[00:00:06] Speaker 03: Last case for the morning, True Mobility versus Briggs, auto group 23-3089 and 23-3142, counsel or appellant if you'd make your appearance and proceed please. [00:00:21] Speaker 00: Good morning, may it please the court. [00:00:23] Speaker 00: I'm Jonathan Sternberg and I represent the appellant True Mobility. [00:00:27] Speaker 00: As your honors know, the district court granted the defendant Briggs summary judgment on my client's breach of contract claim. [00:00:33] Speaker 00: It held that the contract's 36-month term in which Briggs had to make minimum payments to my client began on the contract's execution rather than when my client activated the contracted services and therefore Briggs terminating the contract's 36 months after execution wasn't early and they owed my client nothing. [00:00:53] Speaker 00: Your Honors, holding that the 36-month term began on execution was error. [00:00:58] Speaker 00: This Court should reverse the District Court's judgments and remand this case for trial in the underlying factual disputes. [00:01:03] Speaker 00: The district court's reading of the instruments as stating that the term began on execution fails to address their plain language as a whole and reaches the absurd result that if read that way, my client could never recoup the 36 months of minimum payments to which Briggs agreed. [00:01:19] Speaker 00: To the contrary, the instruments plain language actually read in their context as a whole provides that that 36 month term in which Briggs had to make minimum payments [00:01:30] Speaker 00: Minimum monthly payments commenced at the start of my client's cyclical billing to Briggs once its services were activated and not on the agreement's execution. [00:01:39] Speaker 00: Your Honor, these agreements were obviously intended to be a standard form of service contract, which requires Briggs to purchase my client's services for 36 months, pay a minimum amount each month, totaling at least, in this case, a little over $1.1 million. [00:01:53] Speaker 00: And if Briggs terminated before paying those 36 months, it owed the remainder. [00:01:58] Speaker 00: And I can tell you from personal experience, this is the sort of thing that Westlaw requires of small law firms. [00:02:03] Speaker 00: I'm sure we've seen this sort of thing with cable TV companies. [00:02:06] Speaker 00: We cite a case from Florida, which of course is the law that governs here, called DSL versus Tiger Direct, where someone agreed to purchase a minimum amount of advertising from a magazine each month. [00:02:17] Speaker 00: And these work the same way. [00:02:19] Speaker 00: So each of these service agreements, there's three parts to this contract. [00:02:22] Speaker 00: There's three service agreements. [00:02:24] Speaker 00: There's an addendum that Briggs's agent wrote, and there's standard terms and conditions that my client requires of all of their customers. [00:02:31] Speaker 00: And all three of these comprise the agreement, when we talk about the agreement. [00:02:35] Speaker 00: But the service agreements themselves, here each state that Briggs quote, shall purchase at least the monthly amount, quote, each month for a term of 36 months. [00:02:45] Speaker 00: The standard terms and conditions states that if Briggs terminated early, it quote, shall pay 100% of the monthly fees for each month remaining. [00:02:54] Speaker 00: Now, as I said before, the parties agree that Florida law controls here. [00:02:57] Speaker 00: It's in the pretrial order even. [00:02:59] Speaker 00: In Florida, as everywhere else I've seen in this country, shall is mandatory language. [00:03:04] Speaker 00: We cite a case in our reply brief called Allstate in which they said for an insurance contract when it specified that payments shall be made in a specific way, the Florida Supreme Court said that that meant the payments must or will be made that way. [00:03:19] Speaker 00: The question here then is when that 36 months in which Briggs must make these minimum payments to my client begins. [00:03:27] Speaker 00: The standard terms and conditions states that the contract's 36 month term began on the quote commencement date. [00:03:33] Speaker 00: Capital C, capital D is a defined term. [00:03:36] Speaker 00: And it's defined as quote the first day of the first bill cycle in which my client's [00:03:42] Speaker 00: bills monthly recurring charges or usage