[00:00:00] Speaker 03:
I'll start over.

[00:00:02] Speaker 03:
We're hearing the case of Gresham versus Town of Depew, Oklahoma, number 24-5021.

[00:00:08] Speaker 03:
Court's hearing this argument via Zoom.

[00:00:14] Speaker 03:
And counsel are present.

[00:00:17] Speaker 03:
Counsel or appellant may proceed.

[00:00:21] Speaker 03:
Mr. Keaslin.

[00:00:23] Speaker 04:
Thank you.

[00:00:23] Speaker 04:
May it please this court, Your Honors, my name

[00:00:26] Speaker 04:
is David Kiesling.

[00:00:27] Speaker 04:
I represent the appellant, Kevin Gresham, a certified law enforcement officer in the state of Oklahoma.

[00:00:33] Speaker 04:
And I would ask the court's permission to reserve three minutes of my time for rebuttal.

[00:00:41] Speaker 04:
With that in mind, we're here today.

[00:00:43] Speaker 04:
And the point I really want to make is that there were sufficient facts that were in dispute in this case.

[00:00:51] Speaker 04:
that the trial court should not have ruled as it did in the FRCP 56 motions that were filed by the appellee in this case.

[00:01:02] Speaker 04:
In fact, those facts are substantial, not insubstantial.

[00:01:08] Speaker 04:
And to that extent, I'd like to talk about them and answer any questions that your honors may have for me about our position.

[00:01:16] Speaker 04:
As this court is aware from the moving papers and the appellant's documents submitted for this appeal, Mr. Gresham was hired on July 1st of 2000, approved to be hired on July 1st of 2019 by the board of trustees for the town of Depew.

[00:01:34] Speaker 04:
At that time, he advised trustee and mayor Deanna Marker that in order for him to accept the position, he would have to have a written

[00:01:46] Speaker 04:
contract of employment as a condition of acceptance.

[00:01:50] Speaker 04:
What Ms.

[00:01:51] Speaker 04:
Marker said was that that's not typical.

[00:01:53] Speaker 04:
They haven't done that before at the city of or town of Depew, but that she thinks the board would be okay with it.

[00:02:01] Speaker 04:
On July 23rd of that same month, Mr. Gresham submitted a written employment agreement to the appellee through Diana Marker,

[00:02:16] Speaker 04:
At which point she executed it as the town mayor and as the employer slash duly authorized representative, which is in the appendix with that information specifically stated by her signature block.

[00:02:31] Speaker 04:
She also conveyed to the appellant that the appellee board had in fact approved the contract.

[00:02:40] Speaker 04:
That was also conveyed to the appellant through another trustee

[00:02:44] Speaker 04:
whose name is Jason Hopkins.

[00:02:49] Speaker 04:
And it's our position that of July 23rd of 2019, the relationship between the appellant and the appellee was specifically defined by the terms of the written and executed contract.

[00:03:00] Speaker 01:
Council, you may be getting here, but I was hoping you could focus us

[00:03:05] Speaker 01:
specifically on which disputed facts you contend are the material ones, and so that we can focus our attention on those.

[00:03:16] Speaker 04:
Sure.

[00:03:17] Speaker 04:
After the 23rd of July of 2019, the effective date of the contract between the parties was July, I'm sorry, August 1st of 2019.

[00:03:27] Speaker 04:
On that date and time, the council specifically turned over

[00:03:32] Speaker 04:
The keys to the police station, the police cruiser for this town of 411 people authorized him to wear their insignias and display them publicly, make arrests, issue citations on behalf of the town of Depew, and in fact paid him consistent with the specific agreement that was issued or set forth in the contract between the parties.

[00:04:01] Speaker 03:
Mr. Kiesling, could I just interject?

[00:04:07] Speaker 03:
In response to Judge Rossman's question about material facts, material also concerns your theory of your claim.

[00:04:16] Speaker 03:
And as I understand it, you're not claiming that the mayor had actual authority to enter the contract.

[00:04:25] Speaker 03:
And the theories of contract breaches turn on apparent authority

[00:04:31] Speaker 03:
or ratification, and could you relate what you think are material facts to the theories of your claim?

