court opposing counsel we are here today basically to discuss why this court should overturn a bench trial judgment that is the question we have placed before the court and that is what i would like to discuss with you this afternoon the short answer is that the trial court improperly used its nd bite at the apple to shore up its original ruling which this court had initially reverse by re characterizing its legal conclusions as factual conclusions however the meaning of this contract that's at issue in this case is a conclusion who law whether or not mark thompson trucking solicited u s silica within the meaning of their transportation brokerage agreement is a conclusion of law the trial court characterization of its findings as findings of fact in that as position and this has never been that mark thompson trucking was prohibited from working for us silicon general the issue is did he improperly take affirmative action to solicit that business  it's been our position throughout this that it's not a matter of he's not allowed to go work for customers of q t s that would be much more restrictive if he were even allowed to work for any customer this is purely limited to he can't solicit that this and his conduct in that regard how he acted in that regard is a question of fact but but ultimately whether that conduct resulted in solicitation is illegal could be it could closure the facts in this case are not disputed it's not disputed that u s silica through it transportation coordinator janice casey made the st contact janice casey is st reached out to mark thompson to see if mark thompson trucking would be interested in driving for us silica her or hauling loads for us silica it's not just it's undisputed though that once she made that initial contact it was incumbent on mark thompson or mark thompson trucking to formulate a bid and submit a bit if he if he was interested in and getting that business it's undisputed that if he wanted that business he was going to have to come up with a bid that was lower than what other bidders had submitted because it's also undisputed that to submit bids for that work it's undisputed that mark thompson trucking did in fact submit submit bids to us so a cut for the lanes that that janice  was was trying to find carriers for that in multiple instances he submitted multiple bits that he rebid the work when he was not st awarded a bit and that he continued to actively negotiate renegotiate his rates with us silicate to get that this is also undisputed that janice casey never actually offered any business to mark thompson trucking and that is the key here that he is the one making the offer she did not offer him any work all she did was provide an opportunity for him to bid on that business there the record is also  formulating a bed or these routes these routes that he had worked while he was under contract with q t s and continuing to rebid those when his initial bits were rejected but  business so at most janice case he solicited bits mark thompson solicited business by responding to those requests well in in a couple of ways one yes he actively negotiated for this business another thing was is that he he knew that these were the routes that he had driven under q t s he made no effort to say you know those aren't available to me but do you have something else something that i haven't already done i'm on or my contract he he went all in for the business that he already knew and that's what violated the contract that mark thompson talking throughout this has tried to paint this as he just passively accepted business that came from us silica and q t s has never argued that that he is not permitted to do that he is permitted to possibly accept because passive acceptance would not be solicitation however if there is under the undisputed facts there is there is just no way to conclude that he was a passive  participant in this process he submitted bits he renegotiated bits he tried to get his bits lowered there's evidence on the record that even after he was provided the business as perhaps  backup carrier that he continued to lower his bids to get moved higher up on us silicates carrier list so it's just it defies all logic to conclude that that was passive acceptance and there's repeating that janice he's never offered him anything there's nothing he could except if he's going to say he passively accepted business that when his lap there has to be something for him to accept and there just was there was janet he sending out communications to all kinds of carrier saying make me an offer and mark thompson took her up on that and made her repeat it offers in an effort matter whether you're quiet suffered any harm or not have an issue or no it's so that this particular contract that's not liquidated damages so if it's presumed that it's koontz testified at trial that that huge p s was harmed by this and mark thompson acknowledged that he knew he would be bidding against q t s so yes there's always the potential i think in any case there's always the potential that the fostered and develop from taking epis n'est there's really nothing that anybody can do about potential outside competitors coming in but the purpose of this contract is to stop carriers that work from q t s from from taking that business  submitting these bids in knowing that it was going to take him getting a lower bid and him rebuilding it in till he achieved that goal there is really no other conclusion that can be drawn from those undisputed facts other than that he  ruling on this case and in that case the court distinguish between general advertisement on the one hand and direct solicitation of a customer known by the solicitor to have a direct