support the order that we believe was factually insufficient and that a material fact existed as to whether the subject employment agreement between mr sellers and second could be interpreted as having a condition allowed set co to terminate without cause mr sellers twenty nine days before the terminations date and therefore denying him long term incentive benefits if you argue that the that the  were ambiguous it we'd argue that no we did not argue that in our breath that was based on the testimony of mr sellers and his deposition looking back though if i had to say otherwise yes i think there are inconsistences in the agreement and i think the agreement should have been written in a different matter the evidence is also s that but in this argument but obviously there are some inconsistency is within the four corners and we would like to bring that to light primarily one section three of the figure out what happens between section three and section eleven right and i agree with it i believe that's where this comes down upon do you agree that the condition precedent is either the condition that is a good expressed is that the employee has to be employed on the date certain or in the term of date in order to receive the benefits those are kind of redundant because in neither case would you be employed prior to that day nevertheless there are exceptions to that exclusion and they state that the employee has either been disabled during the course of his employment or has died during the course of employment in which case they would determine a date within sixty days from the date of that death or disability determination prior to the termination date and make a probe radda award of the l t i benefits there's no mention in section one state what would happen in the event the employer were to terminate the employee said that that notice was to be thirty days it was one day short and there was payment made in lieu of notice after the why didn't you argue that he was therefore not to not gone on the date on the team i believe he was i believe that was the day he was in fact employed except he wasn't working there in that time but was paid throughout that's what i'm saying how come you didn't make an issue in that room i think we did to say later on that was paid through the terminations day and he was paid through the term nation date and that's my point then he was caught and you could argue that he was on the payroll on a date on wh we do know is that when he was terminated paid in the loo because the thirty days had not been met it went beyond that time that he was actually in fact paid when we talk about sex the eleven that which talks about term nation that paragraph there says when there is terminations without cause that the employee would be paid through the terminations day and also receive any commissions and r benefits period pursuant to section three period and then it goes on to talk about release in order to get covered benefits which we are not arguing today and other  benefits to that don't have anything to do with the condition of section one so we do have that where that condition is not precipice upon the fact that he is not employed on the date of the terminations that he got those two like the problem is the reference to dr paragraph three it references back to paragraph three yes it does and say go back to paragraph three and it is hard to read paragraph three along with paragraph eleven it just really is because they go at it almost like they will go back and forth now what the court is says is that condition one for the condition of  section three is what should control we've looked at the case law and we've cited a case on our brief and basically i think the most effective case and i think one of the most explanatory case is that in circumstances such as this the court doesn't look for a forfeiture of benefits but looks for a translation that were laid this to be a covenant as opposed to a condition there's no question in this case that mr sellars worked the five years last in twenty nine days if we want to argue that and he was entitle to five percent of the net value of the projects that he worked on or generated or had something to do with with garb the benefit of second well you know we're talking here about if i read correctly between ford five hundred thousand is that the value of been the five percent value right if you when you look at what the mint the actual worth of history of his assignment was and what he was able to generate for the company in that time that would have been eight million five hundred seventy three thousand six hundred thirty four dollars which would have been the one hundred percent the five percent would have been the four hundred twenty eight thousand six hundred eighty one dollars seventy one sets that we both parties agreed would have been available so it's we could have argued also quite a marilyn on that but basically that those as we went along trying to decide what the value of the  you eighteenth which is what the contract says based on the thirty days provision based on the failure the thirty day notice and then the payment subsequently made in live there shows almost allowed would allow one to argue it's a contract of adhesion because the employer holds all the leverage and if mr sellers had made an election to resign prior to th would have been out the benefits regardless of how long it worked if he had been fired for cause he would have been out the benefits and that's stated in sectional levon under both terminations for cause and resignation you're not going to get the benefits if you do this part of the terminations with regard to disability and death is pro rata is not denied simple because you're not around or you're because of death or you're unable to work because of disability but you're entitled to recover the l t r based upon the time you were employed which is i think could be determined by the company and by either the estate or by the disabled employee but here where it conks about with your terminated without cause which suggests that i see employer as decision then the employee is going to get paid through the date of terminations plus commissions and l t r benefits and it says per minute goes back person section three and you go back to that but i think that's a powerful thing that avoids a forfeiture where the employer has all the leverage with regard