thank you i appear here on behalf of the plaintiffs in the trial court the appellant's for this court since the parties weren't provided oral argument in the trial court i very much appreciate the opportunity to be here today and have oral argument in this do novo review of the trial court summary judgment decision the three main points that i want to touch on today are number one the summary judgment standard under rule fifty six number two the critical issue of whether or not there was a meeting of the minds or mutual assent between the parties with respect to a particular written proposed settlement agreement that was exchanged between the parties during settlement negotiations and that was an agreement exchanged by counsel and number three whether or not the trial court properly allowed certain outcome determinative evidence specifically the declaration of mr giles whether that was appropriately considered since mr giles was never disclosed pursuant to rule twenty six a one so let me speak first to the burden of proof and i know the chords well aware of the standard under rule fifty six to just touch on a couple wants number one in under andersen v liberty lobby the standard whether or not the evidence is so one sided that a party must prevail as a matter of law the second thing under met sushi is the district court must construe all reasonable inferences in favor of the nonmoving party and i understand the court knows those standards and the trial court knew those standards and in fact it cited them in pages six and seven of the trial court opinion but we submit that those standards were then misapplied because the evidence is not so one sided that one party must prevail as a matter of law and we submit that all reasonable  we determine the summary judgment and correct it does your honor and under oklahoma law pursuant to the brewery seminal decision on the issue of mutual assent the standard is unqualified acceptance of the terms and that's in our briefing also the question of whether or not there was a meeting of the minds under oklahoma law is a question of fact and that's pursuant to the get l o l see versus city of black will decision that we cited that's a ten circuit decision quoting gomez v honeyed which is a two thousand and eight oklahoma decision so talking about mutual assent the trial court concluded that yes the parties reached an agreement they reached a meeting of the minds on april seventh two thousand and that was were through with respect to a specific draft of a proposed settlement agreement that had been exchanged by the parties lawyers but it was your client correct  yes it was a draft was sent to opposing counsel on march thirty right of two thousand that's correct your honor side and the next day by giles and stevens i'm not sure when it was signed but it was certainly sent to stevens on march thirty you know there were no no changes to that proposed and then pursue it after april seven i gather the settlement was effected i mean your client baker paid him ten thousand dollars well we certainly paid ten thousand dollars and the lawsuit by stevens was dismissed with prejudice against baker it was your honor that was the basic terms of the supplement was it not well as we see the facts  the there was an agreement and we know when an agreement was reached between the parties and that was actually earlier that was on january twentieth because mr giles billing records reflect that on january twentieth the parties reached a settlement and but define the particular terms by the riding that follows i agree on so here you have a document sent by your client that is the writing that follows with the particulars of the agreement ron so you send it as an offer to you tell the court we've we've reached an agreement in principle you can take us off your trial list or whatever you can reschedule and then you draft a document and you send it to the opposing party which in practical reality isn't that an offer of the final terms the evidence the agreement in principle from earlier in the year absolutely it could be yesterday on the other party takes it finds it and sends it back to you wife and heart and except on the law well if there is certainly a signature by both sides i would agree that you have no new contract the question for you is who made the offer and who made the acceptance if you soon be all for signed or unsigned it is in fact that law isn't it an number of factual issues number one is the january twentieth agreement that they were going to pay ten thousand dollars and were going to dismiss the lawsuit the agreement in principle yes but there was never any discussion of a part of the party deal again i think it could be but no one testified there was no evidence in the record that for example either baker hughes or baker petra white agreed to recipient of an offer or not rely on the fact that counsel on behalf of the parties represented i would say sometimes yes and why not  here well number one there is an issue we think in the in the evidentiary record regarding whether it was a final offer because mr giles billing records reflect even after april seventh that he's either negotiating or not sure that there was a final agreement final terms april seventh in his billing records he says review and approve last changes to the release if an agreement was reached as the trial court ruled prior to that or as mr giles declared this declaration that an agreement was was made back at the end of march then why are we collate or is he wondering whether i mean i hear a lot of well this isn't there that isn't there what is what is it that what is the basis of i mean is there some overall construct that you're putting forward we don't believe that a release was ever agreed to by before he was a bigger petrol light we know based on the record that the so even escaping that i'm sorry who who was handling it from your side nickel kay are you saying that mr brossard put a release in there by mistake or used a standard form or somehow or other inserted something that the parties had not agree to i think that's very likely and we don't know based on the evidence for the record i think that's a genuine issue of material fact we know that the agreement was sent to mr stevens counsel mr stevens and mr stevens counsel signed it and then it went to mr brightside by fax that's in the record and then it was faxed by mr card to baker petra white and then never signed it went to in house counsel after it went back that's when the deal was carried out the ten thousand was paid by baker and stevens and they dismissed the lawsuit