to dive right into the way i think is the majority of the briefing in the main issue with respect to this and it goes to issue of commissions and when they were earned in this case the trial court had found that my client had violated t particular minnesota statutes one eighty one thirteen and one eighty one or three under both of those statutes those are timing statutes as we pointed out to the court with the leave for nieces case however with both statutes the language of the statutes is very important we believe for this argument in which warrants reversal the trial court's ruling in this case in particular under one hundred one thirteen the timing of that statute to trigger liability and to enter the protection of that statute it deals with commissions actually earned in unpaid at the time of discharge in this case the time of this charge is january thirty one of two thousand and twelve under one eighty one all three again that statute in order to trigger liability with regarding altering of the method of payment which the trial court found here is that it regards payment of commissions earned through the last day of employment after the employee is resigned or been terminated in both of these instances your honor at the critical time period with respect to analyzing statutory liabilities january thirty one of two thousand and twelve when mr carlin was terminated and that day the issue that the court found my client liable for is for payment of the prime bar commissions the result of a lease that was actually signed following mr carlin's terminations the controlling document with respect to how mr carlin was paid was the compensation memo which was issued january twenty seventh four days before his term a nation as of the date of his terminations there were no commissions owing mr carlin with respect to the prime bar deal there were signed there was no signed contract there was no liquidated amount of the commission indeed i find in normal with respect to this case with respect to the amount of the commission which the court has read about in the party's respective briefs there was a fight over basement space and first floor space and some dispute on what the amount of the commission should be in this case mr carlin thought his commission should be thirty seven thousand the court found and rejected point of starting with respect to his request for the basement space that is order which is a page and a half as well as the transcript of the were arguments no where in that in any of those documents or any of those proceedings we find any record of the court determining when mr carlin earned his commission with respect to the prime bar indeed what exactly do you say the court should have done i think what the court should have done is determine first of all when was the commission earned i believe the co granted with respect to the statutory claims because the commission had not been earned and was not owing as of the date of his terminations so i think that's a yes then you say it's a legal question one way or the other there is no fact issue well obviously are back up position is of the court finds that the record is incomplete and someone has been remanded for further factual findings you know we would urge that as well to set aside that the trial court's ruling we believe based on the record however and men are moving papers it was a legal issue that could be determined as a matter of law based upon the record that was before the court yes is there any dispute about the compensation and agreement that you described as being entered on january twenty seventh to the dispute whether that applies no your honor but that doesn't say much about when the commissions are paid as i understand it you rely on what you call the company's standard practice or typical practice well in part your honor i think what we do rely on and i think if you look at the transcripts he focused on the term revenue under the compensation agreement it is when will you say that in your brief but where does it say that the commission is triggered bike revenue earned by the company well it says the commerce is employees are eligible to earn a commission up to thirty percent of leasing because the individual never earned any money directly as i understand it the the party that leases the building wouldn't pay carlon directly correct so what does it mean to say revenue you directly are well based upon the contract it was was our position i guess getting into your daughter's prior question that's where the practice came in which was implemented shortly after mr carlin's terminations which was all right so  it relevant if it was implemented after his termination why is that relevant two reasons one the default position with respect to a compensation agreement on commissions and whether or not something is earned or not is first of all at the point of terminations an employee is not entitled to commissions in the future because unless the agreement says so or if prac custom and practice dictates that people are entitled to commissions following their terminations as well here it's relevant because following his terminations the custom and practice of the company is that commissions would be earned upon the signing of the agreement and receipt of the company of the fun undisputed fact and it was that and disputed because even mr carlin had acknowledged that he would not get paid until mr until the company would receive its money from the client in this case the leasing company that was leases that revenue received by j l l eight what he had to say about this home and case from minnesota court of appeal since we have to apply minnesota law is that a similar scenario where the  question of fact and certainly when there's ambiguity is with respect to the agreement itself which is the first step in an analysis of the commission's case in that instance the court does look at the agreement and in that determination they felt there was a question of fact but i would have thought then if your position is correct that that case should have come out for the employer because as i understood the facts of the the parties had substantially agreed upon a sale but hadn't signed anything and it seemed analogous but maybe you see a distinction yeah i do your honor i think that th then in the in the real estate broker situation moreover that has been deemed an equitable cause of action in the absence of a controlling agreement in addition with respect to procuring cause analysis that analysis requires a moment of bad faith i understand that on hearing cause an actual cause of action but holman was a one eighty one thirteen case now it's a court of appeals case you may say it's not the best predictor of what minnesota would do b for me to second guess how the