Legal Case Summary

we have to back find Mr. Turello already? Yes, Rob. Good morning, Judge. Morning. Where should I? Almost say good afternoon. My name is Jay Becker and I'm here representing the Appellance Paul Scagnelli and Jim Hamill. I request two minutes for Rebuttal, please. Okay. Thank you. Your Honor, we are here today peeling a decision by Judge Cooper, which dismissed the plaintiffs complaints based on a summary judgment motion filed by the defendant, Ron Shivoney and the state of Ron Shivoney, the trust of Ron Shivoney. We believe your Honor that the court, the lower court aired in its decision in deciding this case on the merits when there are significant questions of fact. The issue is really boiled down to his judgment. Where does the record gives rise to the questions of fact sufficient to get that summary judgment? As to whether there's a contract. Yes, Judge. I believe that there are a number of facts that are before the court in the record that establish all of the terms that are necessary to establish a contract. In this particular case, under the Bayer V. Chase case, the question was, are the facts sufficiently definitive enough so that performance can be rendered with reasonable certainty? But look, let's take for example, just prior to the closing in December 31st of 2007, or to that month, the letter was sent by the three employees to Mr. Shivoney, Mr. Donovan. And they noted they did not have employment agreements and requested that they provide us with your proposal. It's a quote. Provides with your proposal on what compensation we can expect for such past efforts as soon as possible. That seems to indicate pretty clearly there just wasn't yet an agreement. There was a desire to get to an agreement. Your Honor, with all due respect, and this is why there are so many questions of fact in this case, you have to look at the relationship that these gentlemen had with Mr. Shivoney for over 30 years. This was a man of integrity and honor when he said he was going to do something, he did it. There was never ever a question as to what this gentleman was going to do. But you have to show what the it would have been. That's correct. And there's plenty of evidence before the record that shows not only what the it was, Judge, but when, how, by whom, to answer your question, Judge Ambrou, that was their effort because it was their understanding, and it's in the record. It was their understanding that in order for this deal to close, the three executive members of the management team, the Troika, you've heard that term, they had to be locked up in an employment agreement because it was their understanding they would lead to believe. But were they actually locked up prior to the closing and an employment agreement? They were not. So the closing was still took place without that? Yes, Judge, but they would lead to believe that the deal would not close, that your Goddard would not be interested in buying this company unless the three executives that ran the company on a day-to-day basis. Mr

. Shiavoni was an absentee owner. He was retired and in Florida. If it wasn't for these three people that ran the company on a day-to-day basis, were locked up, then there was no value in the company. Troika had no interest in this company if it wasn't for these three. And so they were trying, I'm sorry, Judge, they were trying to do the best they could in the most polite respectful manner that they could with this gentleman that they'd worked with for 30 years to say, let's get it done. We don't want to hold, we don't want to be the ones to hold up this closing. Let's get this done. And if I may, Your Honor. But what you would need there is something, for example, for Mr. Shiavoni saying, I understand we are going to get it done and I promise you, for your willingness to stay, I am going to give you something. And I believe the record is filled with those promises, Your Honor. If I may. Well, go ahead. No, this case was a demand for a jury trial. Yes, Judge. But what question, how would you try this case to a jury? I mean, how would it be presented to a jury, would you ask them to make findings that there was an agreement? What would you ask them to do? I would establish that there was enough evidence before the record that there was an agreement. There wasn't a written contract, but there's enough evidence to show that there was an understanding, there was a meeting of the minds between the parties. And then I also believe there was enough before the record to show what that meeting of the mind was. Not only. What was it? What was it? It's not what. There were representations made by Mr. Shiavone himself. There were a number of communications made by the Troika to Mr. Shiavone, where the specific issue about a 2% of the purchase price was included about who was going to pay that the owners of the company. There are statements made directly by the owners of the company that they will take responsibility. If I may, Judge, I have every intent. I will absolutely do this in the letter by Mr. Donovan. I'm sorry, by Mr. Shiavone, when he finally, in August of 2008, after two years of communicating with the Troika, the owners of SEC made representations. It's not SEC made, but the owners of SEC made representations. What did they specifically say? Mr. Shiavone specifically said that he will do something, hang in there, we will take care of you, and all of these statements that were made by him were memorialized by the Troika. But the question is, what is the something? The something is 2% of the purchase price

. I don't know that. I mean, I'll do something. Obviously, Mr. Donovan did do something. He gave what 750,000 to each. Mr. Donovan did, and this is your honor. The Troika's case talks about silence equating to a scent. And there is plenty of silence in this case, which we believe at least is a question of fact creates a scent. And that is this. Here's Mr. Shiavone. No one could argue his business acumen. Nobody can argue how successful he was. It's clearly a question of fact as to whether you have these three executives that are running his company, he trusts them to run his company on a day-to-day basis. Yet they are communicating with him on a number of occasions, and he does not respond. He never offers a letter refuting it. He never contests it. He never says no. I'm not giving you 2%. And he never says no. The individual owners are not going to be responsible. All these are memorialized in writings. 2 Mr. Shiavone. And he never contests that. But it looks as if what they were doing is they were still negotiating the contract. I mean, for example, the terms of the first and the second draft of drafts of the agreements, they differ. I mean, and that's so the second draft looks like it's counter-proposal. This is almost, this is classic contract formation. And you need more something that is significantly more substantial to show that there is a contract actually for them. If you take a look at the totality of the circumstances and the extrinsic evidence that's attached, the owners, the bonding companies, and the owners asked the Troy to put together a proposal. They did that. It was presented to Mr

. Shiavone for whatever reason he did not like the form that it took. But the summon substance of the two agreements were essentially the same. They were differences. They were absolutely differences. Some like the differences. Not. They were differences. Absolutely. Well, there were differences in the other. Ray. Raises. Boneses. Termination. Restrictive covenant. Who's the substantive? Right. But if you look at the record every time that the gentleman tried to get Mr. Shiavone to sign on the dotted line, it was always about just, it was never about we need to continue negotiating. It was just, we need to get this done because a, the deal won't close unless we are locked up to an employment agreement and b, we've known you, Mr. Shiavone, for 30 years. When you said you're going to be doing this. So what happened post-closing in their discussions? Post-closing, Mr. Shiavone stopped communicating with them all together. He told the Troika that my lawyers told me to stop communicating with you. And for the very first time, Judge, for the very first time in August of 2008, after getting communications from 2006, 2007, meetings, meetings at Fidloseville Country Club, which is owned by Mr. Shiavone meetings in his home, where minutes were taken. Simultaneous minutes were taken of the meeting, contemporaneous notes, and presented to Mr. Shiavone and never once did he say in April of 2007, no, that's not what happened in the meeting. No, that's not correct. It was only until after the closing, after the deal went down, after Mr. Shiavone got his $75 million, did he say there must be a misunderstanding. And I'd love to point to that letter itself, Your Honor, because in that letter, he specifically says, he uses the language that joint exhibit number 194. He specifically refers to the owners of SCC were under no obligation to make. He didn't refer to SCC's, Shiavone construction company was under no obligation, he refers to himself. And Mr

