i would like would like to reserve three minutes for bowyer you are i have teller just saying from knoxville tennessee representing similar health care group l l c in this matter this is a appeal from a grant of summary judgment  discussions this case actually would be the prequel to that because this was filed in regards to actions that brought these health care centers to tennessee and the representations in claims that resulted from those protests from those meetings these claims for cock rich or contract misrepresentation unfair competition as to the hospital it to mr hutchens who was the administrator those are what these claims are about i understand that the to after these clinics operated that they did not make proper payments to the physicians and those are not the issues before the court the damages which would even be set forth in this or those start up costs those matters counts as i read these four counts they all either explicitly or implicitly rely upon breach of contract theory the hospital did various things that cause these doctors to br contract so why is that not preclude for everything that you're charging in this particular complaint it's not precluded because the issues as to the contract that brought the corporation to talk to claiborne county those are not the claim those are different claims in the claims that the physicians breached their contracts which were found found to be precludes it but let me say it a different way because it seems like all of your claims were i agree you dress it up a little bit differently but it's all premised on a breach of contract so even if you even if you try to plead around that and plead a different claim if it's based on a breach of contract and there isn't a breach of contract at least as has been already determined by this other tribunals then how do you win how in is by showing the mr hutchins says i will not do various activities for the for the hospital or half of the hospital  rain gauge and those activities are gaijin representations which do not prove to be trade those costs associated with setting up these clinics pain monies to bring equipment in otherwise paying leases those things once and once the clinics got there if those representations were not true by mr hutchings as to his activities and things that he may have engaged in on behalf of the hospital that would be a long way i can win your honor but when i try to sort of follow that through it seemed that it really revolved around the but the issue of the cardiologist performing these activities at the hospital when he could have been doing it at the clin specifically in the administrators proceeding then the a l j says no he wasn't breaching the contract he the only reason he was doing it at the hospital is because the equipment was no good at  clinic so i mean how do you if that's the basis of the of the oath to meet damage in the in the fraudulent inducement claim how do you get around that  coming into town there's no question that mr hutchings in the hospital cannot be breaching the physician's contract but if he made representations we were not going to do various activities not going to promote and put other people in the hospital but rather t have access to the hospital for various services that's the only way i can we don't really mean it's a tough argument either services when you ask the question ok how did he preach that how did he breach that is by providing extra hours to work in it's not true that they were working hours in the hospital that they shouldn't that they should have been working in the clinic it's already been decided no it was  them to work at the hospital and it's already been decided that they are the reason the procedures were done at the hospital is because they couldn't do them it suv or so i don't know how you get from there to still having a viable claim that it was hutchens who was responsible for for that i'm not take it that argues mclean doesn't go as far as to say the physicians didn't the all the work done in the hospital were less than the claim goes to actually moving to claiborne county informing the representations he made as to how we're going to let you have credentials while we want you here and while we want you to put your equipment w that was not correct the other issues i think would be the secondary claims there was not adjudication as to whether whether there were real actions on behalf of the hospital or mr hutchens to determine if that is a valid will claim that they said best on a claim in the  not a primary finding i don't believe that was the primary fine as to whether hutchens or the hospital engaged in activities such that dr cutting his practice would have been damaged for moving their berliners on a representations and create an implied contract so i believe the primary decision yes is exactly what you said the secondary decision which i don't believe has that issue preclusion in prison that's not necessary to determine if they breached their if he paid their contract was because he was saying look we didn't breach the contract the doctors did they were working in new york as you told them to work in the yard so if if cutty told them to work in the car i don't see how hutchens can be responsible for them working in the car and then the second thing was about the cardiologist look he's not he's not doing what he's supposed to be doing he's doing all of these procedures in the hospital he was supposed to be doing them here and the detail just said well the only reason he's doing it in the hospital is because he can't do it in there because your quit was no good so then how do you how is that secondary because it had to do with whether whether there was a breach by the doctor i think is second i think is still secondary because the claim was brought strictly by the department of labor saying he did not pay these for physicians according to their contract and i do believe that dr kennedy in his decision to represent himself in the sixteen day hearing created an absolute fiasco of a record which on the court was well aware of but i don't believe that was the primary i think the elderly had to address a lot of things that came up but that was the primary decision was did you breach the contract there was in the situation of why did you come here who told you to come here what were their what were the basis upon which you would come here and that's what this case is about is not about why they breached the contract later on how do you get recovery for the claims that you're saying were upfront which don't seem to be what you're pleading in counts one through four but assuming that your we read them that way how do you recover on those things if the damages are attributable to whether or not these doctors were induced to breach their contract when facilities the the expenditures of fees and expenses in recruiting the physicians in bringing him here i think once they started working sign the contract i do believe based upon and as i told the judge phillips who i believe that cut cut off at that point i do not believe i can extend that and not ask the original pleading wanted to go all the way through they all day cuts me off because dr cody was found committed material breach of that contract so those with those positions such that those claims for damages for not working down the road that's go be gone your honor there's just no way to make it a straight compelling argument that's correct under the law based on the all day decision it could only be those up front expenses it's a lot less of probably a lot less of a case but you still have three physicians you still have physician offices physician equipment office staff things that you invested money in to come here but that's as far as i think i can go you're on what did the hospital allegedly do breach this implied agreement for this upfront stuff once they once the promises was there some detrimental reliance such that we would not have expended the money to come to claiborne county tennessee for the purpose of offering the clinic that's the extent of the damages are i and they make representations we're not going to not going to do various things i don't think the the here and focused on they were not working once they