[00:04:42] Speaker 03:
I mean, what does any of this have to do with apparent authority, for example?

[00:04:48] Speaker 04:
Well, certainly.

[00:04:49] Speaker 04:
So, Your Honor, on September 11th of 2019,

[00:04:53] Speaker 04:
Mr. Gresham experienced a medical episode through a seizure.

[00:04:57] Speaker 04:
That same date, he talked to Trustee Hopkins, as well as Trustee and Mayor Marker.

[00:05:05] Speaker 04:
Mayor Marker said to him during that conversation, do you have a copy of your employment agreement?

[00:05:10] Speaker 04:
So why is that important?

[00:05:13] Speaker 04:
references this apparent authority, there's a member of the board of trustees there, as well as the mayor who's a member and voting member of the trustees, and they are acting consistent with this contract.

[00:05:25] Speaker 04:
They ask him, can we talk about your employment agreement?

[00:05:28] Speaker 04:
And then after he says, yes, I have a copy of it, then they open this discussion up about whether or not what are the applicable terms of the buyout provision at all times.

[00:05:39] Speaker 04:
They were acting consistent with an understanding and belief that they had a contract.

[00:05:47] Speaker 02:
For apparent authority, it has to be an action by the person with authority, the principal.

[00:05:57] Speaker 02:
And here that would be at least a majority of the board.

[00:06:01] Speaker 02:
And you're pointing to actions by what we would call individual agents.

[00:06:08] Speaker 02:
How does that, even if we take all of your factual allegations as true, how does that get us to a apparent authority ruling?

[00:06:18] Speaker 04:
Certainly.

[00:06:18] Speaker 04:
Thank you for that question.

[00:06:19] Speaker 04:
September 17, which addresses this issue, the appellate convened a special meeting of the Board of Trustees to discuss voiding the contract.

[00:06:29] Speaker 04:
Now, that's all five members.

[00:06:31] Speaker 04:
So it's not limited to just the mayor, voting trustee, and trustee Hopkins.

[00:06:36] Speaker 04:
It's all five members again, taking up the issue of how we can void the contract that we have.

[00:06:42] Speaker 04:
So it can't be said at this point that they were meeting to discuss a contract that didn't exist.

[00:06:48] Speaker 03:
They're mean to us.

[00:06:49] Speaker 03:
But Mr. Kiesling, was there a contract based on apparent authority in September?

[00:06:56] Speaker 03:
What did the board do before?

[00:06:59] Speaker 03:
Mayor marker signed the contract to indicate to Mr. Gresham that she was acting as the board's agent.

[00:07:13] Speaker 04:
According to.

[00:07:16] Speaker 04:
Mayor marker, they approved it.

[00:07:19] Speaker 04:
That's what she conveyed specifically to.

[00:07:22] Speaker 03:
That's what she said, but is there any evidence that the board.

[00:07:29] Speaker 03:
acted in a way that would convey to him that she was acting as their agent.

[00:07:39] Speaker 04:
Other than the fact that she conveyed it, that Trustee Hopkins conveyed it at the same time, that the board... Not in July.

[00:07:50] Speaker 03:
Not in July.

[00:07:52] Speaker 03:
That's when the contract was signed.

[00:07:54] Speaker 04:
But they acted in conformity, the ratification of all now you're now you're moving to ratification.

[00:08:00] Speaker 03:
Correct.

[00:08:02] Speaker 04:
I think both of them can be looked at together some of the same facts that support 1 also support the other.

[00:08:08] Speaker 02:
Well, the timing is different on the facts that can support one versus the other.

[00:08:15] Speaker 02:
As I think Judge Matheson's questions have focused you, in order for there to be a parent authority, there has to be something that the board did, not the mayor.

[00:08:29] Speaker 02:
that indicated to Mr. Grisham that the board had given the mayor authority to sign that contract.

[00:08:38] Speaker 02:
And none of the facts you've identified happened at a time that would be relevant to that.

[00:08:45] Speaker 02:
Moving to current authority, you can look beyond that timeframe.

[00:08:54] Speaker 04:
I agree, Your Honor.

