lappers before you and i mean trysted in your argument but i will be particularly interested in i don't know about others here on the panel but about the vapor barrier what is it and how does it work you know if you want me to start and explain the western way you like i of the appellant's christopher and audra sinak this case is not a simple termite contract interpretation case as orcon would have the court believe there are issues that take it well outside of the four corners doctrine contract analysis and there are extraordinary and distinct episodes of misrepresentations negligence and unscrupulous behavior on the part of a nationally branded giant who sells to its customers peace of mind and protection for their hooves there are also many issues of fact in dispute that if the trial court had drawn every inference in favor of the syntax as it's required to do obviously it could never have dismissed this in its claims on a motion for summary judgment summary judgment was not only inappropriate but to me it's dangerous to the rule of law when you've got this many fact issues  while it's not my intent to focus on facts i will hit the vapor barrier but i do want to focus on law and i do feel that certain facts are necessary in this to this proceeding prior to two thousand ownership and repair guarantee just the agreement that you all of your clients inherited from the previous owner that's correct it's taboo one in the materials that we gave to you i'm not sure we do have them  was valued at at two million plus it was very important to them to have this type of guarantee and so when working approach to syntax in two thousand and seven and said hey we'd like to add four most in coverage to your existing or guarantee because right now it only covers sub three training termites this in x said great let's do it and they actually added coverage to their barn agreement forms and the syntax signed those agreements thinking that as working was telling them they would have now for most and coverage added to their war policy i take it one of the key issues is just one you want to agreement says ownership repair guarantee breathy are you referring to yes sir as well as the treatment and you all think that there's ownership repair guaranteed in your later agreements but to this an x that is an important designation written through the middle of the of the agreement because that to them represents their intent that that for most of the coverage is being house that that they were insured it's it is the the policy number that is issued well i don't see it on the part yes sir so if you would take a look at tab for tab for actually is a term most of the coverage to your existing repair guarantee you're going to cover for all types of termites here and they run that through the middle and then years later here in europe or europe or here they give them termite inspection reports that say you would be have an ovum or guarantee they don't say your argument is that the original agreement was incorporated by reference and that this is simply a supplement to the performing a service in a wave any claim except termite damage repairs a set out above with the language modifying your original boilerplate it's this an accusation that now for most  year after year after year they said you have an o or guarantee and it's an extra line in paying them every year and where is that where these annual references to our if you would look at  that the scenarios we're told one thing or can supply these confusing ambiguous documents that require outside evidence for for their intent to amazing coverage for my poor guarantee the only person that can make that determination on what that means is a jury because there's no way to interpret that other than it could mean several different things it's not contracting to do this i's or louisiana case that you can cite that suggest there's a duty here well when orkin assumed the role of a design professional and told them how and where to install this applies after the ambiguity of the contract second of all we don't have that in the special service agreement agreement which could have been the one that applied the house but i would argue the chances of even agreed to cover the property only for native submarining termites and i've been doing this work now for many many years and years to made distinctions in termite treatment contracts that are at the heart of everything the st is the distinction a retreat we contract in a repair contract the nd distinction is between native subterranean termites it foremost in terms both of those distinctions go to the heart of the three contracts that are at issue in this case that nine hundred and ninety one the existing owner if the contract was transferred to a new it more than a year after the original treatment date the repair guarantee did not go well with dr sinak purchased his property in two thousand three twelve years after or could originally treated if he had looked and said oh or what does that meet and he pulled out that agreement he would have seen right away it didn't cover for most of us and it doesn't cover repairs for me for as i understand their narrative it's essentially that you have these contracts that were either didn't cover or at least were kind of hard to follow and i get that they're not actually not explicit as to what they want but they're saying they're also telling you that  practices act as this court is aware it's called a junior f t c act it's mitt primarily to address pervasive and ongoing trade practices and conduct by companies that are anti competitive and  consumer when you have a simple straightforward private contract case where one party agrees to do certain things and the other party says no you agreed to do something else that is a contract dispute and  covers fraud it would cover fraud if you fell within