charges. [00:03:46] Speaker 03: Council, I apologize for stopping you. [00:03:49] Speaker 03: The clock is not moving. [00:03:55] Speaker 00: I will trust you for when I begin. [00:03:58] Speaker 03: Just keep going. [00:03:59] Speaker 00: We'll figure it out. [00:04:00] Speaker 00: Sure. [00:04:01] Speaker 00: Anyway, as I was saying before, the question then is when that 36 months begins and the contracts [00:04:08] Speaker 00: that is the standard terms and conditions, say that it begins on the, quote, commencement date. [00:04:12] Speaker 00: Capital C, capital D, it's a defined term. [00:04:15] Speaker 00: And that term is defined as, quote, the first day of the first bill cycle in which True Mobility bills monthly recurring charges or usage charges. [00:04:24] Speaker 00: But the standard terms and conditions a couple pages later, actually a page later, provides that True Mobility only, quote, may begin invoicing Briggs in full for non-recurring and recurring charges on the later of [00:04:35] Speaker 00: the date the products or services are installed and made available, or the first day of the first bill cycle after the effective date. [00:04:42] Speaker 00: This makes sense. [00:04:43] Speaker 02: Could I just jump in here? [00:04:47] Speaker 02: At contract execution, is it correct that Briggs was required to pay the first month's charges? [00:04:56] Speaker 00: Yes, so that's what the district court glommed onto in this contrary. [00:05:00] Speaker 02: Okay, I just glommed myself, but I've got to follow up. [00:05:04] Speaker 02: Why aren't the first month's charges the same as monthly recurring charges? [00:05:09] Speaker 00: Sure, so first of all, the monthly recurring, so it's the first bill cycle in which True Mobility bills monthly recurring charges. [00:05:21] Speaker 00: The monthly recurring charges, [00:05:24] Speaker 00: If you look at page 218, at the language in the addendum creating that first month bill part, it says upon contract execution, equipment and first month charges are due and payable. [00:05:36] Speaker 00: No additional invoices will be submitted until the services at each location is up and live. [00:05:42] Speaker 00: Invoices will be issued as each location is activated. [00:05:45] Speaker 00: There's no cyclical billing. [00:05:47] Speaker 00: That's the problem here. [00:05:48] Speaker 00: That's not part of the first bill cycle. [00:05:51] Speaker 00: In fact, it's entirely outside of the first bill cycle. [00:05:55] Speaker 02: Where do the contracts define monthly recurring charges? [00:06:01] Speaker 00: It doesn't define monthly recurring charges. [00:06:04] Speaker 00: As we argue in our briefs, we're just based on the plain language of what is a bill cycle? [00:06:10] Speaker 00: What is a recurring charge? [00:06:11] Speaker 00: This isn't a recurring charge. [00:06:13] Speaker 00: And in fact, in their brief, they say this isn't a recurring charge. [00:06:17] Speaker 00: OK, so it's a non-recurring charge. [00:06:19] Speaker 00: But the commencement date does refer to monthly recurring charges, right? [00:06:24] Speaker 00: Yes. [00:06:24] Speaker 00: So the commencement date, though, there's a clause that precedes that. [00:06:30] Speaker 00: the first day of the first bill cycle in which True Mobility bills monthly recurring, in which we bill monthly recurring charges. [00:06:38] Speaker 00: That upfront payment, that advance fee, whatever we want to call it, is not part of a bill cycle in which we have billed them anything. [00:06:47] Speaker 00: It is simply an activate, it's something they have to pay upfront and then it states no additional invoices will be submitted. [00:06:54] Speaker 00: So logically that can't be part of the bill cycle because [00:07:00] Speaker 00: By the plain language here, the point is that the contracts provide that once we set up the services, we will then bill Briggs in a cycle every month, that Briggs then has to pay us for the services, and only then would they be obligated to pay those monthly cyclical bills. [00:07:15] Speaker 00: Briggs then does this for 36 months and agrees to spend a minimum amount each month. [00:07:21] Speaker 00: So under these provisions, under these plain language, the 36-month term [00:07:26] Speaker 00: would begin once we began billing them cyclically for those recurring services. [00:07:31] Speaker 00: Otherwise, if you accept the district court's