nice good afternoon your honour's my name is bill donohue for the a palance we should start with the issue of whether or not the district court erred in granting summary judgment to tice on fisher's claim for let's start with two undisputed facts one a jury could find based upon the evidence that fisher entice and a joint venture to develop and market a stevia sweetened chocolate bar using a specific business plan and marketed as stevia sweetened chocolate bar under the name lily sweets without fish are using essentially the same business plan the issue is what happened first tyson breached in our view that was an error the jury could reasonably find for fisher on that issue here's why everyone agrees that the legal standard to the court should instruct jury on is whether at party manifested to the other party a clear and i'm equivocal all action to withdraw from the joint venture it's the jury's job to apply that standard or it should now if i were arguing this case to the jury i would make three points on that issue the first point i would make would be there is no advantage in this case that standing alone wrap presents a clear and unequivocal manifestation of an intent to withdraw from the joint venture now ms tice argues that the statement of withdrawal is what occurred in the e mail on july twelfth see what news tice points to is the one e mail which contains the words let's go our separate ways yes followed by years of failure to communicate with respect to the joint venture not withstanding continued contact on social and other matters yes silence your honor is the is the third argument i would rebut that if i was arguing it to the jury now there are a lot of explanations for that silence this is not a standard business relationship this is two ladies here with an emotional see right here you're right on each one i'm puzzled by why the two taken together are not pretty unequivocal ok what ticed is saying is that the manifestation occurred on july twelfth attack she's not going any further than that she's just saying there's a confirmation of that by silence silence i don't believe can watch a clique confirm a manifestation because a manifestation depends on actions it depends on actions which were observable at the time july twelfth you started by saying the words were ambiguous what is ambiguous about i think it best to go our separate ways because if you read the entire e mail your honor what they're talking about is a separate business venture that they were working on together at the time which was an independent contractor relationship involving fisher's business was a food brokerage business called coast to coast tice was working on a commission based basis and that an email was absolutely clear from our perspective that that dealt only with that one independent contractor relationship involving food brokerage business and had nothing to do with the church the stevia based chocolate bar i mean i may have a fight with my partner over advances he made to my wife and say i'm never going to talk to you again i don't want to see you anymore it doesn't mean the whatever the fight was about doesn't necessarily  of i'm not going to talk to you ever again and of course my saying that people say those sorts of things all the time and then they kiss and make up later but wouldn't that i'm never going to speak to again be confirmed if i then never do speak to him again for a period of years i don't think so because i think you'd have to measure the i'll never speak to you again words at the time they're made based upon the circumstances that exist that and that go back and reinvent history based upon something which happened later ok what is manifested occurs at the time that the statement where the action is made or taken not in light of somebody's undisclosed intentional later on but you're mistreating me therefore i think it's best we go our separate ways what the mistreatment was about doesn't necessarily inform the unequivocal in this of the statement but now we're going to go our separate ways in a certain set not not i quit i'm not going to work for coast to coast anymore but we're going to go our separate ways is a more unequivocal statement than that it is but the paragraphs the sentences in the paragraphs before and the sentences in the paragraph after only refer to coast to coast we're not trying to win this is a matter of law we're not trying to say that they can't make that argument to the jury but we're saying is sufficiently on clear that it should be presented to the jury and the district court in that respect agreed with us what the district  did was to take advance which came later and use those to reinterpret the facts and the statements that existed as of july twelfth and we don't think that's logically proper and even if it were there are issues of fact as to what those later statements mean now let me go very quickly the second argument i make would make to the jury would be if tice understood that fisher thought the joint venture was continuing at the time tice was starting her new business than that in itself should demonstrate that fischer did not manifest an unequivocal election to give up the joint venture and the jury could reach that conclusion place had that state of mind based upon the email from july eleventh july sixteenth of two thousand and eleven where tice approaches fisher and says hey my accountant says i need to get some piece of paper which says our prior business obs dissolved you have that piece of paper did that ever happen if tyson didn't think that fisher was wanting to proceed with the joint venture why is is tice making these statements which a reasonable could person could find were a law i were intended to mislead fisher as to what tyson was doing with respect