to this contract  in closing i say yes i agree that this contract could have been written in a better way and probably would have had the need to be here today but we have what we have and what we do have the two sections that compete and we do have a law that has been either in this case david sellers fulfilled his obligation three principal reasons that i want to talk about today first because the employer an unambiguous condition perceived that mr sellars had to be employed on january eighteenth two thousand and fifteen in order to be entitled to the l t identif can't the case law on the rules on which mr sellers relies relies to argue that he should receive a pro rata share of the l t i benefit those case laws represent  construction that does not apply in the face of an unambiguous contract and third mr sellers extrinsic evidence should not be considered but even if it is it's not confident summary judgment evidence so first i want to turn to the agreement and talk about it section eleven defines five ways that mr sellers employment could terminate there's cause terminations there's resignation by the employee death illness or disability and terminations without cause terminations for cause and terminations by employee bus contain language those are eleven c and eleven even say employee will not receive any long term incentives if you look to eleven a d and d those provisions each say each state that the long term that the employee will receive the long term incentive unambiguous condition it's stated in a classic if then construction if the employee is still employed on january eighteenth two thousand and fifteen then after that date but before march fifteenth two thousand and fifteen employees shall receive and it goes on to  agree that without cause means that it's a unilateral action by the employer who just says the what for no reason whatsoever we no longer need your services with the company and that can be invoked at any point in time that they feel like they don't need his services isn't that a fair statement of without cause that is fair and so that would afford the employer under your reading of the cop tract a unilateral way to defeat the condition cases looked at in agreement and said we don't think we're going to assume that the employer reserve the right to terminate this employment relationship at any time and cut off the right to the incentives but the parties could do that if they wanted to and they stated it clearly and the court said if such was the result intended by the parties it should have been expressed in terms of clear as to remove any valid grounds for construction for the next question i would have for you is what do you contend was his determination date i'm not sure that the summary judgment record is clear on that i think it was probably important though if it's not clear on it i mean that's kind of a pivotal question for the condition precedent isn't  well the term nation date was december nineteenth or december twentieth ok and what notice did the employer or city employee receive that that was the terminations date he received a packet from set o i think he received it on the summer twenty s that's what mr sellers affidavit states ok and what about the language in paragraph eleven i believe were guarding the thirty thirty days well he's entitled to thirty days notice unless the company chooses to give him pay in lieu of notice and that's what happened in this case he was given thirty days which amounted to i think it was fourteen thousand dollars or so and he admits to seeing that that's in the record of page twenty thought ok so you're saying that that's a clear provision as well that if i just give him thirty days pay i don't have to give him any notice whatsoever i just given thirty days pay and then i use the january or eight why was me still there only eighteen if we got thirty days pay was he was he was he removed from his office was he a scored out of the building on the position that he held it's not a summary judgement record i don't know your honor i can tell you that he was not still with the company as of january eighteenth the date them why do you say that on what basis do you say that because immediately after he received the notice of terminations they started the back and forth letter writing campaign about what he would be good and well but doesn't waive his rights under the contract no i didn't say that it did you well then you but you just affirmatively stated that he was not quote at the company on january eighteenth and i asked for the factual basis your honor i  can't point to anything on the record that would show that definitively well in a contract it is a huge hammer leverage of the employer terminated without cars order to keep from paying him the money the money of which was in reserve in available to pay him in the employee ops not to give him notice but to pay thirty days why is it reasonable construed is that in fact the thirty day payment ren him there on the a cheap and therefore he was owed to money employer could have put in the contract that if we opt to not give you notice and pay you in lieu of that he'd show not be construed as a continuation of employment etc etc so just like he could have written a better contract employee could have put up a vision and says we don't give you notice and we pay you you can use this to argue that you're still there they didn't do that so why isn't that a reasonable interpretation of them where both sides then put everything in they could or your honor i think paid in lieu of notice would seem to indicate that the employee is being paid in lieu of notice to get him out of the company sooner than he otherwise would it's true but joe joe this you twice and you don't have to answer to no actually or in the record what the circumstance was in that period you said you don't stand some original record you don't know the answer so we a thing you say is actually speculative speculat setter terminated me without cause on december twenty eighth two thousand and fourteen so i get that i noted that it's in there but we also know that the contract provides employees and titled the notice in lieu of getting notice the con the employer can opt to paint thirty days payment so they paid him in lieu of the notice and so given no express provision in the card trick that say doing so can trigger him constructively being there for purposes of