begin when you're ready meet please the court my name is michael terry and i represent the appellant's the most important issue in this case is whether the alleged oral or a new rule of an expired three year written contract resulted in a new in forcible contract for commissions under well established law did not and judge and l district court erred in not granting the motion for judgment as a matter of law commits medical products entered into a written contract with dr quinn effective january thirty one two thousand and four now that contract had two distinct elements in section two point one it had a three year consulting agreement with a payment of four thousand dollars a month that amount was payable without regard to sales without regard to whether dr quinn helped with any specific product it was paid every month for three years automatically without invoice the contract was the documentation that supported the monthly payments second in section three point one the written agreement contained a commission agreement providing that for products on which dr quinn services during the three year term resulted in new customers new applications or increased sales to existing customers he would receive commissions for ten years or the commercial life of the new product all right now the jury heard all these arguments yes and found that there was a breach of their oral contract in order him eight million dollars yes that he gets in addition to the four thousand dollars per more and so you've raised several issues the courts or the of granted your motion for judgment notwithstanding the verdict you've got several issues which is the strongest i think this is the strongest and certainly the most important because it affects the eight million dollars and not the other little smaller items of damages is the fact that this agreement was within the statute of frauds it was within no exception to the statute of frauds thus it was an error to allow the jury to to make an award here is an agreement capable of being performed with and when you're in the possibility of performance of the contra within the year is sufficient to remove it from the statute of frauds the number of years the parties operate under an employment contract of it and definite duration does not affect the applicability of the statute of frauds that seems to end the matter not about not this was not a contract for an indefinite of years this was a contract for three years the testimony from dr quinn was it was it capable of being performed within a year no your honor at the end the georgia supreme court has made this very clear in this case is our brief  testified there was a renewal of all of the provisions were held up for how long if all the provisions includes three terms of heroes that are in the written agreement number one a three year term number two a tenure commission agreement now he calculated his damages in this case he said that his agreement with or guess who is it mr wilson and the group of mr wilson in august two thousand and seven was that it would continue for another three year period he provisions of the original written agreement that have three terms of here is contained within it it had three terms of yours and he used those to calculate his damages and you can't say we're not i'm adopting all provisions of the agreement that had three different terms of years contained in it but those terms of years that go way beyond one year and put is for them the statute of frauds don't matter for an oral or new all but i'm going to use those terms to calculate my damages he used the tin your commission agreement to calculat damages now if the tin your commission agreement there was an explanation for that if ott that that was because of the documents you've been given the way they were given that was the best he can agreement giving him that right in other words you can't say i have an aura month to month employment agreement and because of that i get commissions for ten years which is what the written agreement says but i'm not really relying on that ten year provision i'm just using it to calculate my i have read the verdict form and i've read i think most of the charge conference can you tell me where in the record you jack did to the charge the  judge i don't believe that we objected to which charge are you talking about there any any charge no your honor i don't think so tell me where in the record you objected to the verdict form i don't believe that we objected to the verdict for and if we read the charge and know how the jury was charged why couldn't we determine then that the jury was given a correct charge there was no objection to it and that they made the findings of fact necessary in order to support that conclusion of the law because as a matter of georgia law the evidence was insufficient to support that finding and as a matter of georgia law  would i would like them i didn't to object to the jury charges correct statement of the law your honor and we certainly you know we move for judgment as a matter of law on this but the jury charge was a correct statement of the law and we didn't move for a judgment as a matter of law saying there's not enough evidence the judge said i'm going to put it to the jury if he puts the issue to the jury he has to make that charge he has to give that charge we believe he was wrong in submitting the issue to the jerk but the the issue that the court general issue about the oral contract and it wasn't limited to the fact that there was and dumped in an employment period it was basically is there an oral contract and it in the charge included the part performance and performance aspects yes so we don't know exactly what the jury concluded but it made a determination that covered everything and so  only if there was insufficient evidence would could you succeed then correct as they have a wide open to finding well they have a wide open finding two things either it's not within the statute of frauds or it is within the statute of frauds and they prove poor performance now they didn't prove part performance they didn't come close to proving partly forms to prove poor performance under georgia law you have to show two separate things consistent and not in cannot insist and not inconsistent they fail written bonus plan that expired after one thousand nine hundred seventy claim to be an oral extension of the written bonus plan and the party continued to serve continued to get its payment the oral extension of the written bonus plan was upon when it wasn't honored and the court said no the part performance continuing to work is totally consistent with with that contract