good morning from judges that may please accord i'm gary chilton i represent continental resources and this case presents an important legal issue and that's the reason we appealed it does continental resources have the absolute right to exclude gerry jan drew from its property the trial court said no not if it would improperly interfere with jerry jenkins business interests by doing so the trial court elevated jury gender and business interests over continentals absolute right as all citizens to control who comes onto its exactly what is on the record while i was going to state to the court in my argument that there was one thing that the parties agreed upon and that is that continental's request was limited to having jerry gendron come to as well locations and i can base that on their brief here it states on page twelve of their response rate it is clear that the request as testified to by mccurry and he's was sea tac west to prevent jerry gendron from delivering to any continental locations in the boman region now the factual dispute at trial was the continental officers testified we didn't want him coming to our well locations in the buffalo district that's a small little district in northwestern corner of south dakota the mr macoris who's the sea tap representative at trial got on the witness stand he said why i thought they said it to any continental well locations anywhere from in the bowman north dakota area and that's what the plaintiff is stating in their brief it is clear the request to prevent jan when it is clear that the request was to prevent  delivering to any continental locations in the boman region and as to their theory for the case then on page five they say therefore anderson's request as testified to by mcar do have a right to exclude others from our property they both qualified it and this is where we think the trial court made an error she said they said you can't you can't exclude them you is which of mr mr jahn been focused his trucking company out of the bowman north dakota area that was his choice c tap has several terminals the bowmen area principly well it's served a lot of wells throughout the bokken but continental's request was but the bowman area services the buffalo district i understand  so my question is is the go white that mr jack he was put out of business because continental was about the only place he ever delivered i believe that the testimony was the continental was taps largest customer and by continental not wanting him to come to their well locations affectively put him out of business it was not that sea tac refused to deal with him with respect and  shipment as a result of those overseas well it was the test just not honorable but everybody they would not use and all through any place that's not the case the testimony was is that c tap was not going to use him to deliver out of the bowman north dakota yard to anybody to anybody that's not what continental asked them the testimony was that sea tac made that decision mr m testified under oath it was my decision i own up to it he didn't want his people on the ground in the boman yard to get confused and accidently send jerry gender into want to continentals well locations so but apparently us continental requesting c tap not to send him to continental well locations wherever they might be effectively put him out of  perceive to be improper interference so for example the jury could have found that continentals request not to have jennifer and deliver a pipe to continental's well locations was an improper interference that's how they were instructed so it's a very white claim that they just didn't like continental resources calling one of its suppliers and saying we don't want jan prince trucks coming to our well locations they were instructed if you think that was improper you can rule against continental because you have a flawed jury instruction we don't know what the jury how they came to the result because they were instructed incorrectly  but in but it i think it's very important that in their response brief the plaintiff argues that it was clear that the request was to prevent jan britain from delivering to any continental locations in the boman area and our argument is either way we could have gone to sea tap and said we don't want you to delay having mr jadwin deliver to any of our well locations throughout the united states we were just saying it seems as a kind of a shift business expectancy that was allegedly interfered with was delivering pipe to continental well locations and the plaintiff does not have the right to deliver pipe the continental well locations continental had the absolute right to exclude general from their well locations and that was i mean the law is clear on the absolute right part it all starts with the brackets versus you know annoying us united states supreme court case improper interference is that you know right did anyone offer that in the conversation of the concern that you've raised that you raise with the district court well we offered instructions number five and six for us which explained to the jury very clearly that someone like continental has an absolute right to exclude people from their property and then we had an instruction that quoted from johnson versus schmidt which is the south dakota supreme court which states there is no liability for purchase a breach of contract where such a breach is caused by the exercise of an absolute right that is by an act which a person has a definite right to do but then that's that seems to get to the first step the idea of the absolute right i guess what i'm trying to get out did was there any discussion about how to define what improper would be because as i see the distinction that we've been talking about is the difference between causing harm to the contract that continental is a part of or would be the recipient of versus any other shipments or loads that he might be that m be contracting through sea tac but with someone independent of continental it seems to me that that would you agree that would be improper