. Donovan referred to himself in the settlement agreement that he made with the Troika, where he said, this was coming out of my share, so the terms in the record is full of the words, I, me, my, my. When did Mr. Shiavone die? I believe it's been two years now. Two years, okay. So, I mean, from 07 until 11, that's, you know, 8, 9, 10s, three plus years, that there was no reconciliation of whatever the purported arrangement was. Correct. Well, it was actually between 06 is when the bonding companies requested the deployment agreement. And I'd like to point out that there wasn't just an employment agreement as an employment agreement and a cell participation agreement. And if you look, there were different forms with respect to the form with respect to the self, the employment agreement, but the cell participation agreement was the same document. It just had handwriting, which, Your Honor, Joe, Jim, bro, you asked me, where do we get the number from? Mr. Shiavone himself in his own deposition testimony admitted that he hand wrote the number 2 percent. That's correct. I mean, he increased that from what's existing. But it was part of an employment agreement that had other significant provisions, not all of which were, were ironed out prior to the closing. But Your Honor, this goes, isn't your better argument, I mean, isn't your better argument that the promissory of stop will claim possibly as opposed to the contract claim? We believe that Judge Cooper Erid in deciding that there was not enough definitiveness in that as well. And if we want to get to that, the Commerce case specifically talks about promissory stop, and I think there's plenty of, again, I'm going to go to the definitiveness of the, whether it was the agreement that they had or the relationship and the promise that was made. The promises that were made, Mr. Shiavone would use the term, I will take care of you, I, I promise, I will do something. I have every intention to meet with you individually. And they could, you relied upon that. And this issue would be one, is the compliance reasonable? And two, if it is reasonable, what's the dollar value of the reliance? The reliance, Your Honor, is these gentlemen were asked by both Mr. Donovan and Mr. Shiavone to help facilitate the sale of their company. Was it the bonding companies that have put the idea in the minds of Mr. Shiavone, Mr. Donovan that maybe we should sell the company because they're looking to get these executives tied up because we're not going to be here forever. One was in his 80s, one was in his late 70s. The fact of the matter is they were marketing the company. And they made representations to my client, you help facilitate the sale. You counsel us on it since you're the ones running the business on a day-to-day basis. And we'll take care of you. The sale participation is a very common incentive in businesses. It was not uncommon in this one at all. And when they counseled the owners on a potential $60 million sale to Lucadia, they specifically said, we don't think this is a good idea

. This is not the best interest of the company. This is not the best interest of the owners. And sure enough, they ended up selling the company for $150 million one year later to Drogados. And in Mr. Donovan's settlement agreement with the gentleman, he specifically wrote, for your anticipated cooperation and assistance in the sale. That was the reliance. That was the representation made to them. And they relied on it, figuring the 30 years we could trust these men. They say they're going to do something, they do it. We're not going to go and look for another job. They admit it in their testimony. We didn't try to find another job. Why would we? We know this company's being marketed for sale. We have the potential of earning a significant incentive. As told to us by the owners, why should we look for another job? Why should we do any of that? We're going to trust the people that have told us what they're going to do. And another piece of evidence that I think is critical is, what a promissory is stable to. What would the jury determine with the O? Because there were different numbers that came around. That's correct, Your Honor. At one point in the initial draft, it was 1.66 of the purchase price. The handwritten change by Mr. Shivoney himself was 2%. We believe that it was 2% as Mr. Shivoney wrote that term in every conversation, every document that's in the record. That was either the notes memorializing minutes of a meeting by Mr. Hamill refers to 2% to be split 50-50. That was presented to the owners. They never refuted it. They never wrote backs and contested it. You asked the man this for a jury trial. Correct, Your Honor. You know, the bear-vee chase, I have to write that, had a grim outcome. That's what we did from the point of view of the plaintiff. We said, okay, you're entitled to a jury trial

. I got no cause. But, Your Honor, I believe that the bear cases is distinguished significantly. In bear, there was no... It was not even a range, as I recall. This one we have a range. This one, we're going to take the position. It's 2%. But even if someone wants to take the position, it was between 1.66 and 2. When Mr. Shivoney promised that he was going to do something, he wasn't promising them a piece of heavy equipment. He wasn't promising them a piece of the golf course, where I'll buy you a dinner or I'll give you a gold watch. He was giving him money. He was giving a percentage of the sale proceeds. That percentage was established 2%. Not just in his own handwriting, but memorialized in a letter from Jim Hamill, memorialized in a letter from the Troika. I think it's telling what Mr. Donovan did, even though the record is clear that the two individuals clearly stated that they were going to do things on their own, Mr. Donovan offered them $750,000 each. Mr. Cassenzo, when he wrote to Mr. Shivoney, saying, we settled our issue with Ronnie, with Ray, and even though it was half of what we expected, and $750,000 payment is half of the 2% number, it's half of 1.5. So there's additional extrinsic evidence to show the meeting on the monitor. Mr. Donovan, is that maybe an evidence reach? I assume that we come in, but I'm not sure. If an offer on compromise, I was made in compromise with Donovan. That's good. You could clearly argue that it's relevant to Shivoney's understanding of the value of the reliance, if it will, or what he wrote them. I'm just going to percentage the sale. I'm not. I'm just not sure if that comes in or not

. I don't know. I had a research. I'm not so sure that gets in. I believe because there's plenty of information in the record to show that these two owners, stated in a numerous fashion that they would undertake this responsibility individually, it shows the meeting of the minds. It shows what the intent was of the parties. It certainly shows what the reasonable expectation was. That's the argument. I'm just not sure. It's not my job to decide it. One of the Troika remained or two remained in one left after the sale. Well, you're honored. Since this time, all three are no longer with the company. As of this, yes, after the sale, all three stayed with the company after the sale. Did their job, they assisted with the sale. They stayed there. Since then, one left on its own, one retired and Mr. Skagnoli just recently retired. My two clients, the Troika, there were three. Carcassins have decided not to appeal the decision. Paul Skagnoli and Jim Hamill. Jim Hamill retired last year. Paul Skagnoli just retired within this past year. I noticed that my red light is on. You say sometime, I think. Yes, I have two minutes. Okay, thank you. Thank you, Judge. Good afternoon, Your Honor. Slingsy Taylor on behalf of Ron Chivoni. What the case really comes down to Your Honor's and this came out in the prior argument is offering acceptance. You've got a good point. Why isn't this a textbook, a stoppage case? There's no formal offering acceptance. You've got these competing drafts. The representation was made that I suggested the change with substance

. You can argue about just how substantive you were, but there's clearly reliance. The only issue in this clearly to their detriment is how reasonable was that reliance. Mr. Becker is arguing, look, they worked with these guys for 30 years. They kept getting assurance from Mr. Chivoni that he was going to take care of them. Why in the world would they not believe this guy who they had every reason to believe for 30 years of administrative. Same, why isn't there's a perfect textbook, a stoppage case? In terms of the measure of damages, Mr. Becker's paid the $750,000 that was paid. He even though it was uncompromised, is one half of the 2%. If you're arguing that the deal was for 2% of the proceeds, well, the payment that they received from the one partner who paid totally consistent with that is proof of what their understanding would have been and proof of how reasonable the reliance is. Why isn't that a perfect way of looking at this case except for the fact that you lose? Why isn't that a perfect way of looking at this case? For two reasons, Your Honor. First of all, with respect to the reliance issue, it might be, as you say, reasonable to rely in terms of their believing that he was going to do something. One of the things that they relied by, they gave up a right to go to the left and they continued the management and facilitation of the deal and the management of the company for a period of time thereafter and that showed their reliance. The point is, why not let that go to a jury? Because, first of all, they really didn't give up anything. They had no intention of leaving Chivoni construction. But didn't that right? They did. They had the right to move to Chivoli. They had been working for 30 years and don't worry, I'm going to take it. And what detriment did they incur by staying on? They didn't pass up a better job. They didn't incur any expenses. Like, for example, in the Commerce Bank case. They didn't go look for another job. They stayed with this and it was, you know, there wasn't an agreement. You get down to the closing time and they say, you know, hey, we're getting close. We really need to have an agreement. And it's almost like, okay, just stay. Because the bondholders wanted to stay. Other people drug... Pregnantos? Pregnantos wanted them to stay. And they did stay. And one could argue after 30 years after the time of the relationship they had with Chivoni and Mr