need on the other hand in that case the court did find solicitation occurred even though the defendant appellant in that case it sent out mass mailings to all kinds of potential customers because in that case the court found that those mass case being an insurance company and most importantly they culled that mailing list to remove other customers other known customers of their former company but didn't remove all of the customers so in that case the court found that the defendant appellant had engaged in calculated conduct that belied their intention that or their contention that it was mere advertisement similarly here mark thompson talking targeted u s silica he had the opportunity to avoid lanes that he had hauled under his contract with q t s and to focus on other lanes but he failed and refused to do so he admitted that he never approached  us silicon said you know i can't i can't bit on these lanes but let me know if you have something else he never met with anybody at us silica to let them know that he would be interested in something other than what he had already been hauling you know and so then if they offer him something which even an invitation to visit is that you know he's not setting the criteria the company has come to him question the focus is is on how mark thompson trucking responded what his contact what his conduct was in response to that initial request for bits and he did not say no no i can't do those routes but i could do these other routes he didn't his reaction was to just go all in and submit as many beds as it took to get that there is no authority that says you can really have only one solicitor they they both testified that there are negotiations were constant back and forth with each other there's no reason there's no real legal authority to state that just because she was the one that contacted him and and perhaps a gauged in solicitation for bed's that he could not his conduct could not also rise to the level of solicitation of their business and that's what the facts in this case demonstrate so going back to tell may if we're looking at the distinction between general advertisement and direct solicitation it gets more appropriate to care characterize janice keyes conduct as the general solicitation because she was just looking for trouble she didn't really care whe thompson trucking engaged in the target solicitation he testified he was interested when janice st contacted him he his his exact quote was boy this would be a good outfit to get a key knew what this opportunity was he cursed suit it that's what all of the facts indicate in this case and based on that  the only reasonable conclusion to draw from this is that he solicited us silica and in that regard the trial court's conclusion otherwise was an error and should be reversed by this questions mr kelleher it appears in your honour's christopher keller for the apple leave mark thompson trucking trying to overturn a trial verdict is a daunting task the manifest weight of the evidence standard is unforgiving more so when the evidence is clearly and unequivocally stacked against the opponent as it is here the trial court's explicitly factual findings june quality from the outset trial court found as a matter of fact that the solicitation was by us silica not thompson the court further found thomson subsequent bid submissions were made only in response to u opening these findings excuse me can hardly be called a reasonable arbitrary or not based on the evidence indeed the record is clear that us silicates desires for relationship with thompson unconcerned it was always us silica that rekindled the dial a record just lacked any affirmative action by thompson this is the antithesis of solicitation if i can answer the nd point st it is the manifest weight of the evidence and that is based on just based on the fact that this was a trial that was a bench trial and not to some flip but  so this was obviously a question of fact that your honour's reversed the st time around for a trial and we had a trial and an opposing counsel their brief they cited fo fact and various points so so so the opinion is obviously very fact intensive and he witness the demeanor of the witnesses so it should be a manifest weight of the evidence standard as your honour's  of thompson's trucks so it minutely mark thompson response to these requests but that's that's as far as we go and that is where i would respectfully and so therefore this is not if this was an instance where ms casey reached out and in the st in the beginning and then the the remainder of the dialogue was driven by thomson we would be in a tougher position i would have knowledge that but that's not the case at all the facts couldn't be clearer in the sense that every step of the way it's janet casey janice casey who's who's driving this and thompson is in billund every time whether it's because he's busy or has other customers or is not particularly interested or keenan in working with us so i'm not sure but the evidence is very moving to the next point precluding reversal quality drafted this contract it's a point that quality is simply tribes tried to evade but it's the reality the situation and qualit solicitation provision couldn't be narrower it simply instructs as is justice impeachment acknowledged that thompson quote will not solicit traffic so this provision doesn't provide it prohibit thompson from working with a quality customer negotiating with the quality customer or submitting proposals to quality customer who solicited thompson a quality likely wishes it strengthened its solicitation clause are dealing with the contract quality wishes it wrote rather than the one it actually did and that contract