correct contractual interpretation of an employment contract whose language expressly allows for terminations either immediately for cause or at any time upon a hundred twenty days advance written notice the trial court erroneous leave held  because the employment contract also incorporated by reference in earlier tenure policy that the later contract language expressly allowing one hundred twenty days notice was in effect a nullity as it supposedly cannot modify the earlier tenure policy the trial court's interpretation contravenes all established rules of contract construction and this court upon the noble review should reverse that ruling which wrongly resulted in eight hundred thousand dollar judgment twelve include the word tenure because the tenure policy was incorporated by reference and still has a role where terminations are for cars under the night in eighty four term tenure policy a tenured position such as dr of arnette could be terminated either on ninety days notice and reduction in force cases or for cause in which case the tenure doctor has certain internal appeal rights two years later in hundred eighty seven a new employment contract was entered into which provided expressly provided for three ways that the employment could be terminated by the doctor's death by signal immediately for cause again or by either party at any time upon one hundred twenty days notice the way to to read the contract in a way that harmonizes all of its clauses is to provide that cigna had the option of terminating either for cars in which case the tenure policies rights of internal review continue in place or it had the alternative option as expressly listed of terminating at any time upon a hundred twenty days notice in nobody in their right mind is going to try to terminate from cause when they can do it just simply by giving notice not necessarily or armies that giving those costs the employer in this case an forty thousand dollars in additional fun it has the parties agreed that terminating at any time with no notice was an acceptable option otherwise if you don't allow that option essentially makes that clause anality and under established arizona wa established rules of contractual interpretation where a document incorporates another document by reference you have to try to harmonize the two in a way which makes neither no provision meaningless and the way you do that is by allowing what the contract itself expressly allows either extermination for cause in which case there are there are benefits to the tenure policy or a right to terminate at any time upon a hundred twenty days notice each provision continues to have effect and operate in its own sphere each has its own obligations and procedures if you terminate for cause then there are certain appeal rights if you terminate for notice you have to pay a lot more money and the parties agreed that that would be an option to provide that the ten year policy which was adopted earlier somehow trumps the later adopted language in the employment contract why does it have to trump in other words i can't think co exist in other words if a physician does not have ten years then that physician can be discharged at any time on the physician has tenure then he may not because the contract that would require your honor respectfully a rewriting of the contract the contract says that the employer and your party can terminate the contract at any time upon notice it doesn't say that any time after ten years has been achieved that would require it will be incorporation of the tenure policy is effectively meaningless appeal which will allow a higher level review of whether or not cars actually existed if the employer terminated a non tenured position for cause there would be no internal appeal right so the tenure closet does still provide a benefit to the tenure doctor but the party simply did was subsequently adopt a new contract language which said in addition to these rights the employer either party will employee but i just have a few more right well if i got finished an at will employee is one who has no rights in the employer can terminate at any time for any reason well plus here they have the right of additionally receiving four months hey they receive the notice they would not a regular at will employee would not be entitled to that so there is a definite benefit that they get under the notice provision they get the notice in the corresponding pay that continues on for the hundred twenty day period to read the contract the way the district court read it to say that one hundred twenty day clause is ineffective if because there's a prior ten year provision basically t its head and says that an earlier incorporated doc trumps be expressed language of the later document that incorporates i don't understand trump in other words the existence of the ten year doesn't mean that the four cars are one hundred twenty determination provisions are not there and you say that from it does because if it does it takes out the language which says that the employer can terminate at any time if it gives the notice you have to change your would say if you don't have cause there's no discharge you know what with it but if you say if if you say the ten year clause precludes the application of the at any time a hundred twenty day no it's clause then you're making that subsequent closet effectively anality the contract doesn't say anywhere that doesn't your interpretation affectively make the tenure protect the doctor beyond one hundred twenty days beyond the four cars in other words that the ten year provision for all practical purposes ceases to exist on your interpretation  have to but most employers certainly would often would on the other way they get locked up in court for years and who knows what they paid possibly yes possibly no but there's a forty thousand dollars difference to the employer in which it chooses in this particular case and how did it work out here the plaintiff sued even though we picked one hundred twenty day notice provision arguing that the that you misread the contract but i that's what what the plaintiff argued but i don't think that that's correct your honor i mean there are numerous cases which hold that where there is a contract that provides several different alternative options for termination the proper way to read that contract is to say that each option is independently available and compliance with any one of the options isn't a breach of the contract this court in the barn or in our case said that the arizona courts have said the same thing in the philips versus flowing wells unified school district case in the norman versus recreation restrictions the options in other words you're you're presuming the action the answer but the question here is did the contract which you knowledge incorporated the tenure provision did that restrict the options that was the question right and your honor the construction that a subsequent contract modifies previous language