. Donovan, that they stayed almost out of love. And so they're asking to be, you know, with this type of really good payout. And I can understand why Mr. Chivoni and Mr. Donovan want to sell. They're going to stay and they'll be taken care of. They rely on it. Now, maybe they lose. But why doesn't that go to a jury? Because they didn't give up anything. And you said the game of the... The ability to buy... But we're looking elsewhere. They did. But what monetary burden or what monetary adverse affected they have on them. Zero. They might have been thinking about retiring. One of the three did retire very soon thereafter. But Mr. Consenzo left at the request of the U.S. attorney in the Eastern District of New York because of some minority hiring issues. Okay. But the point is, do we sort this out or allow a district to just sort this promissory stop will came out of some redjudgment? Or we just allow a jury to sort it out. Again, they may not win. Well, the facts are nonetheless undisputed. And they didn't incur any financial detriment. They didn't incur any detriment at all in relying on Mr. Chivoni's promise. Now, to, like, for example, in the Commerce Bank case, the Commerce Bank wasn't suing to put the deal through. What they wanted was while the negotiations were pending and the sellers were saying, you know, let's get this deal done, they went and Commerce Bank went and spent $45,000 to fix up the building, the space where the buyers were running their business

. And they were suing to get that $45,000 back because they had incurred that detriment in reliance on the deal going through. That separate on a part from enforcing the underlying deal in a couple of the other promissory stop will cases where there was somebody picked up and moved in reliance on in one case, getting at least in Atlantic City Hotel, coming to New Jersey from Boston. They weren't enforcing the lease. They weren't, they didn't want the deal. They weren't enforcing the underlying employment agreement. They were suing to get the, they're out of pocket costs and lost business. While when they moved before they could get their business back up running again. There's another landlord, 10-a-case where the landlord gave oral permission to go get a dog, the lady went out and got a dog. There's not any of that sort of out of pocket detrimental reliance that Mr. Sagnally or Mr. Hamilton incurred. What they want to do is enforce the under the contractual promise without having to show offering acceptance, without having any consideration. But there's a problem in the start. That's the doctrine of promissory stop. That's why it's there. Well, yeah, but they didn't change their position to their detriment. But I... They kept doing the same thing that they were doing before. They got paid the same amount of money. They got their bonuses. They got paid everything that they had been getting before. And there wasn't any... Where is the recase that says the reliance has to be manifested in a change of position as opposed to simply relying to one's depth of care? Well, that's the depth of time. The key is right. I thought... Or in each of the cases that say that if you continue to work, then you're relying on it, even if you're just getting the same sound. Well, that is... Consideration for a promise, for example, signing on with an employment agreement, with a restrictive covenant. Continued employment can be consideration for the signing up for a... But, you know, I don't know if you realize this. But trying to think not like so much like a lawyer or a judge, but trying to think how it looks to people. These guys work there for years. They're talking about 2%, 1%, and then at the end when the money comes out, they don't get a cent. You know, the jury might figure that out. Well, exactly... That's exactly... Is that so quiet. They were employees, they weren't shareholders. They got paid piles and piles of money. But people told them, you know, we don't want you to leave. You stay here and then we're going to get taken care of. There was talk along those lines, but taking care of was getting nothing. Mr. Chavoney had never promised them any specific amount of money. He said, or anything in particular. He said, we... I'll do something for you. Mr. Donovan said... So, in the end, he did nothing

.. Consideration for a promise, for example, signing on with an employment agreement, with a restrictive covenant. Continued employment can be consideration for the signing up for a... But, you know, I don't know if you realize this. But trying to think not like so much like a lawyer or a judge, but trying to think how it looks to people. These guys work there for years. They're talking about 2%, 1%, and then at the end when the money comes out, they don't get a cent. You know, the jury might figure that out. Well, exactly... That's exactly... Is that so quiet. They were employees, they weren't shareholders. They got paid piles and piles of money. But people told them, you know, we don't want you to leave. You stay here and then we're going to get taken care of. There was talk along those lines, but taking care of was getting nothing. Mr. Chavoney had never promised them any specific amount of money. He said, or anything in particular. He said, we... I'll do something for you. Mr. Donovan said... So, in the end, he did nothing. But what is he supposed... Well, suppose we... Suppose, for example, an argument was made, well, there was a loan number there that left 2%, but they certainly should get at least that... What was it? What are the third... One man. One, one, one point six. I could see where the jury might think that. But that was also part of a contract negotiation where there was a whole bunch of other issues being negotiated. And the plaintiffs turned it down. But they turned it down. And they turned it down. They asked for what? 1.5% initially? It was 1.2 thirds. 1.2 thirds and then Mr. Chavoney's one is suggested at that point too. Was that correct? Correct. Just on that specific issue, but there was a whole lot of... Oh, he ups the ante to 2 and then in the end, it comes down to 0. In these things? It's a bad card game. Well, it was part of a negotiation of a much broader negotiation. And, if I might point out to your honor, that offer was for Chavoney construction to pay it. Not for Ron Chavoney to pay it

. But what is he supposed... Well, suppose we... Suppose, for example, an argument was made, well, there was a loan number there that left 2%, but they certainly should get at least that... What was it? What are the third... One man. One, one, one point six. I could see where the jury might think that. But that was also part of a contract negotiation where there was a whole bunch of other issues being negotiated. And the plaintiffs turned it down. But they turned it down. And they turned it down. They asked for what? 1.5% initially? It was 1.2 thirds. 1.2 thirds and then Mr. Chavoney's one is suggested at that point too. Was that correct? Correct. Just on that specific issue, but there was a whole lot of... Oh, he ups the ante to 2 and then in the end, it comes down to 0. In these things? It's a bad card game. Well, it was part of a negotiation of a much broader negotiation. And, if I might point out to your honor, that offer was for Chavoney construction to pay it. Not for Ron Chavoney to pay it. But those contracts were between these employees and Chavoney construction... How much did Chavoney construction pay them? Excuse me? How much did Chavoney construction pay them? That was the ad. They paid them about $490,000 a year in terms of the percentage of the sale. Not the sale of the product. 0% of the sale. 0. And if they want to... They're saying that those agreements were moralized a contract, then they've got the wrong defendant. They should be suing Chavoney construction. Well, the discussions were with Mr. Chavoney himself, the owners, correct? Yes. But he was negotiating an employment agreement between these employees and Chavoney construction. And every name... But the 2% would that have come from Chavoney construction? Yes. How so? That's what the contract said. The name on the contract in both their draft and Mr. Chavoney's draft on behalf of the company was... It's between Chavoney construction and the employee. And so then why did Mr. Donovan anti-up money on his own? He testified at his deposition that he felt that they deserved it. But he also testified in his deposition that there was never any agreement to pay them 2%. He never agreed to that. And the fact that he paid only half his evidence of a compromise or disagreement, a disputed claim, not an agreed to claim. What part of the Chavoney construction do you say Cimonia? 50%. Well, I can see that they're sitting there and they're figuring, you know, we're dealing here with a former secretary of labor in the United States. And we're dealing with a very prominent company and they're going to take care of this

