contract claim all of the issues boil down to a couple of contract provisions primarily in article two and then section four point three i believe it is the district court completely misread the contract it threw out the fraudulent inducement claim because a dame the contract provision unclear but article two specifically starts out with as a material inducement to the buyer to enter into this agreement and to consummate the transactions contemplated here in the seller makes the following assertions that are correct and complete and that includes a number of representations and warranties which includes the article two point three that the covenants and consents to consents will be valid and transferred it specifically to point three c that is the key provision in the contract the contract also spece i'm sorry what went through that's the provision the promise of there being no breach that's the provision that promises the consents will be transferred and they won't conflict with or result in a breach of any other contracts which the breach the breach is that they didn't get a consent so the contract that we had or that they had with their main area in breach with q b if i understand two point three correctly the promise is that by entering into the purchase agreement j b air is in breach of anything with among others could be correct but was the commitment made that they were breaching it wasn't assignable without consent and they did not get the consent ahead of time of the q b contract was not a sign a bill without consent ahead of time mr buckley admitted that he knew misreading two point three but i thought the idea of two point three is j b a by agreeing to sell isn't breaching its agreement with q b is that correct reading of two point three and part it also requires well as soon as j b a sign that contract it breached the q b contract because it didn't get consent the q b contract says you've got to have consent to assign otherwise this whole our contract with you is void correct position since he didn't get consent he breached the minute exactly the hold that went to trial right the breach goes to trial the breach case  contract went to trial so didn't the district court adopting opposing counsel as facts concluded independently you lose on your breach of contract because of the time and continuously i understand the latter argument but before i thought that he had concluded that you didn't sufficiently in time you didn't comply would have the five point six times more but you're saying you won that so i'm just wrong on that believe you're wrong on that your honor i know there was a summary judgment issue on the no we won on the summary judgment and no they did not appeal that to the extent it might have been slipped in the findings and conclusions all those were actually submitted thirty days but why would you brief it if you thought you wanted to tell you that we won it ok but when we go back and look and see if you made a finding that your time barred if if it isn't there if it isn't there is a pink luzhin of the law number one it's it's wrong number to you it's nothing you can rely on because he literally just rubber stamp their findings and conclusions and we've got a number of cases cited in the brief explaining that you know when the district court doesn't actually you know consider and do something to score it doesn't have to give it much weight if any and it would be an erroneous legal conclusion on top of that and contrary to the terms of the contract let's say i agree that he was wrong to dismiss the fraud an inducement claims but then he goes on in responding to the breach claim to say there's no fraud mr buckley committed no fraud would that have any effect backwards on whether or not the dismissal was right you understand the question i think i understand the question i'm not phrasing my questions clearly and that's not false modesty i know i'm not but going to try to answer well the breach issue is controlled by the terms of the contract and unless you read four point three as their safety they're not saying which is extra textual and just kind of pulled out of thin air you have to found a breach of this would be particular enough as to when and where because it seemed like you said the no shop period june july therefore but i guess when i look at that other section you'll know what four point four point three it does seem that this is an odd purchase agreement it sort of says you can't have anything that conflicts with the contract on the other hand if you don't get the consent to assign then everyone's got to do reasonable efforts to get it later and therefore that that would seem to me to be a triable issue at may still mean it was error to dismiss at the outset but then he goes to trial in the breach and he says i ultimately don't think mr buckley was fraudulent and my question is if you went on the dismissal problem didn't the trial findings the fact that ensued still resolved with that there was any misrepresentation no i don't think so because there's no way that we would have gone into this contract without believing he had consent to transfer the most material contract in the case everybody agreed that they were material that buckley knew they were material even buckley's experts said you know if the company has no value you can't even value the company without q b as an asset and buckley knew that they were not i think he knew they were not going to transfer and that's why you didn't ask consent he said he never even intended to ask for consent which we didn't know until the trial there's no way he could have gone into this in a good phase and it's a plain breach of section two point three because again those that whole article two is a material inducement to enter the the account holder has a memo in june saying we're actually eight of nine exactly that's one of the oral representations the district court how did you dismiss that as not even actually i wish i knew the answer to that he just misread the contract and