i'm not as likely to be indulgent with extra time with this last one but if you get a question get it civil case we know it the case you can't write so this is a simple on the on the contract claim offer acceptance and consideration that's what makes a contract did that happen in this case we believe it sure did  i make a contract can even offer in acceptance and consideration over a valid subject matter in this case the original contract is the the deal consisted of a master license agreement to develop hawthorne hotels which is a two star hotel in north america in the middle east as four star or better that contractors in two thousand and two twenty plus page couldn't be changed except as specified in the contract and the other one that's important seems to me is that there were well three maybe there were no other parties to the contract other than h and monopoly and then the third one that there was no fiduciary obligation taken on by either party in the contract sure but it's it's black letter law that even though you have those provisions in a contract if the course of conduct exhibits something that deviates from that written contract that course of conduct will supersede whatever the contract or a contractual provisions were originally in this case you have the contract in two thousand and two then two thousand and five things changed internally for i'm sorry but it seems like you want to hold high end to the contract that you had with hawthorn except only parts of it not all of it but at the same time you didn't have a contract with hyatt originally hawthorne international was responsible for the approvals three years into it they said hey you always some money you're in default we're going to terminate unless you agree to one two three four that's the march fifteenth letter number two was  record describes this reorganization in which mr levin was an integral part to integrate the u s franchise system brands you know working with but did he ever hold himself out as a representative of process came from hi well actually isn't what he said was he didn't know where it came from although he would usually it would come from but he didn't know where it came from ok so then it's summary judgment current had the ability to decide whether or not it wanted to include and so did your client have the ability decide whether or not it wanted to allow high attack have a bigger role in the approval process which by the way hyatt was always involved always one out of the three votes was a high vote only starting in two thousand and five that wasn't the case in two thousand and two high had no involvement on the approval process process for the first three years the measure license agreement was in effect none zero two thousand and five that's not my recollection of the facts but may be irrelevant even if it's true so what they had no role in the approval process  it could hawthorne and monopoly could agree she would involve a third party in the approval process without making the third party a party to a contract i'm sorry judge  get lost in being part of that hawthorne and monopoly could agree to involve a third party a stranger to the contract to be improved to be involved in the approval process without making that third party stranger to the contract a party to the contract but i would suggest that's exactly what happened so the question is so high it's not a party to the contract  ok and i'm not saying that it is i'm not saying that high it is a party to that master license agreement it's a separate contract that came in effect as a matter of law based on the just just just by virtue of the fact that they're involved in the prove prove the process does not give rise to a new contract well again i respectfully disagree on this offer acceptance consideration the consideration here but there's no offer that's the problem there's no that they were denied there was never a reason they were denied for two reasons one what you're proposing doesn't comply with the license or standards which is faulty for two reasons number one hawthorne international had no standards and number two my client gave proposed standards for these four and five star hotels which hawthorne didn't have and they were approved by mr levin second they said that what you're proposing these taj mahal type of developments that have commercial and condos which hawthorne wouldn't be getting a royalty from because their deal was just to get a percentage on the hotel rooms those far exceed what is necessary to compete in the market and the m l a said that you are entitled to develop four and five star hotels and you're obligated to try to convince the consuming public that the highest standards are associated with these hawthorne suites hotels those are the two reasons given during the tenure the three year tenure were hi was controlling the the approval process they never said you know what we have some other things we don't think it's a good fit they never said that with with our brain around at the clot scotchy i think you've saved seven minutes for r rosenbaum you hit out at the nail on the head when you were talking about what is the supposed that agreement that monopoly claims a rose from some offer that high it never made and i'd like to get into that because the parties don't speak the legal principle that for a contract to exist they need to agree on all material terms absent that there is no contract the whole purpose of the suppose that contract according to monopoly was to establish an approval committee that hiatt would participate in that would we review monopolies proposals i asked monopoly a deposition well how is this going to work could hiatt take its interest into account in reviewing these proposals first it said absolutely couple minutes later during the same deposition completely reverse course said no hi you cannot take its interests into account that the potential impact that one of its developments might have but might have on high it is not a proper consideration before monopoly changed its mind i asked it well describe for me how the review process was going to work then if the whole purpose of this approval committee was to make sure that monopolies developments were aligned with heights interests how would it work if the parties interest they've urged he said it was never discussed in the district court monopoly took the position that well that's why it's a problem it should have made clear back into third two thousand and five when an offer was conveyed that he knew nothing about that the terms of the contract were clear here it takes a different position it says well that was an immaterial term i find it difficult to understand how we can take that position when the whole purpose of this contract was supposedly to make sure that the party's interests were aligned we said a case in our brief here on of the massive versus mauling case in which an appellate court refused to convey a contract to convey a twenty percent interest in a new corporation because that contract in clearly set forth when the interest were going to be conveyed with the structure of the new corporation here the very essence of the suppose aton tract is a mystery to