. But those contracts were between these employees and Chavoney construction... How much did Chavoney construction pay them? Excuse me? How much did Chavoney construction pay them? That was the ad. They paid them about $490,000 a year in terms of the percentage of the sale. Not the sale of the product. 0% of the sale. 0. And if they want to... They're saying that those agreements were moralized a contract, then they've got the wrong defendant. They should be suing Chavoney construction. Well, the discussions were with Mr. Chavoney himself, the owners, correct? Yes. But he was negotiating an employment agreement between these employees and Chavoney construction. And every name... But the 2% would that have come from Chavoney construction? Yes. How so? That's what the contract said. The name on the contract in both their draft and Mr. Chavoney's draft on behalf of the company was... It's between Chavoney construction and the employee. And so then why did Mr. Donovan anti-up money on his own? He testified at his deposition that he felt that they deserved it. But he also testified in his deposition that there was never any agreement to pay them 2%. He never agreed to that. And the fact that he paid only half his evidence of a compromise or disagreement, a disputed claim, not an agreed to claim. What part of the Chavoney construction do you say Cimonia? 50%. Well, I can see that they're sitting there and they're figuring, you know, we're dealing here with a former secretary of labor in the United States. And we're dealing with a very prominent company and they're going to take care of this. And they're going to take care of this somehow, even though it's a little... I mean, I could see where they might figure that out. Well, especially this has been their 30 years. But neither Mr. Chavoney nor Mr. Donovan had ever personally paid them a dime. All of their compensation had always come through the company. They had been employees of the company. They didn't work for Mr. Donovan. They didn't work for Mr. Chavoney. And also to circle back, you would ask about the percentage. Mr. Donovan paid half of his cut, not half of the 2%. Right. He paid half of this. Half of half of that. Yeah, exactly. Well, they made a settlement there. Correct. That was a settlement of a disputed client. As far as I can see, the record didn't say it, but I gather they must have given a release. Yes, they did. I think that the releases are in the appendix. Oh, they are. I missed it. Well, wouldn't it be the only thing? I had no further questions. Thank you. Thank you, Your Honour. Thank you. If I may, Judge Greenberg, you brought up a very interesting point

. And they're going to take care of this somehow, even though it's a little... I mean, I could see where they might figure that out. Well, especially this has been their 30 years. But neither Mr. Chavoney nor Mr. Donovan had ever personally paid them a dime. All of their compensation had always come through the company. They had been employees of the company. They didn't work for Mr. Donovan. They didn't work for Mr. Chavoney. And also to circle back, you would ask about the percentage. Mr. Donovan paid half of his cut, not half of the 2%. Right. He paid half of this. Half of half of that. Yeah, exactly. Well, they made a settlement there. Correct. That was a settlement of a disputed client. As far as I can see, the record didn't say it, but I gather they must have given a release. Yes, they did. I think that the releases are in the appendix. Oh, they are. I missed it. Well, wouldn't it be the only thing? I had no further questions. Thank you. Thank you, Your Honour. Thank you. If I may, Judge Greenberg, you brought up a very interesting point. I'd like to elaborate on that. These are very important sophisticated businessmen. And when they were writing to them, Judge Ambro, you asked the question as well. They were incredibly delicate in the way that they drafted their letters. Because how do you go to men of that statute and say, do it? You have to ask politely. You have to frame your letters in a relatively conservative manner. And this was not a continued negotiation, as I believe you mentioned, Judge Ambro. This was an attempt to get these two gentlemen that said they were going to do something, which, by the way, Mr. Sheavoni admitted in his deposition that he was going to do something, and he further admitted it as deposition, that he didn't end up doing anything. And the do something is exactly that. What happened, by the way? I mean, what caused things to fall apart, to do something, to go from something to nothing, and nothing in the middle? Mr. Donovan and Mr. Sheavoni did not get along. They did not get along at all. And because of the logistics of the two of them trying to get together to do anything from a business point of view, the logistics of Mr. Sheavoni coming up from Florida once or two or three times a year, the logistics of my three clients that were out in the field doing what they did every single day from 5.30 in the morning until whenever at the end of the night. Logistically, it was impossible to get everyone together, particularly Mr. Donovan and Mr. Sheavoni, together in a room to get it done. And logistically, that was the problem. And before you knew it, time went by, the locating deal was suggested. It's not the age we sell phones and email and the internet and video conferencing. It's hard to explain something, but I just signed it. I couldn't get anybody together in a room. No one gets together in a room anymore. With all due respect, Judge, these gentlemen are all in their 70s and... Well, that's not so big. He's even right. He's even going..

. I'd like to elaborate on that. These are very important sophisticated businessmen. And when they were writing to them, Judge Ambro, you asked the question as well. They were incredibly delicate in the way that they drafted their letters. Because how do you go to men of that statute and say, do it? You have to ask politely. You have to frame your letters in a relatively conservative manner. And this was not a continued negotiation, as I believe you mentioned, Judge Ambro. This was an attempt to get these two gentlemen that said they were going to do something, which, by the way, Mr. Sheavoni admitted in his deposition that he was going to do something, and he further admitted it as deposition, that he didn't end up doing anything. And the do something is exactly that. What happened, by the way? I mean, what caused things to fall apart, to do something, to go from something to nothing, and nothing in the middle? Mr. Donovan and Mr. Sheavoni did not get along. They did not get along at all. And because of the logistics of the two of them trying to get together to do anything from a business point of view, the logistics of Mr. Sheavoni coming up from Florida once or two or three times a year, the logistics of my three clients that were out in the field doing what they did every single day from 5.30 in the morning until whenever at the end of the night. Logistically, it was impossible to get everyone together, particularly Mr. Donovan and Mr. Sheavoni, together in a room to get it done. And logistically, that was the problem. And before you knew it, time went by, the locating deal was suggested. It's not the age we sell phones and email and the internet and video conferencing. It's hard to explain something, but I just signed it. I couldn't get anybody together in a room. No one gets together in a room anymore. With all due respect, Judge, these gentlemen are all in their 70s and... Well, that's not so big. He's even right. He's even going... My distinguished panel may be much more efficient with electronics, but I'm not. And I can imagine they're not. As a matter of fact, whenever I try to communicate with my clients, it's the old-fashioned way. We're either meet-and-person or it's over the phone. It's nothing email. So I can imagine back then, and we're talking the construction industry. I don't know how fluent they were with blackberries and whatnot. But if I may just to respond to some of the things that Mr. Taylor said, forbearance is an essential element in reliance. And you're correct, Judge Greenberg, that I believe it was the haverty case that held that... You don't need... Or it might have been the libosco case. You don't need to change your job to show that you relied on something or that there was consideration. You're forbearance alone. The fact that you did not go out and look for another job for the mere fact that for 30 years, you said you were going to do something and the record's clear. For 30 years, he did some. Although it's a history though, in libosco, that would allow them to put some kind of quantitative value on what the consideration was. And in the haverty case, it's very important because... That's non-published opinion, isn't it? The haverty case... That's non-presentational haverty. It was a haverty versus Andres, Nolik Berger. Was there an unprecedented operation? Was it an unpublished opinion? It was a published... Non-published history. It was not really that helpful, but there again, there's a history

. My distinguished panel may be much more efficient with electronics, but I'm not. And I can imagine they're not. As a matter of fact, whenever I try to communicate with my clients, it's the old-fashioned way. We're either meet-and-person or it's over the phone. It's nothing email. So I can imagine back then, and we're talking the construction industry. I don't know how fluent they were with blackberries and whatnot. But if I may just to respond to some of the things that Mr. Taylor said, forbearance is an essential element in reliance. And you're correct, Judge Greenberg, that I believe it was the haverty case that held that... You don't need... Or it might have been the libosco case. You don't need to change your job to show that you relied on something or that there was consideration. You're forbearance alone. The fact that you did not go out and look for another job for the mere fact that for 30 years, you said you were going to do something and the record's clear. For 30 years, he did some. Although it's a history though, in libosco, that would allow them to put some kind of quantitative value on what the consideration was. And in the haverty case, it's very important because... That's non-published opinion, isn't it? The haverty case... That's non-presentational haverty. It was a haverty versus Andres, Nolik Berger. Was there an unprecedented operation? Was it an unpublished opinion? It was a published... Non-published history. It was not really that helpful, but there again, there's a history. There was a history. And the importance of that case is that there was a range. So if there's ever a question of fact, that's as well as at 1.66%, is it? 2% is it half of what... But this is what you have been on. There's a certain dollar range in the past, so there was some way of getting a handle on what the value of it was. That's why I tried to use the analogy earlier. It's not like to say, we're going to pay you money. And what that money is, who knows? Or we're going to give you a piece of the golf course. So we'll give you some equipment, but we're not going to tell you it's in bulldozer or a tractor. Where... This was... We know exactly what it was. We know what it was. We know by whom was going to pay, because all... Both Mr. Shivoney and Mr. Donovan in numerous documents, including... You're on... There was a settlement agreement executed by the Troika with Mr. Donovan in exchange for the money. And in that settlement agreement, it specifically says by Mr

