the government please the court ralph gibson for the point of i've reserved for five minutes for rebuttal in this case there were four that the point that the defense filed the plaintiff also filed a motion for partial summary judgment when the defendant's father second motion for summary judgment and the reason that the court denied the dr denied the motions a first time was that it found that the facts of the case showed detrimental reliance leading it to a promissory estoppel filing and of course promissory estoppel equitable stoppel in judicial stoppel all apply here but we don't even have to get to stop all because there was a contract that was formed the contract point unless there is some reason for alternative because the contract there was an assignment of agreements it was drafted by the defendant's in house lawyers it was sent by the defendant's that that's right that's their argument it's not the summit there was a place indicating their signature and also there was an e mail that just doing the approval final approval wouldn't be given until th m contract was complied with by your client so it was actually and that was all i was there a meeting of the minds i understand that your client wanted to enter into this agreement and the other party wanted to enter into it seems like a lot of the agreement but then there was this one piece a t m and without that one piece you don't have a meeting of the minds on the whole thing right ok you had the timing is very important yes there was an e mail from us that e mail was on mail they drafted some documents they mailed them but documents your claim your client sign them and return them but they had not yet signed them when i said i did but that's another problem mr moon who was the signatory for the defendants had actually signed the documents they just never sent him back to my client there's an e mail from miss the same paralegal miss vavasor that indeed the documents had my clients wondering what were bush said they've been silent but we're awaiting i don't know i don't know which was what no but i think at that point she'd been told not to send it back to my client but she there's an internal e mail actually between this fall bush and house warrior that we received and discovered this it scott mcinnis on the agreements on the lawyers asking what's going on with them and she just saying that they've been signed even on and then the sit on the that theory if you just articulate if we assume that all of that is true isn't that problematic when you talk about having a meeting of the mind and an executable contract me he said they did but they didn't communicate to get it back to the other thought there were some issues that means there's some kind of a reservation or some kind of hesitancy and you have not on of the random contract very thing to me complete the loop there the fact that you don't have a writing is not even actually required in this case you have a writing i'm just asking the court to impute a signature which the waist this case h u e s t yes which was discussed also  judge folks opinion he just sat it was not applicable but it's two thirty seven southwest third six six six in that case the court imputed a signature well ok  i think you just said what you were really going at is that you are viewing the documents being sent to you and there they're told these are the five documents you have to execute for three armor attached the other two had to be executed well the three there are five documents and there were three there was the least the first amendment of the lease and the supplier contract which were already signed they were just being assigned they were attached to the says that i don't know why i have this recollection that there was you saying that but there's no so you saying nothing said that this is effective upon our signing exactly now the it's a there's nothing saying either way they sent it to them and they sent it back there's no document says oh yes you've got also agree to anything else we want i'm not asking is there anything that says that this document becomes client signed the document was signed the ones that size we will send you in the a sign or a copy of the assignment of agreement so in other words we're sending this to you it's blank as to  the other party signatures we're going to send it to you you send it back we'll get what you given us maybe you made changes you could make changes to the document right so you don't get it back or review it then once we've that they performed right he acted like it was a contract so right so there's something about this case that i find very confusing i don't understand how you have never been through hearing well i don't understand that one either record but did you ever object to that did you ever say judge you're finding facts now he said here he cancelled the trial date and said we're going to have a hearing about the summary judgment motions motion on that date and then he wanted to hear proof my client was there and some other folks and so it was like a managing company that manages the properties and we believe i mean this is a commercial landlord and tenant matter is you know it's a matter involving parties who on the one hand or in the business of running a convenience store gasoline stations and a plaintive who had put himself in a position where he said i'm eminently qualified to get into the convenience store business and i want to obtain to simon and assumption of these agreements that are already in place between a previous tenant and my parties that's where they are after some confusion and sued but the documents that were and i might point out as we pointed out in our brief the documents that are the governing documents really really only three primarily primarily the triple net lease the fuel supply agreement and the exclusive a t m agreement all of those agreements were in place with the clients and a third party provider who provides a t m for this site and a number of other sites and that's a ten year agreement and that that agreement was acknowledged by the previous ten as being in place and governing the fact that this one