[00:08:56] Speaker 04:
Ultimately, what we have at the timeframe of July 1 is just her signature and saying that she was the duly authorized member of the board and then all of the acts that followed consistent with it.

[00:09:09] Speaker 04:
And I will just say this, when we look back at all the moving papers at the district court level, every argument submitted all the way up to FRCP 56 were submitted under the position that there was a valid contract and they could move to

[00:09:26] Speaker 04:
eliminate or terminate that contract pursuant to probationary terms and things of that nature.

[00:09:32] Speaker 02:
That was a motion to dismiss, right?

[00:09:36] Speaker 04:
It was.

[00:09:36] Speaker 04:
It was a motion to dismiss and other arguments.

[00:09:39] Speaker 02:
A motion to dismiss, they have to take all your allegations as truth.

[00:09:46] Speaker 02:
And so in order to bring the motion to dismiss, to make a legal argument, they had to operate within the framework of the truthfulness of your allegations.

[00:09:57] Speaker 02:
So I'm not sure that that somehow precluded them from subsequently arguing there never was a contract.

[00:10:05] Speaker 04:
Well, may not preclude them, but I think it positionally conflicts them.

[00:10:08] Speaker 01:
So if they, they represented in their answer, post-motion to dismiss answer, that the contract wasn't validly executed.

[00:10:21] Speaker 01:
Can you help me understand how we should be thinking about the town's response, the town's answer as it relates to your argument about their litigation position on the validity of the contract?

[00:10:35] Speaker 04:
Well, just inconsistent is my position.

[00:10:37] Speaker 04:
And I really don't have any way to change that position because when we experienced it, it was inconsistent.

[00:10:43] Speaker 04:
In fact, the most recent theory for which the Rule 56 motion was granted upon didn't exist until three years roughly after the litigation ensued and the disputes between the parties started.

[00:10:59] Speaker 04:
And again,

[00:11:03] Speaker 04:
We have a full board that on more than one occasion have met to discuss the terms of this contract.

[00:11:10] Speaker 04:
We've had individual members of the board meet with them to discuss the terms of this contract.

[00:11:16] Speaker 04:
We had a mayor who on the same day that the board voted of July 1 of 2019.

[00:11:22] Speaker 04:
to hire him said that she would get the approval of the board for the contract, signed it, and then conveyed that the board had approved it.

[00:11:34] Speaker 04:
And the question is, do we stand for the proposition that the mayor can completely lure someone away and tell them that they have a valid contract and then later just honestly out of, I don't know if we would want to call it fraud, but certainly

[00:11:51] Speaker 04:
then come back and say, sorry, didn't mean it because that contract doesn't actually have any meaningful value here because it's not a legal contract.

[00:11:59] Speaker 04:
Oh, I knew that.

[00:12:02] Speaker 02:
That is really a criticism of the law of apparent authority.

[00:12:07] Speaker 02:
And, you know, it may be a valid criticism that the way the law is set up, it protects the body, the board, from a rogue agent, as opposed to protecting the public from a rogue agent.

[00:12:22] Speaker 02:
But it is, in fact, what the law is.

[00:12:25] Speaker 04:
And one other point, the same method by which the contract was executed

[00:12:31] Speaker 04:
and ostensibly approved by the board is the same method that the appellee delivered their termination through a signed document by the mayor, Diana Marker, on October 21st of 2019, immediately and effectively terminating the contract, which is what they voted on to terminate the contract.

[00:12:51] Speaker 04:
They didn't make any steps or measures or moves.

[00:12:55] Speaker 04:
at any time prior to this to have the contract determined invalid or in any way, shape or form, did they ever raise the issue during that term of his work with the town of Depew to say that the contract had no validity and it couldn't be enforced.

[00:13:13] Speaker 04:
In fact, all of their conduct was consistent with the terms of the contract.

[00:13:17] Speaker 04:
All of this argument that has taken place has never took place in the

[00:13:23] Speaker 04:
when they were actually in privity of disagreement, it only took place after the fact as they were looking for a method to avoid the payout provision.

[00:13:33] Speaker 01:
Council, you said that all of the conduct of the town toward your client was consistent with the contract.

