Legal Case Summary

of this morning. Campbell V Sussex County's Federal Credit Union, number 13-41-41. Messers Weir and Graziano. Whenever you're ready Mr. Weir. May I please the court. My name is Richard Weir. Shannon Brainer is the associate of our firm Marshall Benny, Warner Coleman and We represent the appellant Paula Campbell who is here today. And I would like to reserve five minutes for any rebuttal if necessary. That's fine. When will you first engage in this case? It was 2009. We're waiting. We were engaged, I think 2009 prior to the request, when I requested the benefit of the plan on December 18th 2009. You were sometime in the fall. Pardon? Yes. Can you categorize this contract? Is this a unilateral contract? It's one way

. Yes. I think an Arissa benefit offer is a unilateral. I think it doesn't cause you consideration problem. I don't think it does because I think the performance, when you accept a unilateral, you can accept it by performance. In this case, the rather than of actually more to Judge Ambrose Point, if it's unilateral contract, I think you're conceding that there was no return promise. Now, there was a, but respectfully, I think the fact that this is an offer of a benefit, which was, which was in the future, a retirement that had not yet occurred. So consequently, would you say that again? This is an offer in the future. It was an offer of a benefit, which had not yet occurred because the offer was when you retire, this example, when you retire, you will then get a benefit. Now, the problem with Judge Andrews decision respectfully is that, aside from the fact that he did not do an analysis of whether it was ambiguous or not, the problem with Judge Andrews decision is that he's the erroneously concludes that there's no consideration for this offer. In other words, once you have an offer, then under unilateral contract purposes, her continued work at Diamond State provided the consideration, her continued performance. So it would be true then the day after, what if the day after she negotiated that, or you negotiated this contract? She said, thank you very much. I'm leaving. Well, first of all, that is not what happens. Oh, no, no, I know that's not what happens. I understand

. And your honor is, is citing to her deposition testimony six or seven years later, that I said, I would have retired a day after. You get negotiated a contract that gives her health benefits until she dies. But as soon as the contract is negotiated, she leaves her employment and question is, is she entitled to health care benefits for the rest of her life? Yes. To answer your question specifically, your honor, if she worked a day or two days, after January 24, 2006, she would have been entitled to these supplemental retirement benefits. Where Judge Andrews, I believe, created an error of law, was that he looked at simply the question of whether she could, what's his tenth was six years later? Well, I think that the trumpet's troubling, at least for me, is what is continuous service? I'm sorry? What is continuous service? She got this lifetime health package for continuous service. I can't remember the other word. Was it loyal or a continuous service? It was that continuous in the ordinary plane definition of that language, which courts should engage in interpreting a contract, is continuing. And if you look at the context, the court corners of this contract, the Judge Andrews did not do. The four corners of this contract were, Paula has been employed. Paula continues to be employed. Paula is therefore in December of 2005, a motion is approved to provide her with supplemental retirement benefits. I tend to look at contracts as having more definite language, so that you know when it terminates, you know when it begins, you know what the conditions are. But here, loyal and continuous services, I said before, could amount to one day, could be a week. I think any amount, it could be 20 years. Correct

. I think any amount, so long as she continued until she retired, is that definite enough for us to say that we have consideration in a lawful contract? Yes, it is for the following reasons. If you look at the four corners of the document, and you look at what was being provided, what was being provided was a supplemental retirement benefit, which would kick in in the future. So by definition, if you look at the context of this contract, she would have had, she did for two years, she would continue to work at Diamond State, and that continuous service for consideration for the contract and her continued performance for two years, and acceptance by Diamond State. Paying her the supplemental benefit in 2007, when she retired, is an acceptance of her continuous service. If the language had read, reward for loyal and past service, but it doesn't. And if you look at the context of this contract, not going outside of it, she did not submit, as did Eva Thomas, for example, she did not submit a date certain for her retirement. It would be different if it said loyal and continuous service, but you must stay for at least five years now. But it said that, but there is no requirement, Your Honor. Oh, I know there is no reason. In the law, but it would be a more definite contract. Well, I guess you're right, but I didn't negotiate it. And Mr. Zapplicki is the person who drafted that in 05. Was he worked for a company that he worked for a firm, or, you know? Yes, I do. He was with his own firm

