yours i believe this case can be boiled down to a simple question can a court burden a party by order to pay a contractual obligation but then deny that party the opportunity to determine the true and proper scope of that contractual obligation and i think the answer to that question simply must be the order entered by the lower court said that the contract oh i'm sorry well what the contract states your honor is that in consideration of the performance of the duties that benchmark must perform in the contract that the fee most be paid so you cannot separate the duty to pay a contractual obligation from the obligation of the performance that gives rise to the right to payment in other words if you're going to pay for something the party on the other side has to do that something and even the contract in this case states that specifically it is in consideration for the performance of the duties of the contract which contract are you talking about i'm referring to the benchmark agreements your honor and if you would  the receiver yes or that's correct receivers benchmarks that is that is that i'm not sure that they signed off what they did was they failed to object to it right so why do you have the in the ordinary course of business and the dispute i believe in this case is over that language the ordinary course of business language now michele argued to the district court that the ordinary course of business language meant pursuant to the terms of these benchmarks agreement the district court acknowledged that and accepted it and we believe that now in the briefings to this court benchmark has acknowledged and accepted that benchmarks only position is to this court that well ok yes you can true in the terms of the contract between benchmark and the receiver but you can't look at all the terms of the contract you only have to take a narrow view of the one sentence that says pay me my five percent and that is completely contrary to contract law in michigan which governs these contracts contract law in michigan and as far as i'm aware in most states states that you must construe a contract in its entirety viewing the whole of the contract in all of its terms  i'm sorry to be backing up and that's ok you are you are not a party to the benchmark receiver contract you are not there are a beneficiary are you and your michigan that contract no the why do you have a right under contract for a few different reasons your honor one is because the district court put me should in the position of the receiver with respect to those contracts when it said ok me i'm assigning you i'm giving you the obligations to pay under the benchmark agreement so the district court put me in the shoes manager and their respective successors and permitted assigns no i don't think that there really can be too much of of a dispute that mischa succeeded to the receivers position with respect to these contracts when the district court said you must come in and pay these contractual obligations so the court made me should the successor made me should the assigned by putting them in the shoes of the receiver with respect to these payment obligations and the district court acknowledged that there were no the close of business that language in the order meant according to the terms of the contract themselves again the benchmark has acknowledged that now i think the only question for this court to answer is can you construe those contracts with view only a single line in the contract where must the court the district  court construe those contracts in their entirety remind your client signed off sale or the sale or was it in large part heavily negotiated back and forth but it was entered as an order by the court and i would knowledge to this court i understand i'm fighting somewhat of an uphill battle because i'm asking this bench to look at the lower court the district court's interpretation of the district court's order and say it meant something different than what you're saying it with the district that district in the order and it's just mentioned though the district court didn't get in what and bob in the negotiation at the parties had to negotiate some kind of agreement that that that was the the basis on which the the order with promised and that's what he asked did the parties negotiate and agree to the sales order that the district court order address i'm not sure that they negotiated agreed to every single term i think they negotiated and got what terms that they could get as best that they could and the court entered the order with all with your honors i wasn't i was not there a day hearing however i do know that one procedural quirk here in this case is that this word or that was entered in the district court was entered by judge bernard friedman after a long day of hearing and i think conference with the parties and yet it was interpreted later on by judge steve so i think that there's a little bit of a quirk here that provides some room for this court to say ok we understand that the district court interpret this order this way however it's a different judge and what the parties meant and i think what was  expressed at the hearing where this order was entered was that mitchell was not going to be able to come in on day one in pain but the millions of dollars they had to be able to come in and to assess the condition of these nursing facilities with their new management company and there's a colloquy between mr august and the courts and mr shapiro benchmarks council where with that understanding that  the response mischa's response to benchmarks that motion for it was an argument in our motion for reconsideration we also included the declaration of mr michael ten bomber