organ for the apple a dr leslie simon smith is rebecca winnington each side will have up to fifteen minutes for their argument your problem will also have five minutes for rebuttal please not only the clerk of the court is permitted to record these partner dr walters regarding the purchase of their practice over the next few months negotiations took place between the artists during the course of the negotiations dr simon of smith berkeley stated to michael spano the president apartment or attempt to retire at the expiration of any agreement or any extension there are ways was there an agreement at the time or not what was the timing on that your honor  hardly agreed to pay or over three dollars times the going rate for similarly situated position in jefferson county arlen further only required her to work twenty six weeks out of the year harland did so because they were compensating the point the defendant not only for her employment under the agreement but also for her practice a three year agreement was signed in late two thousand and nine and dr scientists myth work for heartland for the entire weight of the agreement now your honour's hartland consider dr scientists with a good employee and ask her to stay on beyond belief that the agreement which she agreed to do but in april of two thousand and thirteen while still working for heartland and parliament she entered into negotiations with another provider in jefferson county she went to work for that provider and took her patient list with her actively contacting your patients regarding her new employment when she when you like to stay on what how was she paid was that based on any kind of army were early or what was that your honor i believe she will still pay pursuant to the agreement that they've reached an extension of the agreement  lined up with submit to this court that the circuit court of jefferson county is holding was an error and the defendants motion for summary judgment should have been denied what the circuit court did was actually decided a motion to dismiss couched as a motion for judgment the court held as a matter of wall but the point it could not allege misrepresentation or fraud when the alleged acts did not happen at the time of the transaction or after the transaction was in effect the circuit court never reached whether there was an issue material fact as to whether defend it made a false statement of material fact it was improper to grant defendants motion for summary judgment under set circumstances moreover the court's statement that you cannot allege misrepresentation of fraud based on future conduct is a misstatement of illinois law the sir the circuit court's decision ignores the exception established by the almost supreme court most plaintiffs right to allege misrepresentation based on future conduct in gold your honor the defendant promised the plaintiffs that a business deal had been accepted or confirmed and it would be completed in two weeks the misrepresentation was made with the intent to induce the plaintiffs to quit their jobs and so defendants could have posed different contractual terms upon them in reliance on that statement the plaintiffs did quit their jobs and suffer damages in lost income and expenses related having to find new jobs this court rejected the argument that the allegations bail the state a cause of action or misrepresentation because the false statement constituted nothing more than a misrepresentation about dance to occur in the future as this court stated and i'm going to quote here on ars the allegations of plaintiff's complaint along with the inference this which can reasonably be drawn from those allegations clearly indicate th that said compensation was steadily higher than that down in jefferson county as a means to compensate scientists met for her medical services and her medical practices that the plate further alleges that simon smith regarding her intent to retire were alleged to be the scheme or device used to perpetrate the fraud and are actionable in illinois at the very least your honour's their issues of material fact that mandate reversal of the circuit court order now played it has produced a deposition testimony of dr spano the president of heartland women's health care at two separate times during his deposition dr ship onil testified that dr syme to smith told him that she at what point in time question when you entered into it and his answer absolutely i assume because she told me she would i assume she was telling me the truth not one page later he gave the following answer if you're asking me if we discussed whether she was going to retire it's my belief that we discussed the whole purpose of this entire group meant was that her and dr walter if we're serious about retiring in three years and that dr walters may or may not continue but she was pretty set on saying i'm done i don't i'm tired i'm done so yes i do have words the fact that she was going to retire the whole document is you know who stores records who pays tail it's all driven the environment the contract is for someone to retire doctors upon a do not testify that doctors scientists that told him that she would consider retirement he said that she was set on retiring in the factory owner dr simon smith admitted during her deposition she can't refute what doctors finals testimony because she does not remember what she told doctor she find out she was asked the question and you keep using the word possibly when you say that as we sit here today do you smith told hartman she intended to retire at the expiration the agreement or any extension there of there is the very least your honour's an issue of material fact as to the same now in condition precedent to that agreement was that the defendant would purchase certain assets a promise he never intended to keep the st district analyze the characteristics of an alleged scheme under rhoda and how that considering the concept  believe that the protracted negotiations between the plaintiff and the defendant show that a scheme was alleged and that it is a question of fact for the trier of fact to determine the ultimate issue this holding is important because it simonton spitz response judgment a question of it back to exists and it's up to the trier of fact to now determine the ultimate issue in this case the only part of the circuit court's decision were to even