a recipient and we had which if well he was one recent there were there were states and why would be the point i wanted to make when i heard that response is there is no way in the world can state and it's going to confer communicate with jim to bray as to the reason he wants to get rid of exactly what i believe happened because that is the evidence shows that the site schedule was was not prepared until july twenty fifth a few thousand that there's an e mail directly from ace's people i don't think they believe penn state about anything i don't think they did believe that birthdate if you just said it on his name and if that's the excuse he gave it it's contrary to all the e mails and documents in the case i think they thought that since that was a lie and mesa came up with kent state and did call in that phone call the floor anderson and asked for the names of the agents but in this business and people i can state and you don't give the names of your agents out because they'll go directly to those agents and hiram and cut up your soul and he was upset about that and that may well can state and they contended that they contacted cell the only after laura anderson wouldn't give him the names of the agents and she was uncooperative well we found a phone records have been produced by the mesa that show they can state and call las vegas nevada where where they won't be the manager for selby the company that they brought in to replace bray seven minutes before he called laurie anderson and i asked him on the stand of course chasing these guys they argue that somehow that didn't establish that point well they never asked mr state to put mr state back on the stand and said what was that your uncle in las vegas that you were calling i mean the clear inference was he called dave wilkie which i thought i'm sure the jury absolutely believe he did and he lied about it and i don't know what they discussed whether he said well look if i get rid of you great you guys have public minute do this project and then he called or anderson and i think the jury reasonably concluded that's exactly what happened  he got rid of debray never wanted to be an eye on this project had to interfere with contract get rid of the brain get rid of p and i and that's exactly what he did and as far as our not being able to prove what the e mails were well i think the jury pretty well figured pentagon lied to enough that those e mails likely would have produced the real reason for their interfering with this contract whether it was upset with laurie anderson because he wouldn't be she wouldn't be bullied around by him  and then they of course strong us out over a period of weeks we actually continued to work on this project throughout august we found out that they'd hired maids that hired shelby about three weeks later when we ran into them in the field mesa didn't actually even tell us they were out there so we'd work a little bit before this we purchased automobiles we've figured up for this project we we've gone on and on were out in the field working for three solid weeks in august they didn't even have the courtesy to call us and tell us they were kicking us off the job giving eighty two of the hundred six sites that they have promised to us that had been promised to pete and i and riding on two occasions now can say you're getting deeper into the facts and i can understand yes yes i have been working on this case for three years just just in months this is a very i understand the theory here it's you cut out the break the way you might cut out whoever is providing deal to your competitor with the land acquisition again while you you you pull all the sites back home from p n i give it to another company and the wrongful unjustifiable conduct is the can state that minute they had a letter of intent was signed by p and i that mike williams the president of mesa said ruled although it wasn't fully executed rule this relationship there is in e mail from penn state and interference action in august we they didn't actually notify us so we kept working hard all this investment they owed us all this money that came back to us and said well you can work on thirty six sites so we continue to work on those sites then they pulled additional sites back and then we were in a position of trying to cover and go get it work in this business it's a very capital intensive business we have to finance our operation for thirty to ninety or sixty to ninety days before the money starts coming in and basically they had us by this time and they were dangling us over the candle flame of the candle and they came back with us they will now do more work well so then we're faced with the prospect well do we do we stop completely then they won't pay us at all and then we might be in breach of contract with pm and i if we stop completely so we honored our commitment we did the right thing and incidentally in the whole case there was never any inf the brain was ever dishonest or or it was never impeached it's witnesses or it's evidence not ones so we went back to the contract we work and then they pulled more sites from and then they wanted us to work more so at one point we got to the point of no return basically where we were totally dependent on mesa honoring its promises paying us for our work not lying to us any more and then the ultimate happened in december of that year for the first time that they told us that well you know someone never had the money for this project we were just sending you out there on the gold rush basically to get these sites get these towers up knowing the whole time of this contract some it didn't ha money didn't have its financing that the project might fail but they wanted to be first on the ground but they wanted to do this on our money and they didn't care if we went bankrupt doing it and then they didn't pay us we went on i like to thousand and one after it was clear that the most mason was ever going to get out of this project with fifteen cell towers in the whole state of mind can they stop policing activity because there was not going to be anything to put on those least some it was the and so they continue to build they continue to work with piano on the construction of those fifteen towers and they stayed together throughout the project and the only evidence presented was an e mail from a vice president made that says if he and i doesn't perform we will replace them they didn't replace them they added another they added another leasing company some of the things would move faster  the reason there were reasons why these sites were withdrawn every time one of the reasons was that some it didn't have all the licenses that it needed to go up to northern montana to great falls so they put those sites on hold i believe some sites on their own home there was never a signed agreement between he and i and they face passed back and forth throughout the whole project and they never had a signed agreement they were working on an oral agreement you know i have perjury conviction had to do with something that happened in florida in one thousand nine hundred ninety five and all the jury it had nothing to do with this case never gets to the jury he's a liar the man is a liar it may not have anything to do with this case but knowing that a witness is established by the courts to be a liar that's true and so then i think the next step would be to say and here's the lie he told but they never did point to any lie that can  they have the very good fortune for a party in litigation to be opposing convicted perjurer and destroyed evidence exactly and if the jury had not found that the brain was not harmed by the possibly i don't know what i have no way of knowing what they do but clearly the evidence on the tortious interference yes there's the past to be that somehow they were trying to get rid of p and i in order and they bill to to mesa they never asked me to pay them there was an exhibit i believe it was thirty four that mr de brz wrote to mr beattie that said i know you wanted me to contribute to  assume you want to retry compensatory damages as well to make it public for nothing but how can you not under the montana statute about using the same jury thinking so the financial statement you got in discovery shows thirty two million dollars i think was thirty two million dollars a chemical was not worth the rest of it was thirty two million dollars and the financial statement that was produced at the last minute and arguably should not have been admitted showed it was twenty five million dollars instead of thirty two million dollars i can't see what prejudice there is from the seven million dollars difference even if the jury bought it next the first the basic steps the point was not the difference between thirty two million and twenty five million the point was that because of the surprise itself and then you interrupted yourself with a whole lot of parents that are old and we haven't gotten to the end yet because of the surprise you cannot have a separate trial on you must have the same jury that heard all the evidence try the image of damage issue and also like to address the issue of surprise throughout this litigation mesa never made us take up the fact that it was very cash when depositions were taken in new york we didn't go i told mr pierce it was because the client didn't have the money to pay for it so it should not have come and the surprise next is miller versus