the scope of the act you're wrong but here if what they're saying is correct it would turn every single breach of contract case into a louisiana unfair trade practices act case because all that a person would need to say is you know what they defrauded me and if that's all it took we'd see the top cases every single time someone suit a breach of contract and we don't and that's because these this a very very narrow cause of action as this court said in the i believe turner case turner versus purina mills the statute does not provide an alternative remedy for simple breaches of contract there's a great deal of daylight between a breach of contract claim and the egregious behavior the statute prescribes in this case you've got a simple contract dispute anyone can try to characterize that contract dispute as fraudulent or misleading or deceptive but just because they try to characterize it that way doesn't bring it within the ambit of law to under one provision of the contract one agreement that's going to be on page page two of it paragraph number two and it says i understand that structural or mechanical problems which result in water leakage inside my building or through the roof or outside walls of my building may destroy the effectiveness of orcus treatment and this can allow termites to continue to exist in my building if such a condition is discovered and that's discovered by work and i will be responsible at my own expense for making the repairs necessary just to correct the structural mechanical problem and after i make the repairs fork it will treat my building again to control the investigation so what every pest control operator in the state of louisiana is required to do judge each year is go out and inspect they go out inspect question of or can just discovering it work and says here's what you need to do to correct the problem correctly well judge i think it would be  property or can did not design that moisture barrier working told them they needed to get one put up they hire the contractor to do it or can later observe that they have put one up the problem with a more secure barrier that they put up was whoever put it deposition but i don't know if that's in the record but work in response to the installation of the vapor barrier why is that not let me back up ahead one step over why is it not if you're saying it's rooted in the contract and organs advice to put the vapor barrier and wound up being faulty or could possibly have been faulty why is that not a valid allegation of a breach mr i would agree with mr la perouse the organ is not an expert it was your bare installation you have to hire the correct person to do that to insure that the property does ventilate correctly ok but as i understand it you want to stick to this repairman good thing it but that's not in the contract i mean you know or can rely a strong on the limited obligation have had to treat and inspect so i mean you kc have it both ways no i understand that limitation of liability clause so follows later it says that if you are making a claim if there is any claim for termite damage repairs then your damages are limited to the amount that has been paid under the terms and conditions of the contract that's the total that you're allowed to recover it did seem pointed out they've already received many multiples of that already from orbit so they don't have a right to recover anything tree and then it goes on down if a customer agreed to mine during the treated structure free from any can do conducive to termite infestation and then it goes only including a whole bunch of things including more secure that would have been front and center of one of the things that we would have alleged if they claimed that this is really the two thousand severino is the one that applies to the whole but we beat my do we need to get to that judge in some ways the coverage that i have requested i requested off all possible coverage and so the issue is whether that was a contract statute of limitations or torque statue of limitations and so the court said because there was no specific obligation on the part of the agent to provide no around auto insure their it's not a breach of contract it's a tort case so the one you're taught the statute of limitation to plot and why discover conditions that would be conducive to more secure and then went further and disclaim that it was their responsibility and put it on the customer want one that i'm out just in that case there's no obligation that they didn't have in the contract that is to give advice and recommendations on how to how to prevent more sure and that instead of going good good home well judge then again i would say that all the work you did it was because of the integration clause that you're on referred to which says to amend it you've got to have a something in writing signed by a corporate officer or they don't have them they have nothing to to be clear you do not agree or can writing and so my point is when we go back down to suppress control operator we find things like that and we point them out to the homeowner and said look you need to get your vapor barrier installer back out there and they negligently repair your tire i'm not liable for that just because i pointed it out so that's the same thing you got or doesn't certify that it was installed properly no it doesn't just and you're not there coming back every month no are or conforms louisiana civil code or the twenty six it's clear that when their standard form agree they've got to be interpreted against the person that st what do you make of that language that i'm about to read which struck me  your i mean look we have people that you know do things all the time and sign forms they read through the forms later it wasn't they testified that it wasn't you know what they're being told at the time this is what we're doing