. And who did he represent? Who did he represent? I can't honestly answer that for the following reasons. He doesn't recall who he represented. There's an issue. He provided a plan to Diamond State. I can tell you, I believe that he probably, if you look at the extrinsic evidence, he probably considered that he represented Paula. She never paid in. But the reason I say that is that when there was the merger in Diamond State and Sussex in 09, Paula asked him if to follow up on what the President of Sussex said that they would honor this plan. She asked him for his advice. And in the record, there is a letter from him saying that they are bound by the contract. Sussex is bound by the contract because of the successor clause. Do you have any precedent for us that upholds a contract and concludes its valid despite liking a statement of the date? Is there authority to not, yes, you have case law support for that proposition? No, my case? No, because I don't believe any court has required that. That's the reason here. We're here. That's why you have, for example, performance can create consideration. Performance, which it did

. Performance can create consideration. I mean, as long as you're getting 235 every year, for your team, you're at suspicion. If you're Ryan Howard, you get a big contract. If you're in 222. Well, yes, she continued to perform. It was her understanding, and it was Diamond State's understanding, that she would remain. She did not announce her retirement. So I don't think you can look, as Judge Anders did, you can just simply look at the language and say, we're going to ignore the nature of the benefit because the nature of the benefit is until you retire, you will continue to work here. Had she stopped working, then the benefit would have kicked in. So it was understood for loyal and continuous or continuing service. You'd say that's a, that's not a term of art. That is clear language, and it's consistent with the party's actions because she then continued to work and serve Sussex or serve Diamond State. And when she retired in November of 2007, when she left, then the benefit kicked in. It's a supplemental retirement benefit. So unlike other potential consideration, the consideration, the parrot, I'm sorry, my time's up

. Okay, you've finished that sentence, and I have just one quick factual question for you. The parrot was, if you continue with your loyal and continuous service, when that continuous service ends, will give you this benefit, and that's what they did. Now, you didn't ask for a jury trial, did you? No. So it would be a trial by the judge here. We had trial by the judge. We were wrong. But this was resolved on summary judgment, was it not? It was resolved on summary judgment of, on one issue. Consideration. Less than a week before the pretrial conference, there were a lot of issues of factor on her that we were prepared to present expert testimony along with witnesses, and Judge Andrews, the day of the pretrial conference, Orally said, I'm graining defendant's motion for summary judgment, didn't say why, didn't say how, and we didn't get that decision until like 16 days ago. When we get you back and rebuttal, one of the things you might want to consider dealing with is, what would you have put in at trial to show that there was consideration for the grant of health benefits post-retirement for Miss Campbell? Okay. Thank you. Mr. Graziano? Good morning. Can you hear me, Judge? I can. Thank you

. Thank you. May I please the court? My name is Michael Graziano. I represent Sussex County Federal Credit. Now, this is a contract, or the, what was given to Miss Campbell was essentially based on what was done previously for Miss Eva, or they call her Eve Thomas. Is that correct? That's correct. Diamond State had a fire employee named Eve Thomas, who was entered into a retirement benefits plan with Diamond State Federal Credit Union. And the issue, when you first look at the Thomas plan, which goes back to 88, I think Mr. Zapplicki just pulled this form off and used that as the basis for what he drafted for the Board for Miss Campbell. It says, in consideration of Thomas' long and valuable service to the Credit Union, and her continued services up to the time of her retirement. So it sounds like, you know, there's going to be something further. And then with regard to Campbell, it says, now that their purpose is to reward the employee for loyal and continuous service to the company. So we don't quite know what continuous service is. That helps you to question your favor. What doesn't cut in your favor is that Thomas, everyone knew when Thomas left in 88, she was getting ready to retire almost immediately after this plan went into fact. In fact, she retired within a month and a half, two months