this benefit question is just the best case you have to say is that kate be the case he argues the texas supreme court cases that disfavor forfeiture and say treated as covenant so just sa contract as they do and and i'm not sure i'm persuaded by your argument that his affidavit is is the you know mounts to a legal concession about what the contract was i mean any layman would say well they fired me on december twentieth because they gave him some kind of package and then later on they probably were working on their interpretation of the contract side to give him the pay but you know i don't see this as a judicial admission which is sort of the way you're treating it i thought that your question initially was on what date was mr sellers no longer employed that was several minutes responding to backed by saying i don't think that's a judicial admission in regard to the interpretation of a contract which is a legal issue here see what i'm saying think if i understand your question correctly you're asking for what case law i have this is that an employee either is or is not employed during the period from which they are paid in lieu of notice is a case in point it would be helpful but otherwise we just got this contract before us and we have the payroll i'm glad that he's physically in the building after december twentieth or not wouldn't you agree that he is on the payroll of the company for thirty days whether he's given the notice and continues to work out the thirty days all whether he's paid in lieu of notice he is on the payroll as an employee up through the end of the thirty days i would not concede that you've got to get a final paycheck be got to work for a period of time that extends thirty days and you get paid for work he already did he got pays got paid for thirty days work whether he's there or not whether the company tells him get a cardboard box put your things in it and get out he's getting paid he's on the payroll of the company for thirty days from the date that happens which we know i think you said was december twentieth isn't that correct again i don't think he's on the payroll i don't think i don't think it says anything about whether the employee is still an employee of the company at that time as i say you your boy could have written something in the contract to directly say that that's not so but  interpret the whole country i mean actually you are trying to give the thirty days not it in lieu of notice and in fact it's not even it says by giving employer may terminate employment without cause by giving employee thirty days written notice or in its discretion pay in lieu of notice and frankly grammatically it's not even obvious to me that thirty days is the amount of pay in lieu in of notice if the person was being paid on a weekly or bi weekly basis it seems at the thirty days but so you can also argue that shall be i'm the following sentence to the date such notice is effective well if you've got thirty days pay standing in for thirty days notice than it seems reasonable that he was terminated after january  seems reasonable they radically probably not to your client we get asked a question it's one of theirs is ambiguous is not is this is there but its own appeal to us to construe the country you agree with that right let me go back to the facts did did i understand correctly that your client attempted to give the written notice and then went back and like the following day gave the pay in lieu of notice that it did they try to employ both of the devices under paragraph eleven to terminate they said mr sellers than the notice of terminations on december the nineteenth ok and then at some point there after ok and that's ok just to follow up on judge jones this point that pay was for the thirty day period from that date forward a was it for a lesser term it was for a thirty day period  i think the those cases are our best understood as expressing a canon of construction rather than a rule of substance of law and i wanted to share with you that came together for me what i've read the case wilson versus noble drilling actually the case  from the southern district that was affirmed here at the fests ergot judge gilmore set up plying a general rule of contract construction the miller court granted the plaintiff a pro rata part of the bonus for the period he actually worked however the court cannot resort to rules of contract construction or interpretation if the written contracts on a big us citing the upshot versus trinity eight forty two south a second six thirty one and so least that there is more leverage on one side and there is the other that the employee in this case does a job throughout the term of the employment contract to five years and at the end of that bought out am coal and set of became this of city ok i could be wrong just thinking when you stick contract of adhesion i contemplate them putting the paper in front of them and saying sign it or not but here it is and we don't want to discuss it that the understanding that the intention of the agreement or the parties was at the end of the five years he would go on to get as l t i he would retire and and that was all understood by  fifteen he got a letter from jennifer mom burb of n t i their chief counsel and said here's what we'll do we'll try to work this out we'll give you two hundred thousand because we recognize the service you perform oh ok that's you know take this instead and you sign this release which was tied to the cobra benefit as well they would release all the claims if he took cobra which he never did for that reason it was not something that was ever suggest is that thirty day check he cashed the check right levy did yes is that in the record no i don't believe it's in the records i think it's referenced somewhere in the materials but i don't think john a copy of the check or the receipt or anything ok it's been so i think it comes down to the fact that in the end he didn't realize it the fact he was dealing face to face with a different company is no longer in this case down and thought he was dealing with thought that the contract was understood and that he would give his service and then the end that time he would get his l t on and it was calculated to be what the preference th disagreement as to that and so all we're asking this court to do is to make a ruling that would reverse the decision of the district court and either