but it's not inconsistent with a contract where you just get your salary and you don't get it for the jury to decide what needs to be part performance in this case whether he perform the contract or not or how much folk performance no one should have full performance well your honor it's not for performance because it doesn't qualify under that either for performance and there are three georgia cases that say this for performance also requires that the performance be not inconsistent with the absence of an agreement if it was not a factual determination for the jury as to whether it's not inconsistent your honor it can be and there are cases saying this was for the jury but in all of the cases that we cited in al choreo in pain and stuttered they said it was not for the jury that as a matter of law that the performance was for example where you have an agreement to take out for loans and then it expires and you take out one loan and say that's part performance and we had an oral agreement to renew they said that's that's an oral agreement within the statute of frauds and in forcible and the part performance is not inconsistent or  inconsistent it's are is not inconsistent with the absence of an agreement to make for loans so the every element has to be evidence by part performance yes or no you term has expired but i actually thought your strongest argument was the exclusion of robert wilson as a witness and so i'll just give you a few more minutes then why he was such a key witness he was a party to the to the agreement why did the state initially that you didn't intend to call him as a witness because no such conversation ever occurred occurred had no idea that there was even i mean there's well it seems like you would put him on the witness stand you would want to put him on the witness stand the say there and as soon as as soon as there was testimony soon as we had testimony dr there was this august conversation they beam me they talked about this was orally renewed in january they changed their testimony could entertain he said his original testimony was it was renewed when they they put this in briefs early on that there was a contract ok so it was before the death and deposition they put it in their briefs that there was a contract soon after the other one expired now soon ended up not being january that being august  s whatever there were priests saying there is disagreement so why isn't wilson you know listed as a witness well as soon as that kind of briefing occur certainly your honor i wish that he had been but the simple fact is he was listed by the other side and we cited cases in our brief that says there's no prejudice where they've listed him as a person with knowledge he was deposed within the discovery question is put to him are you going to be a witness he's doing obvious right he's doing all the priest or i'll stop and he says no correct he did say no but number one your honor he did not at that point in time actually think that that would be necessary to come in and refute an oral unenforceable representation that under the georgia statute of frauds means nothing but remember this belong before the discovery period and he was listed long before the discovery period he fresh air saying i'm not going to testify you know he's deposed down the road when he's finally listed as a witness and that when he was deposed he was ok so he might have been deposed earlier he could have been deposed early except discovery stayed for two years there was a two year stay of discovery in place so you know discovery was not occurring during that time period but your honor the simple the simple fact of this is we have the key witness to the crucial fa in this case did this conversation occur at all was he even authorized to make such a contract did he have the conversation and he's excluded where they are in a fight him as a witness where  that he should not have been excluded as a witness for that reason and your honor one of things to keep in mind is under the georgia rule of professional conduct which is what government he's perfectly go out to service counsel up until this moment the trial starts even if he is a witness so their argument as to prejudice is that he was serving as counsel but with thirty seven says he can do that you can serve as counsel except at trial and all the way up through the beginning of trial our district court is certainly not limited to what is ethical under the rules in deciding whether this is prejudicial or not i do agree with that your honor but i think given the importance of the testimony the finding of prejudice here frankly should have gone the other way  discovery in truth he was disc he was deposed during a thirty day extension the judge granted because he had had to grant a motion to compel the production documents and that extra thirty days was for dr quinn in order for him to be able to depose people again because of documents that had not been produced originally in the case that's number one number two this business about the case being stayed for two years had nothing to do with this case was stayed for a good period of time while an arbitration went on in california but that did not impact his business about mr wilson at all what mr wilson was about and the court has properly identified this is that when you make a representation to the united states district court that you are not going to be a witness and they did is not necessary for you to be a witness he doubled down on that he wait a minute that they said should the intention change then attorney wilson will voluntarily or would withdraw and not so they clarified their comments they indicated that what we might change our minds in the future they said that at the very beginning you have a clear fact that you had further in they clarified it further was in a server plot in judge penelles order excluding this witness actually makes that point that they changed it from a softer we will let you know if we intend to change at hand about it to he will testify and he is not necessary and what happened in the interv longan talked about the fact that there had already been in the counter claim that already been in the clinic a statement all of this a difficult decision that dr quinn was going to say there was an oral contract and that it was made with mr wilson key witness to contradict the testimony of dr cohen with regard to what their oral agreement was there only two two parties who actually knew what the conversation was and and mr discretion trial judge can abuse this discretion it is certainly that is true if your ass is on me he didn't abuse his discretion tell me exactly