and only a t m on the site was to be the a t m that my clients contracted to be there and who the previous tenants acknowledged and agreed would remain there  your clients in tennessee management that's correct to see management is who we contracted with to place the a t m on this side as well as other a number of other side similar sized unrelated ok and did your some confusing testimony about the there was also testimony by the plane if they dig knowledge you know i really never had an agreement with the majors parties when he's now saying to the court oh i had this agreement with th summary judgment right partial summary judgment by mr gibson if you intended or a judge or depending the grant of summary judgment against the other party so you have to look at the case and let those people that we believe the court the under the lower court did so and viewing all of these facts in the light most favorable to the plaintiff and the nonmoving party and in fact went overboard to for whatever reason judge folks selected to hear proof and heard today certain factual matters that he wanted to satisfy himself in hearing and ruling on these cross motions for summary judgment on the was there a provision that  these documents are only effective upon our signature absolutely the triple net lease as well as the the supply agreement both had that provision in there and i believe the agreement that the document that was signed by mr coote tied with the previous tenant whereby he was attempting to paint assignment in of sumption of these agreements to put himself in his operator but that agreement acknowledged that all of this was first thing they had to do or really they didn't do anything into the looking for his name whew hew or do something you it is one of those principles ok they didn't do anything until they got in touch with his son who was their representative so as who said we need to do this that and that and get me all of this information which they did and then he said that they were proved so then they went to the next step right yes that's correct that was the due diligence period and all of that was subject to ultimately the documents being signed and approved by my client in order to make it the prior written touched and then told them you have to sign this set of documents and they knew they were prepared to do that and they go ahead with the deal and reliance on the fact that they've been approved and see the documents they like the document they're going to sign them and they proceed with the deal and then after all of that is done you say oh there's one more documents not exactly it was discussed but to put it in context mr went and spent three weeks in the site to satisfy himself and meet with the as l investments people with previous china i know these names are a bit confusing but as intel investments previous tenant was the current occupant an operator of the site mr coo tried went and spent three full weeks familiarizing yourself with the operations reviewing all the salient documents particularly reviewing all the government documents the governing documents and of course one of the the major items of revenue there are one of the significant items of revenue is the a t m machine which of course is they are his interest to mr coote tie your argument is the a t m agreement with part of what he was signing that was part of the entire package part of the entire package so it was but did place that if he were going to if i were the one going to someone to assume to take an assignment of their interest in the lease so in to assume their obligation step in their shoes i would want copies of all those documents i have no reason to believe he didn't get copies of all of those including the a t m when was that with the document included in the five documents that told them he had to sign for this deal i don't know if it was included in the original discussions about that but it certainly was he was reminded of that before it came time to procure the defendant i'm sorry who testified to that i'm not sure who testified he testified to the contrary and he also testified that i think the name is george hines and i don't know that the representative told him he could have whatever machine he wanted these are questions of fact your honor the court made the court heard extensive proof on all of these issues and of course the court the lower court concluded that there was no beating in the minds there was no contract either written or that on a motion for summary judgment where does that come from i'm not sure how the court had set a trial date we appeared as the trial date or a day or two before in the court said here's what i wish to do and so of course we abided by the court's wishes there was no objection from the plaintiff and we had two days two or three days of call the summary judgment rather than verdict or the i mean what's the difference between what he did and the trial well there were many differences for instance there was no proof the plane if wasn't allowed to put on any  proof is to damages which we believe are highly inflated because he didn't make any money during the four months he was allowed to stay in the premises while all this back and forth was going on in of course we would like to put what obviously of the case will remain and we would obviously want to put on proof to refute his proof on damages because there you know it's crazy amounts that he's seeking but we believe that the court albeit in an unusual way made a proper disposition of this case do i know why just folks chose to do it this lad do not but i certainly respect the court in believe that he made a proper decision and i believe he made the proper factual finding based upon hearing proof from all parties some of which was a bit confusing clients albeit whether documents were signed and held pending certain things including the acknowledgement of the a t m relationship and signing off on that or whatever but it was never given in of course during that time and the them like that i mean we believe that they were in the process of becoming a valid absentee of the documents in the position that