the last one standing walked out scot free in agreement that foley's the trial court erroneously held that as a matter of law a defendant cannot be liable for the acts of a settled despite legally sufficient evidence that saudia a one billion dollars pharmaceutical companies interfered with united allergy services contract a position three of which included aaa p c members and did so with the reasons st the trial court erred as a matter of well established texas law that a defendant cannot be held liable for the acts of a settled coconspirator that can't legally sufficient evidence demonstrated that a there's multiple pieces of evidence for the most direct one as an internal meeting email rather a body of representatives where they talk about biz being a company called h c a or hospital corporation of america they talk about they know that they're in contract with you and that they suggested to that in a day that you asked was engaged in fraud and the e mail itself says that the h c a people reported back to them that they went up the chain be a terminations that was wrongful under the contract because it was not done with the proper notice and things of that nature that just that was not an issue at trial i think whether or not the defendant breach i'm sorry whether or not the target or aged i think is an interesting question reducing performance alone would be enough to be damaged under texas law but breach as well which they did by terminating that was not an issue that seemed to be challenge below but our reading of texas law is that portions interference with contract is actionable and damage even if there's a reduction in performance under the contract so in other words there were other contracts where the target the physicians clearly stop testing and treating patients because they were scared that they were committing fraud by being in contract with the again these are other emails which are testified to by the that's a that's a good question your honor and the answer to that is if they if they terminate without the proper notice and they terminate without performing under the contract as required by the contract then that would be argument that the loss was the right to terminate but that the testimony was that they would not have terminated otherwise and so it's not that they had a right that they were exercising under the contract that was a violation realized that was the destruction of the contractual relationship that was the tort and so i understand the case law that says that convincing a defendant to exercise  why because you've scared them into thinking that they're committing fraud by paying and not contract i think that's where the line is crossed when you go and you tell something that you know is wrong and false and then you convince the party  they're in their relationship or reduce performance under the relationship it's not like they told them you know under this contract you can just do this or do that or charge more money or pay alas they went much further than  not you are correct your honor also that the tort of interference with prospective relations requires independent tortious conduct that certainly there was that but that is not a requirement interference with contract that's why we believe places where they know you ass is in contract with the position secretly telling those physicians if you're doing business you're engaged in fraud and at times finding physicians who are considering that relationship and telling them if you're doing business with you you're engaged in fraud and they're reporting back to their superiors in email which is indefensible that they were successful at causing either determination of that agreement or the agreement never forming in the st place that it was inappropriate and doing this with the employees help pacifically on your winders one of the two remaining defendant used to work at saudia she drafted the plan in august of two thousand and twelve called the remote practice of allergy strategy to put and physicians out of the allergy business she then goes to and by her mother's about maddox takes over that organization as a lifelong pharmaceutical rep receives hundreds of thousands of dollars a year and starts to carry out the plan in conjunction with body creating articles for the body of representatives that they actually took in positions offices and successfully used to scare the physicians and also having meetings in emails which were united allergies services means you're committing fraud no one at trial said that that's true because it's not and at least under the standard that this court has on legally sufficient evidence it's whether or not the jury could believe or acts of saudi representatives with the athletes help but they were not asked now the other side says they weren't asked because we don't now respectfully we didn't have the opportunity to ask the trial court issued a judgment as a matter of law at the directed verdict stage eliminating the civil conspiracy count and so without the ability to ask them we were unable to now what the issue as is the judge judge but as a matter of law was that correct almost fifty years ago the texas pretty port mellon the joint ports teachers cannot escape liability just because another one settled yet that's what this court held on the basis of was four and i are reading and then the more recent clinic opinion from the court of appeal which has been substituted but still remains that's improper texas public policy encourages settlement and discourages let a geisha but allowing the last one standing to avoid liability altogether what's telling is that in closing argument they told the jury i quote you considering the tortious interference claim the only conduct you may consider is the conduct the miss wonders and the conduct the mother's about mattocks this jury was justifi been submitted there was insufficient evidence for that question to go to the jury and finally even if it had gone to the jury the the jury's answer to question nine on the more pending thing and defense provides a complete