reading that this first upfront fee, whatever we're going to call it, the upfront first month's charges, is actually part of that cyclical billing, well, then it makes the point that Briggs has to pay my client a minimum fee for 36 months, meaningless. [00:07:49] Speaker 00: True Mobility couldn't bill Briggs and receive payment under the contract until it installed the services. [00:07:55] Speaker 02: Would your reading of the contracts result in multiple 36-month terms depending on activation of services? [00:08:04] Speaker 02: Each one might have a different date, that's correct, and in fact... Well, and maybe even more because there are different locations where the services would be activated, right? [00:08:13] Speaker 02: That's entirely possible and I think that's one of the factual disputes ultimately between the parties. [00:08:19] Speaker 02: Should that inform [00:08:20] Speaker 02: how to interpret these contracts, the idea of this proliferation of 36-month terms? [00:08:27] Speaker 00: No, Your Honor, because they received the bills at that point. [00:08:30] Speaker 00: I mean, it's fairly straightforward. [00:08:33] Speaker 00: And in fact, we were able, it's on page 283 of the appendix, we have a damages chart that does exactly that. [00:08:40] Speaker 00: Now they, of course, dispute some of this. [00:08:43] Speaker 00: And they say it shouldn't work that way. [00:08:45] Speaker 00: But that's a different dispute for a different day. [00:08:48] Speaker 00: First, we have to get past the term. [00:08:49] Speaker 00: And because we couldn't bill them and receive payment until we installed the services, and so if the 36-month term began though at the date of execution, even without invoices or billing, then the minimum payment for those 36 months [00:09:04] Speaker 00: could never have been recouped. [00:09:06] Speaker 00: That language that I quoted before, that they shall pay, they shall purchase at least the minimum amount each month for 36 months, effectively is meaningless. [00:09:15] Speaker 02: By the way, no one's arguing that the contracts are ambiguous. [00:09:19] Speaker 00: No, I don't think they are ambiguous. [00:09:21] Speaker 00: I think all parties agree with the district court on that, that it is not ambiguous. [00:09:26] Speaker 00: I mentioned that case before from Florida DSL. [00:09:29] Speaker 00: There was an issue in that case about ambiguity and when I cited it in our brief, their response in their brief was, well, that was all about ambiguity. [00:09:37] Speaker 00: I didn't mean it for that. [00:09:38] Speaker 00: We are not saying that the agreements are ambiguous. [00:09:41] Speaker 00: Frankly, I think this is very plain language. [00:09:44] Speaker 00: Could it have been clearer? [00:09:45] Speaker 00: Could there have been one single agreement that laid this all out sharp? [00:09:48] Speaker 00: I don't think the parties disagree with that either. [00:09:50] Speaker 00: We wouldn't be here arguing in the 10th Circuit if this was the clearest agreement in the entire world. [00:09:55] Speaker 00: But in ambiguities, whether it's capable of two different meanings, and I don't think it is capable of two different meanings. [00:10:01] Speaker 00: Once again, we go back to what is the commencement date. [00:10:04] Speaker 00: It's a single term. [00:10:05] Speaker 00: That's what defines when the term of these agreements began. [00:10:08] Speaker 00: Now I know that in their brief, and I think the district court may have been a bit confused about this too, there's an interchangeable use of effective date versus commencement date. [00:10:19] Speaker 00: So if you look at the provision of the standard terms and conditions that talks about term, it says the term of the service agreements, these three contracts, is governed by the commencement date. [00:10:32] Speaker 00: But then it says the effective date of the agreement shall be the date they're signed. [00:10:36] Speaker 00: I think what [00:10:38] Speaker 00: that's meaning is that it's the standard terms and conditions that begin on the effective date, begin on signing, and then govern what happens next. [00:10:45] Speaker 00: One possibility was, it took my client a while to install the services, and that's of course one of the disagreements that sparked the disagreements between the parties here. [00:10:54] Speaker 00: But let's say during that period, Briggs had terminated the