Free Proposed Findings of Fact - District Court of Arizona - Arizona

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David B. Goldstein, SBN 003410 Holly L. Gibeaut, SBN 019786 2 HYMSON & GOLDSTEIN, P.C. 14646 N. Kierland Boulevard, Suite 255 3 Scottsdale, Arizona 85254 Telephone: 480-991-9077
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Attorneys for Plaintiff/Counterdefendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA TASER INTERNATIONAL, INC., an Arizona corporation, Plaintiff/Counterdefendant, vs. No. CV00-0945 PHX ROS

PLAINTIFF'S POST-TRIAL REVISED AND SUPPLEMENTAL PROPOSED FINDINGS OF FACT AND 12 GERTRUDE HENNIGAN, as CONCLUSIONS OF LAW Administratrix of the Estate of Thomas 13 Hennigan,
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Defendant/Counterclaimant.

Plaintiff, Taser International, Inc. ("Taser"), by its attorneys, following Defendant/Counterclaimant's presentation of the estate's case at trial, submits its PostTrial Revised and Supplemental Proposed Findings of Fact and Conclusions Of Law pursuant to Rule 52(a), Federal Rules of Civil Procedure, the Court's Order re: Postponement of Certain Trial Proceedings dated December 17, 2004, the Court's order dated June 8, 2005, and the Court's direction to the parties in open court on September 6, 2005. These Findings of Fact and Conclusions of Law are focused on the pending Motion to Dismiss Counterclaimant's case. Taser reserves its right to submit additional findings of fact and conclusions of law if the trial resumes. After considering the pleadings on file in this matter, the Court's prior rulings, and the evidence presented at trial, the Court enters the following Findings of Fact and Conclusions of Law:

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FINDINGS OF FACT Background Information 1. Taser International, Inc. ("Taser") was organized as a corporation under the

laws of the State of Arizona on, or about, September 7, 1993. (Joint Revised Pretrial Order at ¶ F-1, p. 11.) 2. Taser is in the business of manufacturing and marketing, among other

items, stun guns, including electro-muscular disruption ("EMD") weapons known as the "Advanced Taser," "M-26," and "X-26." (Id. at ¶¶ F-2, F-3, p.11.) 3. In the past Taser also marketed a weapon known as the "Air Taser." (Id. at

¶ F-4 at p. 11; 9/2/05 ­ Smith 368-701.) 4. Models of the Advanced Taser designated for law enforcement are known

as the "M-26" and "X-26." (Joint Revised Pretrial Order at ¶ F-3 at p. 11; 9/1/05 ­ Hanrahan ­ 279-280; Exhibit 88.) 5. EMD weapons are particularly useful to law enforcement agencies,

allowing officers to debilitate a target physically without the use of potentially lethal force. (Joint Revised Pretrial Order at ¶ F-6, p. 12.) The Evidence Does Not Prove A Contract Was Formed 6. On February 27, 1998, after the time for certain non-compete provisions

related to patent restrictions expired, Ric Smith ("Smith") and Steve Tuttle ("Tuttle"), Taser's Director of Governmental Affairs, met with representatives of the New York City Police Department at the City Island Range for a demonstration of Taser's products arranged by Thomas Hennigan ("Hennigan"). (9/1/2005 ­ Russell ­ 198; 9/1/05 ­ Smith - 294-95; 9/2/05 ­ Smith ­ 376-77, 388 ­ 390; Exhibit 58.) 7.
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Henry Anderson "Buzz" Russell ("Russell") first heard about Taser from

Taser will be citing to the trial transcript by first supplying the date of the testimony, second supplying the name of the witness testifying and third the page or 27 pages from the transcript containing the testimony on which the Statement of Fact is based.
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Hennigan. (8/31/05 ­ Russell-50). 8. No written agreement existed between Taser and Hennigan or Hennigan