. Whereas Campbell stayed another almost two years. Isn't that correct? That's correct. So why isn't that something that should be resolved at trial and not leave us to guess at some rejudgment, what in the world is going on here? What continuous service means? Who Judge Fuente is asked about that? Well, I believe that Council had the, and Miss Campbell had the opportunity to explain what she was going to present at trial during summary judgment briefing, and what would prove that this promise is what induced her in fact stay for another year and a half. And she just quite simply did not do it. The only evidence in the record, which speaks to, which is outside of the full part of the contract, which speaks to the intent of the parties is Miss Campbell's own testimony that not only on the day after, she couldn't, not only that she could have retired the day after that the plan became effective and been entitled to the benefits, but the previous question, she actually said that on the day that it was signed, she was entitled to the retirement benefits. So that speaks to Miss Campbell's, that's the best possible evidence Miss Campbell's own. Judge Amber was asking a comparison between the Thomas or Thomas. Yeah, Thomas. You got a package and isn't this pretty much the same. With the exception that everyone knew she was leaving, and the other one people didn't know when she was leaving, and she stayed on for another couple of years. I believe that the two circumstances are not the same. In this Thomas's case, I believe the plan actually set forth the date for her retirement, and while it's a short period and everybody knew she was going to retire shortly thereafter, that becomes a question of adequacy of the consideration, not whether consideration exists in the first place. And I believe that a couple months of service is adequacy of consideration in exchange for a promise of service. Well, then it sounds like two years should be adequacy of consideration, too, even more. Let's see, 24 months, about 12 times, two months

. If that was what induced Miss Campbell to, in fact, stay for the year and a half, then I would agree with that statement. But there's simply no evidence which supports the process. But that doesn't, she get a chance of trial to put in that evidence. That's all we're saying. I mean, it looks, one could make an argument here that Rule 56 is being used like Rule 56 is often used as a way to clear dockets, and not to get matters to their merits. I don't believe that that's the case, and Miss Campbell did have the opportunity in response to the summary judgment motion. She could have submitted an affidavit saying that her intent, this was her intent, she could have submitted an affidavit from the Diamond State employees who were responsible for drafting the contract. But there's nothing like that in the record, and it's because it doesn't exist. Because Miss Campbell's own testimony is that she believed she was entitled to this benefit moment that the plan was signed, which proves that it could not possibly have induced her to stay for a year and a half. What, what, what, what, what helped me out here? It is the law, supposedly, that if you, I just give you a reward for what you've done for me in the past, there's no consideration for that. That's correct. But if I say to you, you're going to get health benefits, if you stay, there is considerations. Is that what you're saying? Yes, I believe that there has to do, well, the standard is that it has to be sufficiently definite. We have to be able to determine what the obligation is that the employee is supposed to fulfill. The problem we went looking for some case law here, and the only circuit case that we really found was that that, a nice circuit case called Biscayano versus Microsoft at 120 Fed

. Third 2006, and it says, quote, few employee benefits are mere gratuities, or a result of all unadulterated ultrasonry. Most are for services rendered, or for the purpose of inducing further rendering of services. They help us to guarantee a competent and happy workforce. So when you look at that, and also there's some intensive endocases that says, retirement benefits are not manner that falls miraculously from the sky. I mean, the idea is that you're giving somebody something, and here it talks about continuous service, which we don't quite know what it means. And I'm unsure as to how that can be resolved, just as some rejudgment without a full airing of on the merits. Well, typically, the problem from Sussex's perspective is that there's just no evidence in the record that continuous means anything other than your performance from when you begin with Diamond State until the date that the plan assigned. If there was, if that's a retrospective view, but is there anything that tells us that we can't give it a perspective view? In other words, the contract assigned, we're going to do this for you for a loyal and continuous service. Why can't you give that a perspective? What does that continue? I mean, or I don't know. I mean, I don't know what it could have said, but somebody needs to tell us what that means. And I believe that Miss Campbell did during her deposition when she said that she was entitled to the retirement benefit on a date that it was signed, and that if she could have retired the next day, and she didn't title to the benefit. But she didn't. So, I mean, does that, I mean, in effect, maybe that's asking us to consider what the fact that she didn't, and that she stayed on for two years, is that enough? I mean, you don't need a whole consideration can be a peppercorn. That's very low bar. That's correct. And Sussex's position is that there's not even a peppercorn in this case. What was her position and the deposition again that she said that I'm entitled to this? She, I have the exact quote marked off here, second read it, the quote. It's on page 219 of the Joint Appendix. Miss Campbell's answer to prior question is, the benefits plan was adopted by the Board Effect of January 24th, 2006. Question, OK. So, on and after January 24th, 2006, as you understand it, you were entitled to this retirement plan. Is that correct? Yes. OK. So, for example, you put it retired the next day, January 25th, 2006, and you would have been entitled to retirement plan. Correct? Correct. So, you do this as a reward or a gift as opposed to a prospective contract? Yes, that's correct. And that's moving on to the second piece of evidence that's in the record that speaks to the intent of the parties, which I believe is, we started talking about this, Thomas's plan earlier, the fact that Daniel Suplikki, the attorney who drafted the agreement, used the Thomas plan as a model, and specifically extracted the language that required, had a date certain for retirement and required, Miss Thomas to continue working, I think, a circumstantial proof that the parties, Miss Campbell and I'm in state of doubt. Now, it looks like in Thomas's case, that was a reward. I don't know in Campbell's case. I mean, if everybody knows, I mean, this, the reality is they all knew that Thomas was retiring