who lays out in great detail at length the evidence for the breaches in the failures under the benchmark agreements so in this you mention this decision and re consideration which is very terse two page order but there is a statement in this neither the language of the sale order nor any extrinsic evidence supports mischa's alleged status as a so you're contesting that that's an incorrect statement by the district court is that right yes your honor i am what's your best point you gave us a paragraph thirty one saying that the receiver and their fact that you were put me shirt in the shoes of the receiver it is the functionality of the order itself that puts me should in the position of the  work of the debt on the contract and that brings me back your honor to i think what is the main question in this case can a court by its order put a party in a debt obligation a contract but then tell that party i'm sorry i'm denying you the opportunity to determine the true improper scope of the claim under that contract b reference to all of the terms of the contract you can't go there court fault for putting you in the position you agreed to put him in that comes no your honor that's not what i'm saying i'm not saying it's the court's fault for putting me in that position what i'm saying is i believe the court acted improperly by denying us the opportunity that once we were put in that position to then say ok that we're in the position of paying this contract obligation we have the right to determine what that true and proper contract obligation is we have the right to challenge what they're saying the payment is because we say it's not a valid account at least it's not valid for these reasons but what the lower court with the district court did was say you don't have standing so you even get to make those arguments or to actually use words i believe the dischord did  the word standing in its original order original meaning judge friedman or i'm sorry they may have said that you were not you we could not enforce it i apologize i think what they may have said is that we could not enforce it because we were not a named party or a rd party beneficiary of it is that that isn't really a standing argument or standings to i couldn't find the word standing in the district court's opinion and i'm just curious seems to me that it's more a failure to state a claim conclusion by the district court that because you're not a party to the contract or you're not a party beneficiary have no claim so i would think that would be more of it for years to claim as when your honour's my name's tracy clarke and i'm carrying on behalf of benchmark health care consultants as your honour's pointed out the debt incurred in this case was based on a contract the contract was based tween the receiver and benchmark benchmark performed for one and a half years without pay mischa came in and agreed to pay the debt that was owed to benchmark it didn't take over the contract so contract law doesn't apply it's not a successor to the contract it's not an assigned to contract it's simply agree to pay the debt it wasn't reports doing it misha's agreement to the sale of their contract that we were looking for these purposes the only reason the contract would be looked at his because of the ordinary course of business paying benchmark in the ordinary course was dictated by the terms of its management agreements so that's when payment was due based on the management agreements and the management agreements that came in as t when the sale occurs the sale occurred came in is do a benchmark decided it wasn't happy with the performance but if you think about an analogy so let's say there's a corner market failing campaign its employees can continue operating but it wants to sell it knows it's worth more it continues to operate so it says would suppose you hang in there with us keep working  pay you after we sell my air comes in and says we're going to buy this corner market store and as part of that we'll pay those employees they've continued our of the perk it's part of the purchase price your honor exactly so basically my air comes in and says we'll pay these employees the sale closes and then they say wait a minute we don't want them please we don't we're not happy with the way they perform is that appropriate no and judge steve understood that and the reason it's not it's appropriate is because meyer didn't get the get the agreement to get the agreement between the the market and the employees holic did was say we'll pay the debt it's not an automatic assignment just because you've agreed to pay the debt as we mentioned the contract was between the receiver and benchmark we know that the receiver could have said we're not happy with your performance and it could have terminated the contract as soon as it was displeased but what did the receiver say at the hearing on the motion to compel the receivers that i was support the assertion with regard to the receivership contract of management companies i don't believe they were breached i do believe their services provided were valid i believe their debt is failing the receivership was on the receiver was on board but misha wants to say well we assume th somehow automatically i get the right to dispute that when they say that they step into the sins of the person exactly but there's that idea there's absolutely no evidence of them stepping into the shoes receiver there has to be an determine that mischa was assigned the rights and obligations on the management agreement is your position that mischa could or is it your position that we should not then challenge the feet of mt on the agreement if we make if we hypothetically made the determination