International, Inc. (8/31/05 ­ Russell ­ 165.) 9. Whatever deal existed between Hennigan and Taser was made through

negotiations between Smith and Hennigan; Russell was not present for any of those negotiations. Neither Russell's testimony nor the testimony of any other witness in this case established the elements of offer, acceptance, or consideration needed to prove the existence of an oral contract. (8/31/05 ­ Russell ­ 159-160; the remainder of the record.) 10. Exhibits 13 and 14 demonstrate a lack of an agreement between Taser and

Hennigan. (Compare Exhibits 13 and 14.) 11. Hennigan told Russell what he understood the terms of the arrangement

with Taser were. ( 8/31/05 ­ Russell -52.) 12. When Hennigan spoke to Russell about the prospect of working with Taser,

the only weapon that Taser was marketing was the Air Taser; Taser had not yet begun to manufacture the M-26. (8/31/05 ­ Russell ­ 164.) 13. Russell made the decision to engage in the marketing of Taser's products Russell's decision to market Taser's

based upon assurances Hennigan gave him.

products was not based on anything that Tuttle, Smith, Stacie Sundberg ("Sundberg") or Kathy Hanrahan ("Hanrahan") said to him. (8/31/05 ­ Russell ­ 161-162.) 14. When Hennigan told Russell about the arrangement with Taser, he

expressed the terms for the commission as a percentage and not as the difference between the price to a distributor and the price to a law enforcement agency. (8/31/05 ­Russell ­ 164-65.) 15. The statement Russell made to Tuttle to which Tuttle responded, "I know

that," is not proof of the existence or terms of any contract. Russell's testimony about that statement is: Well, being that Steve was the first one I had ­ live person I had met from Taser, he told me all about the company and he was talking about who was
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involved in it, and we discussed the company for a while, and what their goals were, and I told him what my goals were, and why I decided to take this, knowing I wouldn't get any compensation for two or three years. But as long as the accounts that I developed were protected, and I would get the revenue off of them, as long as the account was active, that was why I stayed, that was why I did this. That was why I agreed to do it on my money and my time and my efforts. (8/31/05 ­ Russell ­ 91.) The statement was made during a trip to a demonstration in Alabama that took place in April, 1998, long after Smith and Hennigan had their discussion or discussions about the arrangement between Taser and Hennigan. (¶¶ 6-11, supra; 8/31/05 ­ Russell ­ 89-90.) So Russell's statement cannot be an offer or

acceptance, the operative language by which an oral contract is formed. The statement is indefinite and vague. It begs the questions of what it means to develop an account, what type of protection Taser was willing to provide, and when an account was considered to be "active." Taser might only have considered the account "active" insofar as Russell and Hennigan were concerned if they were working it and if they were the ones doing the work. (Compare 9/1/05 ­ Hanrahan ­ 218-19, 226, 228, 232; 9/1/05 ­ Smith ­ 307-08; Exhibit 32.) Thus, Hanrahan understood that once an account had been assigned to Hennigan International the account was Hennigan's only as long as Hennigan and Russell worked on the account with Taser. (9/1/05 ­ Hanrahan ­ 228.) 16. Russell's statement to Tuttle on the way to the Alabama demonstration is

based on the notion that sales of the Taser would only happen a long time after an initial demonstration was made. But the decision-making process for law enforcement and correction agencies "can take as little as a few weeks or as long as several years." (9/1/05 ­ Smith ­ 304-05; Exhibit 339, p. TAS 1998.) Significant sales to an agency could move very quickly. Many of the orders did not have to wait for budgeted funds. Agencies, for example, could use drug forfeiture and other funds that would not require a budget. Indeed, the City of Sacramento purchased roughly 600-700 Tasers units in June 2000, four months after Smith did a presentation and training in March 2000. The Albuquerque Police Department purchased within four months after a Taser presentation. Sometimes
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agencies have delays but sometimes they do not. (9/1/05 ­ Smith ­ 296-97.) 17. Russell's statement also assumes that Tuttle had the authority to speak for