. And Sussex's position is that there's not even a peppercorn in this case. What was her position and the deposition again that she said that I'm entitled to this? She, I have the exact quote marked off here, second read it, the quote. It's on page 219 of the Joint Appendix. Miss Campbell's answer to prior question is, the benefits plan was adopted by the Board Effect of January 24th, 2006. Question, OK. So, on and after January 24th, 2006, as you understand it, you were entitled to this retirement plan. Is that correct? Yes. OK. So, for example, you put it retired the next day, January 25th, 2006, and you would have been entitled to retirement plan. Correct? Correct. So, you do this as a reward or a gift as opposed to a prospective contract? Yes, that's correct. And that's moving on to the second piece of evidence that's in the record that speaks to the intent of the parties, which I believe is, we started talking about this, Thomas's plan earlier, the fact that Daniel Suplikki, the attorney who drafted the agreement, used the Thomas plan as a model, and specifically extracted the language that required, had a date certain for retirement and required, Miss Thomas to continue working, I think, a circumstantial proof that the parties, Miss Campbell and I'm in state of doubt. Now, it looks like in Thomas's case, that was a reward. I don't know in Campbell's case. I mean, if everybody knows, I mean, this, the reality is they all knew that Thomas was retiring. And we're going to give her, in effect, we're going to give her a going-away president. It's better than a watch. And so, if you're saying that there's consideration there, how in the world, there not be consideration here? The answer is- Well, at least get it to the trial. Maybe she loses a trial. Well, the answer is that, first of all, the plan that was given to Miss Campbell states that it is a reward. So, I believe that, to the extent, there's a distinction based on Miss Thomas's plan being a reward, that language is in Miss Campbell's plan. Where's the say that? It's in Section B. It says the purpose of the plan is to reward the employee for a loyal and continuous service. It does say reward. But we reward her for continuous service past or past and future. I don't know. I don't know either. I agree that if you don't know either and I don't know, then you need to have a trial. We don't have a rationale for District Court's decision that there was no consideration. It's a court for the basis for a decision that is no consideration

. And we're going to give her, in effect, we're going to give her a going-away president. It's better than a watch. And so, if you're saying that there's consideration there, how in the world, there not be consideration here? The answer is- Well, at least get it to the trial. Maybe she loses a trial. Well, the answer is that, first of all, the plan that was given to Miss Campbell states that it is a reward. So, I believe that, to the extent, there's a distinction based on Miss Thomas's plan being a reward, that language is in Miss Campbell's plan. Where's the say that? It's in Section B. It says the purpose of the plan is to reward the employee for a loyal and continuous service. It does say reward. But we reward her for continuous service past or past and future. I don't know. I don't know either. I agree that if you don't know either and I don't know, then you need to have a trial. We don't have a rationale for District Court's decision that there was no consideration. It's a court for the basis for a decision that is no consideration. Yes. And the District Court issued a memorandum opinion which in- It's in the Joint Appendix, I believe it starts on page three, on page seven of the Joint Appendix. I believe it's putting out two, like a four-page opinion. Yes, it's a short opinion, but there's a long and short of it. What was his reason for? I believe that it's short because it's reflective of the amount of the lack of evidence the support in this Campbell's argument that there's consideration in this case. There was very little evidence that was put forward before the judge. One was the plan, which he addressed and said, on its face, this plan does not require Miss Campbell to do anything. And that's been put note two. And he moved on to address the fact that Miss Campbell herself admitted that in essence it didn't require her to do anything. And that was the basis for his opinion. There was little other evidence in the record. Delaware Law is what govern this contract. Federal common law of contracts govern this. Was there a choice of law in the agreement that all were in the award, whatever it was that the board did? I believe there was a choice of law provision. I believe that it's, this is an interesting question