reach the factual allegations of fact and the long elmo is quite clear that what constitutes justifiable reliance will defend will depend upon the surrounding circumstances and facts the question of justifiable reliance can only be decided on summary judgment where the facts are undisputed and only one conclusion is apparent from the facts thus justifiable reliance is almost always a question of fact that is partly decided by the trier of fact this is not a situation where the facts are told him during their negotiations are affirmative of intent to retire the fact that the agreement calls for the amount of compensation that signed a smith was only required to work twenty six dollars weeks are evidence of hart there was no assumption and the circuit court improperly construed dr schiff finals testimony against harland the very fact that two different interpretations are plausible mandates the issue instead of a requirement and the issue submitted to the she would be paid as an employee minus the acquisition of her practice the amount of compensation that should be returned to harland is a question for the jury and is proper for their determination hartland us respectfully request this smith the apple a before this court's counsel thank you may please the court i disagree with the technical issue on summary judgment as presented to the court in argument and in brief while the typical summary judgment issue is whether there is a material fact in dispute that is not the only textbook summary judgment issue that courts must wrestle with and in this case i really do not believe that there are facts in dispute or if you do accept the facts as appellant suggests the issue before the court is a more refined issue and that is whether the plaintiffs that be the appellant had failed to establish the adequacy of the facts to state a cause of action that is illinois supreme court black letter  and what i believe the court's ruling was and certainly our position is is that regardless of any disagreement that we may have over details that heartland cannot come before this court and even with the facts it is presented cannot present a cause of action to the court for which relief should be granted now consideration on summary judgment and that's what judge neubauer did when he ruled it is with that in mind that i'd like to hit the highlights of the facts and i agree with with dr simonton smith any expectation that she retire or reliance on the fact that she was retiring what that says is there was no negotiation in conversations it was just that conversation in fact he said at common law record one thousand and twenty one dollars he does not recall the specifics of the detail said and that is why i believe that judge neubauer as the trial court made a finding that there were assumptions now that is critically important and with no disrespect to this court i would point out that in the standard of review court of review does not substitute its judgment for that of the trial court on the credibility of witnesses the weight to be given to the evidence or the inferences to be drawn again that is illinois supreme court law cited on page two of my brief so when we look at judge new bowers order he makes finding it's and he retire when the employment agreement expired contrary to his own assumption shipowner had simon smith continue to work for heartland and i would point out dr walters also even after the term of the employment agreement the court ends by saying from the testimony presented and he makes these findings there was no promise no reliance no m a misrepresentation and no fraud so we have facts that do not establish recovery because they do not establish the threshold necessary to proceed and that is the heart and purpose of summary judgment and that is what the findings of the trial court supports if anything your honors ours characterization of the contract and the discussions as an environment that somebody is going to retire is in fact probably the most pointed description of what he saw but it's also important to note that he was the only person authorized on behalf of heartland to doonan the  negotiations that's established in the record and that he had an attorney review the contract to make sure it was both accurate and complete that section is set out in my brief in a quote so i won't go into it again but your honour's that was not part of the agreement there was nothing about the agreement that included any secession of practice by either walters or smith and that's important because they signed the same contract now what we do have as facts that was glossed over by the appellate is the zhivago testified that the cost of purchasing the practice from doctors met and walters to doctors remember too was prorated over the life of the contract so that it would have been paid according to his testimony by december thirty one two thousand and twelve before either physician carried over and continued to practice underneath the shingle so to speak of heartland that is important because if there was a real expectation that somebody either one of these doctors would retire after the end of three years one would think it was because there were still consideration to be paid and it wasn't there is no consideration none set forth in this contract  or a mandatory retirement now we have counsel stating in argument and his reply brief that oh well dr smith could go ahead and work just you know pay back what the overpayment was but you honour's that's the very purpose for why a contract should set forth these things in writing you know we have what judge neubauer has already described as a very poorly drafted contract and neither attorney much gomery or i were part of that but there is no mechanism for divesting payment there is no liquidation of damages there is no provision for that in the contract that is ultra contractual that's simply a wish and a prayer to try to legitimate the dracs county an effect of what their real argument is and that is that they had a right to control dr simonton smith in other words if she would continue to work for them as a holdover it was ok but the minute she went across the street it's not ok tell me how that is part of the contract that you see in front of you tell me how that was a contract in front of judge neubauer that's why judge new bowers findings of fa where he weighs the evidence