if that's what continental did right so was there any discussion of the district court of trying to that out and actually give a definition that would have guided the jury a little bit better well we felt like we you know we had the right to exclude him from our property so i don't believe we had the discussion you're talking about we we  hammered on and on about how we had the right to exclude him from our property and that's what that witnesses testified to and that's even what mr jenner and argues in his brief to the court is that we had requested for him not to come to our well locations and since we did that in most of his business was apparently hauling the continental well locations then ipso facto if he if he went out of business it's our fault and reliable but the hess decided it didn't want d b i trucks coming on to its well locations and and actually when it reached out and contacted its one of its suppliers saying don't send b i trucks to our well locations and d b i sued for tortious interference it's a case that's almost on all fours and the motivation for that action is irrelevant the motivation is irrelevant because you're talking about  meanspirited it might be bitten best the difference between an absolute right and you know just a simple well you can do this but not if you improperly interfere what the district court did to us in the disc in the trial she made our right to exclude people from our property conditional conditional on whether we had a proper purpose or not and the whole trial evolved down the well did continental have a good reason for general from the from its property in the the jury obviously didn't think we had a very good reason they got mad at us and ruled against us and assess punitive damages and i the d b i case is not the only case out there you've got it interestingly you've got a case with miller brewing company it banned a trucking company for comment coming on to its brewery to pick up beer and it sued this is the seventh circuit case it banned a certain trucking company from hauling milk into the borden bacilli and told the farmers if you put your milk on their trucks were not taken in the seventh circuit uphill summary judgment saying that was their absolute right to determine who comes onto their property so i say i'm out of time but i'll answer any questions addressing your question judge woman i think the a pet facts are important because the case that was just presented to this panel by continental isn't the case that was tried to the jury nor is it the case that the judge ruled on in our favor not only on summ judgment but also on the post trial motions for j and all the a new trial rather the case that was just presented by continental is a case that does not exist for the argument you heard to succeed the facts of the case would have to change ok that's ok i will speak up if you are thanks for telling me so the facts of the case would have to change and here's how the facts would change gordon carlson continental supervisor was reading his newspaper on the afternoon of february nineteenth of twenty fourteen in that newspaper there was an article about a collision between a driver on our busy county road and livestock that killed the livestock there is a statement attributed to j j havard that says many drivers on the road are going too fast for the condition of the rule road mr carlson as the supervisor of continental is offended by that comment drivers on the road are going too fast for road conditions and so he he calls mr jenner and up on the phone and he says jerry listen i'm offended by your comment or you could say i'm not offended he could say nothing he could just say mr jammer and you are no longer allowed to truck any materials to any site in which continental is doing business period mr carson and continental could reinforce that right by calling c t c tap and saying we just told mr janitor and that he is not to deliver materials to our site now if you have other work for him that's fine or they could just say stop the conversation there  allowed to truck materials to continental that's the case that continental wishes to present to this court but that's not the case that happened the facts as presented to the jury start when gerry j am a visit from a local young man who had a young family said i'd like to start a business i'd like to work a little more than i have been to support my family i'd like to have a second job and jury tampering you have a truck sitting here that's not working the oil field the bokken is busier than heck and i think i can jump in your truck make you some money and we can get the business started and there is where it started and jerry jammer and trucking business j j grew from one truck to six trucks and he had a unique situation where he hired local ranchers who had spare time between their seasons to jump in the truck and go on day trips worked out very well for not only see tapp who just used him as a backup but also worked out well for the local ranchers who earned discipline code so the rest of the facts are as they were presented was a religious and very important so we go to the afternoon that the newspaper was delivered and the harding county newspaper mentions the article and gordon carlson reads the article as offended and calls peter macintyre down at headquarters in oklahoma and said i'm offended peter macintyre testified that he waited several days maybe as much as a week and he went to mr anderson a supervisor and said we've got a problem down in the buffalo field apparently there was a statement attributed to jerry jan friend we need to do something about it and so mr anderson then calls tony to carol from  testified that that call took it was about a week later or so give or take a few days they weren't sure but they transmitted it by email this article surprisingly in the discovery process none of those e mails exist but the testimony is it mr mccarroll was called and he was told by mr anderson in this disputed testimony and to address a question raised by the court and cited by the by