as an aside your honor it's a pleasure to be here on behalf of the product be council i look forward to leaving the snow in utah and came to the rain on southern california  please the court our my name is justin heideman and it's brought reach a counsel i have the opportunity of representing travis b shane i click promotions will see him play in a group enterprises as the opponent in this case counsel the focus of the argument today i think summer can be summarized as a focus on the damage issue i believe that the other issues are very well briefed and although i'll touch on them momentarily the damages issue is where this court should spend its its time specifically i believe that this court has the ability and should reverse the error committed by the district court with regard to both punitive damages and a determination as to is the standard in this case is high the standard for both a new trial as well as associated with that of a jan ovi requires this court determine that there is a substantive amount of evidence that is determined my anticipation is that i will be reserving six minutes for rebuttal let's watch a time i will your honor thank you that having been said i believe specifically that under the lanced opinion this court has the ability to reverse the determination with regard to a new trial underneath exception of or three as well as and ironically in the lance opinion it lists for exceptions that has five different reasons and so i would identify exception five as well specifically i believe that there is no substantial evidence with regard to the inconsistent application of the terms of the agreement and moreover under five i believe that there is simply no evidence whatsoever associated with consideration let me address the consideration first the issue in this case underneath this element is whether or not any consideration was granted for the terms of the contract associated with the preexisting clients ironically we identify from helpless argument that he is entitled to receive all commissions associated with any clients that were previously being are being paid on by failure that just simply makes no sense in light of the argument that in this particular instance mr headland advance which is that advanced media doesn't have to pay on any clients to mr bush ain that he doesn't bring and at the same time he asserts that the terms of the deal are exactly the across the board so in other words there's and there's never any consideration given associated with these issues no payment is made in fact the only thing that ever happens in this transaction is that the weiss deal and the bill brothers deal are brought to the table ironically there is a payment made for fifty fifty thousand dollars let me make sure that i understand what you're arguing are you agreeing that there was a partnership no your honor we believe there is not a partnership but i think in the alternative particularly with regard to the  damages element and with regard to damages in general if the court determines that there is a partnership we have the ability to reject that quite handily and quite frankly i'm just simply tell you i'm just taking it as a worst case scenario if this court were to determine that there is an agreement at most with regard damages this court can only find that there is an entitlement to those clients that were brought in at the very most and i apologize if there was confusion that you do have that a jury finding we have a jury finding and this is the issue associated with that very high standard and this is come down to credibility and why wouldn't we defer to the jury on that issue i mean i think we are choir i think your honor is correct in that regard although in this instance there's nothing to defer to there's no evidence there's just simply nothing whatsoever when the when the jury makes the determination as to what the damages should be they simply take the full value that stallion paid but they fail to ever now analyze and therefore there is no analysis upon which to defer as to whether or not that amount should be the proper amount of damages it's actually sort of a double deferral isn't it because we're also deferring to the district courts assessment of what was before the jury absolutely your honor and quite frankly that's where the lands opinion i believe comes into play because there are five specific a numerated exceptions in which this court is in fact it's only those five circumstances where this court isn't required to defer ironically the the third standard is that there's a lack of substantive evidence which of course is the whole point associated with the j n o v and then of course the fifth one is that there's no evidence and again in this case there simply is no there's nothing by way of consideration that's presented by hetland ever to support that the contract was formed or to support and this is the crux of my argument that he was entitled to payments associated with preexisting customers in other words stall shane as well as the other accounts have had a longstanding relationship for which these were being paid out in fact the record is quite clear that only four hundred thousand and change was ever paid as commissions associated with the two deals that were brought to the table by mr headland and yet the damage award is such that my client should be entitled to all refute me that mr big headland should be entitled to fifty percent of all payments made during this period of time by stellar there's no consideration to create that deal there's nothing to refer to or defer to moreover along those lines and this is where we go to this worst case scenario the the agreement is inconsistent because the only evidence that exists associated with preexisting conditions is two states one that all the deals are exactly the same this is for mr howland and to the deals are not exactly the same specifically with regard to advance media and this is the point that we make with regard to the new trial if there is there there cannot be a substantial amount of evidence for which this court should defer on the basis that there is an argument that the deal is the same that both parties receive preexisting conditions when at the same time the argument is that the deal is not the same that the only person that should receive preexisting clients and benefits therefrom is mr headland if this court were to determine that the agreement was such that a partnership was formed and that it was a fifty fifty deal then this court must order a new trial at a minimum to determine the amount of money that would have been odes to my client from advance to meet in essence a fifty fifty deal for which no evidence was ever presented because there it was never determined that there was an equal distribution on that but that business as well and the offsets are substantial we know that it's somewhere between one hundred one hundred fifty thousand dollars a month it's so large that it could actually negate the entire war is your stronger argument the argument for judgment as a matter of law or for a new trial and if they're not the same how are they different well ironically your honor there is an enormous amount of overlap because of the third  exception of the lance opinion specifically that there is an evaluation of the wrong standard that of substantial evidence which is