must be accorded the weight that the supreme court provides he heard oh of the evidence he said at this point the th iteration of plaintiff in filing and original complaint and then a th amended he knew exactly what was going on your honors what we have here is actually a fully integrated contract reviewed by counsel and signed by parties now if a term was left out that is not now enforceable it was not part of the contract between the parties and the mere fact that one party can come back after and admittedly in the record only dr simon smith has left and then for the st time say we have a right to block you from working for anyone other than us in a contract that has no language to that effect that's what you're being asked to approve i set forth in my brief and it's really more the law school basics so i won't reiterate all of it here that you know this this contract stood on its own good bad or otherwise whether it left things out what fell into that dish i sat there and was legally effective and recognizable as a contract what counsel is now trying to advocate is for this court to say let us poor more into that dish that wasn't there when the parties including and the other party dr walters signed it dr simonton smith fully performed all of the terms of the written contract to say that there was something more that she needs to do that she needs to perform by non action is a looser e as i have stepped forth in my brief and again i won't reiterate all of it here the statute of frauds would apply because the oral  two practicing outside of hartmann's rubric could not have come into effect for more than three years is it was a three year contract and based on simmons vs campeon this court nor any court can justify reliance on conversational points that were admittedly we now know known to dr chiffon know the negotiator for heartland and not incorporated into the agreement and not even characterized to dr simonton smith as expectations on heartland's parts we know that from the record that is the record that judge neubauer had to review completely therefore what you're being asked to do is to establish a complete restraint on trade and  in as of december when the contract ended on its rd anniversary the medics staffing case i believe is directly on point and it is cited in my  it was said that at oral promise to retire disgust at the start of a contract when not reduced to contractual writing cannot be enforced it's simply a matter that is so unique and so separate and so important to protect one's ability to work and ability to practice in this case medicine that the courts will not sweep with a broad brush and include it into a contract where it does not exist that's the medics step in case there it was said that it is not justified to rely on even a promise to retire and there it was an overt promise to retire that was an oral promise because that became a sensually in other words de facto a non compete laws here we have a non compete in effect just slide in like an medics staffing it is complete in nature and it has no term it has no geographic  establishment therefore it is much like the mole in our case that this th district decided where it was determined that trying to bar people too broadly when part of a contract is per se invalid i would also point to the eichmann vs national hospital case and believe that is another reason to believe in her say invalid finally steinberg vs medical school can be distinguished that is one in the reply brief there a medical school made a written offer it was accepted by the submission of an application to medical school and the state supreme court said that the writings of the parties had established the terms and conditions and we cannot variance that's all we are asking if you look at the whole purpose of requiring written contracts and then you look at what judge neubauer had before him misrepresentation claim if the defendant or the defendant state of the last time was alleged knowledgeable e intent to induce action by the alliance and damages all that set forth your honor now defendant tries to frame this as adequate to state a cause of action but then tries to argue dr spano testimony he's arguing that she's arguing the testimony based on her belief in it the very fact that we're having now i would agree with defend its argument that the intent to retire is not included in the written agreement if it had be here on totally different cause of action and she stated i didn't write the based on scientists mid south statements that she had cheated to retire statements that she profited from based on her attempt to sell her practice to heartland women's health care now if it brought up that the amount of compensation corrected over the life of the contract and that doctor side dismissed state over after the contract if anything else she benefited from staying over after the contract because she was still being compensated under the agreement now  also does not acknowledge that during doctor signed it smith's deposition she testified that at the time she was under going to go she ations to enter into going to work for a provider across the street she knew she  practice to harlan women's health care that was the entire ten intent of the agreement and yet she took a patient with a patient list with her despite such knowledge where the doctor's compensation different than the whole of her period my   the issue would be how much she was paid her to the agreements which would be a question of fact the jury to decide based on that if she was paid even a salary to get more out of the agreement she benefited from it your honor big paid an extra salary before she went to across the street now your honour's as i stated defendant has set forth this motion this notion that plaintiff is trying to enforce a non compete clause against her that is a complete red herring and a where specific cases where the defendant or the plate it was a tough was a trying to enforce federal agreement that's not the case here your honor harlan is willing to pay beside to smith the amount that she would be compensated as an employee apartment cause of action based on misrepresentations of future conduct and based on that your honor we would ask this court to overturn the circuit court's grant of summary judgment on behalf of the defendant thank your honour's that these will be taking under a