. There was a history. And the importance of that case is that there was a range. So if there's ever a question of fact, that's as well as at 1.66%, is it? 2% is it half of what... But this is what you have been on. There's a certain dollar range in the past, so there was some way of getting a handle on what the value of it was. That's why I tried to use the analogy earlier. It's not like to say, we're going to pay you money. And what that money is, who knows? Or we're going to give you a piece of the golf course. So we'll give you some equipment, but we're not going to tell you it's in bulldozer or a tractor. Where... This was... We know exactly what it was. We know what it was. We know by whom was going to pay, because all... Both Mr. Shivoney and Mr. Donovan in numerous documents, including... You're on... There was a settlement agreement executed by the Troika with Mr. Donovan in exchange for the money. And in that settlement agreement, it specifically says by Mr. Donovan, I told you that I would pay you a bonus in an amount and on the terms, out of my 50% share of the net proceeds. I, and that's the point I'd like to make. And all of the communications, Mr. Shivoney, I will take care of you. Hang in there. That was another thing, Judge McKay, you mentioned reliance and forbearance. Hang in there. 30 years, if the man says, hang in there. We're going to take care of you. Hang in there. Just be patient. Are you going to go and look for another job? And what happened? Judge Ambrouh, you asked the question. The sale went through. Dragados is a Spanish company. The three Troika, who were led to believe by the owners all along, that the value of the sale was the three men running the company. And unless they were locked up, Dragados was not going to be interested in the company because who's going to run it. And they soon learned after the sale that Dragados, just part of their culture, they don't have employment agreements with anyone. So once Mr. Shivoney found out that Dragados is not going to lock these three guys up with their own employment agreements because no executives at Dragados has an employment agreement. Mr. Shivoney said, well, I got my money. Donovan's got his money. I live in Florida. I have no commitments. And that's why I'm here. And that's what you might not want to make that decision. Oh, little sec. Nothing I cut against you. Well, I'm sorry. Which statement do you want to make? I have no commitments. Oh, I'll move to strike that part. Thank you, Ron. Unless there's any further questions. No, let's see Council for a second

. Donovan, I told you that I would pay you a bonus in an amount and on the terms, out of my 50% share of the net proceeds. I, and that's the point I'd like to make. And all of the communications, Mr. Shivoney, I will take care of you. Hang in there. That was another thing, Judge McKay, you mentioned reliance and forbearance. Hang in there. 30 years, if the man says, hang in there. We're going to take care of you. Hang in there. Just be patient. Are you going to go and look for another job? And what happened? Judge Ambrouh, you asked the question. The sale went through. Dragados is a Spanish company. The three Troika, who were led to believe by the owners all along, that the value of the sale was the three men running the company. And unless they were locked up, Dragados was not going to be interested in the company because who's going to run it. And they soon learned after the sale that Dragados, just part of their culture, they don't have employment agreements with anyone. So once Mr. Shivoney found out that Dragados is not going to lock these three guys up with their own employment agreements because no executives at Dragados has an employment agreement. Mr. Shivoney said, well, I got my money. Donovan's got his money. I live in Florida. I have no commitments. And that's why I'm here. And that's what you might not want to make that decision. Oh, little sec. Nothing I cut against you. Well, I'm sorry. Which statement do you want to make? I have no commitments. Oh, I'll move to strike that part. Thank you, Ron. Unless there's any further questions. No, let's see Council for a second. I'm sorry. Ron, come on up and push the bar. I'm sorry. The approach? Yeah, come on up. Yeah. I'm sorry. I'm sorry. I'm sorry. I'm sorry. One thing. Don't put it in. Sometimes somebody actually says in a letter, he calls it his unreasonable position. We don't want to know that. Just say what they did not so. I have that in time. If we don't have a case-screen settlement, it's this. It's no principle. It's not an ongoing thing. It's a one-shot deal. There was a lot of money. In other words, I can understand this big punks will involved. You have to get the case-screen. But there's no principle. This is going to get between these parties. It's a case-screen settlement. And not only that, there is a certain, maybe the plenty of losers. Planners. But there's a certain justice. I'm in it. That we haven't decided. I better get it.