agreements before we had installed the services. [00:11:00] Speaker 00: We would agree at that point that 36 months hadn't begun, and under the termination provision, instead of owing the [00:11:07] Speaker 00: all remaining months, they don't only owe $1,000. [00:11:10] Speaker 00: Clearly these agreements can contemplate that we wouldn't have installed these services until later. [00:11:15] Speaker 00: The point though is the effective date of the standard terms and conditions begins the date they're signed, but the commencement date of the 36-month term in which Briggs has to pay my client is the first day of the bill cycle in which we bill recurring charges or usage charges. [00:11:34] Speaker 00: That first month's [00:11:36] Speaker 00: date, the first month's upfront payment wasn't that because it specifically provided no additional invoices will be submitted until the services at each location is up and live. [00:11:46] Speaker 00: Invoices will be issued as each location is activated. [00:11:52] Speaker 00: I think this is a fairly straightforward case at this point, Your Honors. [00:11:56] Speaker 03: We'll hear from the other side and we'll see how straightforward it is. [00:11:59] Speaker 03: I'm not asking you to leave yet unless you're ready to go. [00:12:02] Speaker 03: I mean, I think you've got a couple minutes if you want to take [00:12:05] Speaker 00: What I would like to do is reserve some time for rebuttal. [00:12:12] Speaker 03: Let me ask you one question before you do that. [00:12:15] Speaker 03: You make an absurd results argument. [00:12:17] Speaker 03: Did you make that argument in the district court? [00:12:20] Speaker 00: We didn't make that exact argument no and I agree that this could have been argued better in the district court but I think it's good enough. [00:12:26] Speaker 03: Well, good enough, tell me where it's good enough, because it looks like you didn't make it to me. [00:12:31] Speaker 00: Sure. [00:12:32] Speaker 00: So it's in the opposition to the motion for summary judgment pages 251 to 252 of the appendix, we argue that it's on, actually it's 252 right here. [00:12:48] Speaker 00: So the second paragraph, the date alleged by Briggs December 29, 2019 is not correct because it disregards the actual dates when services began. [00:12:57] Speaker 00: And then previously in the pre-trial order, which is I think pages 98 to 100 of the appendix, we said that the [00:13:09] Speaker 00: contract date began on the, it didn't begin on the date of execution either. [00:13:14] Speaker 00: It began when the services began. [00:13:15] Speaker 00: I don't know that we had to make a specific argument that said it was absurd results. [00:13:19] Speaker 00: We're simply arguing about the language of the agreements here. [00:13:23] Speaker 03: I'll think about it. [00:13:23] Speaker 00: Thank you. [00:13:24] Speaker 00: Thank you, your honor. [00:13:26] Speaker 03: Council. [00:13:32] Speaker 01: May it please the court. [00:13:33] Speaker 01: My name is Terry Iles. [00:13:34] Speaker 01: I'm representing Briggs Automotive Group. [00:13:37] Speaker 01: This really comes down to one simple question and how do we harmonize all the language in the contract to make a determination when the termination date is and whether or not it's actually supposed to be 36 months from the effective date. [00:13:53] Speaker 01: Not only that, but how do we harmonize it with the definition of commencement date? [00:13:58] Speaker 01: I think if we look at all the facts involved, and both counsels cited several, there is no dispute on the facts. [00:14:05] Speaker 01: One of the critical aspects of this entire contract was that 36-month term. [00:14:09] Speaker 01: This is a telecommunication system for a dealership. [00:14:12] Speaker 01: They needed to make sure this technology did not become obsolete. [00:14:17] Speaker 01: They needed to stay with the technology. [00:14:20] Speaker 01: In order to do that, this term had to end at 36 months. [00:14:24] Speaker 01: Everybody's in agreement with that. [00:14:26] Speaker 01: Everybody discussed that during negotiations. [00:14:28] Speaker 01: All the documents say that. [00:14:30] Speaker 01: Contract A and B and C say that, and also the addendum says that. [00:14:35] Speaker 01: Critical to this entire decision in this case. [00:14:38] Speaker 01: If you look at the contracts, there are several of them that