his minimum yearly sales volume because it's our position that the defendant had made clear all along in the case that one of its alternative grounds for prevailing was that if they had good cause correct answers which they serve in march march seventh twenty thirteen did list the minimum sales volume a as one of their bases for but i guess i find your position mr hall very peculiar here ok first of all you seem to be saying that a party that doesn't file for summary judgment on a particular issue loses the ability to raise that issue a trial no i am not saying that at all good i was saying that they having having taken one position as to why they can avoid it as to why they can abort performance in a conflict i've taken that position and pursued it you know through the appeal that they can't you know if if the court if cattle turned of grounds i mean look you're familiar with the doctrine of judicial the stop right there where if you win by saying that x is true you can try to win another case by is false right there but here they argued x is true we can terminate this at will and they lost on that issue that doesn't preclude them from offering other defenses not entirely but under under the doctrine of men the whole it doesn't mean the whole doesn't have anything to do with this ok the federal federal rules allow alternative and inconsistent pleading and these aren't even inconsistent  brief to this court they ridiculed our claim that and you won and they lost correct so that it doesn't end the case if i understand your position correctly at this point mr hall your it is you know he was subject to the agreement i thought he was in subject to prepare for the sales quote is right well i think due to a couple of actions that the defendant said take it a separate issue from the middle folded and well i know it's a separate issue but i find i mean i have never heard anywhere in commerce in this country of somebody having an exclusive territory with no performance requirements they you but but your position is that on this unusual waiver theory that they didn't terminate him a soon as they could have that they waive their right to do it later and so that he could keep that territory without any performance obligations indefinitely well he he if they wanted to remove him from the territory they would have to separate consequences of  terminating it i mean it but it would have been a breach in your view correct can you point me to any any other case where somebody had that kind of privilege exclusive territory without the ability to remove for cause for failure to produce well i think that the only reason you know you get a point where the defendants are basically by their own conduct they're making the they're trying to make the cot contract turmel will again by not enforcing a right they had you know i don't think so but you know i think in terms of waiver of from him on the sales he did make and they also continued to encourage him to market under the accounting practice service accounting practice ailes named that the company's marketing program was largely done by having  benefit of the marketing effort to get at understand this argument it's an argument that by continuing him as one of their distributors they waive the right to terminate him that makes no sense w you're looking for recognition looking right respectively that might be so but your argument would compel somebody in the defendant's position to pull the trigger and terminate a contract not work with somebody whose performance is below par not try to rehabilitate the operation they have to pull the trigger and the relationship now or never be able to in the future well or or make  commissions and you know ok that might be your argument my closet on that situation that's not what's going on here you're clear you're suing for wrongful termination and there is no principle of contract law that requires  this situation the manufacturer to continue the distributor who is under performing when the contract permits terminations under or not performance well but i mean contract law you know a party with or with a right to terminate a contract and can't give up that right after how many years of nonperformance in your view is to defend the heat wave the right to terminate for  performs well in this case i believe it's four years of not performance in our case so if they'd fired if they terminated after three years that would have been ok you know i don't know if there is a you know what that well this is pretty important practical question for businesspeople right greg because if if if we were to accept your theory that that indulgence of somebody who's on performing results a waiver of the right to terminate their exclusive territory then that's a very dangerous proposition for the upstream company and they would have to they would have to know well if we let this go any longer this burford case is going to mean that we have lost our right to terminate so we got to terminate right away well i mean i think it's going to be contacted around by making you know making it another agreement  in order to continue why should somebody agreed why should the distributor in that situation agree you guys who waive your right eye get to keep your territory and and lays around in it for years to come well i mean that the if that agreement could be entered into you know immediately upon you know when they don't when they don't understand it but the other thing is not it's not entirely one sided where we're just saying he gets to continue forever the waiver arises through the fact that they're also you know they're also reaping benefits from this and that he's you know he's working to develop that territory and develop build up their name recognition in the territories not enough apparently well i mean there were there were a lot of other factors that went into that it was a terrible economy at the time right now as you know and you know the different territories different states have