investments had previously been in however they never fully complied with all the conditions and requirements to do so but my clients were very patient and agreed to let them continue in the premises on the basis that you know we'll see we'll deliver you them is no reason to have the the site go dark during this interim period in so we agreed to basically during this transition allow them to stay in the premises and operated in but they never complied with the requirements   well we got a phone call from t m and we had a long relationship and they asked us to get them to sign on to it so we did it which sounds very different from somebody saying oh we had a ten year commitment that we had to keep and so we needed to get him to sign i don't have any specific recollection of anyone saying that but the fact of matter is it had been a actually it was a ten year term the a t m agreement so i know there was a ten year term i was under the impression that the contract was between the s and nor counsel that so distracting would you please step that the relationship was between the us and we're and the plaintiffs but you're saying the contract was between your clients and well the plaintive was attempting to step this is a bit confusing the plaintiff was attempting to step into the shoes of the acid nor which is as ill investments the previous tenant or the exhibit that found the existing ten of the tenet mr coo tried was attempting to take an assignment from a sale investments to step into their shoes and begin taking over the operation of the convenience store service station however the agreement as to the a t m was acknowledge investments they acknowledge the fact that the owner of the property in the landlord had an agreement with tennessee management as to this particular a t m and that it was an exclusive a t m agreement for the store  smith writes it right back there in his deposition rule thirty six deposition i ask him this question it's on its document fifty nine five page eddie fifteen fifty three his deposition attached to the motion for summary judgment my question by you i mean any of the three defendants they have no agreement at all with tennessee management regarding compensation for these a teams that are and he breaks me off and his answer is tennessee management has not paid one cent and there is no agreement with respect a t m and the question next question is well why didn't you let them see management just fend for itself i mean isn't it between the s ignores intimacy management and for the next couple of pages we go back and forth and basically he just said oh they had an agreement so we wanted to make sure it was in force and the reason is to say management has a history with with the defendants they own about twenty of their forty stores in the memphis area and that's what that was all about and what it really happened is the paralegal the in house lawyers all that had not  sent over and they t m agreement and michael out of the know anything about it because they didn't see management was fending for itself there was an a t m agreement between the ass ignores and tennessee management so that's what that was about and both mr you were referring to earlier it's the field rep carl house page seventeen of his deposition i've got the actual number here it's a record entry fifty nine hyphen four pages the one four seven four karl houses the defendant's regional field agent for this area the defendants regional field agent he testified to take this a t m ass ignores to one of their other stores they had four stores and he thought he was there when to actually take the one of their other three stores that was his testimony so that's what this is all about nobody ever told mr coo type he was going to be responsible for th and in fact that's ignored testified that when he first took over the story he thought it was going to be paying a lot more and they only got five hundred dollars per month and it's a small these are narrow margin and they can make up to three to four thousand dollars a month on the a t m which is why mr too tight went with another a t m vendor thinking he had the absolute right to do that now on four zero one pm on october second it was to what i can't agree with you on a contract today and five days later i say oh we need to add one more thing to it can't do it and there's no consideration for this at all there's nothing mentioned in any document anywhere in the e mail anywhere in all of the undisputed testimony was that mr co type was not told anything about an obligation with respect are you saying that there's nothing in any of these documents that say that they require the approval then agreed to the assignment and mr coote tied had to pay certain money for the gasoline it was in there was like fifty five thousand dollars and then thirty some odd thousand for the inventory and fifty thousand dollars for goodwill the whole amount was one hundred  which which of the defendants they they approved them they drafted the agreement send it to him he sounded s ignore sign it they sent it back at that point we have a bombing agreement it's pure contract one so you're saying the approval came when th too well the effective date was october one but the date of the bombing agreement was september the twenty seventh ok and october second four zero one pm even though it was still just five or six days later it's still too late it's we have a bombing agreement if you for me five thousand dollars to buy your car and i say yes we have a binding agreement you can come back and add another contingency to it five days later that's  easy my time is up thank you counsel sometimes when we're preparing for argument it strikes us or one of us or all of us that the case sort of calls out for some intervention from the mediation office and i have to say that in my view at least this is one of them and so i believe that mr mcfaul has been here  during the argument and i'm going to ask that you speak to him after let him see whether a meeting or whatever would make sense and we'll just take our best shot at it in the meantime we'll be proceeding thank you both for your arguments