Taser. The source of Russell's information that Tuttle was the "go-to" guy is unclear from the record. (8/31/05 ­ Russell - 57.) Tuttle only said he was an officer of Taser. He said nothing leading Russell to believe that he had the authority to make contracts on behalf of Taser. Indeed, Tuttle signed Exhibit 58 as the Director of Government Affairs

and may have told Russell that was his position with Taser. (8/31/05 ­ Russell ­ 162; Exhibit 58.) 18. Counterclaimant's position that merely supplying contact information to

Taser resulted in an eternal entitlement contradicts the believable testimony of Smith who testified that Taser only paid Hennigan or Russell if they actually made the sale. Hennigan International would write orders and Taser would serve as its shipping and billing department for the orders. But if Hennigan made a presentation and did not write an order or another distributor subsequently called upon the account and closed the sale, Hennigan would not receive compensation. (9/1/05 ­ Smith ­ 307-08; Exhibit 32.) 19. Russell's statement that once they gave the name and address of an account

to Taser it was assigned to Hennigan (8/31/05 ­ Russell ­ 78) contradicts Hanrahan's believable testimony that an account would not necessarily be assigned to Hennigan International when Hennigan or Russell started working with a new lead. (9/1/05 ­ Hanrahan ­ 222.) 20. Hennigan understood that selling was an ongoing process and required

continual work. (9/1/05 ­ Smith ­ 337.) 21. In fact, in Exhibit 91, Hennigan accepted responsibility for assisting with

collections of accounts after Taser's accounting department made attempts on an overdue account. Payments of the overage to Hennigan were to be made, according to Exhibit 91, subsequent to Taser's receiving payment from the customer. (Exhibit 91; 9/1/05 ­ Hanrahan ­ 224-25.) 22. When an account was "assigned" or "tagged" it meant putting the account
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into Taser's contact management system so Taser would know who was working on the account. It was also used to determine who would get commissions. When Hanrahan used the term "assigned" in her e-mails she used it to describe that Taser had put Hennigan's name next to one of the customer accounts or one of its leads in Taser's contact management system so that Taser could identify that Hennigan was working on the account. (9/1/05 ­ Hanrahan ­ 218-19, 226, 232.) Counterclaimant Has Not Sustained The Burden Of Quantifying The Value To Taser Of Russell's Marketing Efforts 23. The first weapon that Russell marketed for Taser was "an electronic stun

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gun that ejected two darts on a 15-foot wire..." (8/31/05 ­ Russell ­ 53.)
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24.
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Russell's demonstrations to the Cleveland Police Department, Little Rock

Police Department, Hickory North Carolina Police Department, Durham North Carolina Police Department, Burlington North Carolina Police Department, and Anderson South
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Carolina Police Department, were all of the Air Taser and not the M-26. (9/1/05 ­ Russell
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­ 197-202, passim.)
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25.
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Though Russell demonstrated the Air Taser to the Anderson Police

Department on September 29, 1998, and the demonstration was successful, no sales of Taser products were made until February 20, 2002, and the majority of sales to the
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Anderson County Sheriff were made by a Taser Distributor, Southeastern Police Supply.
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(8/31/05 ­ Russell - 107-08; Exhibit 350, p.9; Exhibit 329.)
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26.
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Russell performed a demonstration of the Air Taser for the Angola Prison

in Louisiana without knowing that at the time Louisiana prohibited the use of electronic weapons. (8/31/05 ­ Russell ­ 118-21, 126-27; 9/1/05 ­ Russell ­ 189-90.)
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27.
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No sales of the Taser were made following Russell's demonstration of the

Air Taser at Tucker Max or following his demonstration to the Little Rock Arkansas Police Department. (8/31/05 ­ Russell ­ 97-98.)
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28.
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Though Tuttle and Russell demonstrated the Air Taser to the Alabama State