got there didn't focus on what the hospital may or may not have been doing with the times i think any questions thank you county hospital has graciously allowed me to take the argument today so it was just being me your honor this is you know the district court correctly granted summary judgment in this case the defendant's fall most for summary judgment supported it with deposition testimony from the parties that were taken in the case as well as findings of fact from the administrative proceedings and those  understand i don't think until just this very minute was that he's claiming not damages now for breach of contract the ael j found didn't occur but he's saying that he had some upfront expenses that he wouldn't have incurred but for the hospital's misrepresentation i think that you've been trying this case so is is that been spelled out separately is that on one of these counts if you look at the minute complaint and clearly each of the counts pretty much say the same thing that the defendants here induced these contracted physicians to breach their agreement with the plaintiff in this case each if you look at each count and did it by moonlighting at the inducement it alleges that this guy was interested in having them set up there and that there was an agreement that so you would well basically that they'd  provided a cardiologist which they didn't have there but they had sort of agreed on different well practices that one would get one part of the business and the other would get the other had not ever met prior to february of one thousand nine hundred nine and he agreed that as to what was discussed during that meeting and none of those things were discussed he didn't test about any of those things being discussed during that meeting about any promises from the hospital to do certain things and he also asked them to write some letters so that he could get his doctors through the eye and a process and he said that's all that they talked about in fact if you look at the the the contracts between the physicians dr not seem who is the cardiologist was already contracted with the plaintive to provide services at the tassel clinic three months before that meeting ever occurred so the evidence in the record undercuts what the plaintiff is claiming now and the plaintiff all he said you know provided in support of or in response to the most for summary judgment was a declaration that contradicted that testimony contradicted the evidence that was heard and found at the ministry of proceeding as well well if you read the complaint charitably count two does seem to talk about how there was this allegedly fraudulent inducement to open the clinics and that seems to be at least to me to be the one that comes closest to saying there's some sort of implied contract that's different than the breach of contract that might separately support damages so at least i think i have one that is one allegation in the complaint so how do you respond to that why will i have evidence that's actually in the record which i just discussed about dr cut his own testimony as to what was discussed even based on information he received from the state of tennessee based on advice from one of his doctors richard groups that the clinics in those areas would be the best place to locate there's no testimony in his deposition about these claims he's making now in an affidavit preclusion this this whole order this decision of the district judge was based on issue preclusion you seem to be going on to say well if it isn't included within issue preclusion then we should have gotten summary judgment but that isn't what we have before us here we that's a whole different question then of whether there are tiriel issues genuine issues of tiriel fact that would support summary judgment independent of the issue preclusion issue preclusion does take care of everything if even if you take as true his allegations about these promises that were exchanged he still has to prove that the damages that he's not claiming this investment in this clinic were caused by conduct of the defendants and there's nothing in the record that has his declaration is contradicted by his own testimony as to any promises that were made was there in a finding as to this theory that is it dancing this morning about how there's this upfront costs that he can still recover the upfront cost was the cost of doing opening these clinics and the cost of running them those are the costs that he alleges in his complaint he's trying to recover it's the same cost the same cause ation problem exists and a o j did fund the a l j address that i think they did i think they all day did when she found that the doctors were filling their obligations they didn't breach their contracts and that it was ruse the difficult conditions due to insufficient planning overexpansion prior poor management of key functions such as billing and underfunding of the clinics by the respondents that led to the closure of the clinics the  even said that if he hadn't retaliated against the physicians they still would have been there making money and had a chance to have the income to keep the clinics open he wouldn't have the damages he wouldn't last as upfront investment which he is kind of undercut by his own deposition testimony that the reason he went there was based on information from the state of tennessee his own doctors who were up there and that he had already intern into a contract with dr nasim in november of  yet but he could have had him work in any of these under served areas where he could have but the fact you know if you look at the evidence in the record he'd already made that decision to open that clinic prior to that meeting there was nothing in his testimony about any of those contradictory statements you later made in victorian about promises that were made so if you look at what's in the record it contradicts cheston seemed to be pretty candid this morning to say his request for damages in this case is cut off at a certain point by virtue of the a l j decision have you ever talked to him about what what is his claim for damages that that he thinks is not cut off do you know what he's demanding here no i mean well there was and i guess they the prayer for relief was two million dollars we don't know you know now he was not able to come up with the accounting records in his deposition to actually spell out what comprised it to me in dollars so we were never able to nail that down that would have been subsequent discovery had we not found much for summary judgment and so the issue of this upfront costs that seemingly is not blocked by the algae a decision under his theory that hasn't been meet discussed or mediated or anything but i think you don't even know what it is well we don't know what his actual damages are what those actual costs are lain is two million dollars he's already said the bulk of that he agrees is barred by the decision and i submit that it's all barb and i got that but i'm just trying to figure out have you guys talked about what is left we asked him in his deposition those questions and were not given he didn't have the information at that time ok what that was also claimed in the proceeding and that those those breaches caused by different its conduct caused the damages which would have included the upfront investment as well as all the continuing cost of running those clinics until he closed it and he cannot the facts in the record supporting summary judgment negate those essential elements of this fine we understand your position  thank you mr jeffs and i'm just speaking for myself but it's frustrating when the case gets up here and apparently you guys don't even know what it is you're arguing about and you haven't discussed it so can you by friday of next week send him an item d claim of what you think is still left in damages in this case and support it with whatever you've got to support it issue then you respond to them in a week thank you and i do want to point out i don't need to see that court is not needed at all is that correct just i don't mess up you know i don't see that on file the stuff with us just let us know whether you want us to delay because you're talking the one thing that i would bring up your honor is