[00:13:41] Speaker 01:
Is there any way in which the... Well, I suppose I'll ask it this way.

[00:13:46] Speaker 01:
In what way were the terms of the contract different from the oral agreement that your client had with the town?

[00:13:55] Speaker 01:
How was the town's behavior different, if at all, when you say they're complying with the contract?

[00:14:02] Speaker 04:
Well, number one, it didn't require a probationary period like a normal oral agreement would under those circumstances.

[00:14:10] Speaker 04:
And in fact, it only had two circumstances for a probationary period, which dealt with paid time off and benefits for the first 90 days.

[00:14:18] Speaker 04:
So it differed in that respect.

[00:14:20] Speaker 04:
It also differed in the fact that it was written.

[00:14:23] Speaker 04:
And then it differed in the fact that he wanted $42,000.

[00:14:27] Speaker 04:
That was the necessary amount he would need in order to make

[00:14:32] Speaker 04:
make the jump from a current job where he was employed with benefits and making that money to that role.

[00:14:39] Speaker 04:
And so those clearly are different.

[00:14:42] Speaker 04:
And it gave him a guaranteed two-year term, which whether that could be done or not, it certainly gave him a term of agreement.

[00:14:51] Speaker 04:
And so that is clearly, those are all material and distinctively different.

[00:14:56] Speaker 03:
And certainly- Council, can I just ask you a variation on that question?

[00:15:03] Speaker 03:
In my mind, it concerns the ratification issue.

[00:15:07] Speaker 03:
And that is, what benefits did the board receive under the contract that it wasn't already receiving under the original authorization of employment?

[00:15:19] Speaker 04:
Well, none.

[00:15:20] Speaker 04:
There was no original authorization of employment because it wasn't accepted by Mr. Ritchie.

[00:15:26] Speaker 03:
Didn't the board hire him on July 1?

[00:15:29] Speaker 04:
No, they voted to hire him and he said he couldn't accept the position until such time he had a written contract because this was a one police officer town.

[00:15:38] Speaker 04:
They were without anybody.

[00:15:41] Speaker 04:
And so they had no police presence whatsoever in the town of Depew.

[00:15:45] Speaker 04:
And then when they lured Mr. Gresham into that role, he says, because they had just previously gone through kind of a big public hubbub, if you will,

[00:15:55] Speaker 04:
He says, I'm only going to come over here and leave my good job if I have a written agreement.

[00:16:02] Speaker 04:
And so that is a distinction I think makes a difference in hopefully your honor answering your question.

[00:16:09] Speaker 04:
So they had no police presence at all until Kevin Gresham agreed only to accept pursuant to a written agreement because he didn't accept it on the day of July 1 when they voted to hire him.

[00:16:20] Speaker 04:
He only accepted it once there was an executed agreement on July 23rd of 2019.

[00:16:26] Speaker 03:
Okay, thank you, counsel.

[00:16:29] Speaker 03:
We'll turn to Ms.

[00:16:31] Speaker 03:
Wilson.

[00:16:36] Speaker 03:
Your mic is muted.

[00:16:41] Speaker 00:
My apologies, thank you.

[00:16:42] Speaker 03:
That's okay, I did it too.

[00:16:46] Speaker 00:
My name is Emily Wilson, and I'm the attorney representing the appellee, Town of Decatur.

[00:16:51] Speaker 00:
May it please the court, this court should affirm the lower court's ruling

[00:16:56] Speaker 00:
wherein the lower court found that the appellant would not support his arguments for apparent authority or ratification.

[00:17:05] Speaker 00:
As this court has already discussed this morning, apparent authority would require some sort of manifestation by the board as a whole to the appellant that the mayor was acting as that agent on behalf of the board when she signed the contract.

[00:17:25] Speaker 00:
In other words, we would need some sort of actions between July 1st, 2019, when the Board of Trustees voted to hire Mr. Gresham, and between July 23rd of 2019, when the appellant presented his contract to the mayor who signed that contract.

[00:17:45] Speaker 00:
And as I believe this Court has noted, there are simply no actions, no statements, no course of conduct by the Board to support that argument.

[00:17:55] Speaker 00:
Appellant has pointed to the language.