counsel does reference. [00:14:43] Speaker 01: First of all, Judge Matheson, to answer your question, the first month charge in the addendum is the monthly reoccurring charge. [00:14:52] Speaker 01: And I'm going to explain how that happens. [00:14:55] Speaker 01: But all these documents are a little difficult because we have [00:15:01] Speaker 01: A, B and C and also the addendum that are specific to this transaction, that are specific to True Mobility, Briggs and the 36 months. [00:15:13] Speaker 01: And then we have standard terms conditions that are rather particular to transactions involving True Mobility. [00:15:20] Speaker 01: Briggs didn't even mention it here. [00:15:22] Speaker 01: But we have to harmonize them all together. [00:15:26] Speaker 01: How do we do that? [00:15:27] Speaker 01: It's rather difficult, especially when some of these terms [00:15:31] Speaker 01: don't always mesh up a little bit. [00:15:33] Speaker 01: You have a term used in contracts A, B, and C, minimum monthly charge, but it's not defined in the standard terms. [00:15:46] Speaker 01: It's not defined or used in the addendum. [00:15:48] Speaker 01: It's not used at all in those two documents. [00:15:51] Speaker 01: It is defined, Judge Matheson, and I'm going to explain to you, show you where it's defined. [00:15:57] Speaker 01: You also have terms like [00:16:00] Speaker 01: commencement date, effective date, products, certs that are capitalized and defined in the standard terms. [00:16:10] Speaker 01: But those terms are not used anywhere in the addendum or AVNC, nowhere in those documents. [00:16:19] Speaker 01: What I'm trying to get at is we have some inconsistencies between the documents, but they can be harmonized to demonstrate. [00:16:28] Speaker 01: And let me give you an example. [00:16:29] Speaker 01: If you go back to the definition under the addendum, paragraph 6, when it talks about the first month's payment due, well, it says upon execution of the contract and equipment for the first month's charges are due and payable to true mobility. [00:16:51] Speaker 01: Well, equipment's not used anywhere in any of the documents, but product is used in the standard terms. [00:16:58] Speaker 01: That's the only other explanation that could be, would be products. [00:17:02] Speaker 01: Because there's only two types of services, or two types of charges that could be done here. [00:17:07] Speaker 01: A charge for a product and a charge for a service. [00:17:11] Speaker 01: Only those two, because they're the only two that are addressed in the standard terms. [00:17:15] Speaker 01: As far as the types of charges, it is a recurring and a non-recurring charge. [00:17:21] Speaker 01: And those are addressed in the standard terms. [00:17:25] Speaker 01: Where I'm getting at is, we have [00:17:28] Speaker 01: that paragraph six that uses language that is not necessarily defined anywhere else in the document. [00:17:39] Speaker 01: But what's critical about this is using the language about first month's charges. [00:17:46] Speaker 01: And that's where it gets us to the monthly reoccurring charge. [00:17:51] Speaker 01: If you look at either one of the A, B, or C contracts, [00:17:58] Speaker 01: And for example, Contract A, if you go to this, it talks about a monthly, minimum monthly charge, okay? [00:18:06] Speaker 01: And it does not specifically define it like it does in the standard terms. [00:18:11] Speaker 01: But if you go to the second page of Contract A, we see where it references minimum monthly charges. [00:18:21] Speaker 01: And it also references toward the middle of the page, non-recurring charges, okay? [00:18:27] Speaker 01: So we can see from what is being added up on the right side of the page under minimum monthly charges that that dollar figure comes up to $10,205. [00:18:39] Speaker 01: That's the minimum monthly charge, what they intend to charge per month for the services provided for recurring charges. [00:18:47] Speaker 01: And then if you look down the last two items, those are dealing with non-recurring charges, which would be part services for installation and also product. [00:18:57] Speaker 01: Non-recurring charges are not monthly charges. [00:19:03] Speaker 01: The only monthly charge is a recurring charge because that's how it's addressed in their document. [00:19:10] Speaker 01: If we look at the language in the addendum of the first month charges, there's