court came down there to say it wasn't for me with the record on that they did find a fact issue and i think that if you do find a fact issue with respect the agreement here you couldn't when it's earned however i  don't believe there's anything within the record before the court and even within the agreement itself that would stab lunch that mr parlin was owed had earned and was to be paid a commission on the dat termination as it were that is their fundamental point with respect there was a motion the way the statue works is this correct that he can make a demand and the company has to pay within twenty four hours yes if you read the statute the purpose of the statute i give you my oil my story and judge erickson is saying is that if he had made the demand on the day was terminated jail was obligated to pay within twenty four hours is that the ruling  none of his claims are meritorious on the daily brought his lawsuit there was no evidence of any payments to karl and were delayed that's how judge judge erickson felt with respect to the fact issue if you will on the time work missions being earned prior to his termination second of all i'd like to touch on the conditional payments and third of all i'd like to address the new argument that's raised on appeal about some subsequent agreement being made by the parties there is time to do that first focused on the right issue which is when were mr carlin's commissions earned and did that happen before he was terminated or not what the case last night was we need to look at the actual agreement itself to commish what the commission generating event and as your honor has aptly pointed out if we look at the compensation memo which is undisputed is what is governing here the really it's really quite vague meant if leasing specialist goes out and secured a at least let's say it was a thousand dollars a month times twelve months the leasing robin he or the value of that lease would be twelve thousand dollars so in this context he was to get thirty percent of that leasing revenue the value leases that he had that he helped secure what i'm struggling with is how could he have earned any revenue on the day that he was terminated if there was no agreement  the listing party while there was an agreement your honor what the what the facts and the record demonstrate is that as of december i'm sorry as of january thirty first the deal had already been done with prime bar there were no other details changed their mind maybe that's possible but what the testimony on the record is and it's undisputed your honor is that it had been finalized it was coming up on a weekend there were people not available to sign and they were just waiting for execution so it was a deal that was in place and finally finally negotiated and for that reason it was ascertained of all at the time of his determination exactly what the leasing revenue was that was to be attributed to him over the weekend these guys got it over and got a better deal somewhere else or change their minds your position is that your man was entitle commission even though no deal would through  it was and we have to look at the agreement when we look at the record it joysticks sixty five sixty six it doesn't tell us all it tells is the amount of the commissions it doesn't tell us when the commissions are earned and it doesn't tell us when the commissions are to be paid which can be two different things what is also clear on the record your honor is that john glenn with three different checks to mr carlin in the course of litigation and what's important about that your honor is that the corporate what is your understanding as to what why this check was issued to mr karlan and the corporate testimony in answer is it appears that it would have been based on a commission that we felt he wasn't title to but that doesn't speak to the timing maybe they  t he was entitle the commission wants to deal with side well the testimony further by this corporate designee is that the whether or not he and it did not depend on whether or not he was contract itself is one big us as to when it's supposed to be earned they're saying it was supposed to be earned when the lease with signed this contract does not say that well there's even another interpretation isn't there and that's the that it's earned when the m saved that could a o l that could be an entrepreneur cash and that's an interpretation that carlin alluded to in his deposition well i would say thirty three of his deposition he gave an example of jail received one hundred thousand if you get thirty well your honor i would maintain that that kind of the context of that the vat testimony is kind of it's taken out of context the question was and i'm also looking at j thirty two and his depo transcript at thirty three the question was ok so i guess explain to me what you understood about how the structure was going to change and his full answer is my understanding is that salaries are going to be lower and commissions required to now go into effect versus a bonus structure least are there remaining questions of fact in this case i don't believe there are your honor again if we look at what minnesota president knows when we've got a very contract like this when we look at case law and try to find out how the courts have ruled on this if one at the contract is vague and two there is no custom and practice i know they argue that there was but there wasn't because of the times this one a fact on january twenty seventh he was terminated on january thirty first there was no cat custom and practice in place so we don't get the answer from the contract and we don't get the answer from custom and practice we look at minnesota case law now the cases that appellant has cited all are examples where there we have a handbook that clearly states that if an employee resigns without proper notice or is terminated for misconduct they don't get the p t o it's clearly defined we don't have that here in the feudal corn case there is a very detailed written plan talked about in that case that provides that commissions are not earned until x y and z happen again very clear very clear and that court resumes nothing in the red record indicates the plan continues in effect post germination not this case so we look to the wages case your honor which is what your honor which is what we have cited here the wages case is very analogous it's a situation where you've got a contract defining a percentage for commissions but it doesn't define the commission generating event in  that case than the employee's argument that he was entitled to commissions for work that he had done while he was on the job even though his employer had not yet received payment for those services very similar to what we have here and the wages