with prejudice or i was cut on april for your honor prior to that and the agreement to pay ten thousand dollars in may back in january was the check mail to steve we know that it trying to understand the argument is that mistake because i just don't see what else is there the issue is whether or not there was a meeting of the minds between baker hughes baker petroleum on the terms of rhythm the release we know it was in a proposed agreement we don't know whether my clients ever agreed to that they certainly agreed to pay ten thousand dollar i understand there's a wrinkle of your client's there's the problem that it wasn't signed but i'm assuming that mr brossard acted for your client's ok i'm still trying to figure out you you have a problem which is that you have a document that has a release that came from your office and was signed by the other side and so i'm trying to get at the legal what is your legal approach to the fact that the document that was sent from your client had a release it the reason we're at this point your honor really gets back to the only evidence in front of the trial court in front of this court comes from mr giles and because of their failure to disclose mr giles under rule twenty six they want it doesn't come from mr giles it comes from a document that's the strongest piece of evidence now after the document the this th strongest evidence the most reliable evidence would come from the lawyers who when they go see it now do we have anything over from somebody from your client that was negotiating are there any affidavits from mr b d because this issue came up so late in the game it was not disclosed as a firm defense in response to the complaint or the first amended complaint it first showed up on may eleventh which was six months half discovered started and mr giles has ducked you didn't provide the document to him until until what toward the end of discovery it was it was discovered among tens of thousands of documents yes but wasn't there  if the if the document was invalid i mean ultimately they're relying on the document at the documents is subject to some challenge whether there was a boilerplate cause put in by mistake or yeah this is the sign one but it's not the final one or you know there was a discussion that said light on it i mean why wouldn't any of that be in the response the motion for summary judgment because of the position we were put on put in by failing to disclose mr giles the first time we saw anything from is him was in his declaration on summary judgment we had an  signed agreement that my client says they never agreed to is mr bouchard still around yeah but i don't think he has any recollection of sixteen years ago but you could have taken mr giles his deposition couldn't you know the story was still open yes but but didn't do it well when mr giles finally surfaced which was in his declaration as someone that they actually used he was never identified as a person the intended use but he was actually used discover discovery had been close to did you asked did you say look all the sudden they're relying on him and we have this dispositive motion we need to we need either some time to track down the shard and see if we you know just interview him did you did you ask for any free time regarding this issue document the document is unsigned it doesn't tell the whole story we don't know what happened how do you not you know there's an oklahoma supreme court case called stewart versus board of education from one nine hundred twenty four and i quote it is not always necessary that a written contract be signed by the parties to become a binding contract yes and that decision your honor the court also found that there was a genuine issue of material fact well but that was because there was a fuss between the school board and the teacher i mean that those facts don't seem very relevant to the facts here but the principle i mean if you're saying well it's not binding because your client didn't end up signing it oklahoma supreme court says that's not necessary in fact you could have your client could have sat when it transmitted this offer to mr stevens on march thirtieth of two thousand that this is not going to become final until it's signed by both parties but your client didn't put that condition on itself or did it i would agree there's no condition  i just want to make sure i understand that understand your argument you're arguing that this settlement document itself is invalid as not being the product of that somehow whether that document does not stand as the memorialization of the agreement you're not arguing that even if that document is seen as a valid settlement contract agreed to by both even if it's seen as a valid settlement contract you're not saying even still that release either doesn't apply or it doesn't release this particular claim you know we're not saying that we're saying that there are are genuine issues about whether or not there was a meeting of the minds with respect to that specific language whether my party my clients agreed to that language there are issues about whether or not they did ok so then that's a little bit different of an answer so you're you are saying that even if the court concludes that that document that was signed that settlement document is a contract there's still the issue whether somehow that one provision was not the product of an agreement you know i i'm saying that we don't know if based on the record we don't know whether or not my client agreed to the terms of that proposed settlement agreement all of the terms yes or yes ok i'm trying to figure out if you're written if you're carving out the release if you're saying i'm not and we're not taking the position that just that provision is invalid and it's a very broad releas haven't brief that issue we have a challenge ok the a political one ok i understand thank you i'm out of time what evidence do you have in the record that would call that document into question because we all agree your client sent that document campfield for your clients in that document on in his representative capacity for these parties so what is in the record that calls  into question let me summarize them your honor number one there's no evidence there's no evidence in the record that we ever signed the agreement that my clients ever approved that language in your so you you're claiming that your attorney sent on behalf of your client a document that he was an authorized  i'm saying we don't know there is an issue a genuine issue material fact and whether or not my clients approved that draft agreement it