that he was being a commissions based on those in places yet personally i was of the purchase orders those are all coming through his office as well as through through the office of of rico industr repurchases and he would have no knowledge of repurchase well he had knowledge of the fact that all of the products that were being sold well might had a limited limited space in stores even though they're very large stores they had limited space and they didn't have warehouse space so he had personal knowledge that this is over the five years that he was representing t l c i'm sorry representing rico to wal mart if personal knowledge that they were that their products would be sold off of the shelves and they would be reordered that was how the whole process went and he was being paid based upon the fact that wal mart had committed to a great deal of a product but that that they could have taken issue purchase orders for all their product immediately because they weren't going to be able to put it in their store so they would tell their vendors including rico we're going to order let's say for the sake of argument hundred thousand of these key chains with our alabama logo on them and but we're going to give you purchase orders for thirty thousand now and then a sell out we'll give you thirty thousand will send your purchase orders for thirty thousand later and rico would then would then base their their production base their purchases on the fact that they were going to get one hundred thousand purchase orders i did that for order for a hundred thousand products and rico would actually pay tony care for them for the hundred thousand not the thirty thousand that the issue the purchase orders but they would pay t group and which twenty years the president it would pay him based upon those future orders that would always be that would come in they always came in and they sold the product off the shelf then they would get a call they would get a call or an e mail from the buyer at at wal mart i need another thirty thousand that's that's how the process went so he had personal knowledge of all of that he was involved in extra complete with that isn't it true that one might only pay for wendy's on that well i don't think there's any record that they give anything back your honor their contract between rico and wal mart says that we're not obligated to pay for anything that we don't that we don't issue a purchase order but that's not what the contract with that's not what what the contract with between t l c and and and rico said that contra we will pay you for any product for which purchase orders are issued or which are sold and they treated the commitments as sold and they paid they paid t l c based upon the commitments for the future orders which always came through and that you didn't show any evidence here of damage i'm sorry didn't show any evidence of damages in other words use no formula that you came up with didn't would say if you which had fifty four hundred twenty five pages listing all of the purchase orders that were issued from december two thousand and seven through the summer through two thousand and twelve we presented that and we had and and mr care to test the first of all the purchase orders were listed and where was the formula to show what the damages would be the formula was simple your honor and no way no you know i'm not saying that you can't come up with one wasn't as they said it wasn't difficult to figure out what happened mr mr care but just testified to the fifty four hundred twenty five pages to all of the product items which are going on i think we didn't put it anywhere in a formula that somebody could say that this is one hundred thousand dollars damages a million dollars damages is two dollars damage you don't have that anywhere i do have it and the response of the motion for summary judgment i do having the exhibits the w to serve and the ten nineteen items that show the amount that was paid so all you have to do is total the amount of the sales multiply that by twelve percent and the dot the that fee that that the amount that that he was actually paid we show that he was that he was short of a couple million dollars and commissions over the years we show that he was that it was a regular product a parent or regular habit not  the response of the motion for summary judgment it is in the documents that were presented to the judge to judge brown and the trial court we have the cd which shows all of the sales and the contract which shows that he was  was and total was improper was improperly stricken and that we've shown enough we've shown that mr kerry had personal knowledge of those paragraphs which i referred earlier believe was sixteen through thirty eight a commission died out to make payment quickly within thirteen days of a clearly ascertainable clearly identifiable life and we don't know that because the statute requires payment within thirteen days so it obviously must be something that is clearly ascertainable and identifiable and we also know that because the gravity for not doing that is fairly frequent which is exempt we're damages attorney fees so jane sells a widget she knows how much her commission is sometime between the time that she sells it and the manufacturer gets paid per contract is cancelled that's specifically the situation that is referenced in the legislative history that we put into our prius and that makes sense also because if ours from the corollary to the only wage claim which requires an employer to pay a salaried the act of not apply in the first place so this because this case is not about a specific identifiable commission this is a case where a company says i've got a contract with the manufacturer and sometime over the last six years i think i was underpaid because i should've gotten five percent and we got four percent and sometimes he gets ten percent but i don't really know how much i