that the district court in granting summary judgment exceeded its authority if you choose make under rule fifty six and made factual determined determinations not looking at the facts and the reasonable inference is arising from the facts it seems this in granting summary judgment in this matter i won't be labor the facts other than to say as the court is aware that there were two contracts that my client entered into with the developer of this product project one was fourteen buildings and a clubhouse and the starts a work my client entered into two contracts with keebler for fourteen buildings of the nineteen the other five were phase two the site work applied and that was a second contract applied to all the buildings that will ultimately be built but all that was being built and all that was being funded was phase one mr let me let me direct you to the issue of reasonable reliance and i ask you to help me understand why in a certain i mean this was a multimillion dollar construction project right yes wrong and and these are heavily documented transactions right lots of people in the true yes and in fact every time you want to context how could it be said by a rational jury that it was reasonable for marduk to take the comment you know everything to worry about as people are walking out of a meeting as a promise that they would be fully paid this fight any financial problems that the project might be  very good question or order and i think the answer is this if you take those comments completely out of context just that they were said i think there's reference in the there is reference in frank mourdock separation where he said this was just a chat kind of like small talk  and he also said that this was an amicable meeting nobody was angry with one another they were happy with my client's work but what was the meeting before what was the purpose of the meeting the purpose of the meeting was determine whether or not the project was on budget to make sure that there were sufficient funds in the loan to complete the project as it was understood by the bank as you said i mean the you know they had the formal meeting this comment isn't occur at the formal meeting it's it's by discussion and then there's this quote off the cuff comment what what consistent with reasonable commercial behavior would would say oh yeah it was reasonable to rely on that as a promise that you're going to get paid no matter what we're going on or if i might if you put that comment along with the comment the next day in the context that the whole purpose of the meeting was to discuss the financing to discuss the loan balance to discuss whether or not there were sufficient funds that it wasn't just an off the cuff comment and you have to also i believe your honor look at it frank more extensive money at his deposition which was before the district court that as before this court in the appendix in of course we discussed this with them we discussed the shortfalls that's a huge factual contradiction and i would submit to the court a very large genuine issue of material fact so they were not bodies to most of the discussion that happened at the meeting that was called for the purpose of determining whether or not they were on they were on budget but the it wasn't just the one conversation with all due respect judge was in the group alone really doesn't talk about immediate next day or there was an intervening weekend my client couldn't remember but he called because they were so concerned about payment because they were already having payment problems they had been asked those as i said earlier the site work contract was not to be divided into phases keebler with the at the request i think it's reasonable to interpret the facts at the request of huntington said get them to separate the the site work contract into phases but once they started doing that huntington stopped paying any any a i a any invoice that said face to one so they were already having some payment problems so that so the next day because mortgage brothers were concerned about whether or not there were going to be sufficient funds to pay the contract for the completed project as to which they were approaching they were pushing they're pushing their completion he called up and he specifically asked mr dexter point blank as referred to when in his deposition is there going to be sufficient monies in the loan to finish the project and without equivocation without qualification he didn't say yeah i think so or yet are trying to get additional funding he said yes and we were talking when dexter made that response what did he know what should he well we believe that he knew starting in january that there were shortfalls and on the same as the meeting june seventh there is what is referred to your honor as a construction monitoring report prepared by mr baxter originally he said he didn't remember any such report but then he went to showed it the best deposition he said oh yeah i did that and he said in that report no there are not sufficient funds to complete this project there was a shortfall of i believe it was one point zero seven seven million dollars at that point he said he did isn't the comment the question as as mr martin said it in the phone call  is there quote sufficient funds in the loan in the moneys that keebler had left with his loan agree with honey and bank to pay us for our contract unquote you have the record front of your own well that that seems to me different than saying is there enough money in this to complete the project those are those are different questions aren't they but to say there's enough to finish the project is not the same as saying there's  enough to pay you out on your contract long no i think you're