. Yes. And the District Court issued a memorandum opinion which in- It's in the Joint Appendix, I believe it starts on page three, on page seven of the Joint Appendix. I believe it's putting out two, like a four-page opinion. Yes, it's a short opinion, but there's a long and short of it. What was his reason for? I believe that it's short because it's reflective of the amount of the lack of evidence the support in this Campbell's argument that there's consideration in this case. There was very little evidence that was put forward before the judge. One was the plan, which he addressed and said, on its face, this plan does not require Miss Campbell to do anything. And that's been put note two. And he moved on to address the fact that Miss Campbell herself admitted that in essence it didn't require her to do anything. And that was the basis for his opinion. There was little other evidence in the record. Delaware Law is what govern this contract. Federal common law of contracts govern this. Was there a choice of law in the agreement that all were in the award, whatever it was that the board did? I believe there was a choice of law provision. I believe that it's, this is an interesting question. I don't know the answer to you, but I believe it would be preempted by a list in large measure. It would be, because in Delaware there's a 1966 Chancellor Court decision that says the modern trend is to view voluntary pension plans as constituting offers of additional compensation as and as incentives to continuing and more dedicated service. That sounds like this was an ins, could be, might be, depending on what comes out of trial and incentive to continuing and more dedicated service. And in fact, the word continuous is used in the contract or the document plan with respect to Campbell. Well, with respect to those two points, I'm not familiar with the case, but I don't believe that we have the first in this case. With respect to the second, there's certainly no evidence in the record and then was presented in opposition to Sussex's motion for some rejudgment that the purpose was to incentivize Miss Campbell to stay. There was a deposition, I believe, of Regina Brainer, who was the chairperson of Diamond State at the time. The plan was adopted. And from my recollection, I don't believe there was any testimony that the purpose list to incentivize Miss Campbell to stay. Just one other couple of questions with respect to if we get beyond this. You suggest that the one-year statute of limitations had passed and that what was sent in any event to the, there was not an exhaustion of remedies. The December 18 letter of Mr. Weir, you're saying it wasn't to the President? Yes, that's correct. Putting four more assumptions. Who was the President in 2009? Lewis signed something as President and then it looks like Miss Fouette, who was President? I believe it was Miss Fouette

. I don't know the answer to you, but I believe it would be preempted by a list in large measure. It would be, because in Delaware there's a 1966 Chancellor Court decision that says the modern trend is to view voluntary pension plans as constituting offers of additional compensation as and as incentives to continuing and more dedicated service. That sounds like this was an ins, could be, might be, depending on what comes out of trial and incentive to continuing and more dedicated service. And in fact, the word continuous is used in the contract or the document plan with respect to Campbell. Well, with respect to those two points, I'm not familiar with the case, but I don't believe that we have the first in this case. With respect to the second, there's certainly no evidence in the record and then was presented in opposition to Sussex's motion for some rejudgment that the purpose was to incentivize Miss Campbell to stay. There was a deposition, I believe, of Regina Brainer, who was the chairperson of Diamond State at the time. The plan was adopted. And from my recollection, I don't believe there was any testimony that the purpose list to incentivize Miss Campbell to stay. Just one other couple of questions with respect to if we get beyond this. You suggest that the one-year statute of limitations had passed and that what was sent in any event to the, there was not an exhaustion of remedies. The December 18 letter of Mr. Weir, you're saying it wasn't to the President? Yes, that's correct. Putting four more assumptions. Who was the President in 2009? Lewis signed something as President and then it looks like Miss Fouette, who was President? I believe it was Miss Fouette. The one-year-old Lewis said he was in one of his letters, in November 6th or so. I cannot speak to that. I agree with you. I tend to agree with you that it's putting form over substance, but that is the only problem with the four prior letters that were exchanged between Miss Campbell and Mr. Lewis, which were Miss Campbell made a claim. Beginning on, I believe, was October 31st, 2009, and there was a response a few days later. She asked John Lewis to reconsider. So she made a claim on October 31st, 2009 and filed a complaint in August of 2010. She would be within the year which you know. No, she would not, because the question is equitable towing. The claim accrued on May 14th, 2009, when Miss Campbell was still working for Sussex and Sussex, it was during the first pay period that Miss Campbell was enrolled in Sussex's health insurance program. The Sussex County reduced her gross compensation by $160.58 every pay period, which I believe was by Montpellier. And under the clear repeatation rule, which is court adopted in Miller vs. Court of Spanifits, the reduction of a benefit provides immediate obvious notice to the claimant that there is a dispute regarding their benefit