the exact standard for geno v personally as an outside of utah attorney looking at i think the stronger arguments for a new trial on the basis that there's simply no evidence on this topic in the record because there is no evidence there is no ability for this court to defer and in fact that is the exact reason enumerated in lands for which a new trial should be great but if there's no evidence aren't you entitle to judgment as a matter of law well and that's a circular argument that i think the lanzas is forced to deal with ironically your honor i found that exact language to be one of the problems in the case it states it may be doubted and this is on pinpoint cite thirteen seventy one thirteen seventy two the case cited eight thirty three f second it may be doubted whether there is any verbal formula that will be of much use to trial courts this entire paragraph numerate that this is  insufficient evidence to support verdict the machine hadn't formed a partnership because the trial testimony indicated that the terms ledge partnership were not definite but i'm trying to figure out how we don't differ to the jury on all this seems like you're switching the focus here from what your main argument was in the brief just think your honor it is true that might the focus of my appellate argument is on the punitive damages as i indicated at the outset i believe that the arguments are very well stated in brief and given the limited time i chose to to deal with the one area that i think needed more focus and that's the punitive that is the main portion and thrust of argument the courts question i think is  a what i'm sorry what's the main thrust of i'm a little confused what's the main thrust and focus of your argument what you're arguing today today i'm yesterday i'm what you devoted most of your brief yes that's correct all right thank you five fifty one if you want to reserve that time your honor i think i you your honor good morning and may please the court my name is eugene row and i'm here for the plaintiff probably matthew headland thanks close attention to counsel's argument it appears they all but concede the existence of a partnership and for good reason you need to speak up and is clearly as possible certainly apologize being close attention to my colleagues argument it appears that the defendants and appellant all but concede the existence of a partnership and for good reason the reason being is that there was extensive testimony both from my client as well as from a third party witness a disinterested witness who testified clearly consistently yes your honor mr temple unclearly testified that a partnership existed that mr bush cheney presented matthew headland as his partner in connection with the referral of merchants that they were all in on the deal that they agreed to share profits and share losses in connection with that partnership was mr tempo and is one of the principals of still so still it was the entity that was making the payments to mr bush o'shane so with my client are we focusing on my client your honor what he contributed no i was i was asking about your adversary's contribution my adversary contributed preexisting relationship consisting of a single merchant whose processing activity was very small at that time before the partnership was formed so it made sense that with my when my client contributed to huge merchants the weiss and the bell brothers it made sense to put them all together and split the proceeds of the fifty fifty base and down i just wanna make sure that there are a lot of entities here of course he's got it right here was the reason that the company that you're on there i understand your question i click is mr bush and company still he is merely a processor in other words my client and mr bush ain't needed a processor to be to be in place of the they could refer the merchants to the processor the processor with process their payment transactions and make pay out of referral fees to the partnership between my client applications state involved in the process which is a very comprehensive process as testified to by mr temple own in fact my client kept trying to refer virgins and that's also in the record but mr bush in for a very nice serious reason told him that these merchants were not acceptable the reason at the time my clients are going to face value but the real reason was mr bush cheney wanted to funnel them to a third entity so that my client would have even less transparency lied to my client he lied to mr temple mr bush and told mr temple and i need a higher commission on these merchants because i am splitting the fees with mr headland my partner that was a lie to a third party that i had knowledge mr bush cheney lie to my client at all times and pardon my language but he was using the word they screwed us they being still here in other words still you owe them a lot of money my client saw that they owed him a lot of money here's how he saw it there was a payment gateway in other words computer software a portal where he could see the processing activity and based on activity in excess of one million dollars per month he understood from the commission structure that they were entitled to considerable commissions yet they were not paid mr bushing repeated lee represented to my client that they had been screwed that the testimony so that's about that fraud that is a misrepresentation they were not screwed in fact still here was paying mr bush in all along he was merely concealing those payments from my client his partner now there's further evidence of that he evidence of over a million dollars fraud i mean yes certain there's evidence didn't work and one point four at the record the total amount paid out by stella the third party processor to mr bush's company was one point seven million now half of that is eight hundred fifty thousand that's not what was awarded to my client rather the amount that was awarded to my client was seven hundred forty thousand and that was because the amount that was paid out to mr bush and by  following the formation of the partnership was one point four million the trial judge notes that in his opinion on the jane of emotion and the point here is that the jury did analyze damages they didn't simply cut the full amount of one point seven in half to the contrary they focused specifically on the date on which the partnership was formed the commissions paid into the partnership and pursuant to the terms of the partnership of a fifty fifty split divided those in half you'll think seven hundred forty thousand rather than eight hundred fifty thousand so i submit respectfully as found by the trial judge that an analysis and  thirty thousand dollars and he cut and sent the wire apology if not a check he sent the wire to my client for fifteen thousand dollars that is fraud and malice my client would have been none the wiser had mr bush shane for whatever reason also elected to then subsequently file a lawsuit against phillip at which point my client was deposed and asked about what he did with the money my client was the world how much was he supposed to get at that point seven hundred forty thousand dollars which is the exact amount of the jury awarded one half of one point four million and it was it was seldom they got thirty thousand i mean i actually got thirty thousand but he was tell him only fifty now