[00:17:57] Speaker 03:
Ms.

[00:17:57] Speaker 03:
Wilson, can I just, on that last point, Mr. Gresham and his deposition said that the mayor told him that she would talk to the board about a contract.

[00:18:10] Speaker 03:
She called him back to report that the board had approved his employment being subject to a contract.

[00:18:19] Speaker 03:
He also received a contract from the town's attorney.

[00:18:22] Speaker 03:
Then he emailed his version.

[00:18:25] Speaker 03:
Why weren't the mayor's representations about the board's acceptance of this employment subject to a contract?

[00:18:34] Speaker 03:
Why wouldn't that at least create a genuine issue of material fact on apparent authority?

[00:18:42] Speaker 00:
Because the mayor had no actual authority at all, Your Honor.

[00:18:46] Speaker 00:
And the prevailing law in Oklahoma holds that whoever contracts with the municipality

[00:18:51] Speaker 00:
does so with notice of the limitations on its or its agents powers.

[00:18:59] Speaker 00:
And that comes from the Independent School District number one, McIntosh County, B. Howard at 336 P 1097.

[00:19:08] Speaker 00:
And in this instance, furthermore, the board had already acted.

[00:19:12] Speaker 00:
The board had voted to hire Mr. Gresham at the salary agreed upon in his interview, which was $42,000,

[00:19:20] Speaker 00:
And the board had voted to send Mr. Gresham to police to school as agreed upon in his interview.

[00:19:29] Speaker 00:
So the board had stated the actual authority that the mayor might have to sign a contract.

[00:19:35] Speaker 00:
There was no discussion of a contract with the board and there is no evidence that Mr. Gresham ever presented the contract to the board.

[00:19:44] Speaker 00:
Likewise, there's no evidence that the mayor ever presented the contract to the board.

[00:19:49] Speaker 02:
Well, there's no evidence she presented it to the board before signing, right?

[00:20:00] Speaker 02:
But she did testify in her deposition that she told the board about the contract and that they had access to it before his termination.

[00:20:11] Speaker 00:
Before his termination, correct.

[00:20:13] Speaker 02:
Okay.

[00:20:13] Speaker 02:
And the argument earlier was that Mr. Grisham didn't have any contract at all in the absence of the board's approval of the written contract because when the offer was made, he said, I won't accept unless we have this contract.

[00:20:40] Speaker 02:
Is that your understanding of what the undisputed facts show?

[00:20:45] Speaker 00:
The undisputed facts show that the appellant did ask for a contract after the fact when the board had voted to hire him.

[00:20:54] Speaker 00:
The undisputed facts show that the appellant drafted that contract and presented it to the mayor and the mayor only after the board had voted to hire him.

[00:21:03] Speaker 02:
Did you accept the offer?

[00:21:07] Speaker 02:
Was he hired before he gave the written contract?

[00:21:12] Speaker 00:
He was hired.

[00:21:14] Speaker 00:
In the view of the town, he was hired.

[00:21:17] Speaker 00:
The town board had voted to hire him.

[00:21:20] Speaker 00:
He could choose to walk away, but instead he asked the mayor and the mayor only for a contract.

[00:21:28] Speaker 00:
And then he drafted that contract himself.

[00:21:31] Speaker 00:
Now, mind you, the contract included the terms that were

[00:21:36] Speaker 00:
provided by the board for salary of $42,000 and to send him to chief school.

[00:21:41] Speaker 00:
But it also included a whole host of other terms that the board never agreed upon.

[00:21:47] Speaker 00:
So on the issue of apparent authority, there are absolutely no actions by the board prior to the mayor signing that contract.

[00:21:57] Speaker 00:
And the fact that the signature block for the mayor included some sort of language that she was the duly authorized agent doesn't make it so.

[00:22:05] Speaker 00:
That language was included by the appellant.

[00:22:09] Speaker 00:
It wasn't substituted in by the board.

[00:22:12] Speaker 00:
The board did not review, approve, discuss, and vote on this contract prior to July 23rd.

[00:22:22] Speaker 01:
Council, can I ask you a question about ratification?

[00:22:26] Speaker 01:
Perhaps that's where you're going next anyway.

