and trial his case he will be happy to accept damages in the form of checks currency with god we trust on it bitcoin or any other form the case before the court raises a question of statutory construction governed by minnesota law as our briefing indicates to you mr i alex with the youngest of a nine children family in mexico city had a successful career broad came to the united states some years ago became united states citizen had a highly successful career at other power supply companies before joining respond in cyber power in two thousand and six he was at the outset indisputable ie an employee at will as the company handbook of his employment agreements s time indicated those same agreements however provided a specific process for how he and the company could undertake to change his employment status from at will to an employment for a defined term as the record indisputably indicates that process was followed particularly and exactly during the negotiations culminating in the contract mistrial and cyber power  entered in two thousand and twelve it's the construction of that contract which is at issue here in the question for the court of course is would it be possible for any trier of fact to construe the contract judges have concluded that the contract is in fact ambiguous and must ultimately be interpreted by the trier of fact in his opinion and that's what we're here about today judge doty obviously reach contrary conclusion and we respectfully propose that the conclusion he reached ignores the clear position of minnesota's courts as to how parties may change employee status from at parties had agreed in fact to change the employment or stat status of mr iowa to persist through a time where company sales reach one hundred fifty million dollars a year we think there is one minnesota case now standing prominently in favor of our position which is close to controlling of the circumstances of the case here and that's the case of a dark case from some years back which is very parallel to what we have here in that  case a gentleman went to work for the defendant rotation engineering he was initially an employee at will and after that employment relationship began at the employer presented him with a simple one page document characterized as a compensation agreement which provided basis of a grade of compensation gave him a title that describes his responsibilities and talked about the compensation plan  he would receive through a defined future point the company terminated him before that defined future point was reached mr cavender sued the company the company defended as cyber power does here on the basis that the plaintiff had always remained an at will employee because the contract entered between the parties was in fact not a contract adequate to change the employment status the court in that case rejected the proposition it looked to the fact that notwithstanding the fact that describe compensation that it did affect the conditions of employment and the court looking back to other minnesota cases preceding the decision it made  pointed out that under minnesota law it is not all that difficult for someone to be moved from at will status to employment for a defined term that can be done through a written agreement it can be done through an oral agreement the courts of minnesota in rog line and  af and other cases have said in fact that if an employer tells an employee you have a job here as long as you do a good job or if you have a job here as long as you don't do abuse are custer murs that that is  sufficient to establish or at least create a tribal issue a fact as to whether or not you have a contract for a defined term here of course we have something far stronger we have a written agreement signed both  highest officials at cyber power love it the father love of the son which provides in article seven which is in title by the way employment terms that the compensation plan set out in the contract is to remain in place until company sales reach one hundred and fifty million dollars so we do in fact have evidence of an intent to change which is in writing the contractors and heard precisely in the manner be up against it it's difficult to pursue a plenty to see me a defendant which ceases to exist i suppose in that circumstance we would be exploring issues we haven't looked at here alter ego successors and interest and the like in this particular case cyber power usa is owned by a large overseas conglomerate of similar name and i would think that would probably some litigation involving the parent company how would you determine when sales would reach honored fifty million dollars under that circumstance i would think in that circumstance your honor you would you would look to the business portfolio discharged by the company here and where that portfolio went you know there are of course and possibility defenses that can be raised if you know something is bombed out of existence or otherwise i mean sometimes you find yourself without a defendant to pursue that not the case here right i don't think you've addressed the elephant in the room which is of course the statement that this is not an employment contract well paragraph seven of the agreement says this is not a multi year agreement or employment contract for either party and we think that language literally can be understood in the way that magistrate judge know well and judge davis  read it to mean in other words the parties are not defining their relationship in terms of the calendar this is not a multiyear agreement such that they were agreeing to a employment and compensation relationship of three four or five years  they are instead defining the relationship based on the occurrence of a condition subsequent and that of course is accomplished in contracts all the time mr i allas understanding certainly in his testimony a trial  he kept in the v a r market within cyber power until such time that that target was reached more than that the record is clear that both mr and mr love it had a common expectation of when that would be mr lovett testified in deposition that he trusted the business work asked me about mystery ella he read them and they all expected that target to be reached in approximately eight years discovery by the way has indicated that notwithstanding m departure of the company is in fact on target to reach the hundred fifty dollars fifty million dollar mark in about eight years when the contract was made or that being next year as to the parole evidence that a jury would consider and i could i speak to this because judge doty in addition to talking about ambiguity also said well