defense to the claim i do want to address one of the points made by mr lowell which is his belief that the basis for the that district court granted a directed verdict was the belief that settlement precluded conspiracy argument made there was that body of conduct could not be adjudicated settlement was among the circumstances that prevented that adjudication but the primary reason is the one that the district court identified in denying the motion for new trial which is that you are yes never thought to obtain that finding and that is a mandatory and critical requirement secondarily there was never any argument that mothers is the beneficiary of a release given to favia in the settlement that's the mcmillan clinton smith case but relied on by you it has no bearing here because that was not the argument made no one saying we were really what we are saying is what the texas supreme court said what the patterns say that in order to have liability for civil conspiracy someone has to have committed and a tort that is completed dismissed from the case that took the issue of father hughes tortious interference out in order to have a conspiracy finding we're not saying that it never could happen but in in order for that to happen there had to be a re reintroduction of that issue into the case and at no time did that happen we can see that throughout the records we see that in that i saw her not taking the position that they could not  fired it's just you're saying that's correct your honor they didn't and and judge lamberth in concluding in denying the motion for new trial that they didn't is absolutely spot on we can see that in the motion to dismiss pursuant to the settlement that's a joint motion representing to the court this point out of the case where not going to have a try we we saw it in the whole circumstance of the trial and i do have to take issue with you after this current characterization of the case their position at trial was that tonya winters was the mastermind of this conspiracy the locus of the interference was mothers with not is because new a a s never asked for it and so what the district judge would faced with at the time of the motion for directed verdict what are the issues that you may ask had submitted for determination and i think it's important to note that if the plank this who controls how they plead prove and submit their case and the best evidence of the issues to be submitted by you i ask for a determination by the trier of fact or the jury instructions that is requested and we discussed at length i know they're going to say well we ask for individualized findings on the conspiracy claim but we explained at length in our brief that the about page thirty six is where the argument starts the conspiracy question as constructed would not have a list of the finding that any individual coconspirator had completed the tort of tortious interference that instruction that people can commit acts in furtherance of the conspiracy but it didn't work wire that there be a predicate act and so it wouldn't have a listed in that finding so we're not saying you can never do it in fact both sides have cited cases where that could have happened the boynton case but we stuck to that a circumstance where the settlements allowed for allowed for a finding of liability because there it had been to see that there was an  in that case there was a settling defendant in ancillary litigation and then the case before the court was a bench trial where the only claim submit with conspiracy so there was no claim for the products it tort and the defendant or the party who was alleged to have committed the predicate act was not a part of nevertheless the findings and conclusions that that trial judge entered in that case when i had a need of the fix finding that kevin cases the alleged pick it up again in the gusts in the absence of evidence that there is independently tortious conduct but in any event the h p a email itself shows that there was independent consideration of the issue and a decision by  c a not to go forward i would add that the th a contract is not in evidence so this notion that h c a violated some term of the agreement that required notice is not of record in the case there is no evidence of that with respect to th p g i i'm going to guess that the citation from the record as to mr hill's testimony what mr hill testified was that changes in insurance caused a decrease thousand and twelve you can see that at page ten thousand five hundred of the record and there that decline in performance predates the alleged interference by fatah these phone was insufficient evidence and related to that point there was insufficient evidence of an independently tortious act that would have supported interference with prospective relations  that can't wait for the charge conference and here is why if we had waited and there was submission of the conspiracy question as proposed by u a s in this case then we would have had a circumstance where i was and there was an adverse ruling against my client we would be in a situation where i would be the party seeking a post verdict motion to do that comparison finding and in order to do that under rule fifty i would have been required to raise it a directed verdict stage and so a defect of this nature which is more akin to a pleading the facts than a charging defect it needs to be addressed and was appropriately considered and decided by judge la the question even if it had been asked for but it was and i do want to also address the necessity of the finding the suspect to the conspiracy question so one of the things argued for the st time in reply was we relied on the pattern if you look at the pattern at p j c one of nine at the very top before you even get to the guts of the question it says specifically it is condition upon the finding of a tort other than negligence or statutory violation and so the pattern itself incorporates the principle set out in tilden versus marshall that makes it very very clear ringback that you've got to have a predicate a finding of a predicate tor in