we have to back find Mr. Turello already? Yes, Rob. Good morning, Judge. Morning. Where should I? Almost say good afternoon. My name is Jay Becker and I'm here representing the Appellance Paul Scagnelli and Jim Hamill. I request two minutes for Rebuttal, please. Okay. Thank you. Your Honor, we are here today peeling a decision by Judge Cooper, which dismissed the plaintiffs complaints based on a summary judgment motion filed by the defendant, Ron Shivoney and the state of Ron Shivoney, the trust of Ron Shivoney. We believe your Honor that the court, the lower court aired in its decision in deciding this case on the merits when there are significant questions of fact. The issue is really boiled down to his judgment. Where does the record gives rise to the questions of fact sufficient to get that summary judgment? As to whether there's a contract. Yes, Judge. I believe that there are a number of facts that are before the court in the record that establish all of the terms that are necessary to establish a contract. In this particular case, under the Bayer V. Chase case, the question was, are the facts sufficiently definitive enough so that performance can be rendered with reasonable certainty? But look, let's take for example, just prior to the closing in December 31st of 2007, or to that month, the letter was sent by the three employees to Mr. Shivoney, Mr. Donovan. And they noted they did not have employment agreements and requested that they provide us with your proposal. It's a quote. Provides with your proposal on what compensation we can expect for such past efforts as soon as possible. That seems to indicate pretty clearly there just wasn't yet an agreement. There was a desire to get to an agreement. Your Honor, with all due respect, and this is why there are so many questions of fact in this case, you have to look at the relationship that these gentlemen had with Mr. Shivoney for over 30 years. This was a man of integrity and honor when he said he was going to do something, he did it. There was never ever a question as to what this gentleman was going to do. But you have to show what the it would have been. That's correct. And there's plenty of evidence before the record that shows not only what the it was, Judge, but when, how, by whom, to answer your question, Judge Ambrou, that was their effort because it was their understanding, and it's in the record. It was their understanding that in order for this deal to close, the three executive members of the management team, the Troika, you've heard that term, they had to be locked up in an employment agreement because it was their understanding they would lead to believe. But were they actually locked up prior to the closing and an employment agreement? They were not. So the closing was still took place without that? Yes, Judge, but they would lead to believe that the deal would not close, that your Goddard would not be interested in buying this company unless the three executives that ran the company on a day-to-day basis. Mr. Shiavoni was an absentee owner. He was retired and in Florida. If it wasn't for these three people that ran the company on a day-to-day basis, were locked up, then there was no value in the company. Troika had no interest in this company if it wasn't for these three. And so they were trying, I'm sorry, Judge, they were trying to do the best they could in the most polite respectful manner that they could with this gentleman that they'd worked with for 30 years to say, let's get it done. We don't want to hold, we don't want to be the ones to hold up this closing. Let's get this done. And if I may, Your Honor. But what you would need there is something, for example, for Mr. Shiavoni saying, I understand we are going to get it done and I promise you, for your willingness to stay, I am going to give you something. And I believe the record is filled with those promises, Your Honor. If I may. Well, go ahead. No, this case was a demand for a jury trial. Yes, Judge. But what question, how would you try this case to a jury? I mean, how would it be presented to a jury, would you ask them to make findings that there was an agreement? What would you ask them to do? I would establish that there was enough evidence before the record that there was an agreement. There wasn't a written contract, but there's enough evidence to show that there was an understanding, there was a meeting of the minds between the parties. And then I also believe there was enough before the record to show what that meeting of the mind was. Not only. What was it? What was it? It's not what. There were representations made by Mr. Shiavone himself. There were a number of communications made by the Troika to Mr. Shiavone, where the specific issue about a 2% of the purchase price was included about who was going to pay that the owners of the company. There are statements made directly by the owners of the company that they will take responsibility. If I may, Judge, I have every intent. I will absolutely do this in the letter by Mr. Donovan. I'm sorry, by Mr. Shiavone, when he finally, in August of 2008, after two years of communicating with the Troika, the owners of SEC made representations. It's not SEC made, but the owners of SEC made representations. What did they specifically say? Mr. Shiavone specifically said that he will do something, hang in there, we will take care of you, and all of these statements that were made by him were memorialized by the Troika. But the question is, what is the something? The something is 2% of the purchase price. I don't know that. I mean, I'll do something. Obviously, Mr. Donovan did do something. He gave what 750,000 to each. Mr. Donovan did, and this is your honor. The Troika's case talks about silence equating to a scent. And there is plenty of silence in this case, which we believe at least is a question of fact creates a scent. And that is this. Here's Mr. Shiavone. No one could argue his business acumen. Nobody can argue how successful he was. It's clearly a question of fact as to whether you have these three executives that are running his company, he trusts them to run his company on a day-to-day basis. Yet they are communicating with him on a number of occasions, and he does not respond. He never offers a letter refuting it. He never contests it. He never says no. I'm not giving you 2%. And he never says no. The individual owners are not going to be responsible. All these are memorialized in writings. 2 Mr. Shiavone. And he never contests that. But it looks as if what they were doing is they were still negotiating the contract. I mean, for example, the terms of the first and the second draft of drafts of the agreements, they differ. I mean, and that's so the second draft looks like it's counter-proposal. This is almost, this is classic contract formation. And you need more something that is significantly more substantial to show that there is a contract actually for them. If you take a look at the totality of the circumstances and the extrinsic evidence that's attached, the owners, the bonding companies, and the owners asked the Troy to put together a proposal. They did that. It was presented to Mr. Shiavone for whatever reason he did not like the form that it took. But the summon substance of the two agreements were essentially the same. They were differences. They were absolutely differences. Some like the differences. Not. They were differences. Absolutely. Well, there were differences in the other. Ray. Raises. Boneses. Termination. Restrictive covenant. Who's the substantive? Right. But if you look at the record every time that the gentleman tried to get Mr. Shiavone to sign on the dotted line, it was always about just, it was never about we need to continue negotiating. It was just, we need to get this done because a, the deal won't close unless we are locked up to an employment agreement and b, we've known you, Mr. Shiavone, for 30 years. When you said you're going to be doing this. So what happened post-closing in their discussions? Post-closing, Mr. Shiavone stopped communicating with them all together. He told the Troika that my lawyers told me to stop communicating with you. And for the very first time, Judge, for the very first time in August of 2008, after getting communications from 2006, 2007, meetings, meetings at Fidloseville Country Club, which is owned by Mr. Shiavone meetings in his home, where minutes were taken. Simultaneous minutes were taken of the meeting, contemporaneous notes, and presented to Mr. Shiavone and never once did he say in April of 2007, no, that's not what happened in the meeting. No, that's not correct. It was only until after the closing, after the deal went down, after Mr. Shiavone got his $75 million, did he say there must be a misunderstanding. And I'd love to point to that letter itself, Your Honor, because in that letter, he specifically says, he uses the language that joint exhibit number 194. He specifically refers to the owners of SCC were under no obligation to make. He didn't refer to SCC's, Shiavone construction company was under no obligation, he refers to himself. And Mr. Donovan referred to himself in the settlement agreement that he made with the Troika, where he said, this was coming out of my share, so the terms in the record is full of the words, I, me, my, my. When did Mr. Shiavone die? I believe it's been two years now. Two years, okay. So, I mean, from 07 until 11, that's, you know, 8, 9, 10s, three plus years, that there was no reconciliation of whatever the purported arrangement was. Correct. Well, it was actually between 06 is when the bonding companies requested the deployment agreement. And I'd like to point out that there wasn't just an employment agreement as an employment agreement and a cell participation agreement. And if you look, there were different forms with respect to the form with respect to the self, the employment agreement, but the cell participation agreement was the same document. It just had handwriting, which, Your Honor, Joe, Jim, bro, you asked me, where do we get the number from? Mr. Shiavone himself in his own deposition testimony admitted that he hand wrote the number 2 percent. That's correct. I mean, he increased that from what's existing. But it was part of an employment agreement that had other significant provisions, not all of which were, were ironed out prior to the closing. But Your Honor, this goes, isn't your better argument, I mean, isn't your better argument that the promissory of stop will claim possibly as opposed to the contract claim? We believe that Judge Cooper Erid in deciding that there was not enough definitiveness in that as well. And if we want to get to that, the Commerce case specifically talks about promissory stop, and I think there's plenty of, again, I'm going to go to the definitiveness of the, whether it was the agreement that they had or the relationship and the promise that was made. The promises that were made, Mr. Shiavone would use the term, I will take care of you, I, I promise, I will do something. I have every intention to meet with you individually. And they could, you relied upon that. And this issue would be one, is the compliance reasonable? And two, if it is reasonable, what's the dollar value of the reliance? The reliance, Your Honor, is these gentlemen were asked by both Mr. Donovan and Mr. Shiavone to help facilitate the sale of their company. Was it the bonding companies that have put the idea in the minds of