Prison system on September 17, 1998, no sales were made to that department at that time.
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(8/31/05 ­ Russell ­ 93-94.) 29. The City of Cleveland did not order any Tasers after Russell's

demonstration on October 27, 1998, because the City did not have room in its budget for the Tasers. (8/31/05 ­ Russell ­ 87-88.) 30. Russell and Hennigan had Taser ship five Tasers and 25 to 30 rounds of

ammunition to the prison in Parchman, Mississippi thinking they had a sale. (8/31/05 ­ Russell ­ 101-02.) Thus, on the basis of an e-mail sent by Hennigan about Russell having a `strike' in Mississippi, Taser sent the Mississippi State Prison System and Warden Cole an invoice together with some Tasers and related equipment. Hennigan's email said that Taser should send the Mississippi State Prison two Air Taser power handles and related equipment. Hennigan also suggested that an invoice should be faxed that afternoon with a follow-up call. Later Hennigan admitted that "it was all a

misunderstanding." Warden Cole became very mad, and Taser has never sold a product to the Mississippi State Prison System. (8/31/05 ­ Russell ­ 166-169; Exhibits 61, 63 and 350.) 31. Russell performed a demonstration for the Rock Hill Police Department on

November 4, 1999, but no sales of Taser products occurred until September 11, 2000, and those sales were made by DGG Taser. (Compare 8/31/05 ­ Russell ­ 144, with Exhibit 350 at 6.) 32. Hennigan gave Smith the impression that Lancaster, South Carolina was

going to buy 42 units, one for every officer, but Lancaster did not purchase any Tasers in 1999. (9/1/05 ­ Russell ­ 180; Exhibit 217.) 33. The Court has reasons to doubt Russell's credibility: (a) Russell obtained

much of the contact information about various law enforcement agencies from a book he obtained from Washington "off the shelf." (8/31/05 ­ Russell ­ 171-72.) Russell first claimed that he did not use that book and then later admitted that he did use the book. (8/31/05 ­ Russell ­ 171-173.); (b) Russell's recollection of the exchange program by which an Air Taser could be exchanged for the M-26 was indefinite and vague. (8/31/05
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­ Russell ­ 100-01; 9/1/05 ­ Russell ­ 202-03.); (c) Though Russell testified that he did not go to Orlando because of the "blowup," Taser terminated Hennigan four months later. (9/1/05 ­ Russell ­ 191; Exhibit 48.) Events Relevant To The M-26 Illustrate The Lack Of Proof Of An Agreement 34. Internal development on the M-26 began in the early part of 1999. (9/1/05

­ Smith ­ 344.) 35. From May of 1999 to February 2000 Sundberg, as national sales manager

was developing new distribution programs for the M-26 that was to be publicly introduced in the fall of 2000. (9/2/05 ­ Sundberg ­ 428-29.) 36. Before developing the new program for the M-26, Taser did not have any

territorial distribution program for the Air Taser. It had its distributors of its products who sold it to their customers. They were not subject to any restrictions. They sold both to the commercial market and law enforcement. (9/2/05 ­ Sundberg ­ 429; 9/1/05 ­ Smith ­ 307-08.) 37. Before developing the new program, Taser used a lead-management

software called Maximizer that has an expansive ability to retain information such as documents. Taser used it for a long time to record telephone conversations. (9/2/05 ­ Sundberg ­ 429.) 38. Maximizer was also used for the purpose of tagging an account to manage

the potential and actual sales and to give the distributor the difference between the agency and distributor price if an order came directly to Taser but the distributor had done all of the foot work. (9/2/05 ­ Sundberg ­ 431.) 39. The "Welcome to Taser" program set forth in Exhibit 55 instituted a