to her part of the venture and if tice really believed if we could convince the jury that tice really believed that fischer thought the joint venture was continuing then i think the jury would be virtually compelled to conclude that fisher did not manifest and intent to leave the join bit thank you your honor may please the quite court i'm gonna lopez i'm here with my calling zachary stillings from law from nixon peabody we represent the defendant cynthia tice let me get right to the point that the court race she is a person was indebted to fisher for everything tyson done and touch and tice would be nothing without fisher to say the least this was a monumental break between these two parties and it was in that context that these that that e mail is written and that tice confirms i agree we're going our separate ways that's what happened on july twelfth you agree with you that it's context pieces of different things he says the rest of the e mail makes the context referred to the the new the other vacuum there's a there's a there's a another business relationship between the parties coast to coast where tice has reduced fissures compensation she wants her to work in a deal called rob's really good anti says i don't want anything to do with this i think i've business treated and she says i'm just offended by what you said i'm not if somebody tells you that they are indebted to you for their professional life that is a monumental break and when they say let's go our separate ways a minute let's go to the next thing that is really just a clear cut admission here the silence the inactions for years words in acts clearly show this was a dissolved oral joint venture but remember what happened fisher criminate sister and says the wheels fell off the chocolate project now let's assume it didn't happen a year later let's assume it happened one day after the party said let's go or separate ways there's no question that's an admission it's an admission of a party and there's no question that the parties intended to go their separate ways the fact that it happened not one day or one week or one month but more than a year later doesn't change the fact it's an admission by fisher that the parties had terminated this oral agreement and let's remember what this project was at the point of july twelfth there was no product there was no checking account there was no release for office there was nothing this was an idea that the two parties had talked about we'll that we disputed in the court recognize that we would even dispute there was a joint venture but we assume for purposes of summary judgment there was but clearly if there was it was terminated as of july twelfth two thousand and twelve as confirmed by the email and as confirmed by the fact that for the next eighteen twenty four months fisher who said and testified she was involved every step of the way in this project never once called up cynthia tyson said how's the project going never once said i'm working on the business plan never once said we ought to get going on this thing not one day not one week not one month not one year after that july twelfth e mail the fact is objective lee as the court stated if you look at the totality of the evidence the words and actions of the parties this had dissolve this project had dissolved and that's the project to the extent it was was an idea to work on a stevia sweetened project the first project of course had not gotten off the ground at all the project involving the bed beverage now judge freeman wrote a forty five page analysis looked at all the evidence and carefully analyzed each of these arguments that the plaintiff has advanced here and said no reasonable jury can conclude when you have a statement an admission that says the project the wheels fall off and you have consistent silence with repeated social contact they put in the record of the phone records of how many times fischer enticed talked after that she came down with cancer they still had some sort of relationship but they would talk but never once never once did fisher ever say anything about the joy of the chocolate project or some one reason you can point to why we're worrying about this seven years after the dissolution well because they want money well i know that doesn't necessarily mean it takes seven years to see well what happened is is later much later about a year later cynthia tice formed a new company chocolate they developed a stevia sweetened chocolate did not use the formula remember there was an allegation in the complaint that cynthia tice somehow i'd taken the formula didn't use the formula didn't use anything when was the complaint the complaint was filed to nine two thousand and fifteen that's right it wasn't fifty it was right on the statute of limitations frankly in fact we the limitations arguments on their constructive trust in other theories that they advanced but the court said we don't have to get to those arguments yes we did raise cash so the complaint wasn't violent till to two thousand and fifteen and the report recommendation the forty five page report came out in two thousand and sixteen so you know this this went on you know it was filed at the last possible moment under the statute of limitations that could be filed was that three years what's  at it might have been more than might have been more it was a breach of contract and breach if i do sherry duty but it it was it was close i mean there were we looked at that carefully  the other two points i'd make in my time left here is not only was there that failure to communicate in what the plaintiff has tried to say is somehow this period from dissolution july twelfth and these events afterwards somehow can't impact that dissolution that we say occurred on or about july