if hypothetically humanity terminations that there was an assignment that somehow although there is no evidence of it there was an assignment then the right that mission would have would have been to terminate the contract that's all the contract allowed with payment due in thirty dollars days so that would eliminate limited significantly any damages of any parties in this case if the receiver was unhappy with any of the work that was done they say you're out you will pay you what we owe you within thirty dollars days and we'll get a new management company in but in this case they waited a year and a half for hypothetically if we're just looking at the receiver benchmark contract and forgetting that new shit you've been existence exists if the receiver is unhappy with benchmarks performance the receiver has to terminate the contract but pay benchmark for all of this hypothetically bad form is that right according to the terms of the contract the only right under the contract was to terminate the contract with payment due within thirty days now i suppose if the receiver had some basis to argue that benchmark and performed they may be able to argue that they could bring may be a breach of contract action against benchmark if  then you would look at what the remedies are in the contract in the sole remedy in the contract was terminated in the contract at any time by either party mission also claims some kind of surety ship which i think is just kind of a throw in argument as it wasn't argued this morning sure the ship law is wholly different insuring the ship only comes into play if there's three parties to a contract at the very outset of the contract in this case that simply did not happen and so surety ship largest does not apply at all i think that their main focus mischa's main focus in this case is to try to get you to automatically if you if the law provided for an automatic assignment of the right to dispute the debt there would be a single case cited in their brief that says it's automatic eight but that doesn't happen you have to get assigned they wanted those they could have put it in that agreement it was negotiated it was negotiated at the hearing on the sale the parties went out negotiated what they want in that order proving the sale they could have put in there we get all the rights to dispute any work performed by the receiver what is your best case and michigan law that if you assume a debt you do not have the right to challenge the i'm going to say there aren't there are nine because there's 'm not asking if it is if there's a case saying it's an automatic right i'm asking if ever somebody assuming the debt has been able to challenge successfully the underlying conditions or amount of the doubt so hypothetically i could imagine that there is some fraud and that maybe a michigan court would say well normally somebody who assumes the debt can't challenge the validity of the underlying data but this fraud here is so bad that we're going to allow th entity to make that challenge but they're saying there are no cases on that i've not located and not in the research that was done in preparation for this i have not found a case and i would i would think that same thing would go for misha if there was such a case i'm sure that mission would have cited in their gri did you see in the district court's opinion the word standing anywhere i did not but that's the way i understood it that you would only have standing to dispute the performance under the contract if it was assigned to you or if you were a party to the contract and that didn't happen here no i'm the reason why i'm raising it is that the supreme court has told us not to use the word standing without thinking carefully as to what we really mean and whether it really should be your state claim or some other doctor because under federal principles i know this is a diversity case but under federal principles the federal courts have to have jurisdiction and standing is part of the jur n analysis so what i'm trying to figure out is why isn't this more properly of your state claim which would support your position entirely i don't know that it would make a difference except for standing when we tiction and the standing of the left as you may have pointed out it the claim was one little piece of that puzzle the judge did not say the word standing that i could see actually after your honor brought it up i went to the opinion really quick and and did not see the word standing although i don't know we all assumed it was standing so i can't say that that's what he was saying not presented a legal basis for it to contest benchmarks be under the management agreements when it is not a party to those agreements and when the receiver the contract and party has no objection to benchmark the or its perform opinion certain does not go d on to say anything about failure to state a claim either and that was i believe argued thing standing was argued in the motion for reconsideration it was argued that way so to my friend counsel over here to my right i think that the parties all understood the court's ruling to be a standing ruling and still do with respect to a few other points just very quickly opposing counsel stated that the contract remedies were limited determination that is not the sole remedy your honor that the contract again all one directly  ordinary course of bent business meant contract terms you have to look at all the contract terms we were successors under the greenman we were successors under the court's order and we would ask that this court reverse the lower court's ruling to prevent me shift from challenging benchmarks king thank you thank you thank you both for your argument