"spec'ing distributor" program under which a distributor or representative, to be entitled to certain price breaks in connection with competitive bidding, needed to present Taser with written proof that the distributor or representative was working the account in a significant manner such as scheduling a demonstration, training its officers, or calling on the account personally. It was an outline of what Taser expected from them and what it
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would do for them. To retain rights to that favorable treatment, the distributor was required to maintain regular contact with the account. Sundberg sent that program to Hennigan and signaled Taser's desire to formalize its relationship with Hennigan in writing and inform him of the terms that would apply to Taser's relationship with him if he decided he wanted to represent Taser with respect to the Advanced Taser and related products. Sundberg sent that to Hennigan to get him to start complying with the distributor program. (9/2/05 ­ Sundberg ­ 432-33; Exhibits 14 and 55.) 40. Thus, Hennigan knew since at least June 1999 that Taser desired to refine

and formalize its distribution system to something that was different from what he, without any support from anything that Taser representatives said, believed it was. (Ibid.; Exhibit 13.) 41. Under the new program for the M-26 and Taser's subsequent programs,

different distributors for Taser would sell different goods. Then, one distributor would only be able to sell the X-26 while another could sell both the X-26 and the M-26. (9/1/05 ­ Hanrahan ­ 281-82.) 42. 43. The M-26 was introduced to the public in October, 1999. (Exhibit 15.) The M-26 is a new and better product than the Air Taser; they are like night

and day. (8/31/05 ­ Russell ­ 164.) The M-26 was an electro-muscular disruption weapon and operated on a person's motor nerves; the Air Taser only induced pain. The M-26 looks like a pistol and has an integrated laser sight. The Air Taser looks like a flashlight and is more difficult to aim. The M-26 has a data port with internal memory to record the dates and times when it is shot to protect police against unwarranted charges of abuse. The Air Taser has no similar feature. The M-26 is a 26-watt system; the Air Taser is a 7-watt system. The pulse from the M-26 has four times the energy of the pulse from the Air Taser, and higher peak currents delivered over ten-microsecond pulses instead of five-microsecond pulses. (9/2/05 ­ Smith ­ 365- 66, 368-71, 373-84.) 44. During December, January, and February of 1999, Smith and Hennigan
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exchanged e-mails and facsimile transmissions regarding the accounts for which
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Hennigan and Russell would be responsible and for which Hennigan and Russell had the potential to earn commissions. (See, e.g. Exhibits 32 and 316.) 45. When Smith wrote Exhibit 316, Taser had no business relationship with

Hennigan with respect to M-26. When he wrote that exhibit he was discussing launching a new product and an entirely new distribution program. (9/1/05 ­ Smith ­ 313; Exhibit 316.) 46. Prior to sending the December 23, 1999 letter to Hennigan, Taser never

proposed any type of protection to him although there had been degrees of coordination regarding target accounts. (9/1/05 ­ Smith ­ 315; Exhibit 316.) 47. The negatives that Smith referred to in Exhibit 316 were that "there would

be more distributors, and hence more competition in the market place." (9/1/05 ­ Smith ­ 320.) Counterclaimant Has Not Fulfilled Its Burden To Prove That Hennigan And Russell's Efforts Caused A Benefit To Taser And The Value Of That Benefit. 48. When Stacie Sundberg worked with Charlotte Mecklenburg she never

heard anyone mention Buzz Russell. Though he did a demonstration, nothing came of it.
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(9/2/05 ­ Sundberg ­ 462-63.)
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49.
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The earliest sale to Charlotte Mecklenburg was not until March of 2002 and

was the result of extensive effort by Sundberg including providing free training, many, many phone conversations with their trainers and the sergeants they reported to. (9/2/05 ­
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Sundberg ­ 449-451.)
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50.
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The testimony of Sundberg, Vice President of Sales for Taser, did not

establish that her giving information in the Maximizer system received from Hennigan or Russell to other Taser distributors was more probable than not. (9/2/05 ­ Sundberg ­
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419.)
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51.
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Russell obtained much of the contact information about various law

enforcement agencies from a book he obtained from Washington "off the shelf." (8/31/05 ­ Russell ­ 171-72.)
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52.

In the two years that Russell represented Taser he went to two trade shows.