was going back and forth between the lawyers and theirs but there was nothing in the record to call that to call his representative capacity into question i agree with you but your client maintains that you that they never saw it and never agreed to it well no one testified they never saw it but the deposition of one of the in house counsel was taken and the question was asked what do you think was agreed to and he said we know we paid the ten thousand dollars we know we agreed to dismiss the case but i think there's something in the record about oh your client later request for a copy of the agreement something about having lost it and wanting a copy for him i do recall that i don't remember the specific context of that but it does raise a final comment i'd like to make none of parties acted as if the release was signed even less than two years later when my client's in house counsel wrote mr stevens and said you're doing we think you're doing something wrong jake he didn't rely on the release he didn't say i have a release i can do whatever i want he didn't say that in fact there are multiple references in the record an individual attorney did not like that was his counsel responded i partners and rob powered from boston glaser who is representing the other parties bruce stephenson as an as chemical but i'm the only one that's going to be doing the talk and time permitting i'm going to talk about the three issues that they raise on appeal and certainly answer your questions to the best of my ability but i really don't have time to go into i think would be important background information in a sense to talk about the fact that there is no real good issues and  valid basis that this case should have been brought in the first place including why we're talking about a sixteen year old agreement and a former employee that left employment at baker in one nine hundred ninety seven so i can only assure you though that those issues were briefed into are there is some are judgment motions and can support there isn't any valid basis for any big risk claims let's go into the release agreement would have to admit that you're also understand that if we delved into more of the background and i don't really want to because we have important issues like this to talk about i would explain the fact that our client or our former client bruce stevens independently period in and that is because if you look at the agreement it has the facts markings that show that it originated from baker's attorney and it was faxed over to guy olson bruce stevens attorney who signed it dated it and then a few days later on april seventh senate back to baker's attorney and from that  forward they performed shortly thereafter and also you have to put this in the context of the fact that these parties had been negotiating a settlement for a long period of time i think maybe a year i don't remember the earliest dates in the billing record but it went back and went back and forth for a long period of time but that i mean if there do you claim and  evidence to support that they actually discussed the release i do based on the billing records they refer to earlier there's earlier entries that refer to drafts of a release and drafts of the settlement agreement so obviously and there is and there is reference in the billing records to an agreement going back and forth there were earlier giraffes that were exchanged between the attorneys and then you see in the last century that coincides with the receipt of the final release agreement that was signed in return you see an entry that says final agreement received and reviewed and then it was signed and it was sent back after it was and well i think this is just typical attorney stuff in the sense that many times i look at it in a sure it might look at a brief and then i might set it aside and then i might pick it up and look at it again but i think the critical issue your honor i understand that point faxed back in there is there is the marking on the document itself three markings that show the progression of it being fact in the last one is april seventh in the significance to that of course is that regardless of any discussion that occurred in between the document was not modified other than the signature in the date being put on it you know march thirty first in terms of later on discussion the years later discussion about whether or not there is a really some in the issue never came up if that's if if i'm answering the you know i thought that he had notes about reviewing it after yeah i think what they're referring to your honor after he sent that is the billing records i think refer to know see after after april seventh the next entry was on april fourteenth so april seventh is the date that it was sent back and it just says review and approve last changes to release faxed to attorney for baker and again the document itself bears witness to that fact that they had occurred so then we have the next entry in the billing records april fourteenth legal work thanks to mr brossard prompter regarding status the settlement prompt the regarding status of so on and then next is you know fifteenth draft motion to dismiss eighteenth receive and exchange documents that's the performance that they did so i mean that's all it just all neatly falls into the relationship with mr giles continue i mean a copy of the release agreement because you know once once we once they produced the copy to us and baker produced the copy that's an evidence and before the court you know we called up giles and said you know do you have a copy of this and his response was we're talking about a fifteen year old document i threw al you know all that stuff years ago and we went back and forth a few times and eventually he was able to somehow come up with his billing records and i can't remember the full back story to that but the bottom line is he was not involved in anything later on after he was the i think the client moved from oklahoma somewhere else as part of it too so later on when baker son a letter saying you know we're reminding you of your obligations on most two years later was not involved and also i just you know really briefly on that letter that they're referring to it doesn't refer to reference in any manner shape or form the release agreement itself so in other words baker isn't addressing the release agreement and then i would like on the underlying agreement well because if you're if you're going to try to say if they were going to try to make the argument that you know somehow this release agreement didn't apply don't you think you they