two important words in that that help us understand that this is referencing and referring to a monthly recurring charge. [00:19:25] Speaker 01: One, upon contract execution, equipment, and first months' charges. [00:19:32] Speaker 01: The only charge per month is a recurring charge. [00:19:37] Speaker 01: And also, the only charges are recurring and non-recurring. [00:19:42] Speaker 01: But non-recurring, which is product and installation, is not a monthly charge. [00:19:48] Speaker 01: That is how we get to this point that the contract [00:19:52] Speaker 01: When that first payment was made, when the contract was executed, it was for a monthly recurring charge. [00:19:59] Speaker 01: That's how we get to the commencement date and the definition that's applied here. [00:20:06] Speaker 01: With that, I think the district court came to the proper determination in that Judge Robinson determined it started when the contract was signed. [00:20:17] Speaker 01: She also determined all payments were made by breaks. [00:20:21] Speaker 01: Briggs provided proper notice and that the contract terminated 36 months. [00:20:26] Speaker 03: Let me ask this question and I may have misunderstood opposing counsel, but this was what I took away in part from the argument, which was that if in fact the contract commenced and these were monthly recurring charges commenced at the time the contract was signed, these contracts were signed, some of the services were not ready to go in line at that point. [00:20:49] Speaker 03: And Briggs was not required to pay until they did go online. [00:20:54] Speaker 03: And so if the 36-month clock started at the time that Briggs signed that agreement, then they really would not be able to be paid for 36 months. [00:21:05] Speaker 03: because they are only paid when the services, when essentially they had done whatever work they needed to do so it would go live. [00:21:14] Speaker 03: So creating this sort of dissonance because actually the 36 months, if the clock starts running, Briggs is not obligated to pay anything for a period of time when that 36 months is going on. [00:21:26] Speaker 01: I agree with that, Your Honor. [00:21:28] Speaker 01: And in fact, it's the same thing as if it had started, but halfway through it, they were unable to provide services and got shut down. [00:21:35] Speaker 01: They wouldn't have to pay for that month either. [00:21:37] Speaker 01: But the point is, this took a lot longer than everybody anticipated to get up and going. [00:21:42] Speaker 01: There were a lot of problems in getting it going. [00:21:45] Speaker 01: But when we look at what the recurring charge was, it was billed and paid right out of the gate to start this contract ticking. [00:21:53] Speaker 03: But if it starts the contract ticking, but then [00:21:56] Speaker 03: there is a gap of time in which there are no additional payments. [00:21:59] Speaker 03: In other words, monthly recurring charges implies that there will be monthly payments. [00:22:04] Speaker 03: And if in fact they had not stood up whatever infrastructure was necessary for the services to be online, there wouldn't be monthly recurring payments because there wouldn't be any service to pay for. [00:22:18] Speaker 03: So I guess the point that at least I understood was if the parties contemplated [00:22:25] Speaker 03: that, yes, I want 36 months, I don't want technology to go beyond me, but the true mobility said, okay, but I want to get paid for 36 months. [00:22:36] Speaker 03: Well, under this scheme, where the 36-month clock starts at execution, they aren't getting paid for 36 months because the services weren't ready in 36 months, and yet that 36-month period would elapse, right? [00:22:52] Speaker 01: But it's not a guaranteed 36-month payment contract. [00:22:57] Speaker 01: It's only a minimum monthly charge. [00:23:00] Speaker 01: That's the difference. [00:23:01] Speaker 03: But you're not paying minimum monthly charges for that entire 36-month period, are you? [00:23:05] Speaker 01: I don't disagree with that. [00:23:06] Speaker 01: That's because the services haven't been provided. [00:23:09] Speaker 01: But had those services went online from day one, then they would have been obligated in the contract to pay that from day one when those services were up and running. [00:23:19] Speaker 01: Nobody knew when those services were up and running. [00:23:22] Speaker 01: But