he cut them he acknowledged the partnership and sent them a wire for one half fifty fifteen thousand dollars in other words he acknowledged we're fifty fifty partners they screwed us only paid us thirty thousand so i will pay you your share the fifteen thousand dollars so he cheated my client of seven  actual amount that was paid was one fifteen thousand your other no no he said that was thirty thousand happened was there more than that that was yes that one point four million euro that was the one point four million that's correct here and half of that would be seven hundred so that was the compensatory damages that's correct your honor and there's a punitive is the jury applied a two times multiplier which is perfectly appropriate under all the constitutional principles did you ask for an amount i believe we did i believe we asked for a multiplier i think it was higher what it us were think i asked for two point five million or two point five million would have been made i would have remembered opposing such a motion if anything there could have been an oral request but i would be speculating i do not want to commit today here on the apologi so going back to the issue of since the focus was on damages what i said made to the court is the following that analysis was performed and one of the items in the record is a spread sheet and the court will see that and the spreadsheet does reflect a full payment of one point seven million but the amount post dating the formation of the partnership was one point four and so the jury properly evaluated that spread sheet properly evaluated what payments were made after the partnership was formed and properly allocated fifty percent of that to my client as compensatory damages and given a fraud basically in  amount of seven hundred thousand plus the few that have damages warranted the question of whether or not there was a partnership before the jury so it was your and the jury found that there was a partnership i we submit that it was very analytical the verdict itself of the product of extensive analysis and there was also ample evidence to support it as noted by the trial judge there was testimony by headland mr tempo and they testified credibly consistently the subsequent efforts to conflate unrelated issues such as the advance media issue with the narrow question before the jury of whether or not a partnership of the merchants existed should not disrupt the verdict under well read in the authority so having said that we spoke thank you thank you let me pick up where i left off and i appreciate counsel to ring up mr temple because he is a key to this issue with regard to the fraud and the punitive damages mr tampoe testified to two others very specific facts one that mr shane granted mr headland full access in fact he instructed still yes mr tampons entity that they should grant mr headland every access available and in fact mr headland testified that he had access he actually sent e mails to stalley asking for explanations and he complained in february of two thousand and fourteen when his access was suddenly terminated because still you had had stopped their production and as a result of that it's impossible for there to be a misrepresentation and fraud there is no possible way that a reasonable person could really lot could have relied on any of the alleged misrepresentations which we disagree ever occurred but no reasonable person could make that reliance when they had full access they had that and this court i think identifies the problem and this is the issue with rip the numbers let me see if i can point this out quickly four hundred eighty two thousand one hundred and fifty four dollars and seven cents was paid to mr  as a result of weiss and the bell brothers that's it the argument from headland is that he should be entitled to the full value even though there was no consideration granted or even addressed with regard to these prior to this prior the problem with the forty two number is that twenty six percent of mr tampoe testified to this the twenty six percent was set aside as part of the offset or the set the set up account that means that a total of three fifty six seven ninety four zero one was paid to mr now here's the issue at best under their own terms fifty percent is all they're entitled to that's one hundred seventy eight thousand three ninety seven zero one so if this court says i think i believe that there is substantial evidence to affirm a partnership and the terms are fifty fifty then the most mr headland could ever claim is one hundred seventy eight three ninety seven zero one and yet we're standing staring at it at over a million dollars in punitive damages for a man who had full access hence our request for a new trial because there is not substantial evidence nor is there any evidence to affirm this verdict there's nothing that shows an entitlement to the preexisting exhibit clients there's nothing that shows any type of fifty fifty relationship and there's no evidence that if this court again if this court says there was a partnership why did my client not get his offsets from advance media and because there's no evidence on that this court must reverse this court has to look at it and say i believe that it's against the weight of the evidence the clear weight of the evidence and a new trial should be ordered because unfortunately somehow this jury just went off the rails and started the judge and so did the judge and i and i don't mean that in a disrespectful fashion but the numbers are the numbers how do you come to a million dollars in attorney's fees when you're only entitle by your own argument to one hundred seventy eight three ninety seven zero one the math doesn't work out this is why we say there was no one to you now it has failed on the part of the jury because when they were analyzing these numbers for some reason they forgot about the fifty fifty split for some reason they forgot about what is the own their own argument is that they would be entitled to nothing beyond or nothing in the pre is a previous relationship and ironically hetland makes that same argument the record is replete we quoted in brief multiple times i can give the citations right now where he says the deal is fifty fifty for all the entities and then when pressed on examination with regard to advance media when specifically says oh no not that one the shane had to bring deals to the table well this goes to the whole point that neither side disagrees that they wanted to memorialize this deal that they wanted to write it down that they sent multiple drafts back and forth it never got signed so when this court looks at whether or not a partnership actually existed we have to be able to find out a was there sufficient terms that the parties would understand and be and this is the big one consideration what was ever offered at most i believe it's clear and plain at most but the best case scenario for mr headland is that somehow weiss and bill brothers acted as that consideration and therefore moving forward at best he's entitled to fifty percent of weiss and bell brothers that's  argument the evidence will support is there any questions you know thank you very much thank you for allowing me to appear proud b j it's a pleasure to be in the great state of health thank you very much for being here both of you saw arguments very