[00:22:29] Speaker 01:
Why shouldn't we conclude that the board essentially ratified the contract here by failing to repudiate it when the town had reason and the board had reason to know Mr. Gresham was relying on it?

[00:22:42] Speaker 00:
So that's actually disputed based on the appellant's version of events.

[00:22:48] Speaker 00:
You have 1 to 2 members of the board who actually know about the contract in September.

[00:22:53] Speaker 00:
There's no evidence that any of the other members of the board knew any of the full terms or conditions of the contract at that time.

[00:23:02] Speaker 00:
So, and at that time, they're discussing the issues related to his medical condition and how to handle those issues.

[00:23:09] Speaker 00:
They're not discussing the contract.

[00:23:11] Speaker 00:
They didn't meet in September to review and approve or vote upon the contract.

[00:23:16] Speaker 00:
They met so that they could try to figure out how to handle this information

[00:23:22] Speaker 00:
that the only police officer in the town could no longer drive because of the seizures.

[00:23:30] Speaker 00:
Furthermore, on the issue of acceptance of silence, we're talking about a three month period, right?

[00:23:40] Speaker 00:
So the contract signed on July 23rd and he's terminated on October 21st.

[00:23:46] Speaker 00:
That's within three months.

[00:23:49] Speaker 00:
That is not a long amount of time.

[00:23:52] Speaker 00:
And specifically, when we look back in light of the case law that appellants cited for this principal, that court found that there was a two year period wherein the principal did not act.

[00:24:05] Speaker 00:
And there was plenty of evidence to show that the principal was aware of the agreement that had been in place.

[00:24:10] Speaker 00:
Those are not our facts.

[00:24:13] Speaker 00:
Furthermore, on the issue of ratification, this is simply not the case that requires

[00:24:18] Speaker 00:
Justice does not demand that you enforce this contract in the name of equity because the appellant was paid for his work.

[00:24:29] Speaker 00:
In all of those cases that are cited by appellant, you have a municipal entity that has engaged someone for work or services and then turns around and refuses to pay for those work or services.

[00:24:42] Speaker 00:
And in those instances, the court said in order

[00:24:45] Speaker 00:
For justice to rebel, we need to enforce a valid contract for those services.

[00:24:52] Speaker 00:
You, town, do not get to keep the benefits of a service that you are no longer willing to pay for.

[00:24:59] Speaker 00:
That is not the instance in this case.

[00:25:01] Speaker 00:
Mr. Gresham was paid at his agreed upon rate of $42,000 a year up to and including his termination.

[00:25:09] Speaker 01:
But he wasn't paid the buyout.

[00:25:12] Speaker 00:
The buyout is not compensation that it would be considered in this instance, in my argument, as necessary to enforce this contract because the town did pay for those services.

[00:25:27] Speaker 00:
So in each case that we look at, where a court has said we need to step in and intervene, it's because the town or the entity is retaining the benefit of a service and not paying at all.

[00:25:41] Speaker 00:
And that is not this instance.

[00:25:43] Speaker 00:
Mr. Gresham was paid his $42,000 pursuant to the terms and conditions of his employment as announced by the board on July 1st of 2019.

[00:25:54] Speaker 00:
Furthermore, the board acted in conformity with their own policies and procedures in hiring Mr. Gresham.

[00:26:01] Speaker 00:
They also agreed to send him to chief school and those plans were in the works.

[00:26:07] Speaker 00:
They also had Mr. Gresham complete a drug

[00:26:11] Speaker 00:
screening prior to employment, not a term or condition in his contract.

[00:26:17] Speaker 00:
They also had Mr. Gresham come in for a 30 day review, which was also not a term or condition in his contract.

[00:26:24] Speaker 00:
So the board is acting as a whole pursuant to the terms and conditions of employment that it voted on on July 1st of 2019.

[00:26:35] Speaker 03:
Was Mr. Gresham a probationary employee

[00:26:42] Speaker 03:
During this entire time.

[00:26:44] Speaker 00:
Yes, your honor, he was pursuant both to the policies and procedures of the town.

[00:26:49] Speaker 00:
There's a 90 day probationary period.