Mr. Shiavone, Mr. Donovan that maybe we should sell the company because they're looking to get these executives tied up because we're not going to be here forever. One was in his 80s, one was in his late 70s. The fact of the matter is they were marketing the company. And they made representations to my client, you help facilitate the sale. You counsel us on it since you're the ones running the business on a day-to-day basis. And we'll take care of you. The sale participation is a very common incentive in businesses. It was not uncommon in this one at all. And when they counseled the owners on a potential $60 million sale to Lucadia, they specifically said, we don't think this is a good idea. This is not the best interest of the company. This is not the best interest of the owners. And sure enough, they ended up selling the company for $150 million one year later to Drogados. And in Mr. Donovan's settlement agreement with the gentleman, he specifically wrote, for your anticipated cooperation and assistance in the sale. That was the reliance. That was the representation made to them. And they relied on it, figuring the 30 years we could trust these men. They say they're going to do something, they do it. We're not going to go and look for another job. They admit it in their testimony. We didn't try to find another job. Why would we? We know this company's being marketed for sale. We have the potential of earning a significant incentive. As told to us by the owners, why should we look for another job? Why should we do any of that? We're going to trust the people that have told us what they're going to do. And another piece of evidence that I think is critical is, what a promissory is stable to. What would the jury determine with the O? Because there were different numbers that came around. That's correct, Your Honor. At one point in the initial draft, it was 1.66 of the purchase price. The handwritten change by Mr. Shivoney himself was 2%. We believe that it was 2% as Mr. Shivoney wrote that term in every conversation, every document that's in the record. That was either the notes memorializing minutes of a meeting by Mr. Hamill refers to 2% to be split 50-50. That was presented to the owners. They never refuted it. They never wrote backs and contested it. You asked the man this for a jury trial. Correct, Your Honor. You know, the bear-vee chase, I have to write that, had a grim outcome. That's what we did from the point of view of the plaintiff. We said, okay, you're entitled to a jury trial. I got no cause. But, Your Honor, I believe that the bear cases is distinguished significantly. In bear, there was no... It was not even a range, as I recall. This one we have a range. This one, we're going to take the position. It's 2%. But even if someone wants to take the position, it was between 1.66 and 2. When Mr. Shivoney promised that he was going to do something, he wasn't promising them a piece of heavy equipment. He wasn't promising them a piece of the golf course, where I'll buy you a dinner or I'll give you a gold watch. He was giving him money. He was giving a percentage of the sale proceeds. That percentage was established 2%. Not just in his own handwriting, but memorialized in a letter from Jim Hamill, memorialized in a letter from the Troika. I think it's telling what Mr. Donovan did, even though the record is clear that the two individuals clearly stated that they were going to do things on their own, Mr. Donovan offered them $750,000 each. Mr. Cassenzo, when he wrote to Mr. Shivoney, saying, we settled our issue with Ronnie, with Ray, and even though it was half of what we expected, and $750,000 payment is half of the 2% number, it's half of 1.5. So there's additional extrinsic evidence to show the meeting on the monitor. Mr. Donovan, is that maybe an evidence reach? I assume that we come in, but I'm not sure. If an offer on compromise, I was made in compromise with Donovan. That's good. You could clearly argue that it's relevant to Shivoney's understanding of the value of the reliance, if it will, or what he wrote them. I'm just going to percentage the sale. I'm not. I'm just not sure if that comes in or not. I don't know. I had a research. I'm not so sure that gets in. I believe because there's plenty of information in the record to show that these two owners, stated in a numerous fashion that they would undertake this responsibility individually, it shows the meeting of the minds. It shows what the intent was of the parties. It certainly shows what the reasonable expectation was. That's the argument. I'm just not sure. It's not my job to decide it. One of the Troika remained or two remained in one left after the sale. Well, you're honored. Since this time, all three are no longer with the company. As of this, yes, after the sale, all three stayed with the company after the sale. Did their job, they assisted with the sale. They stayed there. Since then, one left on its own, one retired and Mr. Skagnoli just recently retired. My two clients, the Troika, there were three. Carcassins have decided not to appeal the decision. Paul Skagnoli and Jim Hamill. Jim Hamill retired last year. Paul Skagnoli just retired within this past year. I noticed that my red light is on. You say sometime, I think. Yes, I have two minutes. Okay, thank you. Thank you, Judge. Good afternoon, Your Honor. Slingsy Taylor on behalf of Ron Chivoni. What the case really comes down to Your Honor's and this came out in the prior argument is offering acceptance. You've got a good point. Why isn't this a textbook, a stoppage case? There's no formal offering acceptance. You've got these competing drafts. The representation was made that I suggested the change with substance. You can argue about just how substantive you were, but there's clearly reliance. The only issue in this clearly to their detriment is how reasonable was that reliance. Mr. Becker is arguing, look, they worked with these guys for 30 years. They kept getting assurance from Mr. Chivoni that he was going to take care of them. Why in the world would they not believe this guy who they had every reason to believe for 30 years of administrative. Same, why isn't there's a perfect textbook, a stoppage case? In terms of the measure of damages, Mr. Becker's paid the $750,000 that was paid. He even though it was uncompromised, is one half of the 2%. If you're arguing that the deal was for 2% of the proceeds, well, the payment that they received from the one partner who paid totally consistent with that is proof of what their understanding would have been and proof of how reasonable the reliance is. Why isn't that a perfect way of looking at this case except for the fact that you lose? Why isn't that a perfect way of looking at this case? For two reasons, Your Honor. First of all, with respect to the reliance issue, it might be, as you say, reasonable to rely in terms of their believing that he was going to do something. One of the things that they relied by, they gave up a right to go to the left and they continued the management and facilitation of the deal and the management of the company for a period of time thereafter and that showed their reliance. The point is, why not let that go to a jury? Because, first of all, they really didn't give up anything. They had no intention of leaving Chivoni construction. But didn't that right? They did. They had the right to move to Chivoli. They had been working for 30 years and don't worry, I'm going to take it. And what detriment did they incur by staying on? They didn't pass up a better job. They didn't incur any expenses. Like, for example, in the Commerce Bank case. They didn't go look for another job. They stayed with this and it was, you know, there wasn't an agreement. You get down to the closing time and they say, you know, hey, we're getting close. We really need to have an agreement. And it's almost like, okay, just stay. Because the bondholders wanted to stay. Other people drug... Pregnantos? Pregnantos wanted them to stay. And they did stay. And one could argue after 30 years after the time of the relationship they had with Chivoni and Mr. Donovan, that they stayed almost out of love. And so they're asking to be, you know, with this type of really good payout. And I can understand why Mr. Chivoni and Mr. Donovan want to sell. They're going to stay and they'll be taken care of. They rely on it. Now, maybe they lose. But why doesn't that go to a jury? Because they didn't give up anything. And you said the game of the... The ability to buy... But we're looking elsewhere. They did. But what monetary burden or what monetary adverse affected they have on them. Zero. They might have been thinking about retiring. One of the three did retire very soon thereafter. But Mr. Consenzo left at the request of the U.S. attorney in the Eastern District of New York because of some minority hiring issues. Okay. But the point is, do we sort this out or allow a district to just sort this promissory stop will came out of some redjudgment? Or we just allow a jury to sort it out. Again, they may not win. Well, the facts are nonetheless undisputed. And they didn't incur any financial detriment. They didn't incur any detriment at all in relying on Mr. Chivoni's promise. Now, to, like, for example, in the Commerce Bank case, the Commerce Bank wasn't suing to put the deal through. What they wanted was while the negotiations were pending and the sellers were saying, you know, let's get this deal done, they went and Commerce Bank went and spent $45,000 to fix up the building, the space where the buyers were running their business. And they were suing to get that $45,000 back because they had incurred that detriment in reliance on the deal going through. That separate on a part from enforcing the underlying deal in a couple of the other promissory stop will cases where there was somebody picked up and moved in reliance on in one case, getting at least in Atlantic City Hotel, coming to New Jersey from Boston. They weren't enforcing the lease. They weren't, they didn't want the deal. They weren't enforcing the underlying employment agreement. They were suing to get the, they're out of pocket costs and lost business. While when they moved before they could get their business back up running again. There's another landlord, 10-a-case where the landlord gave oral permission to go get a dog, the lady went out and got a dog. There's not any of that sort of out of pocket detrimental reliance that Mr. Sagnally or Mr. Hamilton incurred. What they want to do is enforce the under the contractual promise without having to show offering acceptance, without having any consideration. But there's a problem in the start. That's the doctrine of promissory stop. That's why it's there. Well, yeah, but they didn't change their position to their detriment. But I... They kept doing the same thing that they were doing before. They got paid the same amount of money. They got their bonuses. They got paid everything that they had been getting before. And there wasn't any... Where is the recase that says the reliance has to be manifested in a change of position as opposed to simply relying to one's depth of care? Well, that's the depth of time. The key is right. I thought... Or in each of the cases that say that if you continue to work, then you're relying on it, even if you're just getting the same sound. Well, that is... Consideration for a promise, for example, signing on with an employment agreement, with a restrictive covenant. Continued employment can be consideration for the signing up for a... But, you know, I don't know if you realize this. But trying to think not like so much like a lawyer or a judge, but trying to think how it looks to people. These guys work there for years. They're talking about 2%, 1%, and then at the end when the money comes out, they don't get a cent. You know, the jury might figure that out. Well, exactly... That's exactly... Is that so quiet. They were employees, they weren't shareholders. They got paid piles and piles of money. But people told them, you know, we don't want you to leave. You stay here and then we're going to get taken care of. There was talk along those lines, but taking care of was getting nothing. Mr. Chavoney had never promised them any specific amount of money. He said, or anything in particular. He said, we... I'll do something for you. Mr. Donovan said... So, in the end, he did nothing. But what is he supposed... Well, suppose we... Suppose, for example, an argument was made, well, there was a loan number there that left 2%, but they certainly should get at least that... What was it? What are the third... One man. One, one, one point six. I could see where the jury might think that. But that was also part of a contract negotiation where there was a whole bunch of other issues being negotiated. And the plaintiffs turned it down. But they turned it down. And they turned it down. They asked for what? 1.5% initially? It was 1.2 thirds. 