order to have a conspiracy question you can make it to the jury and that didn't happen in this wasn't even identified as an issue to be determined in the pretrial memorandum which you can find at  that is not the law it is the plaintiffs who controls what issues are submitted for determination and this court in hadley at forty four f three hundred and thirty seven to specifically noted in the context of p damages there that the defendant has no duty to ensure that the plaintiff has furnished jury questions covering all fact issues necessary to his cause of action and that's what happened here they didn't submit it we think they couldn't but regardless it doesn't really matter with the reason is they did not and so going to your question again judge james there could be a circumstance where you could submit that but that circumstance includes the plaintiffs requesting it and that didn't happen here i wanted to say a few words about the juror juries answer the question number nine which was the nor pennington question if the court had submitted the conspiracy question  they would not have found that even if they had found that there was a conspiracy the nor answer one does any liability there and this really goes to the nd issue that the plaintiffs identified in their appeal which was you know this the up the juries other findings preclude a finding of liability on conspiracy and the answer that question is absolutely yes is their findings did preclude it and it's are being relied upon for tortious interference whether by mothers or fathers or the allergists it was all presented and all considered by the jury and they looked at that and they concluded that it was it was a part of mother's efforts to influence the government and protected under nor and again that finding has ample support in the record we can see it at in the evidence asking for public relations support in connection with its legislative initiative that's that fall squarely within the or the evidence regarding mothers protected activity was a listed on questioning by mothers had fully integrated public relations campaign ancillary to its efforts to seek regulatory changes that would risk that would deal with the remote practice of allergy you can see that in the four st rategic pathways document that's thirteen thousand three hundred and ninety eight of the record there was ample evidence for the jury to return an answer yes to the nor penny in question and because all of the conduct with the same that kind of takes me to the end i might actually leave time here i just i just want the court to consider what you may ask is asking here they're asking for a nd chance to ask for and obtain a finding of tortious interference against fatah which is absolutely required so that they can then seek conspiracy liability against mothers and given the record here which include a concession that fiat has been settled out of the case and they have been dismissed that's a far fetched and unwarranted conclusion or opportunity to get them us has never said either in the trial court or here that it will seek an affirmative finding of a predicate tort by fatah and we think that they can't they can't because they think there are agreement precludes that and in any event the evidence doesn't support it so for all these reasons district court's ruling on the directed verdict should be a did not seek a finding on the civil conspiracy claim and were not given a purse bought at the apple because we weren't allowed to the trial court issued a judgment as a matter of law before the jury charge conference and before the jury was instructed and adopted the erroneous legal theory that you cannot be liable for the odds of several coconspirators if you're the last one standing that's not the law and so by making that determination they spend all their time trying to cover it  do it in a transcript is going to say no is this a chambers constitutes oh no you're on a you're wrong i mean other than just you saying it don't get me wrong but i'm just saying when i read it how am i going to conclude that the judge miss the texas point or otherwise is just completely barring you from doing what you want to in a full blown jury trial that it's revved up that's yes and what i'm asking i do your honor thank you and two places st we put it in and thirty five dollars of the record excerpts you'll see the question that we were the instructions we were proposing for eight out of the pattern instructs the jury one or more persons involved in the conspiracy must have perform some a the further the conspiracy and this is an entire paragraph on whether or not the apple is can be liable for the civil conspiracy of the conduct of the codefendant putting portsmouth interference on what sure instructed on on the prior page the nd place us asking because the jury the judge had already tossed the civil conspiracy claim prior and the judgment matter of law stage now if they wanted to say all you have to ask about the underlying conduct that is objection is then on elm and then we  opportunity to fix the charge or the instruction and resubmit it then the trial court rules are not then the jury answers that and then we know what happens to all of that speculations pretty far from what actually happened which is they made one objection winters were themselves the perpetrators quality over the perpetrator that's the problem that's what most of the evidence was whether or not and what was the fact of or not is a different question this goes to the door pennington question as well helping a private multibillion dollar company go secretly border door to position him and them they're engaged in fraud is not more pending and is not government protection it is not free speech is actionable they bring up all sorts of other things that they introduced into this trial but for this systems professional services which is the texas supreme court case says you don't have the contract and then we say international unit auto aerospace which is a dallas court of appeals case which says that reduction performances and we also h