the pro leavens would require a jury to find for the defendant we think it's quite to the contrary when the company was moving in the direction of discharging mr iowa the path was it was interesting notwithstanding the fact that they now take the position in the litigation that the contract actually meant nothing  imposed absolutely no obligations upon them and that they remain free even two minutes after it was signed to fire him changes compensation changes title in late  the company sought to effect those changes by presenting mr iowa with a new detailed written contract which would change as compensation changes title and significantly reintroduced into the employment relationship  a specific provision that he was now again an employee at will he refused to sign that because he didn't want to reduce his company didn't want to returned at will status and the record here is undisputed that the company fired him solely because he would not sign the new contract so i would expect what happened here is the company knew it had a contract they were counsel that they needed a replacement contract with more favorable  endorsing the position of a couple of judges at the district court while respectfully disagreeing with that of another when we think the analysis offered in this instance by the judges who entertain the motion to dismiss is better more comprehensive more persuasive  conduct of the party in the closing days of the relationship but it is also in part manifested in the briefs placed before the court by cyber power where they acknowledge that prior to the time the contract was made the other things the parades have talked about more money a bonus structure and the like had been affected by fia at you know and so the only issue on the table was job security mr al is clearly expressed interest that the benefits he  was getting he wanted secured in place for some period of time and that was the only possible purpose for the parties to move to the creation of the written contract and they did judges know well in davis correctly rejected appellants claim that this one page compensation agreement which was drafted by anomaly or repeatedly describes itself as a compensation agreement and in fact as your honor pointed out says that it is not an employment contract somehow not the case at the motion to dismiss stage by the way because the amended complaint says cyber power drafted the agreement that was found to be untrue in discovery and the compensation agreement also says that paragraph compensation agreement which is where the language saying it's not an employment contract was inserted by appellant after cyber powers then president robert lovett said in an e mail that all discussed in the record that he had issue signing a long employment agreement language and therefore the district court correctly concluded that cyber power did not breach this agreement as a matter of law when it terminated opponents employment that was appellant your honor what those chronology sick of having to renegotiate it robert love it was sick of having to renegotiate it and so appellant put together a version of the compensation agreement that lacked paragraph seven he spent that to robert lovett on october i believe addendum one through four those are where you can find these e mails from october twenty eighth and twenty ninth but cyber powers than president robert love it says i have issues signing such a long employment contract this isn't going to need to be run  outside accountants the very next day appellant responds to that e mail and says i added paragraph seven this agreement is for compensation purposes and by no means a multiyear agreement that addition of paragraph seven then is that's the final version of the agreement that the parties ultimately execute it so that gets a little bit into the parole evidence argument but i believe that the district court's order should be  affirmed either way whether this court finds the compensation agreement ambiguous or unambiguous and the district court did find it an ambiguous but even if it were ambiguous summary judgment is appropriate when the parole evidence is considered so first on the point that the compensation agreement is unambiguous your honour's under minnesota law again in order to alter the presumption of at will employment there needs to be clear and unequivocal language by the parties evidence in their intent to do so so that of course begs the question ok where is the clear and unequivocal language that says your employment is guaranteed for some period of time and if we look at the compensation agreement you know opponent has never been able to point to this clear and unequivocal language because it's simply not there the title of the document goes into detail about his compensation plan and specifically how his commissions would be calculated the only place where we have references to an employment contract is in paragraph seven which reads in fall employment terms the above mentioned not a date but it's i understand that it's not a date certain but would it would under minnesota law under some circumstances would that be sufficient your honor have the parties that if for example the above mentioned agreement outlines the new employment relationship to remain in place until one hundred fifty million u s d is reached how they start something like that i think yes it could have created an employment contract the case law does indicate as appellant points out that parties can create a term of employment measured by something other than a term of years but that's not what happened here and the district court frankly didn't find otherwise the point is that under minnesota law the parties have to alter at will employment by clear and unequivocal language so parties could say clearly and unequivocally we will continue your appoint employment and health katy perry is elected president of the united states that's probably never going to happen but if they clearly and unequivocally stead we're going to guarantee your employment until this thing happens that would at least be a closer call your honor but here are these two sentences working together very clearly say what the agreement is and then they say what it is and the clear and unequivocal language is the piece the first sentence of paragraph seven that says the above mentioned agreement outlines  president of americas and general manager of latin america then they would presumably want to work together and need to work together to figure out how are we now going to compensate you this agreement contrary to  purpose it's true that valerie changed it already gone through