how you are prejudiced that's what i asked originally how we prejudiced the way in which we are prejudice your honor is because discovery would have been tremendously different if what the problem was they said he's not going to be a witness now we cannot depose him if we had been able to depose this gentleman we would have been able to do t that somebody is not going to be a witness doesn't mean you can't depose him if he has information your honor i think it would have been extremely difficult for us to oppose missed wilson when he represents the other  other party in the case and he had said he's not going to be a witness in the he's not necessary there are really two things that he did or the prejudice and then i want to go back to what i was going to write it down it didn't tell me practice i'm to write down the number one is that we would have to post him earlier it would have changed the order of discovery that would have made a huge difference in this case one of the things that would have made a difference on was this point about was the conversation either in january in august about the oral agreement because they had not produced the commence parties had not produced the e mails that were the ones that caused dr quinn to remember yes i was working on twenty fourth he did not have that document he did not have the benefit of the deposition of mr wilson mr wilson by contrast it had the benefit of being in all of the depositions and so that's that's one point you know and then what is the reason the second reason for prejudice and this is really so important and that is that it is not ethical nor permitted for a lawyer to confuse the rol of advocate and witness because it's difficult for the jury when that happens and yet so mr wilson so he's still going to be the lawyer in the case he and in cloth versus ritual oh there is this very important point it may disagree about that you understand that there's a there's a rule of georgia rule of professional responsibility there is histrionic there is and that rule let me make this really clear they sided cloth in they side of the dross case both of those cases for the proposition that if a lawyer is going to be taking depositions in a case he should not be or she in both roles you cannot be advocate but and witnesses that if you're taking the depositions in the case and then right or you know it's my understanding and correct that he was not going to try the case if he was going to be it permit it to be a witness he never mr wilson actually never with but what happened is that after this case had been pending almost five years mr wilson at dinner fired that he was going to be a witness on the top of the twenty seven twenty fourteenth and that he would attempt to withdraw but he actually never twelve there was a motion to disqualify and he said he had no intention of being a witness and during this period of time he was the attorney taking the deposition of listed as a witness and twenty eleven would he have been permitted to take all the deposition of all the witnesses no you know and that really illustrates my point that i was so he said i'm not going to be the attorney in the case so i am going to take all the deposition including opposing party of all the witnesses and then in twenty fourteen he said i am going to be an attorney witness in the case that pretty much it in a nutshell that is your thank you and that really describes it very well and  attorney although i think it's a little strange he can be the pretrial attorney under georgia law even though he's going to be a witness but you say there's something that prevents him from as pretrial attorney doing actual depositions yes and what is that well it's first of all it's two cases that say it i don't know and second though the real thing is why why would that be the law and the reason is because of the confusion between role as witness and rollers had to get a problem which manifested itself in this very trial you're honored in the cloth case that's the georgia decision there's a parent that accord your honor and that parent pedicle of a case that they cite says however you can't be taking the depositions yes you can serve as the pretrial lawyer when you're going to testify be in chile but you can't be taking depositions that's in cloth it's also in the dross case the trust case makes the same point why he could be totally excluded when the problem was these regulatory costs and some of the products didn't have regulatory costs and all the damages were calculated private by product by product so it seems to me that at least he should have been admitted for some products and then isn't it really a factual question as to whether these are direct costs or not i mean if you have to sterilize stuff sounds pretty direct cost if you just have to go talk to the f d a maybe that's not a direct cost but the total exclusion of coleus i really don't understand this so you tell me exactly why the district judge did not abuse its discretion in totally excluding the testimony of mr collins the judicial judge did not use his discretion because mr really thr out the kitchen sink in overhead if it were just f d a which is what they wrote in their brief but is not correct that just isn't true what mr cummings was trying to throw in were such things as research and development cost other costs such as order entry and scheduling receiving and shipping he had in addition regulatory in document document control cost packaging supplies all of these in a contract definition that was direct labor to manufacture so it was direct all materials to manufacture plus direct labor to manufacture and so he just threw in the kitchen sink and of course the reason was obvious that would really drive down the rates of commission that's what they were attempting to do through that and then judge to now he conducted three days of dogbert hearings this is a trial judge has been on the bench thirty seven years seventeen is a united states on the bench thirty five years that doesn't make me that smart i am this thirty seven here and so what happened is that judge really engaged in sifting examination of mr co host and said you are using a third factor what was the third factor prime  time cost that's what he used and so he actually admitted to to the judge that well they were there two for three factors here i was i was using not the two factors of the contract but three factors what was that third factor prime costing and if you threw in things like maintenance of equipment if you threw in things like as we said you know research and development would drive it way down and really when one looks at it was