1.2 thirds and then Mr. Chavoney's one is suggested at that point too. Was that correct? Correct. Just on that specific issue, but there was a whole lot of... Oh, he ups the ante to 2 and then in the end, it comes down to 0. In these things? It's a bad card game. Well, it was part of a negotiation of a much broader negotiation. And, if I might point out to your honor, that offer was for Chavoney construction to pay it. Not for Ron Chavoney to pay it. But those contracts were between these employees and Chavoney construction... How much did Chavoney construction pay them? Excuse me? How much did Chavoney construction pay them? That was the ad. They paid them about $490,000 a year in terms of the percentage of the sale. Not the sale of the product. 0% of the sale. 0. And if they want to... They're saying that those agreements were moralized a contract, then they've got the wrong defendant. They should be suing Chavoney construction. Well, the discussions were with Mr. Chavoney himself, the owners, correct? Yes. But he was negotiating an employment agreement between these employees and Chavoney construction. And every name... But the 2% would that have come from Chavoney construction? Yes. How so? That's what the contract said. The name on the contract in both their draft and Mr. Chavoney's draft on behalf of the company was... It's between Chavoney construction and the employee. And so then why did Mr. Donovan anti-up money on his own? He testified at his deposition that he felt that they deserved it. But he also testified in his deposition that there was never any agreement to pay them 2%. He never agreed to that. And the fact that he paid only half his evidence of a compromise or disagreement, a disputed claim, not an agreed to claim. What part of the Chavoney construction do you say Cimonia? 50%. Well, I can see that they're sitting there and they're figuring, you know, we're dealing here with a former secretary of labor in the United States. And we're dealing with a very prominent company and they're going to take care of this. And they're going to take care of this somehow, even though it's a little... I mean, I could see where they might figure that out. Well, especially this has been their 30 years. But neither Mr. Chavoney nor Mr. Donovan had ever personally paid them a dime. All of their compensation had always come through the company. They had been employees of the company. They didn't work for Mr. Donovan. They didn't work for Mr. Chavoney. And also to circle back, you would ask about the percentage. Mr. Donovan paid half of his cut, not half of the 2%. Right. He paid half of this. Half of half of that. Yeah, exactly. Well, they made a settlement there. Correct. That was a settlement of a disputed client. As far as I can see, the record didn't say it, but I gather they must have given a release. Yes, they did. I think that the releases are in the appendix. Oh, they are. I missed it. Well, wouldn't it be the only thing? I had no further questions. Thank you. Thank you, Your Honour. Thank you. If I may, Judge Greenberg, you brought up a very interesting point. I'd like to elaborate on that. These are very important sophisticated businessmen. And when they were writing to them, Judge Ambro, you asked the question as well. They were incredibly delicate in the way that they drafted their letters. Because how do you go to men of that statute and say, do it? You have to ask politely. You have to frame your letters in a relatively conservative manner. And this was not a continued negotiation, as I believe you mentioned, Judge Ambro. This was an attempt to get these two gentlemen that said they were going to do something, which, by the way, Mr. Sheavoni admitted in his deposition that he was going to do something, and he further admitted it as deposition, that he didn't end up doing anything. And the do something is exactly that. What happened, by the way? I mean, what caused things to fall apart, to do something, to go from something to nothing, and nothing in the middle? Mr. Donovan and Mr. Sheavoni did not get along. They did not get along at all. And because of the logistics of the two of them trying to get together to do anything from a business point of view, the logistics of Mr. Sheavoni coming up from Florida once or two or three times a year, the logistics of my three clients that were out in the field doing what they did every single day from 5.30 in the morning until whenever at the end of the night. Logistically, it was impossible to get everyone together, particularly Mr. Donovan and Mr. Sheavoni, together in a room to get it done. And logistically, that was the problem. And before you knew it, time went by, the locating deal was suggested. It's not the age we sell phones and email and the internet and video conferencing. It's hard to explain something, but I just signed it. I couldn't get anybody together in a room. No one gets together in a room anymore. With all due respect, Judge, these gentlemen are all in their 70s and... Well, that's not so big. He's even right. He's even going... My distinguished panel may be much more efficient with electronics, but I'm not. And I can imagine they're not. As a matter of fact, whenever I try to communicate with my clients, it's the old-fashioned way. We're either meet-and-person or it's over the phone. It's nothing email. So I can imagine back then, and we're talking the construction industry. I don't know how fluent they were with blackberries and whatnot. But if I may just to respond to some of the things that Mr. Taylor said, forbearance is an essential element in reliance. And you're correct, Judge Greenberg, that I believe it was the haverty case that held that... You don't need... Or it might have been the libosco case. You don't need to change your job to show that you relied on something or that there was consideration. You're forbearance alone. The fact that you did not go out and look for another job for the mere fact that for 30 years, you said you were going to do something and the record's clear. For 30 years, he did some. Although it's a history though, in libosco, that would allow them to put some kind of quantitative value on what the consideration was. And in the haverty case, it's very important because... That's non-published opinion, isn't it? The haverty case... That's non-presentational haverty. It was a haverty versus Andres, Nolik Berger. Was there an unprecedented operation? Was it an unpublished opinion? It was a published... Non-published history. It was not really that helpful, but there again, there's a history. There was a history. And the importance of that case is that there was a range. So if there's ever a question of fact, that's as well as at 1.66%, is it? 2% is it half of what... But this is what you have been on. There's a certain dollar range in the past, so there was some way of getting a handle on what the value of it was. That's why I tried to use the analogy earlier. It's not like to say, we're going to pay you money. And what that money is, who knows? Or we're going to give you a piece of the golf course. So we'll give you some equipment, but we're not going to tell you it's in bulldozer or a tractor. Where... This was... We know exactly what it was. We know what it was. We know by whom was going to pay, because all... Both Mr. Shivoney and Mr. Donovan in numerous documents, including... You're on... There was a settlement agreement executed by the Troika with Mr. Donovan in exchange for the money. And in that settlement agreement, it specifically says by Mr. Donovan, I told you that I would pay you a bonus in an amount and on the terms, out of my 50% share of the net proceeds. I, and that's the point I'd like to make. And all of the communications, Mr. Shivoney, I will take care of you. Hang in there. That was another thing, Judge McKay, you mentioned reliance and forbearance. Hang in there. 30 years, if the man says, hang in there. We're going to take care of you. Hang in there. Just be patient. Are you going to go and look for another job? And what happened? Judge Ambrouh, you asked the question. The sale went through. Dragados is a Spanish company. The three Troika, who were led to believe by the owners all along, that the value of the sale was the three men running the company. And unless they were locked up, Dragados was not going to be interested in the company because who's going to run it. And they soon learned after the sale that Dragados, just part of their culture, they don't have employment agreements with anyone. So once Mr. Shivoney found out that Dragados is not going to lock these three guys up with their own employment agreements because no executives at Dragados has an employment agreement. Mr. Shivoney said, well, I got my money. Donovan's got his money. I live in Florida. I have no commitments. And that's why I'm here. And that's what you might not want to make that decision. Oh, little sec. Nothing I cut against you. Well, I'm sorry. Which statement do you want to make? I have no commitments. Oh, I'll move to strike that part. Thank you, Ron. Unless there's any further questions. No, let's see Council for a second. I'm sorry. Ron, come on up and push the bar. I'm sorry. The approach? Yeah, come on up. Yeah. I'm sorry. I'm sorry. I'm sorry. I'm sorry. One thing. Don't put it in. Sometimes somebody actually says in a letter, he calls it his unreasonable position. We don't want to know that. Just say what they did not so. I have that in time. If we don't have a case-screen settlement, it's this. It's no principle. It's not an ongoing thing. It's a one-shot deal. There was a lot of money. In other words, I can understand this big punks will involved. You have to get the case-screen. But there's no principle. This is going to get between these parties. It's a case-screen settlement. And not only that, there is a certain, maybe the plenty of losers. Planners. But there's a certain justice. I'm in it. That we haven't decided. I better get it