i think that's a distinction i think if that if there was that forcing this and i didn't mean to misquote it i was paraphrasing your honor and i quote this is what court has to rely on and they asked is there enough money to pay us out on our contracts right now for the two contracts that were used to establish the budget for this whole project well if it's for our contract i guess what i'm the question i'm  i mean how are we to say that on a phone call which appears to be a follow up to a very casual conversation that mr martin asking this question as he describes it is that position has got mr dexter on notice hey i'm asking you now the overall project monies of the project i'm about to rely on this citing what it stands let me before you answer that i think i have the quote honor if there was any ambiguity there your honor again i think it it gets back to our initial premise and that is that the factual disputes have to be resolved at this stage in the proceedings in favor of the nonmoving party in this case the plaintiff marduk so you let the jury make a determination and particularly as the chief judge said at the outset recognizing what what these cases are about and dealing with the issue of intent and credibility what excuse me what about the distinction between opinions and facts that the huntington argues these responses were opinions and beliefs based on speculation and conjecture is that body that was allowed to recover and detrimental reliance had asked the lender similar situation that we found ourselves in about the financial situation with that particular borrower and the lender said oh look at that the blower strong everything misrepresentation only on the district work references opinions is in the is in the promissory estoppel or detrimental reliance context what is the what is the evidence from which you can establish a reasonable client rezan in the position to have to say that because he was assured that there was money it's kind of an if then situation if he told me that there was enough money then i would have what he told me there was enough money i believed him and he believed the person the entity in the martic if it weren't for these two representations i don't think that we would be here today in fact but we do have those two representations so we wanted to speak to the  the point about whether or not somebody is entitled to to rely on a comment when it's put point point two on is are and we've got the chief and i looking at  different places where mr mark describes this but on two eighty seven of the record the language i have is i asked mr dexter if there was sufficient funds in the loan in the monies that keeble had left with his loan agreement with h bank to pay us for our contract with one seventeen to twenty in the in the answer he's given is yes if if you ask somebody point blank a question like that why ar on title to believe i'm well i think at this point in the in the when frank martic asked this question frank martic certainly was already aware that there were payment problems on the project they had issues with it and i understand i guess but the point that i'm that i want to make is that at this point in time based on the information that mr dexter had he was asked and if you look at how the question was asked he was asked to express his opinion on it and he did and that they argue that lesson or is it just the is it a straight up question about look you're paying out the money on this project and you know what's going on with the project is it going to be short and as a matter of fact the record does reveal dexter has the facts on that right he's all he's got internal information indicating this it's in trouble at this point in time does any dexter has information that there are issues with respect to a shortfall he also has information that any shortfalls are going to be made up by healers attempts to get alternate funding and he was assured of the fact that the june meeting that we've been talking about i talking about the phone call conversation is that right right the phone i think the question he asked morgan was if there were sufficient funds and dexter based on the information that he had at the time offered his opinion that there were pieces would be sufficient fund the that's the question which according to mr mark he puts to mr dexter is there money in the loan which i think any fair reading would have to mean the loan you may is there money in that loan and he gets a yes that's the that's a question if it was the off the cuff conversation walk in a meeting all by itself a different case but here we have an assertion by mr frank martic i called i asked point blank is there money in this loan to cover this project or as he puts it for us to get paid on our contract and i'm given the assurance that there is when evidence indicates there isn't now how is that not a misrepresentation and why would it be why would it be appropriate to say it's not justifiable to rely on that months or well one i think and i apologize your honor i think that we i think that when you when you get drilled down to it with mr martin and i was only took his deposition i think he asked if there were sufficient funds for them to pay us to completion of the project but in any event i think that by asking that question i think he was inviting an opinion from dick dexter as to whether or not there would be sufficient funds for them to get paid at the end of everything mr dexter offered his opinion on that and just ask a question about math no i don't that or go where did this for done  understood that the bank and all the parties understood that the bank was only funding one phase of this project dexterous hadn't understood was a construction manager