if we go with that basic philosophy here that we need, and that is we need this thing to terminate within 36 months because of technology becoming obsolete, then this is more consistent than counsel's arguments now that we're at 54 months. [00:23:36] Speaker 01: And now we're beyond that technology. [00:23:38] Speaker 01: And we're beyond the requirements and the understanding of what the parties needed here, which is it to terminate in 36 months. [00:23:45] Speaker 01: I think if you also look at counsel's argument, [00:23:49] Speaker 01: none of it correlates with any of the language in the addendum. [00:23:52] Speaker 01: It's strictly relying on the language in the standard terms and conditions. [00:23:57] Speaker 01: And that's inconsistent with Florida law, where you need to harmonize all these contracts together. [00:24:03] Speaker 01: It's difficult, I admit, because we can see how some of these terms that are defined in the standard terms and conditions, but they're not used anywhere else in these contract occupants. [00:24:13] Speaker 01: But if we harmonize them. [00:24:14] Speaker 02: Can I just ask you to go back? [00:24:16] Speaker 02: Sure. [00:24:16] Speaker 02: You kind of walked us through. [00:24:17] Speaker 02: Okay. [00:24:18] Speaker 02: I need to go back. [00:24:19] Speaker 02: It takes a few times. [00:24:21] Speaker 02: On contract A. Yes, sir. [00:24:26] Speaker 02: Page two. [00:24:30] Speaker 02: So you pointed out there that under description you've got minimum monthly charges. [00:24:37] Speaker 01: Look at line total. [00:24:39] Speaker 02: Yeah, and look at the line total. [00:24:40] Speaker 02: It also says monthly recurring total. [00:24:43] Speaker 02: And then the signatures are for January 10, January 11, 2017. [00:24:49] Speaker 02: Correct. [00:24:51] Speaker 02: And Briggs, am I correct? [00:24:54] Speaker 02: Briggs was supposed to pay the first month. [00:24:57] Speaker 02: Upon executing, which is January 10. [00:24:59] Speaker 02: And so was Briggs on the hook for this amount then? [00:25:04] Speaker 01: That's what we don't know, and that's what's not in the record, is what the amount was charged. [00:25:10] Speaker 01: They don't have documentation of what was paid. [00:25:12] Speaker 01: We don't have documentation of what was paid. [00:25:15] Speaker 01: But what we do know is the first month's charges were due. [00:25:20] Speaker 01: And because the month's charges are a minimum charge for the reoccurring charge, then we have to assume this is what was paid. [00:25:28] Speaker 02: So we're just working off the face of these documents, right? [00:25:32] Speaker 02: Right, exactly. [00:25:33] Speaker 02: This is a little different type question that I'm about to ask you, but if under your theory the contracts expired under year 36 months on January 10, and Briggs, maybe I'm wrong on this, but my understanding is Briggs paid through the end of December, December 29. [00:25:56] Speaker 02: Why wouldn't True Mobility still have money coming even under your theory? [00:26:00] Speaker 01: I think what's not in the evidence, and this is not in the record, there was a couple additional months that had to go because it was not a transition that went as smooth and cut off like when they needed to. [00:26:11] Speaker 01: So we didn't even get into damages in this case. [00:26:14] Speaker 01: We were strictly about contracting. [00:26:16] Speaker 01: So it's not in the record, but everything was, under your theory, was paid? [00:26:21] Speaker 01: Under our theory, everything that was billed was paid to my client. [00:26:25] Speaker 01: The only thing in damages being requested [00:26:27] Speaker 01: is what's being in the future. [00:26:29] Speaker 03: Paid to your client, you mean paid by your client? [00:26:31] Speaker 01: Paid by my client, yes, from Brakes to True Mobility. [00:26:34] Speaker 01: Everything that was billed has been paid in full, with the exception of this later on billing. [00:26:40] Speaker 03: All of this talk about how Brakes was concerned about having not being outdated by technology and the passage of technology and all of that. [00:26:53] Speaker 03: How did we know that? [00:26:55] Speaker 03: Where is that? [00:26:56] Speaker 03: And how do we square that with the need to read the face of the contracts in determining what they say? [00:27:03] Speaker 03: In other words, the language and harmonizing that