the trial court in its opinion that mccurry testimony at least twice was i thought the direction was to terminate jury janvier for all of c taps business and to the comment that a wink and a nod it was a comment that was made at trial i think in political circles it's called plausible deniability but nevertheless the interpretation and we cited it or brief was materials interpretation of that was that quit using him for any business out of the bowman yards and the record reflects that ninety five percent of what jerry jan friend did through his trucking business ninety five percent of it was through the bowman yards and so that was that's affectively terminating him from the business now continental wanted to argue well we just meant we just meant please don't send him down to the buffalo district testimony was and that's important testimony was is is and and i appreciate the fact that you will but it also has to be put in context judge arnold in the context was is that this whole process of these communications to take place to continental and to go back to see tap and then to for the message to be delivered according their testimony took weeks or days at least a week or more i think my time line that i did drink in fresno so the jury was more than that jury tamarins testimony and there was another witness a testified that he received the call from c tap on the night that the newspaper was delivered so the context of the reason why that's important is why did continental lie that there was at least there was testimony and evidence to suggest that they manufactured this whole story about how they were going to go through the process and so the jury was allowed to consider and weigh the credibility of the witnesses and the credibility of the continental witnesses frankly just didn't match up and and that's very important there's also testimony that gordon was heard bragging that he put a local trucking business out of business and that's important testimony and there was also testimony that the reason why cut metal did this and this is something that came up at trial was because jerry janvier and showed up at well sites without appropriate safety  gear appropriate safety gear hard hat and boots and gloves and that was another point of contention at trial that continentals a very sophisticated company when there's a safety violation that's a big deal there wasn't any record of when he did that what well sites that had to have occurred there were no witnesses to support that it was merely hearsay that that's what was reported there were actually there were no records and there were no complaints to see tapp now one complaint to the contrary see tapp said they had that he had exemplary service that he was somebody that they could always rely upon especially when they're particularly short of trucks is that jerry jan was a person that they could call up and and that they would rely upon when it got tight so the distinction the distinction between the for by continental and it's brief and how they fit to this case the d b i case is very important if it's a case it's really a luster to have of why there is a distinction between continentals case and gerry  that is in the d b i case d b i went with directly to d b i and said just as i did in the scenario i painted at the beginning of my visit with you is that you're no longer going to do business with us and then d b i went behind its back and through three different sub contractors tried to circumvent what they'd just been told by america help us and that is as they went parties argue the improper interference in closing or to the jury the course of the case i am glad that you mentioned it because i was i wrote a note about it when you asked it and the question of counsel and are seven factors that indicate whether a party asked acted improperly and those factors were cited by the trial judge as well in its decision and it's in th were the interest and one of the social interests that are involved and that were there are pretty necessary for protection and the proximity or remoteness of the actors conduct to the interference now i'm again i'm paraphrasing and summarizing for brevity but essentially how that fits into our cases at jury janvier and made a comment about safety in the press and there had been some animosity between continental and some of verne's relatives did involve mr janvier and but there was retribution and the retribution was to do what i previously described that's the improper motive the carrying out that improper motive was the certainty or substantial certainty that the communication to see tap was going to be interpreted in such a way where c tap who continental is are major customer is their primary customer in the back and is going to take action had the scenario been painted where they called jerry jan for an up and said you're not going to do business we're not going to haul to us we wouldn't be here that's not the scenario that happened those aren't the facts but that's the improper purpose they went behind his back it went directly to see tap to influence the taps work with mr jan van and back to judge arnold's comment about the wink and the nod or the possible  deniability they are certainty or substantial certainty that that communication from one of the ministry to a ministry toure's of continental who is very high up on the officers  one of the principals i should say not an officer principles of continental made a call to the vice president of c tap and made an ask the question do you have a j j doing business hauling for you yes well and then the conversation becomes a little big and but the conversation ultimately ended up with gerry chandra getting a call that night from my dell she taps manager the terminal manager saying you're no longer going to do business for us and the facts are they got the call that night and he was done and so that's that's our case and we ask this court to affirm the trial court on its denial of the motions for j v a new trial i see i'm out of time thank you i just all the questions thank