at the bank he had an understanding of the money the was flowing there were estimates of shortfalls shortfalls were addressed there was a meeting in june two thousand and seven to address the shortfalls further there's a dispute over what information was provided to marduk at that meeting but in any event there's no dispute that mr that martic and keebler had discussions i think if you call somebody well first of all if you have an off the cuff informal casual conversation the first night that one aside ok i'll pass on the phone call i think if you call somebody the next day and you you ask them the question that he had which i suggests is asking him to give his opinion and he gives you that opinion and that's all you have at that point is his opinion so if they wanted to get some kind of a guarantee or an assurance i mean there's no there's no doubt that huntington didn't make a promise to pay them at that point all dick dexter testified and all he said was yes is that there might there he thought that there would be sufficient funds to pay them these movies when they asked if there were going to be sufficient funds and he answered yes intuitive it was very much in the interests of the bank to keep monica on the job right i think it would have a pain presumably a paying housing project if it was completed and if they didn't they'd they'd have a real expensive and incomplete project well i mean at that point quite a few things could have happened yeah well instead of going to that counterfactual me ask if i may one additional question you said there's evidence in the record to show that that extra believe the shortfall would be made up and you earlier had alluded to they thought there might be refinancing what can you point us to exactly in the record shows that when dexter made this statement yes in response to the question is there money in the loan that it could fairly be said he was think and there is going to both referenced in our brief where in both of them that it refers to the conversations that they had about finance in the agreement that they reached so no documents just their sort of after the fact that the positions they've switched from let's say is not evidence but their yes the project has in fact been finished its understanding of keepers of iraq is in bankruptcy right now so  one of the other arguments you talked a little bit about on just enrichment and i think the point that i wanted to make with respect to unjust enrichment is that huntington had obligations under its construction loan agreement with keebler huntington was obligated under that loan to fund phase one of the project huntington dispersed all the amounts and that's on this unit that it was ever supposed to disperse under phase one so many tens done everything that it was obligated to do and at the best time to end it like i said keeper slippery rocks in bankruptcy so it would be at best huntington's going to get exactly what it received going to the loan agreement there's not any unjust enrichment in that case  think with respect to that the cases the plaintiff relies on for its unjust enrichment claims are all cases where the money hasn't all been dispersed or for whatever reason there's been money held back in this case you would be requiring huntington  and i think that the same is true with respect to the promissory estoppel detriment touch from an alliance case i think the fundamental problem with that claim is that in the conversations both of the conversations that we've been talking about mr dexter on behalf of money to never made any promise to pay to promise to do anything let alone pay martic when it was always and it was always the party's understanding that it was keepers obligation to pay mar this where what was said and i agree i think it was your honor who said it was a mathematical question well i'm asking what i understand that but i think it's a good point your honor that he was asking a very direct question and got a very direct answer is a sufficient money in the loan to pay us for our work and if i miss paraphrased i don't mean that but the answer was yes not i think so not well they're trying to get other financing and again somebody made the point and again i think it's interesting  judge greenberg he wasn't title the law i the district court made a big to do about it might have been a breach of the fiduciary responsibility of the bank in discussing matters with respect to the loan so they couldn't rely on this on the statement may have been that bridge but that would be on huntington and not on my client they were talking to the bank back and forth mortgage brothers were talking to the bank back and forth routinely about this project  and if if there was some obligation not to disclose account balances it certainly didn't give dexter right to lie i used to work for a fellow who said if you're just a question that they're not entitled to ask you can lie about it i don't work for him anymore i never thought that was quite the law but certainly here if dexter wasn't authorized to give that information he should've simply said you have to go talk to keebler but he did he answer the question very directly very straightforward what this could this commercial honor it's commercial reasonable to ask the question and it's not unreasonable to accept the answer from the person that you've been dealing with and who has the information and that relates to the question as to whether or not there's an opinion if there's an opinion but only one party has the ability to gather the information or has a better ability it's not quite an opinion in that sense although we believe that this was an opinion at all and i see that my time has expired i would ask the court reversed the