least of it that here the later p s a's at any time with notice provision is simply a partial subsequent modification of the ten year policies provision which previously have out terminations on ninety days notice in reduction in force cases it simply extends that at any time terminations in exchange for additional notice and hey the cases are consistent that where you have a later adopted contract that incorporates an earlier contract you modify the two and if they are inconsistent in some way the later contract language supersedes the earlier contract language we don't think they're inconsistent we think the tenure policy continues to operate and be effective for cars option is chosen we think that the at any time with notice provision operates in its own sphere with its own obligations so those two can be harmonized but if the at any time with notice provision is somehow inconsistent with the prior terminations which we don't think it is then the case can tell me anything more persuasive on that in the man despite so that you're talking about that's a lot of the case has to do with compelling arbitration for i understanding what that need would be before any of the issues heard the ballot no where in the  employment contract and found that the employment contract provided that either party could terminate the contract on notice and also recognized that arizona law under the norman case provides that where contract is several options open portugais was there any discussion about tenure and any of that there wasn't but it didn't need to have the tenure policy in front of it because it had the p s a in front of it and there was nothing in the ten year language which change the operative effect of the p s a because if it was inconsistent with the p s a then again the terms of the p s a with supersede any inconsistent terms from a prior incorporated agreement so we don't think the tenure policy even if it was in front of the court would have been necessary because the p s a itself controls why i have to say that argument doesn't go anywhere for me i think your other arguments are better but that's just me i'm not speaking for anyone else to trial so let me it but it would be helpful to your position if there was some authority that the word tenure could mean that you know sometimes we think a ten year in different ways well my answer in precedent is there is no case which directly addresses tenure in connection with a subsequently adopted contract that allows the terminations at any time upon notice however tenure is really a function of the parties contractual agreements and here the parties agreed in the one nine hundred eighty seven p s a that there would be a right to terminate at any time in exchange for this additional notice  barnett didn't have to agree to that employment contract if he didn't want to but he did and that was the contract that the parties entered into so to the extent that it modifies previous tenure rights that was something the parties agreed to whether or not a third party observer thinks that was a good deal or a good bargain that dr barnett should have agreed to or not is really beside the point because there's no question that that was an agreed to contract you can't say that the at will language only applies before tenure is provided because then you are adding language which is inconsistent with the term at any time the courts have said any time is exactly that it doesn't mean before or after some unstated event that's the velarde case that the ninth circuit is ruled on you can't add in some implied conditions that the parties themselves don't in and into that language says you cannot you can terminate at any time of one hundred twenty days notice if dr barnett hasn't achieved tenure nowhere in section thirteen just saying that in the court can't read that in because it's adding something the parties didn't do would be writing the good morning they please the court my name is jim jealous and i'm going to turn from phoenix arizona and i represent dr frank barnett who is also in the gallery with me today the answer judge gould's question i am not aware in addition of any case law that interprets a tenured employee whether that employee is a professor or a physician or any other type of employee as somebody who can be terminated without cause that case simply does not exist and if this court were to accept cygnus position today this would be the first case that so holds in addition to that so in addition to that the interpretation that was offered by cigna curiously was never testified to by any person who was able to interpret this contract interpretation that's offered by cigna in its briefs and its oral argument is all strictly based on cygnus attorney's interpretation not a single witness offered testimony and support of that determination i would like to read a case about contract interpretation coming from arizona an intro putting a written contract the court should as far as possible place itself in the position of the parties at the time of its execution and then from a consideration of the instrument itself its purposes and the circumstances surrounding its execution ascertaining the intention of the parties and i would ask this court if you truly believe in the mid eighty's late eighty's that cigna created a complex tenure policy distributed that policy to its physicians incorporated that policy into its physician agreements promised physicians that they would have job security and tell a judge sixty five created  complex system of appeals committees to consider tenure all with the intention of just hoodwinking those physicians into devoting thirty years of service to cigna only to be told at some time that not too bad so sad reach that it is unambiguous you could conclude that tenure is viable and interpret and interpret tenure and still use the hundred twenty day provision for what it can be used for however you could you could never come to defined in the contract counsel i have a question for you if the record but only if the record shows this is the record show whether this particular  happening if you look at the first page of the p s a and section four it only refers to and by the way that refers throughout the document to the employer and the physician it definitely appears to be a form document it talks about the physician practicing at one or more of the employer's health care facilities without specifically delineating where dr barnett had previously worked if you look at some of the other sections for example section six it refers to the physician as himself or herself or his or her which would provide and then an additional form that does the record also beyond just looking at the agreement is the record tell us whether was testimony or other evidence in the record that would answer that not on that issue i don't recall i did the trial and i don't recall that that issue was ever developed other other issues were that i intend to talk about but but that when i don't