[00:26:51] Speaker 00:
And additionally, if the court looks at Mr. Gresham's written contract, there is also a 90 day probationary period.

[00:26:59] Speaker 00:
And it is undisputed that he was terminated within the first 90 days of employment.

[00:27:05] Speaker 00:
His first date of employment.

[00:27:07] Speaker 00:
that he was on the job was August 1st of 2019 and he was terminated on October 21st of 2019.

[00:27:14] Speaker 00:
I would also, if the court has no other questions, I would also just ask the court to consider that if you find this contract was enforceable,

[00:27:36] Speaker 00:
then I would urge you to affirm the grant of summary judgment on one of the alternative basis that is stated in the motion for summary judgment.

[00:27:44] Speaker 00:
And those are also wholly supported by the record in this matter.

[00:27:47] Speaker 00:
Furthermore, I would note that the appellant did not file a reply brief in this matter.

[00:27:53] Speaker 00:
And in that instance where an appellee has advanced alternative grounds for upholding a ruling and the appellant does not file a reply brief that acts as a

[00:28:06] Speaker 00:
method of waiver basically to any objections that are not obvious to the court for those specific points urged.

[00:28:13] Speaker 00:
And the authority for that comes from Eaton V. Pacheco, which is found at 931 F.

[00:28:18] Speaker 00:
3rd, 1009.

[00:28:22] Speaker 00:
And those points were that appellant was a probationary employee during this time period when he was terminated and therefore no breach of contract occurred.

[00:28:33] Speaker 00:
nor was the appellant denied due process.

[00:28:37] Speaker 00:
Additionally, the appellant received adequate due process in any event.

[00:28:44] Speaker 00:
And finally, the contract was void and unenforceable under Oklahoma law, and therefore, it should not be enforced against the municipal entity.

[00:28:56] Speaker 00:
In sum, I would urge this court to affirm the district court's ruling in all aspects.

[00:29:02] Speaker 00:
Thank you.

[00:29:05] Speaker 03:
Thank you, Council.

[00:29:06] Speaker 03:
I think Mr. Kiesling used up his time, but if you don't mind, Mr. Kiesling, I've got one follow-up question for you.

[00:29:15] Speaker 04:
Yes, sir.

[00:29:17] Speaker 03:
So if Mr. Gresham was a probationary employee during this whole time, up to the point where he was terminated,

[00:29:30] Speaker 03:
How does he have a property interest for purposes of a procedural loop process client?

[00:29:36] Speaker 04:
Yeah, under that scenario, he wouldn't, but that's not the facts of this case.

[00:29:39] Speaker 04:
And the reason it's not is because even in as, as president council mentioned this probationary period in the policies of the town of the pew, if you're working under a contract, you're exempt.

[00:29:54] Speaker 04:
specifically exempt from the probationary period.

[00:29:57] Speaker 04:
And more specifically, the probationary aspects of Mr. Gresham's contract were limited to just two components.

[00:30:07] Speaker 04:
And it was the 90 days, no PTO, and 90 days, just those two issues that had nothing to do with whether or not his employment could be terminated.

[00:30:16] Speaker 04:
His employment could only be terminated for any type of gross misconduct, which was defined by the terms of that agreement.

[00:30:22] Speaker 04:
So to the point, if the court says, well, he's probationary and we're just going to not give credence to the contract, then the court would be able to make that decision.

[00:30:32] Speaker 04:
But under these circumstances, that is not the facts of the case.

[00:30:37] Speaker 04:
He in fact was, the relationship was defined by that agreement.

[00:30:42] Speaker 04:
And if you're a contract employee with the town of Depew, then you're exempt from the probationary period pursuant to their own policies of the town of Depew.

[00:30:55] Speaker 03:
Any further questions from the panel?

[00:31:00] Speaker 03:
Hearing none, we'll bring the argument to a close.

[00:31:05] Speaker 03:
Appreciate both counsel for your arguments this morning.

[00:31:09] Speaker 03:
The case will be submitted and counsel excused.

[00:31:14] Speaker 03:
Thank you.

[00:31:14] Speaker 03:
Thank you.

[00:31:17] Speaker 02:
Court is in recess.