. The one-year-old Lewis said he was in one of his letters, in November 6th or so. I cannot speak to that. I agree with you. I tend to agree with you that it's putting form over substance, but that is the only problem with the four prior letters that were exchanged between Miss Campbell and Mr. Lewis, which were Miss Campbell made a claim. Beginning on, I believe, was October 31st, 2009, and there was a response a few days later. She asked John Lewis to reconsider. So she made a claim on October 31st, 2009 and filed a complaint in August of 2010. She would be within the year which you know. No, she would not, because the question is equitable towing. The claim accrued on May 14th, 2009, when Miss Campbell was still working for Sussex and Sussex, it was during the first pay period that Miss Campbell was enrolled in Sussex's health insurance program. The Sussex County reduced her gross compensation by $160.58 every pay period, which I believe was by Montpellier. And under the clear repeatation rule, which is court adopted in Miller vs. Court of Spanifits, the reduction of a benefit provides immediate obvious notice to the claimant that there is a dispute regarding their benefit. So that's the date of a cruel of the claim, May 14th, 2009. Judge Andrews agreed with that and held it, the claim accrued at that time, but nevertheless found that it was time as the day was equitable towing the flag for 180 days following Mr. Wears letter in December 18th, 2009, because Miss Campbell had to have also been mentioned. I would never respond to that letter did it. No, no, you did not. You could get a one. I do not know. Thank you. Thank you. Mr. Weareback, I'm Rebo. May I please the Court again? Yes, there is a choice of law governing law provision in the plan, and it is Delaware. And on page 4 of the plan, paragraph 5, this agreement shall be construed in accordance with and governed by the laws of the State of Delaware, appendix 189. This case really is a one person or discipline, isn't it? Pardon? It's a one person or discipline. Is that what we're dealing with? It's an erous of plan

. So that's the date of a cruel of the claim, May 14th, 2009. Judge Andrews agreed with that and held it, the claim accrued at that time, but nevertheless found that it was time as the day was equitable towing the flag for 180 days following Mr. Wears letter in December 18th, 2009, because Miss Campbell had to have also been mentioned. I would never respond to that letter did it. No, no, you did not. You could get a one. I do not know. Thank you. Thank you. Mr. Weareback, I'm Rebo. May I please the Court again? Yes, there is a choice of law governing law provision in the plan, and it is Delaware. And on page 4 of the plan, paragraph 5, this agreement shall be construed in accordance with and governed by the laws of the State of Delaware, appendix 189. This case really is a one person or discipline, isn't it? Pardon? It's a one person or discipline. Is that what we're dealing with? It's an erous of plan. Judge Andrews, that was a plan. It's a one person plan. Is that the word? It's a tailor-free client. Pardon? It was tailored for your client, that fair to say. Well, yes, it was consistent with what they had done for e to Thomas in the consistent but what they did for Paula Campbell. They didn't have to, but they did in consideration for her because she, the evidential and absurd honor in part, had we been able to go to trial and we believe that the court created errors of law in granting summary judgment, in trying to construe a contract, and which we say was not, he could not resort to this so-called extrinsic evidence, because we believe it's on its face, it's susceptible of two, at least two interpretations. We believe our interpretation was and continuous, but more importantly, I think we would have been able to show, in which show, that during the course of leading up to Paula's acceptance of employment with Sussex in 07, in January of 06. What was the merger with Sussex? It was Hordain, right? Yes, oh, no. But in January 24th of 06, that's the date of the plan. Now, there is in the record, Your Honor, that actually the plan finally was sent to Paula in February of 06. They had done some revisions and was backdated to January, but in May of 06, after the plan was entered into effective date. There was an annual meeting, and Paula and her husband, Doug, who's also here, talked with Miss Luehette, because they had known each other, because Paula had been there for years. And at that meeting, Miss Luehette approached the possibility that Paula could go and work at Sussex. And Paula said, I'm happy at Diamond State, and I'm not going to leave. So she had the testimony would be, there was never an intention of her to retire