(9/1/05 ­ Russell ­ 198-99.) 53. Russell took no trips on behalf of Taser from March 5, 1999 through

November 14, 1999. (9/1/05 ­ Russell ­ 188-89; Exhibit 289.) 54. On, or about, December 16, 1999, Hennigan conducted a demonstration for He failed to

the Washington D.C. Police Department of the Advanced Taser.

demonstrate the product properly. (Rick De Milt Deposition at 18-19, 23-25.) 55. Indeed the efforts of Hennigan and Russell hurt Taser rather than benefited

it. For example, In June 2001 Smith on behalf of Taser International visited with the chief medical officer of the New York Police Department to discuss medical safety issues with the Taser. On that visit he met with Dennis Moreland ("Moreland"). Moreland

showed Smith a copy of a letter from Hennigan entitled "Greed Kills Brain Cells" that stated that Hennigan was going to file litigation against Taser and that it might pull the New York Police Department into that dispute. The threat set Taser's marketing efforts to the New York Police Department back years because government employees tend to be risk adverse and do not want to be drawn into anything that would disgrace or embarrass a department or cause it administrative problems. (9/2/05 ­ Smith ­ 392-95; See also supra ¶¶ 24-33.) 56. The trial record does not contain any evidence showing that Russell's

attendance at the Mock Riot in West Virginia resulted in any sales for Taser. 57. The trial record does not contain any evidence showing that Russell's

attendance at the Charlotte, North Carolina Convention of the International Chiefs of Police resulted in any sales for Taser. 58. The trial record contains no evidence that the work that Hennigan or

Russell did facilitated subsequent sales efforts by Taser employees or its distributors such as DGG Taser or Lawmen's Supply. 59. Counterclaimant has not supplied the Court with any means or
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methodology to value the benefit that Hennigan is alleged to have conferred on Taser.
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60.

Counterclaimant has not supplied the Court with any means or

methodology to determine how much of the revenue Taser received from the accounts for which Counterclaimant seeks damages after February 21, 2000 is due to the efforts of Hennigan and Russell as opposed to the efforts of Taser employees or its distributors. The Relationship Ends 61. Counterclaimant has conceded that Hennigan never accepted the proposal

outlined in Exhibit 316. (9/6/05 ­ 569-70.) 62. At the time that Malcolm Sherman sent his February 21, 2000 letter,

Hennigan had been given an appropriate and reasonable time to recover his investment. 63. Hennigan passed away on April 18, 2001. (Joint Revised Pretrial Order, at

¶F-11, at p. 12.) 64. 65. Hennigan could no longer render personal services to Taser after he died. The services of Hennigan and Russell did not benefit Taser beyond the

amounts they paid Hennigan. CONCLUSIONS OF LAW 1. The following conclusions of law are based upon the foregoing findings of

fact and the Court's assessment of the credibility of the witnesses. Certain of these conclusions are a restatement of the Court's rulings on Taser's motions for partial summary judgment and are based on the record the Court considered at that time. Those conclusions are found in paragraphs nos. 2, 3, 4, 5, 6, and 7. 2. 3. either party. 4. 5. The relationship between Taser and Hennigan was terminable at will. Because Hennigan was not required to maintain a warehouse, stock No joint venture was formed between Taser and Hennigan. The agreement between Taser and Hennigan was terminable at will by

inventory, establish a network of distributors, sell below cost, and because Taser was responsible for shipping product to fulfill purchase orders Hennigan procured, and invoicing for those products and shared responsibility for obtaining payment for those
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invoices, Hennigan's relationship with Taser was like an employed salesman or marketing representative and not like a distributor that purchases products, takes title to them, and resells them for a profit. Taser, therefore, properly exercised its right to terminate that relationship at will, and the notice of termination was given at a reasonable time. 6. No reasonable notice was required by Taser before it terminated its

relationship with Hennigan. 7. Hennigan is not entitled to invoke the recoupment doctrine. The

investment that the "reasonable time" rule permits a terminated distributor to recover only includes investments of money and does not include investments of time. 8. Proof of a conflict requires proof of offer, acceptance, and bargained-for

consideration. Savoca Masonry Co. v. Holmes & Sons Constr. Co., 112 Ariz. 392, 542 P.2d 817 (1975). Proof of an oral contract must also include proof of terms of a contract with reasonably definite terms. If the contract is too indefinite and vague, it cannot be enforced. Id. Counterclaimant has failed to sustain this burden of proof. 9. Counterclaimant failed to prove and quantify the amount of benefit that

