good morning ladies and gentlemen our first case for this morning will be auto driveways franchise systems again identified the provision in the contract that dealt with post contract conduct which is essentially what was at issue here in the district court's preliminary injunction ruling and a focus on tactical your client in it's creating or starting to create these new entity and there were facts that were developed with respect to tactical fleet that weren't alleged but again you don't have to imagine facts in the complaint they didn't know right and there could not have been an issue with respect the post competition and the provisions are different i mean we we have here what do you mean there could not have been an issue with respect to post card because  thrust of the in this was so precisely so so in so many words more or less the contract covers the possibility of out of contract competition during the term of the arrangement and it ha situation like those things any more than an arbitration clause goes up in smoke when an agreement ends they continue so either way i mean i think they're just trying to pin down that inappropriate competition was happening within the fifty mile radius and so forth there's a modest bond that's required that all seems very tailored to the scope of this contract with the only way you get there  matters the court's going to hold you not compete but the only way to the court can do that it is defined on the likelihood of success that there was there is going to be an agreement in place so we need to know modified with an oral modification they don't let three separate contracts that were written contracts that they have alleged and you admitted in your original answer were originally extended and then extended on a month by month basis until september of two thousand and eighteen when decided to terminate that that so i don't know where you're coming from saying that the only alleged in applied in fact they've identified t is the whole point of litigation is to determine what is related to something else and a relationship test just sounds like hot air while the the way it was framed  in the papers before your honor is whether the relief afforded by the district court and the injury claimed in the plenary junction motion were related to the relief asked for in the complaint and related the allegations of conduct in the complaint to the extent you're asking that you're just saying let's not pay any attention to rule fifty four see which if you get the relief to which are entitled whether or not it was asked for in the complaint what from filings with the virginia secretary of state it came from leases they entered into the filings with the federal government the department of transportation in the federal motor carrier safety administration showed that tactical fleet an address in richmond virginia to be operating out of that address which would have been in violation of the fifty mile restriction in the not compete provision the secretary of state corporation papers stablish office they've hired employees so i think they know that that shows that they were operating right so are you conceding then that if they had just made a lot of preparations to go into business that would not be enough to justify a preliminary injunction about the fact that proceedings have continued to pace it seems to me district court while this has been going on because i gather when the original case filed you had not yet sent out the the letter finally terminating this arrangement between the parties so i guess at the moment of filing we were in the post terminations stage at least according to your client now we certainly are in the post terminations stage but in the meantime i guess the judge has there was more activity going on involving tactical fleet and our clients so we filed the american plane namely tactical fleet as a party and cleaning up some of the new facts that had developed since the original complaint was filed so i think that was before you though is the record that was continue on a month to month basis but did the judge just kind of make that up i don't know why it picked month to month as opposed to any other terms of the renewals i don't know i don't  but the case law i think you've cited both virginia illinois and many other states says when you have a franchise agreement even as a renewal clause and the parties don't exercise that renewal call clause but their conduct continues as if that agreement is still in the fact that you have a month to month implied contract at that point incorporating all the terms of the previous agreement and in this case didn't you allege that in your complaint that there was a month to month and in our initial complaint we just talked about the franchise agreement we didn't we t so i don't think it was error at all for the judge to look at the contract and look at the course of conduct of the parties and find that there was implied fact agreement on the month to month basis and i think that findings should be entitled to deference i don't think you need to get to the issue of when the initial agreements expired i can certainly address that but from whatever they expire there was a finding that the course of conduct showed they continued on a month to month basis through september twenty  the papers that are before you say what the modification is in fact i think all the evidence in the record shows that the course of conduct that any case prior to september twenty ninth twenty eight follows the course of conduct lasted for five years have been reduced for additional five years up to twenty teams and then they continue to operate for another three years there was a dispute the franchise or start to enforce the not compete connect case and that written document a written agreement signed by the parties and that was the franchise agreement that had been a fact for the previous ten years also your honor with regard to the statute of frauds in the to perform their obligations under the contract within a year and we argued to the court in the court agreed that on a month to month implied in fact contract at a minimum driveway financial services would perform its obligations under the contract obligation from the date the letter said the friend french as your relationship was going to and which was september twenty ninth twenty eighteen and then so we have a two year period running right now we have a two year period running right now  alternatively if the court were to find that that wasn't the case then we have a two year period running from january thirty first two thousand and eighteen which was the end of the five year term on the nashville franchise agreements i think you talked about the defendant's admissions in his answer and and he also made admissions in his declaration filed in opposition to the first temporary restraining order we talked about the fact that as of july twenty sixth twenty eight he was a franchisee of a t f and he said he had been a franchisee of the a t f asked for the last seven years he also said that the initial or the franchise agreements and they continued by agreement of the parties to january thirty first two thousand and eighteen that's that's not a legal issue that's that's he knew that that's an agreement that he says that they made and he agreed with that also defense attorney during the first temporary restraining order a temporary restraining order because that is she was already covered by the language of the franchise agreement in terms of the use of the trademarks and that kind of thing i'm happy to answer any other sometimes one more generic question for you a lot of the argument you've presented sounded to me as though you didn't think the district court empowered to make preliminary factual findings you know in if there is something conflicting that is material to the issue before the court i agree on that it's ok what is it is here that you're claiming it was conflicting and material to the such as where was the office located and what had been done i mean the court doesn't have to just blind itself to everything else present but at that point time we have an office in richmond because we're trying to figure out what to do in the court it in response to that in looking at the affidavits in the evidence the district court said that tactical fleet at most had made preparations that's a complete which does not conflict application that is not tactical fleet its tactical fleet want mr corbett affidavit says they were thinking about it and they're not pursuing tactical we want mr ruef in his affidavit said that there