everybody the plaintiff included now i asked monopoly about some of the other terms of the supposed contract first it took the position and opposition that the contract consisted of all of the terms of the agreement already had in place with hawthorn plus whatever was set forth in this march fifteenth letter later in the deposition it again changed course and said no no no it didn't consist of all the terms of the master license agreement it was just a few that related to the review of proposals plus some provisions of the march fifteenth letter this is not the only failure monopolism a problem with this is far more fundamental than that i just don't see what it is that high end allegedly did that made itself a party to any contract i agree completely your honor and i think the district court at the nail on the head when there is of getting into you know what the terms were of this hypothetical contract made just seems to be all beside the point again i agree your honor i wanted to simply point out that aside from this complete mystery about what this suppose the contract was about monopoly didn't even know who the parties to this contract were when the suit was pending and when that county monopoly took the position that this new contract that it claims arose existed between it us franchise systems which at what point apparently hawthorn and all three parties were then parties this contract when as a refiled in this record it was just hired then in april of two thousand and seven two years after it supposedly entered into this contract with hyatt the very purpose of which it now claims was to create this approval committee so high it could look at its proposals it sent a letter to hawthorne saying that it has no right to be on an approval committee to take a look at my proposals i have no agreement with hi about five months later in september two thousand and seven and said the same exact same thing all of the directions coming from hyatt but i have no contract with hyatt there was no meaning of the mines here not even close on anything i think this court's opinion and i'm sure i'm in a butcher the name your honor i apologize for that area low versus kimberly clark is really right on point in that case the court reviewed and alleged contract in which the plaintiffs claimed it entered into an exclusive distribution agreement with the defendant at deposition one of the one of the plaintiffs owner said that it was going to be exclusive i came out i came out of the meeting with a clear understanding i was going to have an exclusive contract later in the same deposition he said well there was only a possibility of exclusivity the defendant for its part said that i never even thought about exclusivity i didn't have the authority to do it the court affirmed the grant of summary judgment on a claim that a contract arose here because even the plaintiffs couldn't explain what the terms of the contract were let alone a meeting of the minds between the parties on that so and again i don't it's really surprising that there was no meeting  here because the contract theory that monopolies come up with is an afterthought when this suit was originally filed in gwinnett county there was no claim that hyatt had entered its some contract with monopoly the only claim that had been pressed at that point was a claim that h supposedly torturously interfered with monopoly's contract with hawthorn we briefed the motion to dismiss and which we explained that georgia law doesn't recognize that claim a company like a parent company that has an economic interest in a party can't tortious they interfere with that party's contract that motion was filed all of a sudden a contract claim appeared in the next complaint i entered into a new contract with with hyatt and you know for the reason that this court pointed out that contract simply doesn't exist if the court has questions about the offer acceptance elements i'm happy to go into it i don't think that the fiduciary duty claim really requires much analysis the contract made clear that it didn't exist and the parties knew from the very beginning what from the master license agreement after the letter that they claim was the predicate for their contract claim that hire somebody to mow their lawn then you say ok we have a three year contract you're going to mow my lawn here's the conditions the lawn gets cut whenever it's three inches tall and you take it down to an inch and a half and however long it grows up you come back and pay one hundred bucks every time you do it you have to use a four you have to use at least a four horsepower lawnmower which is push ok great those are the terms of the agreement grass gets up over three inches and you need my written approval grass grows three and a half inches hey it's time for me moe the lawn got my lawn mower here ok great all my lawn his hundred bucks some time into it landowner says you know what my dad's going to come he's going to get involved and he's going to be the one that's responsible for giving you the green light to mow my lawn that's great he's got houses all over the place and i trust him will you agree that my dad is the one that's in charge of the approvals ok turns out dad likes it when the lawns are five inches tall and you know disagrees that son h got this written contract that says these are the conditions on which you get to mow the lawn landscaper comes up one of those big sit down lawn mowers twenty horse power goes dad  am ready to mow the lawn grass is three and a half inches that doesn't say anything about i prefer it to be five why do you need that sit down l you don't need that that's not necessary won't you come back and give me written reasons why you need that sit down lawn mower and so that that push lawn mower my contract says that it needs to be at least four horsepower this is at least force power in the grass or give me some agreed that the approvals are now we're going to go through dad and dad is the one that saying no for whatever reason i'm not going to tell you whether i agree or disagree but we've agreed that i'm not the one that's going to give you the green light dad never said i'll do it right dad didn't make the offer dad did do it right and dad did do it you know that but i did make down a party to your contract dad accepted the benefits to  i'm sorry it's not he how is he benefiting from well again be like i said this is a crude this is a crude and in any case where is the offer on dad's part exactly contract with the lawnmower but i don't understand how dad is now a party to some kind of contract with the lawn mower just because dad's involved in a an approval process i think it's a kind of a fine analogy and it to me it exposes why your argument doesn't work this is the in this case and in the example the the original contract contracted party had the responsibility to be the gatekeeper for whatever reason those parties to the contract agreed to change it and say ok third party high is going to be involved in the process and that process needs to be reviewed strictly under our written agreement from three years ago ok if they don't if they've high it doesn't properly approve or breaches the terms of the agreement