contains a meager and under these facts ineffectual solicitation equality now seeks help from the court to save it from its own drafting shortcomings the court should decline to do so especially given the this was a one sided pursuit by us and the trial courts twelve page decision meticulously details each step in the thompson u s silica dial the verdict is a sound one and shouldn't be disturbed finally i will conclude if there are no other questions that point out that this record again noted that this is a very fact intensive analysis court's exact words quote this is an intensive examination of the facts and it concludes as a matter of fact that there was no solicitation again the record is very clear and the cross words opinion was a sound one and we would ask at the court of thurman if there are no further questions i thank you for your time is your microphone your microphone is near dead sorry i was trying not to be distracting i would like to start by answering counsel's questions of well if this is a matter of law why have a trial at all in the simple answer to that is that was procedurally the only way to resolve this mark thompson trucking move for summary judgment it was granted this court reversed it quality transportation did not move for summary judgment so at that point there's really no way to resolve the matter except to have a trial there is no other mechanism to get to a resolution in this case than to go ahead and have a trial with regard to the standard of review if it is this is a breach of contract claim the ultimate question here is did mark thompson trucking breach its contract that's a question of law it it's simple counsel has stated that that i haven't cited a single case that stands for the proposition of the no will do no go review in a bench trial but actually counsel as has provided that case in its case of that it cited in its response of i can or the gross that and it a bench trial the court had some discussion in that case the supreme court had some discussion in that case about the standard or review noting that the parties one party was arguing for manifest weight the other party was arguing or  clearly erroneous and the court said well it's not that simple the factual determinations of the quarter subject to manifest review but the legal conclusions are subject to review and that's that's what we have in this case we have did mark thompson breach the contract by soliciting us silica and when all other facts are in dispute it what's at issue in this case is the court's legal each each future con tact was also initiated by janice casey but the testimony of the parties at trial belies that conclusion because as janice he stated that they were back and forth constant back and forth so it wasn't that she initiated each interaction it was that it was one negotiation process mark thompson's failure to follow up or to initiate after his bits languished is simply that there is nothing for him to do until u s silica accepts or rejects his bit it's that's how the negotiation works he makes an offer and waits to see if it's accepted or rejected once it's rejected he makes another offer  and it's this process to say that he wasn't actively engaged in that process is just an amiss statement of the facts and an unreasonable conclusion to draw you're going to have to get in the ballpark she did also say sometimes she would go back and say you got to earth try again and i think in one instance she did say that she went back to mark thompson with a specific counteroffer the interesting thing about about that instance is she she characterized it as a counteroffer which implies that she went back to him with it with an amount with we want to accept this but will accept this his response was to further counter which means he rejected the actual offer that she made and went back again with a new offer so so to answer your question it could happen in a number of different ways which just further supports this this concept this is just an ongoing negotiation between these two parties  be the question of this being a one sided pursuit or the statement made by counsel that this was a one point cited pursuit by us so it is also contrary evidence if it were one site it would have ended with with janet casey requesting the bit as soon as mark thompson submitted bids it became a two sided converse conversation and he became an active participant in that  this required active participation by mark thompson again janice casey never made an offer from or thompson to accept counsel has not been able to point to a single time accepted anything there is no instance on the record where he passively accepted anything that u s o it provided to him and i see that my time is up so unless there are other questions i she said you know come to work for me and left or the thing and under that scenario he can say well where do i come or what time do i get there are you know so that's not solicitation but if if when i'm hearing you say janice casey just says hey hey it might be nice if you can work for us is soon as they get into negotiation of the terms and he is calling the shots so to  speak as far as what his terms are going to be then it then it becomes solicitation if it janice casey had said come drive this route for us we're paying you know we need trucks to drive from utica rochelle we're paying eight  use but i think that is solicitation but again it started with an offer from us silica in this case we have now starting with an offer for me also if we have starting with offers opportunity are there any other questions no we thank both of you for your arguments this afternoon will take the matter under advisement and will issue a written