court reason that at the time of the employer's last day the amount of the receivables relating to his work was known and that it was an error for the district court to conclude that under the contract the employee had on commissions on receivables relating to services performed on his drop and they found in that particular case of the employer that refusal to pay the commissions was a violation of one and he won thirteen here we've got the pretty much the same scenario we've got a the lease a not yet been executed that's true and that's undisputed and that is what the record is but your honor there as we know that that went forward and if we talk about equity in terms of the employee perform the services it's not entitle the statutory ramey's as i understand it is that wrong or i thought the company saying he gets his commission well sending checks and they're saying you know if you want to debate about the basement or  what you can debate there but but they're giving him a commission while there is the companies taking different views on that you are not going to speak on behalf of the company and their company still cash those checks he doesn't have the checks they've been the only time that i would say that they have acknowledged that was after the suit was filed and they tried to sign him checks which they put conditions on saying but you can't cash those checks if you don't agree that you're waving your other any claims you have so what was the extent of those of that condition it wasn't clear to me whether it was a condition on this particular payment for prime barr or whether it was a condition because at that point he had a number of other claims pending for different thirteen inch a one fifteen on that was communications with counsel was that on may sixth two thousand and twelve there was a payment issued for sixty five hundred dollars approximately that shows on the check on the paycheck for commissions of ten thousand dollars at that time the condition that was put on that is if you cash that check we mayn't we being maintained that that's fifty percent of the commissions that mr that we  karlan and on the prime are due so it was a limited condition which i did pry bar so when they said well we're just trying to stop him from getting double recovery we just you can't recover twice on the same commission yes your honor it was limited to prime bar but the problem with that is mr collin believed he was to thirty eight thousand dollars all too much ultimately the court term was thirty four thousand dollars but in either event half of that number even if you take the smallest number and seventeen thousand and they were only giving him temp thousand so by cashing the check he was put in the position of waving about seven thousand dollars of commissions he thought was to actually more because he thought more was due in that so i ask you one question about the attorneys fiord i know we'll talk about the fear issue later itself but on this question the discord does say that when carlin commenced a lawsuit he was not yet entitled to either of the payments at the time he brought the suit his claim that he was entitled to these payments was factually and legally unsupported is that inconsistent with the court's ruling that he had already earned the commission it is difficult to reconcile first of all i would say that the order on the few order which is issued in july won i don't think that we can fairly take the reasoning there and say that was the court's reasoning and manner she certainly didn't put that in order and i can't reconcile what she did but what i will say your honor is under the statute if those commissions were in fact around and the employee mr karlan made a written demand for those commissions which he did and which are on the record  eighty two on february twentieth two thousand and twelve that's when the time started running that's when he had a right to that money he was supposed to get it within twenty four hours and there is no dispute that it's probably were twentieth two thousand and twelve that we still haven't done really reviewing the district court's order in this case but it's a very short order and it says for the reasons stated on the record that it was a it was a to grant the the relief he could you refer us to where in the record the district court sets forth these these reasons i mean with regard her summary judgment order your honor i don't know that she wants i don't find any reasoning when i look at the transcript of the hearing in the court's court's statements it seems to me the court jumped to the conclusion and doesn't really give us any much in the way of reasoning if i may answer a question i'm out of time but if i may answer that question yes well i think it is difficult for us to know exactly what the judge's reasoning was but what i think the reasoning was and what i think was the basis of the discussion at that hearing was there were three payments that were made and that was a knowledge meant that there was something to do miss would do to mr carlin but they were conditioned you may think that but is that what the court while the court at the court comes to the conclusion that those commissions were earned and i think that undisputed facts on the record your honor score providers in the reason we only have what the judge what that what judge erickson put in her opinion so no i think not it doesn't elaborate more than that we only have what was on the record at the hearing in the briefs that were submitted as to what she was relying on very well thank you for your argument mr schilling stad you have little time for battle with respect to the wages case that was relied on the reference by a plaintiff counsel as well as the other cases those cases notably are all the result of jury trials i believe for some or some fact dispute that had to be sorted out with respect to the details the wages case is also notable because there with respect to the obligation to pay the plaintiff in that case to look at receivables that were in existence at the time a termination again i reiterate our point with respect to that key point in time under the the checks get sent back to us in the context of this appeals this claim that if they've never been paid i don't know how to get this resolved for them to cash the checks although it is jail's position as to i believe is the number your act the company's acquiescing in the you know where the judge came up and that's the dollar amount that was paid to mr kurland but just as a cash there was paid in the last check i thought she just said the first amount was like ten thousand which was less than the emotions all right thank you very much why don't we go right into the related case on the attorney for yarder which is docketed second