was under paid i don't really know when i was under paid and i can't really say what specific commissioner i don't know i was under in it's an accounting says we don't know how much work oh we don't know if we're owed anything and specifically we need discovery and litigation in order to determine nine and paragraph fourteen so they don't know and they need to do an accounting case to figure out how much of their own from a breach of contract over the last six years how would we be able to know that almost more importantly with respect to this case is they're seeking to apply the aft retroactively and there's absolutely nothing in the statute or any case law that would allow that because we came in and said we want to terminate that eventually came down to the says he's the president of he'll see if verbal commitment by wal mart is a sale therefore i'm entitled to the commission he only one that says that the depositions of his employees lucian's as to why they did not want to take their own findings that position but there is absolutely no controversy evidence to suggest that any of these people with regard to counsel's argument about specific identifiable commissions we have fifty four hundred twenty five pages of documents of a document that was certified to by wal mart which shows each and every purchase order that was that was issued between the summer of two thousand and seven and the end of two thousand and twelve contract was terminated on september and temperate two thousand and twelve so we have identifiable commissions with regard to products we don't have to go and we don't have to look and go after and find out what those products sold out for that five year period we have to differentiate between that five year period and the information that we don't have all of with respect to the the reorders after these after september two thousand and twelve products that we have sold before that's another issue on the motions to dismiss cost we definitely have specific identifiable commission and although at the time they filed at the clara tory judgment we didn't know that at that point what those what those sales were for the five years we subsequently very shortly thereafter received the fifty four hundred twenty five page report from wal mart and it has been certified so that we know what those commissions would be we just don't know exactly what the commissions would be on the curing cost we were never able to pursue discovery on that because of the the cynicism of our of the count with respect to curing cause with regard to i look at i spoke on this earlier but the contract that we have between way it was treated between us between rico and t l c was that a sale was tantamount to a commitment and it was a sale so when they receive commitments for one hundred thousand product hundred thousand items certain product they started paying commissions on that and those that and there's evidence of that before your honor's there's evidence of that in the record and i referred to it and and i and my original brief and in my reply brief so  he's an indirect all right so they say these are prepaid commissions i we've already paid you fifty thousand dollars on on on the commitments that we've received from wal mart and we're going to pay you another ten thousand dollars next week and you know the amount of returns that we and the producer if there were returns they credited if they credited themselves on the returns and we don't there's no decision as to what those returns were we we don't have a y we don't we haven't received any the from the fence on their part that there were any returns so we don't have any information that there were any returns and the last point o says it we want to terminate as of today we are terminating effective immediately and then several times and i refer to that in my reply brief several times rico has taken the position that the agreement was terminated as of september twenty fourth two thousand and twelve and they took it in with respect to pleadings that they filed they took at the deposition of brian ford when when mr black and said the agreement was terminated september twenty fourth two thousand and twelve now they come up with later which they have a habit of doing of coming up with new defenses and new ideas this agreement was terminated effectively and legally september twenty fourth two thousand and twelve and we are seeking commissions that we should have been paid and that weren't paid between december two thousand and seven and september twenty fourth two thousand and twelve and neither judge larsen or judge brennan said that this was not an  advantage claim that we've made in count three where we say that despite the fact that you have been granted the right to terminate by the by the decision of this court because the contract was the aim to be one of indefinite ration that this was not contemplated by the parties at that when they when they made the contract and it was it was taking advantage of t l c after t l c had through its efforts number of cases recently slavers of allstate just just of the last few weeks which you're right has allowed us to file a supplemental authority it's beyond a reasonable expectation of the parties when they agreed to a mutual consent when they when mr just when mr care focused all of this attention on rico and getting rico involved with wal mart and in a way that they were never involved in before from from here to here and they're still working with with wal mart it created twenty seven million dollars in sales and they took an opportunist opportunistic advantage which was not within the reasonable expectation of parties by terminating this agreement after they tried to bring and he thought that he got that he had done everything possible to make that contract productive for both he and for rico which he did for rico and they're still reaping the benefits of it today thank you