doing was throwing in things that just were not direct labor and they never redid his numbers they had their c f o on the stand they had their controller on the stand they did not have them  to a number that was a gross margin and so that was a huge difference i hope i've addressed the court question a do want to hit in my time left two or three more quick points if i could first of all just  that's completely correct this case is not within the statute of frauds it's outside of it even if it were all those land cases that they cite they don't have anything to do not to second it's not a case where he's just an indefinite term of employment he says we orally renewed the written contract and that has terms in it including the tenure commission term which the jury decided started with the commercial viability of the product so he's not saying he's not just employed for an indefinite period time he says we renewed the contract your honor record transcript page four fifty two and there you will see that dr quinn was very careful mr watson was questioning to say i wasn't renewing this contract we had it he actually says it it page forty two that was one of the things that was referred to by mr terry that i'm sorry  just isn't accurate what dr quinn said always said the only thing he said was we agreed to continue operating underneath the original agreement and when he was asked things like he was actually asked when you were new to this now he didn't say it was a renewal that's not what what was the testimony at trial and it's important because what they said until we can get around to having a new agreement this was a contract of indefinite  when how long with the three year period for non competition last well the what would occur he as he was asked would i be under the in forstmann of the non competition he said yes i would be back on by that but what he was saying is that it would always run from when ever they decided to stop the agreement or do a new one so in other words he decided to terminate so dr quinn in fact could not compete for three years after  april the eleven twenty eleven when he when he quit and so that's that point that may have addressed one of the point what about the ten year agreement a big ten year agreement it was that that was that the commercial life of the products were to be ten years if i could address one more or give you one more minute thank you i'm going to go back to this question of missed wilson because back to this question of depositions your honor judge by now had mr wilson in front of him several times he had an opportunity to judge about him we had two motions to compel going to the against them with regard to discovery process we had an order injured in the case that no warrior witness or party could be arrested by the other side because they had dr quinn a rested out of a deposition for trade secret bafta those charges have been  want of evidence but had him arrested and so when judge put nail was making this decision here in this case he knew a lot about mr judge about mr wilson and what was the additional prejudiced it was that at trial they actually impeached dr quinn with the words of mr wilson you dr quinn say you had a conversation with meek wilson that's me on such and such a date and they impeached him with that and that is the confusion of the roles of witness an advocate that's what the law will permit and no one should be permitted to go for two years say how not to be a witness and then they decide to be  quinn never stated before the jury a trial that the original contract was written moot he never used those words no he said all of the provisions of the written contract are what we were working on all of the provisions includes the three are non compete you just heard that the three are not complete was in forcible and it would start at the terminations of his employment years down the road that alone required a writing to have an enforceable three year covenant not to compete starting at the end of of of  even at will employment requires a writing that is within the statute of frauds i want the ten years that they relied upon he says well that was the commercial life of that the contract said ten years or the commercial life they used ten years the contract term he used the three year he says i renewed and said we may had this agreement oral agreement in august of two thousand and seven and he used the three year term that he says now didn't exist to sweep in burma flex plus q s which was approved by the f d a in july twenty eighth two thousand and ten if he hadn't had that three years he couldn't have included that product so he uses three different turns of yours but then says they're not enforceable but his testimony was all of the provisions of the written agreement were what we were working under now let me go back for a moment to to mr wil because the judge wouldn't let him testify he's perfectly entitled to be an attorney at trial if the judge refuses to allow him to testify is it true that he's not permitted to take a deposition or witness if he's going to be a witness that is to me can i say there's not a parent out of call in one of those cases that says that i can't i will say this they've never cited it they didn't cite that case in their brief you would think if it said that they would have cited that in their brief the what the cl case says is rule three point seven does not preclude a lawyer from representing a client part a trial even if the lawyer is likely to be a necessary witness at trial that's what rule three point seven says according to puff up frankly this is the first i've heard about a parent jury so there's no confusion of the role of witness an advocate from taking the death and that was the you know that's what he said is there's a confusion of the role but that the jury never never heard or saw the deposition of dr quinn and it was not play deposition itself wasn't used in cross examination that's how you know i don't know whether the deposition was ever used for impeachment but the depth of the problem with having this statement didn't you say once upon a time that the contract was this date now it's that you're saying this day that your honor using that to impeach a witness in no way confuses the role it's not like you're showing the videotape where you're seeing that it's that attorney there's no indication that it's that attorney doing the questioning  but you know the fact that he was not allowed to testify allowed him to appear as counsel at trial he was perfectly allowed to do that once he was not allowed to testify but he should have been allowed to testify or have your argument m