would want to say that in the same letter that it's providing somewhat of a warning but they don't find out about it the i'm sorry how did you find students you know and that's and that's an interesting point your honor because we didn't specifically ask for the release agreement we didn't know that they would have a release agreement in fact it wouldn't be  exactly to have it but what we did ask for are all agreements all agreements between the parties in the breeze in is because they were alleging and the underlying clay case that there was breach of confidentiality agreement so we wanted to see the full landscape of what they were going to allege to be all the agreements entered into between the parties so i can only assume that it was in response to that request for production of documents that they produced the release agreement they probably hated to produce absolutely but you know the kind of the point there is isn't there also somewhat of an admission that they recognize themselves that it was an agreement i didn't se request just you know give me every document that has anything to do with stevens because i would have ended up with you know he was an employee there for like twenty years i mean so but look the bottom line is the agreement itself is the strongest evidence but also there's their own admissions that you have to take into account in this discussion in the fact that they admit that there was discussion between the parties they admit that they sent over this agreement to giles they admit and this is the most critical admission that there was that the parties did enter into an agreement they did enter or have a meeting of the min that they perform in there is you know of course the fact that there is a typical progression of a case is a settlement in principle which is extremely common to do to kind of have an understanding that we're going to agree on a number but now we're going to go through the paperwork and get something finalized and that's virtually the way every case works and that's the way that it worked in this case but the important thing is understand your honor is that they don't come forward with any evidence whatsoever of any other agreement so they admit that there was a meeting of the minds or a mutual assent to some contract so what is it other contract what does it say what does it provide and i suppose then we had a rule thirty b six deposition and they produced one of their in house attorneys who is actually no longer an employee at the time but he was the one that was proffered by the un and he was asked the question well if you say this isn't a contract where is what's a contract and then you know if he doesn't know well do you have any evidence of facts supporting that there was this other ed notice that the one mike owned argument under the rule that you should have declared so the so explained why in there is a thank you your honor for that opportunity the bottom line is we complied with rule twenty sixty and we did it in a very strong way by attaching to our answer to bake second amended complaint the release agreement and our affirmative defenses we had a paragraph stating why the release agreement released all of the claims in the case and we attach agreement it was the only thing that was attached to our answer to the second amended complaint and the only identified there is that four individuals identified on that agreement including br are answer to their second amended complaint where we attached the release was ten weeks before the end of discovery which was july thirtieth so it was ten weeks and another kind of important point on that if i may is that after we provided the answer with the release agreement attached they took the deposition of bruce stevens the target the fended the one of the people that had his name on the agreement and that's actually on the record but what they did is astounding they didn't they did nothing to discuss the agreement directly they only made interact reference to it they talked about thirty different documents during seven hours of testimony and they never he handed mr stevens directly the release agreement and said you know can you prove  voucher what's your support that this is the agreement between the parties they avoided the issue and i can't help but think that i wonder if this is sort of the case of bad lawyer in here where this release was sort of boilerplate thrown into the settlement of the little salary to speak nobody thought about what effect it would have on the confidentiality agreement that had been signed when he left employment but it's in there well you know that's a fair point your honor that it's may have been  perhaps not the best situation for them but i understand that at the time that they had this dispute they were both stevens was suing them for a legitimate beef a legitimate claim of failure to pay based on the severance and so it was in baker's best interest to have a release and obviously it was in stephen's best interest to have her release as well and not have them come back against them later him later on so i mean it's actually i don't know if it's bad lawyering or if it's good lawyering on the part of mr stephen hadley baker if they had thought about what it carved out on this release done release your agreement to maintain trade secrets  well i think they just recognized that it was time to sever the relationship this was i think what about say four years after stevens had left the employment somewhere in that ballpark so they were at a point include the release i mean they're not arguing that they're just challenging the whether there was a true offer and acceptance and meeting of the minds for the contract or what we where we are yes your honor and we would respectfully suggest that there's a very strong evidence that the only evidence supports that there was a meeting of the minds which it has your clients made any statements in the under oath in this litigation regarding isn't just standing that he was getting release well as i mentioned your honor he was the post two weeks after approximately we produced the release and the only reference in that deposition i can't i do i want to be careful about stating because i won't be able to state a verbatim but he was in directly asked about the release and he said basically look i'm not an attorney i don't know you know what was agreed to and the attorney for baker never further explore it he never he never got out the agreement he never talked about gilles he never went through the can  right decision thank you very much thank you the case will be submitted