Taser received, if any, from the services that Hennigan and Russell provided beyond those for which Taser paid. Landi v. Arkules, 172 Ariz. 126, 135 P.2d 458, 467 (Ct. App. 1992). 10. Retention of a benefit must be unjust for unjust enrichment to occur.

Pyeatte v. Pyeatte, 135 Ariz. 346, 353, 661 P.2d 196, 203 (Ct. App. 1982). Taser was not unjustly enriched by the services of Hennigan or Russell. 11. Counterclaimant is not entitled to the equitable remedy of quantum meruit

because of Hennigan's actions in threatening to involve Taser's customers in litigation. Mardan Corp. v. C.G.C. Music Ltd., 600 F.Supp. 1049 (D. Ariz. 1984), affirmed 804 F.2d 1454 (9th Cir. 1986).

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12.

Hennigan, by failing to accept the terms that Taser offered for the

continuation of the relationship between himself and Taser, failed to mitigate his damages. 13. Defendant is not entitled to any damages or commissions on account of

sales made by Taser or its distributors after February 21, 2000. 14. The Statute of Frauds applies to the agreement Hennigan believed he had

with Taser because Hennigan did not complete his performance of that contract. Chevron USA, Inc. v. Schrimer, 11 F3d 1473 (9th Cir. 1993) (applying Arizona law, court rules partial performance does not bar application of the Statute of Frauds); Edward Greenband Enterprises of Arizona v. Peppin, 112 Ariz. 115, 538 P.2d 539 (1975) (if reasonable time is beyond one year statute of frauds applies). Taser is not estopped from relying upon the Statute of Frauds. San Francisco Browning Corp. v. Bowman, 52 Cal. 2d 607, 343 P.2d 1 (1959). 15. Courts will avoid construing a contract to confer a perpetual right unless

unequivocal language of the contract compels it. William B. Tanner Co., Inc. v. SpartaTomah Broadcasting Co., Inc., 716 F.2d 1155 (7th Cir. 1983); Mid-Southern Toyota, Ltd. v. Bug's Imports, Inc., 453 S.W.2d 544 (Ky. Ct. App. 1970); Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 138 A.2d 402 (1958); Uintah Basin Med. Center v. Hardy, 54 P.3d 1165 (Utah 2002). 16. No unequivocal contract language exists that would entitle Hennigan to a

perpetual right to commissions from Taser. 17. The evidence presented at trial does not suggest a finding that Taser agreed

to pay Hennigan commissions for so long as Taser's products were sold to accounts he worked. Indeed Counterclaimant has utterly failed to prove the existence of a contract. /// /// /// ///
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RESPECTFULLY SUBMITTED this 18th of November 2005. HYMSON & GOLDSTEIN, P.C.

/s/David B. Goldstein David B. Goldstein Holly L. Gibeaut Attorneys for Plaintiff/Counterdefendant

CERTIFICATE OF FILING

I hereby certify that on November 18, 2005, I electronically transmitted the attached document to the Clerk's office via the CM/ECF filing system for filing and 14 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
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Leslie Trager
C/O ROSEMARY J. SCHOCKMAN

SHOCKMAN LAW OFFICE, P.C. 8170 North 86th Place, #102 Scottsdale, AZ 85258 18 Attorneys for Defendant/Counterclaimants Rosemary J. Shockman SHOCKMAN LAW OFFICE, P.C. 20 8170 North 86th Place, #102 Scottsdale, AZ 85258 21 Attorneys for Defendant/Counterclaimants
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/s/Barrie Peagler