it's true that the title change had already gone through but what had not happened was the thing that the two of them really wanted to do with this agreement was put something down so they're not renegotiating  him to do other things besides work until that time so that if he were doing the things that were necessary perhaps through breach of contract otherwise just charge him more so that the contractor but as long as he continued to work and do the job that was set forth in the agreement until you reach hundred fifty million wouldn't that be a time certain subject to the terms and conditions of the contract i again don't believe so your honor because i just don't think that the time is certain they would factors there what actually happened why did they discharge him they just discharged him from this executive vice president of america's position due to performance issues and their outline briefly in the in the summary materials effective there when there was a meeting in taipei with investors in or with the parent company in which his behavior was inappropriate and some of the members of the taiwanese company expressed to brant love it that they had lo confidence in mr ayalon to reverse the course of sales sales were also down in that year a lot of appellate problems in cyber powers be related to his management of people and so they thought that they could take him out of this role and move him into something else that would not involve management so much as it would involve maybe more sales focused role that's why they wanted to give him a different position not to get out of a contract that they didn't like not because they didn't any longer want to abide by a contract that they had in fact abided by for about a year and a half it's untrue that the contract was illusory and had no meaning the parties conduct demonstrates that it did have a meaning and they did abide by  but he was let go from that position because he was no longer performing satisfactorily then when they tried to offer him this alternative role he didn't want to do it under the terms that fiber power wanted to offer it to him and the reason for you know two  why would they then need to sign this other agreement if it's really just about compensation why don't they just dictate what compensation is in this within this arrangement you described when was it that  be employed potentially indefinitely and minnesota law actually also says that if you have an agreement for an indefinite period of time that's construed as at will so part of this was also addressed in the district court's decision which among other reasons for saying this is an ambiguous plea not an employment contract the district court that upon proposed construction is absurd because had it had appellant construction been adopted it would mean that if he never grew sales if he did a really poor job cyber power could never terminate his employment unless and until they somehow despite his efforts got to one hundred fifty million dollars and that you know if the intent of contract interpretation is to enforce the intent of the parties in the district court correctly concluded that is not something that we can reasonably infer and no fact finder could reasonably find that that was their intent the e mails that surrounded the execution of the compensation agreement underscore that point in his briefs appellant talks about you know just a portion of that language and again i encourage the court i'm sure you have to read the entire exchange but  where just the specific language where robert love it says long employment contract trying to say that this means he knew they were negotiating and didn't intend it to be negotiating an employment contract but again the whole language that i have issue signing such a long employment contract and mistrial of then responded to that concern by including paragraph seven i would like to also touch on the facts that you know if if the court were to find this agreement ambiguous and again because it specifically said it's not an employment contract it is not in big u s but if the court were to find that it is in addition to the emails there are a couple of other pieces of parole evidence that would still compel the conclusion that cyber power isn't titled the summary judgment even if the agreement is ambiguous summary judgment is still appropriate if no reasonable fact finder considering all the evidence could find for opponents position so in addition to the emails which are the most compelling evidence of what were the parties intending and thinking about when they executed this document there are a couple of other things first it's significant that appellant provide no evidence of a clear and unequivocal promise to alter  will employment anywhere in the record the only thing that he has cited to in in the briefs are the conclusory allegations from his amended complaint that's insufficient as a matter of law at summary judgment he needs to be able to point to admi evidence and additionally your honors there is a relocation expenses agreement which is also in powers agendum but this document was also in this beautifully drafted by appellant it was executed by the parties just a few months after the compensation agreement and this document indicates has a provision about what would happen if appellants employment were terminated by june july first of two thousand and fifteen which was well before year years before anyone anticipated that they would reach one hundred fifty million dollars in sales that agreement contains language drafted by appellant that says should you be terminated for any reason and fire prior to receiving the full amount and then describes what would happen in that cont court three things first about drafting the contract the draft mr arreola sent included a memorandum summarizing discussions between the parties indicating that the terms had been raised by mr lovett then memorialize mister exchanged and the final term added significantly paragraph seven introduced a term not before seen in the contract that being that would paragraph seven was was defining was employment terms and i would had it said at last until katy perry becomes president the condition subsequent in the contract is much more realistic than that and under predict the vera you can abrogate at will employment without saying you need to do so all you need to do is have a contract saying there's a defined future point here the employment terms we now and then and that exactly what the parties did not so we appreciate your arguments today the case will be submitted and decided in due course that completes our argument