turned it upside down and said because of section four point three it's not clear that there were red flags and therefore you don't have a fraudulent inducement claim i mean it really doesn't make a lot of sense to me looking at it and hunt site article four is a covenant provision that is totally different than article two which is the material inducement provisions and all the key provisions come under article two including two point two one enforceability two point three the non contraventions and consents two point eleven seller contracts two point twelve as material customers which would in the contract that goes that takes you from being a material client to we'll just see if we can work this out later if it doesn't work out that's what it's only that applies to l provide but it's for not assignable contracts they knew that the least leases were non assignable then they might possibly be a sign but as a general matter the leases were completely non assignable and we knew that but i know i guess want them to do that but again i read two point three as saying that there's there should be no breach of any agreement including the agreement between j b area and q b at the start there do we read two point three the same or are we differently of think we may be reading it differently under two point three the very minute that mr buckley sunless contract he was in breach of the q b contract and in breach of his warranties to us what we do agree on the never even sought consent from q b even after the assignment he just notified them of the sale and they didn't send any more clients and didn't want to deal with a new vendor and if he had done that beforehand the whole point is if he had done that it provided forty five percent of their business without q b it's undisputed there would have been no sale at all i thought the statement was that was q b used number one provider right that's what it yeah he was saying j came it didn't happen within twenty one days under rule fifteen it didn't happen until five months almost five months later that was eleven months after the pleading deadline a month after discovery hit him closed and on the same day that summary judgment were filed in that deadline that was the the request to amend was denied improperly so the rosen wire case just to judge clement your case a dealt precisely with that or those kinds of situations and the factors under foreman versus davis and we meet pretty much all of them dilatory action late prejudice discoveries close to you can't get back into it clearly be improper when i am sorry and though it is the case progressed and it progressed with an opportunity to a man actual wouldn't amend if it were sufficiently particular as a matter of law right that is correct that is correct it's lone star fund versus barclays bank which we cite i have to confess to you i was counsel for the disappointed litigate in that case so our own fortunately i know what a little bit too well but here's what happened barclay's my back in the day when the when mortgage backed securities were the big thing packaged a group of sixty million dollars worth of those sold into lone star bank with the representation of more to this none none of the mortgages not one of had ever been in default for a period of more than thirty days and were not in the fall that turned out not to be true it turned out in fact they had never looked if their issue and thousands were in default there was a cure provision however and it said that if any are in default then the remedy is going to be and what you're going to be entitled to is rule replace each of the lonestar suit to set aside the entire crams action just like you see here asking for the benefits of the transaction then get it on the contract so you keep the benefits and then additionally you get damages and that's their claim here what what did in this is judge jones for a unanimous panel failed this it this doesn't work you have to look at the cure provision and read it with a warranty and while reading the warranties alone might very well lead you to the conclusion that there was a breach when you look back into the care provision the parties certainly anticipated that their everything was not going to be perfect and if they did that then the allegations of the reach of the warranty on the pleadings could be dismissed and that's what happened in that case this case is almost exactly the same four point two is a remedy factor for two point three not all of these clients in by the way let's the facts in this this part run disputed and additionally the contract on the pleading ground showed it to him that was him that was attached to the complaint that from which the dismissal order was made and in that two things were important first off all of these contracts had been given to i a s upfront three and a half months before the closing two and a half months before the closing so they knew that it was not the sign of only an end when we say not assignable let's be careful there that's not what the contract should at the g s a said any attempt to sign would be  the if you didn't get consent there was discussion between the parties and that they would not try to get consent beforehand because of the non disclosure agreement which said you couldn't disclose the nature of the transaction to anyone like this one there were more than than than red flags and in this instance let's also talk a little bit your honor though about the idea of the being number one first off you know vengefully this case was tried and tried on that theor know how the evidence turned out but let's go back and take a look at the pleading the l i which was also amended to the or put to the pleading is well properly considerable on motion to dismiss provided very clearly that no representations could be relied upon that alone on the aero pre agreement representations could be relied upon that alone would take that out of the the consideration in time but the was a statute of limitations to fans and on the employment