recall i see the dr barnett's name which was typed in separately when he is specifically identified in the agreement which would suggest that they've used disagreements with other people before and i also noted with interest what the reply brief said about the issues that aren't part of this case i had a question because sir there were issues that appear interpretation that's probably why my brief was as long as it was it seemed like the reply brief cut out a lot of issues my interpretation is that the appellant did not cite the taylor standard of interpreting a contract when we did our brief they realize that they should of when they looked at that they realize that frankly there were some fact issues that are supported by the record the conclusions are supported there is not clear error and they frankly had to concede those those issues one of those issues was that the court correctly incorporated the tenure policies into the p s a i don't think it's a question of there being a later agreement or an earlier one the fact is this p s a it was presented as as a complete agreement along with the policies in other words the court instructed the jury that that the agreement in this case is the p s a i know you're standing behind understand their issue as a five unit and after reading the reply brief is that their issue is that the agreement with dr barnett and ambiguously allowed them to fire him without cause that's what i understand what i'm understanding that they're saying as opposed to when i read the opening  brief they seem to be questioning certain things about the ten year and the ten year agreement being fully incorporated but then they pulled back from that and i believe that's what they did i think that they retreated to almost a single argument saying it doesn't matter if he's tenured we're not going to argue that he is we're not going to argue that we fired him for no cause we fired him for no cause we're going to say that disagreement when read the noble one without consideration to any evidence or other testimony has to be interpreted one way and one way only i don't think that's a correct interpretation under taylor i don't think it is a correct interpretation in light of the facts of the case or a correct interpretation when you just look at the agreement itself and and the question was asked to cigna what does tenure mean we don't have to guess what tenure means tenure is defined specifically in the policy and it says this and by the way it's the same definition we see in professor cases that deal with tenure ten e means this the assignment of tenure confers on a physician the right to remain with the organization until age sixty five unless dismissed for cause as defined in his or her contract of employment that is what the contract says if there is any better statement of intent of two of what this contract means i don't i'm not sure i have it i think that says it all and for cigna to come in and say that that you can faithfully reconcile the no cost provision and that you can still give meaning to that contractual right still using no cars provision the no cars provision i just don't see it if you are  position you have the right until you're sixty five to stay unless you are dismissed for cause as defined by your contract at the trial in this case dr barnett testified that that was his interpretation of the agreement that he believed that the agreement was for job security provided he was tenured up until the age of sixty five like i said but or no person testified concerning the interpretation that cigna has talked about today and in fact at the trial and i think that that the court has the sense of this in terms of giving meaning to the no cause provision there was meaning even in the context of this trial because at the trial cigna argued that dr barnett was not a tenured physician and if cigna was able to prove to dr barnett excuse me to the jury dr barnett was not a tenured physician then the hundred twenty day no cost provision all of sudden flourishes to life and there's no liability however if the predicate is that he has tenured a predicate which the jury did accept then the provision that prevents you from terminating with no cause then kicks in well now the jury had to decide if he was tenured correct yes ma'am all right and i think that the opponent makes an argument about instruction number seventeen stating that that under instruction seventeen that the that the opponent's position is that the jury was told that the only way that farnell could be terminated was for what the from your standpoint is that what the instruction sad or did the jury have to do just the instruction i think that i think the my reading of it was that it said that a party could terminate the agreement with the requisite notice at any time in fact that it was more expansive that within math they had to decide whether this person was tenured and what section appl what what you're reading at that my reading of the instruction number seventeen and i'm not sure that the instruction on the whole even d m controversial by saying that i think there may be some parts of my interpretation of instruction seventeen is that number one the judge is telling the jury that he has greenmount on the case as the physician's agreement and the policies and you are to read those as a whole at the end of the instructions doesn't seeing judge carroll instruct the jury that the ability or the provisions dealing with no cause does not serve to modify the policies but that the jury is to read the contract in a way that gives meaning to all of the provisions if they're able to do that i think that by the way was there a way that the jury could have found more stick now yes there is and would that be that they found that he wasn't tenured and the for they crank exercise that provision i do believe that in fact i think the judge would have been well within his rights under arizona law an interpreter to interpret in the contract after receiving the evidence  came out of trial to simply say to the jury that that's the only issue if you find that he's tenured and i've determined as a matter of law that he could only be fired for cause if you find that he was not tenured then as a matter of law i've determined that cigna could terminate the agreement without cause i think i think that was the linchpin there probably was another factual linchpin in the case and that is whether or not it was a cause or no cause terminations cigna made sort of a half hearted effort to try to argue that their terminations was actually for cause even though they said it was no cause they were so i believe they argued that to the jury and the jury didn't accept that as well and the jury and by the way cygnus made the same argument here excuse me at the trial that they made here they argued to the jury that in order to interpret the contract as a whole you've got to give us the right  to to terminate without cause and the jury didn't didn't buy that either i think