language as opposed to this external intent of bridge. [00:27:12] Speaker 01: Well, I think we could look at the addendum and also look at the contract A, B and C and see that it specifically states 36-month term. [00:27:21] Speaker 01: I don't think there's any language in either one of those documents about the concern with obsolete equipment or technology or anything like that. [00:27:28] Speaker 01: But the parties are all in agreement with that. [00:27:30] Speaker 01: That was the reason for the 36-month term. [00:27:32] Speaker 01: In fact, Mr. Barnett even testified to that in his deposition, which is part of the record. [00:27:36] Speaker 01: The full deposition is. [00:27:38] Speaker 03: Well, the parties may be in agreement that that was the concern of Briggs. [00:27:43] Speaker 03: And maybe, let me just hear your response to this. [00:27:47] Speaker 03: Okay, that's the concern of Briggs. [00:27:49] Speaker 03: Well, the concern of True Mobility, does the contract say whether the concern of True Mobility was to be paid for 36 months? [00:27:58] Speaker 01: No, I don't think it does. [00:27:59] Speaker 01: In fact, I think if we look at what the plain language of the contract does says, is this 36 months that commences from the first payment of this reoccurring charge. [00:28:10] Speaker 01: And that was the first day that contract was signed, January 10th, when that payment was made. [00:28:18] Speaker 01: Do you have anything else? [00:28:19] Speaker 03: No, thank you. [00:28:20] Speaker 01: We request for the district court be affirmed, Your Honor. [00:28:23] Speaker 03: Thanks for your time. [00:28:25] Speaker 03: Things are a little confused, but let's go with two minutes. [00:28:39] Speaker 00: Mr. Reynolds began his argument by stating 36 months from the effective date. [00:28:43] Speaker 00: I think that's the problem here. [00:28:45] Speaker 00: The effective date is when standard terms and conditions begin. [00:28:47] Speaker 00: It's the commencement date that begins the 36-month term. [00:28:51] Speaker 00: Mr. Riles' argument also fails to give effect to the language defining the commencement date as the first bill cycle in which they bill monthly recurring charges. [00:29:01] Speaker 00: So even if that first month's upfront amount is a monthly recurring charge, [00:29:07] Speaker 00: And I accept that his reading of page two of, say, contract A, but even if that were the case, it's still not part of a bill cycle. [00:29:16] Speaker 00: The bill cycle, the concern is, of course, when you have a contractor like my client, is getting paid. [00:29:22] Speaker 00: They wanted to be paid for 36 months. [00:29:23] Speaker 00: Mr. Eilers argued that... So did I understand correctly what your position was? [00:29:28] Speaker 00: You absolutely understood. [00:29:29] Speaker 00: I think you stated it very well, Judge. [00:29:33] Speaker 00: Mr. Eilers also said that minimum monthly charge is not defined. [00:29:36] Speaker 00: And I agree, there's no definition of minimum monthly charge in the contract, and that's because there doesn't have to be. [00:29:43] Speaker 00: This is plain English. [00:29:44] Speaker 00: It says that they shall pay this minimum amount each month to my client for 36 months. [00:29:51] Speaker 00: That's the minimum monthly charge. [00:29:53] Speaker 00: It doesn't have to be defined any further than that. [00:29:55] Speaker 00: Mr. Riles suggests that because the word guarantee is not in this, [00:30:00] Speaker 00: that it doesn't work the way that I say it does. [00:30:04] Speaker 00: But the language shall in Florida is a guarantee. [00:30:08] Speaker 00: Shall means they must. [00:30:10] Speaker 00: They are agreeing. [00:30:11] Speaker 00: They are guaranteeing that they are going to pay us this amount for 36 months. [00:30:15] Speaker 00: And if we read it the way that they're saying, that could never be the case. [00:30:22] Speaker 00: The contracts also themselves do contemplate that there will be a time between execution and when we activate the services. [00:30:30] Speaker 00: Seeing that I am out of time, there are no further questions. [00:30:32] Speaker 00: I'd ask the court to reverse and remand for trial on the underlying facts. [00:30:36] Speaker 03: Thank you, counsel. [00:30:37] Speaker 00: Thank you. [00:30:38] Speaker 03: The case is submitted. [00:30:39] Speaker 03: We'll be in recess until 9 AM tomorrow.