twelfth and i would suggest yes they can for two reasons one admissions you can always admit something was dissolved in any time you can on the admission that fisher made was clearly relevant and second you can look at the failure to communicate as a form of admission even as the cases say that silence itself can terminate it but we didn't have just silence we have the the clearest statement to go our separate ways and then we have the silence but it wasn't only silence it was inaction i mean under the under the theory of the plaintiff she was supposed to be working on this just discarded cynthia tice so they can't explain not only silence but the fact that she never did anything on this project for these many years is very very telling the next point i would just make i know my time short here is this argument on windup there's a theory that has it been advanced as part of the summary judgment opposition to the summary judgment and we really see it here on appeal and the argument is this well ok let's say  joint venture did dissolve cynthia tice did something wrong in winding it up somehow she didn't properly wind it up and give assets to the plaintiff well the first problem with that there's two reasons two ways that this can be disposed of pretty quickly the first way is if you look at the complaint and if you look at the theory of the case the concept that this joint venture ever dissolved was not pled it was not alleged and it was inconsistent with the theory of the case that the advance before the trial court and even the district court gave short shrift to that the fact is they raise this really for the first time as the throw away in their opposition and now they're focusing it here in appeal the second is there's no doubt that it dissolved but there was nothing to wind up this this oral project had no assets no tangible assets no checking account no leases no employees no pension plan nothing they didn't even have a computer that they jointly own they didn't have a desk they jointly own they had nothing the argument is intellectual property around it's very thin what the argument is is that there was a knowledge of of a niche for stevia chocolate so a general idea that stevia chocolate would be a good idea what way other stevia chocolates were in the market as was put in the record that you should target whole foods as a customer that you should tie the product to a charity and that the product used to have fair trade ingredients  what they came up with at the end of the day there's no contract that says any of that was subject to some sort of confidentiality that belonged to the oral joint venture and in fact fisher concedes that there was no non compete agreement in either party at any time could go off and do their own project there were none of that there was no contractual restrictions on either party there was no contractual restrictions on any of this and these aren't even identified anywhere between the parties as opposed to argument of counsel between the parties as being some sort of intellectual property that needed some protection and if it was as soon as that dissolved white in fisher do something why didn't you know the joint venture dissolved if she believed these were protect the bill assets when she wrote the e mail says the score separate waves why didn't she say oh we've got to split up these assets we've got to do so she didn't do anything she didn't believe these were protect this is argument after the fact of looking for something the fact is there was dissolution there was nothing to wind up it was inconsistent with the theory their case with the advanced below and on that grounds i would urge the court to  m the district court's decision granting summary judgment defendant city of tice thank you very much but then again you reserve the first point i'd like to make is what mr lopez referred to as a monumental break it was not a monumental break these parties as they had met in their briefs had numerous business ventures in the past and at least two of them were going forward at that time they stopped working together as boss and contractor and they continued working together as joint ventures second he makes much of the how did they continue working together after the move because the as as the joint venture  e mail did not and the joint venture on the steve years did you said they continued working together as wonder yes and wealth will work that fisher did for example but let's let's let's back up a new dress that because at the point that they had their last tasting session which i believe was either in june or july of two thousand and ten they decided that the product wasn't quite up to their standards but the ball was back in cynthia tyson's court to go get more samples of that now after they had occurred and after the fight in july occur they had to wind up the coast to coast business which took time both of these people had day jobs that was consuming most their time just was a side project second cynthia tice was telling fisher that i need to may i need to make current income from the work i'm doing i can't work for nothing or i can't work for money way down the road right now and fisher for that reason was not pressing her to do work on this project if she brought up the stevia sweetened project she was just making  wondering what that work is it was the work that tice was supposed to be doing to develop the project that was her aspect she was project development she took the work that she should have been doing for the joint venture and she did it for herself that forward with it with you as a quote principle and owner and quote now the district court said there's no express agreement to share losses but it's our position that if you're agreeing that you're an owner and