most of all having come to the conclusion that you're tenured the policy is so clear that having attained that status that you have the right to stay till you're sixty five unless you are terminated for coffee for cause that's so clearly defined in the agreement that i think the jury felt that they had little choice in coming to the conclusion that they did once they decided that this man is ten d and so i hope that answers the question on that point when you look when you look at interpretation you don't look at it in and in a vacuum under arizona law the taylor case requires the court's take evidence requires the court to use evidence that legitimately interprets the contract and then apply that in assessing what the contract means in this case when you look at the ten year agreement have i've stated it before it not only includes the statement of of ten year is as being what it is what i described but also also the ten year policy describes which signal was trying to achieve by offering tenure to its physicians they say the purposes of a physician tenure program are to ensure the development and maintenance of a highly qualified physicians staff to serve the health care needs of the plan's members in other words cigna benefits from granting tenure to physicians the second reason listed in their own policies the purpose of the physician tenure program are to encourage physicians to join and remain with the plan as a career by providing long term job security that is an expressed provision in the policies and again i throw it out how could cigna possibly think that interpreted in the agreement to to mean that tenured physicians can still be terminated for no cause on one hundred  twenty days notice ever promote the purpose of providing a career with long term job security interpretation just doesn't even fit into their their policy and it says that if a health plan decides to have a physician tenure product program it must implement the policies that were admitted into evidence and this case so throughout the document itself it's clear that the intent of cigna was to offer true tenure to physicians who met the qualifications for tenure to provide them the type of job security that they described in their own policies and to provide them the sense of the job security that we all understand tenure to mean doctors barnett understood it the physicians who testified for cigna i understood it the only one that doesn't seem to get it are the people that are making the arguments on behalf of cigna and this case dr barnett talk talk to testified about interpretation but also the cigna doctor who was involved with tenure the tenure committee back in the eighty's also testified not only what he thought about tenure but how saying that addresses these tenure as issues in terms of its own custom and usage that was dr pearson who when i asked this ten year mean that you have job security tell you're sixty five and you can't be fired unless there's cause he had been hot and i remember that because i was there but eventually his calm his testimony was i know that and then i addressed an interesting situation with dr pearson that was another physician who the cigna did not know was tenured who they fired under the hundred twenty day notice provision without cause and that physician went to dr pearson and said i don't know why you're doing this i'm a tenured physician now what was pearson's response to that he didn't say oh you know what guess what dr shafer we have the option of terminating you with one hundred twenty days notice so we did everything right you know cigna reinstated that doctor once he brought it to their attention that he was a tenured physician who could not be terminated without cause and when you shut away people's motivations to to win or lose the case the way you deal with specific instances of  tenure situations gone iraq is great evidence of how the the organization interprets its own agreement when i look at every single case that cigna cited they all were distinguished by the factor that nobody none of the employees in those cases was tenured and in the contracts at issue there was never even a promise that you can be fired only for cause that's a huge distinguishing factor in all of those cases and i would hazard to guess specifically as to those arizona cases that if you had a contract and i think the cases is the norm and case if you had a contract that said to the employer we can fire you for cause we can fire you without cause but if you attain the level of recreation supervisor level eight you can be terminated only for cause that the way we wouldn't turn for it it is based on that person's status if they haven't met the criteria the company has its options but once they meet the contractual criteria for protection then you have to honor the protection that you've given them and that's all we're arguing about and this case in terms of basic contract interpretation appellant's argument truly significant impact on the weight tenured employees are going to be dealt with in arizona not only in cigna but in any other organization that offers tenure and we ask that this court observe the rights of those employees who  a company or employer does choose to designate as a tenured employee thank you thank you tenured physician on one hundred twenty days notice at any time and we do believe that the contract is ambiguous just because the parties have presented the court with different views of argue their respective views doesn't mean that contract language is ambiguous there are court cases to that effect i'm not sure what the court believes we retreated from from our opening brief in our opening brief we conceded that the ten year period for vision was incorporated by reference we admitted in this case regarding the construction of the contract and taylor is wholly a laugh applicable here because judge carroll did not base its construction on any extrinsic evidence but rather his erroneous legal readings of the language contained in the four corners of the documents and she is i think iranis reading of the earlier piano opinion finally during correct is it correct have said the words at any time are not reasonably susceptible to an interpretation which adds an implied condition which is nowhere expressed by the parties and we would specifically direct the court's attention to the ninth circuit's earlier  decision which we cite in our brief to that in that regard finally jury instructions seventeen as given by the court did not allow cigna to argue that it could terminate dr shafer at any time without cause in fact whenever we tried to argue that during our closing the trial court interrupted and said that's inconsistent with my instruction we tried to argue that the one hundred the tenure policy dr barnett would be entitled to be employed until age sixty five even if you died earlier that makes no sense and it's no different than the at any time language it's a modification of the prior agreement thank you