. Judge Andrews, that was a plan. It's a one person plan. Is that the word? It's a tailor-free client. Pardon? It was tailored for your client, that fair to say. Well, yes, it was consistent with what they had done for e to Thomas in the consistent but what they did for Paula Campbell. They didn't have to, but they did in consideration for her because she, the evidential and absurd honor in part, had we been able to go to trial and we believe that the court created errors of law in granting summary judgment, in trying to construe a contract, and which we say was not, he could not resort to this so-called extrinsic evidence, because we believe it's on its face, it's susceptible of two, at least two interpretations. We believe our interpretation was and continuous, but more importantly, I think we would have been able to show, in which show, that during the course of leading up to Paula's acceptance of employment with Sussex in 07, in January of 06. What was the merger with Sussex? It was Hordain, right? Yes, oh, no. But in January 24th of 06, that's the date of the plan. Now, there is in the record, Your Honor, that actually the plan finally was sent to Paula in February of 06. They had done some revisions and was backdated to January, but in May of 06, after the plan was entered into effective date. There was an annual meeting, and Paula and her husband, Doug, who's also here, talked with Miss Luehette, because they had known each other, because Paula had been there for years. And at that meeting, Miss Luehette approached the possibility that Paula could go and work at Sussex. And Paula said, I'm happy at Diamond State, and I'm not going to leave. So she had the testimony would be, there was never an intention of her to retire. She never discussed with the board, oh, I'm retiring tomorrow, as Eva Thomas did. Had she wanted to retire, she could have done what Eva Thomas did. How was this related to consideration? I thought that was Judge General. What would you would do? The evidence in support of consideration, if you had the opportunity to do. Well, that's what I was saying. Paula would testify that I had no intention to retire. There was never a discussion about retiring. I continued to retire. I continued to work. And it wasn't until two years later, when Miss Luehette of Sussex approached her, that she then said, I will go. And by the way, and she said this, and I've got 43 seconds, she said to Paula in an email, did you tell me you do not need health benefits? And Paula said, yes, Sussex is Diamond State's paying for that. She said, that will make it easier to hire you. So everybody knew that Paula was continuing to work at Diamond State, even if she left. I want you in the final seconds here to address the notion of reward that it contemplates actions in the past, not the future. And her acknowledgment of the same interdeposition testimony that she believed it was for what she had done in the past because she could have left that very day

. She never discussed with the board, oh, I'm retiring tomorrow, as Eva Thomas did. Had she wanted to retire, she could have done what Eva Thomas did. How was this related to consideration? I thought that was Judge General. What would you would do? The evidence in support of consideration, if you had the opportunity to do. Well, that's what I was saying. Paula would testify that I had no intention to retire. There was never a discussion about retiring. I continued to retire. I continued to work. And it wasn't until two years later, when Miss Luehette of Sussex approached her, that she then said, I will go. And by the way, and she said this, and I've got 43 seconds, she said to Paula in an email, did you tell me you do not need health benefits? And Paula said, yes, Sussex is Diamond State's paying for that. She said, that will make it easier to hire you. So everybody knew that Paula was continuing to work at Diamond State, even if she left. I want you in the final seconds here to address the notion of reward that it contemplates actions in the past, not the future. And her acknowledgment of the same interdeposition testimony that she believed it was for what she had done in the past because she could have left that very day. How do you deal with that? Well, I deal with it in a right of the way, Your Honor. First of all, Paula's deposition testimony does not change the language of the contract. It was extrinsic evidence that seven years later, be lied by what happened, which was she continued to work. It was speculation. But if she was not required to continue to work, it was a reward and it was not a contract. Well, but that's not consideration. Then the judge was right. It wasn't consideration. Correct? No, Your Honor, because the evidence is when she was asked the question, so you could have retired the next day, not immediately, so you could have retired the next day, she said, yeah, but that doesn't mean that it was a gratuitous promise with no consideration. What it says is for your continuous service and a trial, Judge Ambrough, we would put in testimony from Paula, Gina Brainerd, and others as to the circumstances under which this benefit was provided to her. So it's our position that the law does not require a set time. All it requires, particularly if you have a unilateral contract, Your Honor, is continued performance, which is what she did. And we believe that we should have the right to go to trial, present our evidence, have a full trial on the merits, particularly these other issues. And we believe that Judge Andrews was correct on the statute of limitations. That can be down the road, revisited with this Court, and I'll believe the Court wants to necessarily decide whether Judge Andrews was right along the statute of limitations

. We submit that the time that the claim accrued was later than May 14th, which is what Judge Andrews held, but that we put in our briefs. We've got your argument on that one. Okay. Thank you very much. Thank you, Your Honor, I appreciate it. Thank you to both counsel. We'll take the matter under advisement