different you know different effects  s a means to hold a territory and set it that you know in the future that would be a factor in the franchise agreements but had not been enforced previously that if if that had been the jury simply rejected his argument that he'd made his minimum your leigh sales volume and rejected his argument that he waived his terminations that a p s had waived its right to terminate him for failing to meet that number you now this court should reject all of mr b reasons for saying that you revert to side first the men to hold the argument that has already been discussed there's one additional thing that i'd like to highlight which is that we attach a tory answer the calculation of the minimum yearly sales volume for two thousand and eleven we identified as the number the mr burford had to meet and the evidence at trial was that he came twenty percent below that number so there is no surprise that can be claimed by mr burke for it all because he not only had the defense listed in the errata trance or but we attached to the actual numbers that would go along with that defense and in fact when he was terminated that that was the reason given that he was failing to produce as required by the contact their structure so there can't have been any surprise here no surprise and in fact in a pretrial conference and on november twenty third teen counsel for burford explained to the judge that it always had been mr burhans understand that there were two different reasons that were given by p s for the termination one was that a p s could terminate him for a lack of sales volume in the other one w what will because it was perpetual which of course this court result the other way now with regard to exhibit thirteen on it's very important to draw the court's attention to central fact and exhibit thirteen this was a franchise document a p s was considering moving to a franchise model instead of just simply having brokers that were pursuant to a contract the nickname of the document is the f f a q which is the franchise frequently asked questions this is a four page single spaced document and the plaintiff mr burford wanted to draw two things from it it was a very confusing document for the jury and the district court did not abused its discretion and keeping it out well and it was set up is in the essence have an explanation of this new model that the company might be calling and what that production quotas are under the franchise model correct that's correct and it doesn't speak to the requirements of the contract at issue in this case of mr burford individual contract that is correct in fact the evidence the trial was only to a p s brokers had a contract with the minimum yearly sales volume calculation that was specific to mr burke for the exhibit thirteen reference something called a minimum production requirement which was not the same thing with mr bird's contract had a rather unusual way of calculating the volume minimum there was something called info usa which is referenced in the contract which is essentially the number of accounting practices that are available in particular zip codes that's how the calculation was derived using that as the is that dominate or this minimum production requirement that's referenced in the family and the exhibit thirteen doesn't say anything about that and there was no evidence at trial as to what it would have been and the reason is that it was a franchise minimum production requirement and mr burford not only was not a franchisee he testified he didn't want to become a franchisee so he's trying to use a franchise document to prove a case that it's not only not a franchise case but he testified he didn't want to be a franchise so the district court properly excluded this would have been very explicit confusing to the jury in the rest of the force single space pages dealt with stuff that had absolutely nothing to do with the case because it was all franchise so that was a correct ruling and the courts should not stop that aside the other focus of this cour different lawsuit which had distracted possibly from his production in the economy in two thousand and two thousand and nine with brutal for a p s and a p s was aware of it so in march of two thousand and ten it met with mr burford in this is on the trial transcript another chance and mr berger is trying to take that chance and turn it into a weapon against a p s forcing contracting parties to terminate a contract at the first available opportunity rather than trying to be fair with somebody and giving them more time to possibly meet their numbers in closing to the jury we argued that that was not fair for mr burke for the try to do that and that there was a commercial reason that a p s wanted to give what was how is the jury instructed on that while the jury was instructed that waiver has to be proved by clear and convincing evidence and that it's the intentional relinquishment of a waiver i don't understand the terminology waiver in the contract context in the nature of an amendment to the contract that we're going to remove these production quotas so it was so that we can never fire you for lack of production i mean what's the legal theory it was waiver of our contract right to terminate him in the event of his terminated by a p s mr bird's argument a trial was that a p s gave up that right by not exercising it for a period of years that was his waiver of the waiver was a p s right to term right there there is not because the effect would be that you would have a perpetual contract right but that's the issue that was tried right evidently right and even the jury didn't credit it and we have the verdict form which is attached to your opening brief shows that they found that number one the minimum yearly sales volume was not met number two there was no way  the sufficiency argument that mr burford is raising to the jury's verdict on waiver is waived because of the close of evidence he did not rule on moving to rule fifty