agreement and it was completely tried and if you don't have to rely on me on that if you look at their requested findings of fact and conclusions of law you will see th when they asked the court to make findings on their fraudulent inducement claim including the damages amount as well so we did get trial the interesting issue is those claims were rejected for very valid grounds on a number of things first and most importantly years the g s a agreement itself now to to prove damages in texas law just again just trying to merge the two issues of the dismissal and then the breach i could see them as separate is your position that the resolution of the breach would have made any errors to dismissal precluded those that are gone i can't say that completely because when the court says i don't see that he committed fraud that would have allowed them to terminate his contract it seemed to me the court was saying i already decided the fraud issue the shot that you saw yet not resolving it factually based on the trollops i'm w you ok but the court went ahead and made made findings on those in any of a out positive findings for us as well which is unique this doesn't happen very often when you have a dismissal in the pleading then you try the case you know how it comes out this provision it's article five of the p s a and if you look at it it they say by the way it doesn't apply because we have is titled indemnity but if you look at three five point three and five point one you'll see that's not quite right he really says he has it covers a breach of representations in warranties and it requires two representations and warranties originating in article two the very thing they claim the of limitations in five point three the court made affirmative findings on the map that the case wasn't brought within one year which he had required one year the anniversary date of the closing and we know what happened they not gym buckley all along knew that he would not get an assignment that is not in the record it is not even in the pleadings there is no suggestion in the pleadings or requirement under the a the consent the a plain for well that's what but let me return to the statute of limitations where you're you're you're good in argument and it's a case you know well but but before we leave the facts are undisputed that he's texting mr cochran saying we've got great news it's certainly looking good and he's very experienced in this business and he can't he can't breach the contract j with to be isn't it a fair inference when he's saying we're the number one vendor and it's going to be really good that everyone would have assumed he was complying with the j b e q b e absolutely not let me explain your honor because there was detail testimony about this from people a q b aide to and this is important sir gomez gomez did not speak on this one a did speak on the issue of number one which out to talk about next but here's what randy har randy hardy was a guy that had worked with jim buckley quite a lot what it happened to be is they combined bow bow and sterling into one company making it larger and that's the reason and by the way the terminator and letter that  give goes into detail about that they changed their business model they were going to national addressed in farms not regional like this one was and they say it's a change in the business model number one number two i determination under five point one that's important because that was for no calls whatsoever on the forty five days notice they couldn't they could you cancel under five point two the g s a that was for the they didn't they could cancel under twenty one point one for failure to give consent that they didn't it was a five point one so in answer to i think there were two questions on the ask the answer one to well is that the reason they breached no certainly that could not be a back to your question though randy hardy was who was jim for him and was the person that was sending him business to bell boa was appointed to be the head claims guy of the combined companies jim thought that was good news and i would too but what happened is and what everybody on q b e testified to was this they didn't tell anybody they were to change their adjusting strategy because they were terrified about there they thought that it might cause loss of business and other types of things and their their vice president jeff anderson testified specifically for that that no one would know so in fact first time buckley found out when he did talk to randy hardy later but it was good news for him up front the statute of limitations kills the contract case and they're asking for affirmative relief on that and there is no there can be no doubt about that two point four years or two years before mancini when they bring the claim they have to bring it within one year scary rule never raised but it wouldn't work anyway because the testimony was that mr cochran suspected of some kind of fraud of fraud and told he was board of directors at that immediately after the closure so that kills that issue completely now the other thing that  is well that was denied on summary judgment and they didn't appeal it's not true here's what happened it was sydney's right about one thing it was denied on summary judgment up front during the trial on the last day and this is really a record on appeal five eight eight six and eight seven judge beery is hearing about the shut the the statute of limitations time barneys shows how well wouldn't that in your summary judgment opposed to summary judgment and then he looks to the opposing counsel representing mr cochran and says and i would like to hear from you about that he then proceeded to make affirmative finest of fact in our favor on the statute of limitations they are not attacked on the evidence three grounds i think that part is completely over there is an attack if you will see in reply brief and no one mention th but i want to make sure that we get this out and deal with it there is an attack on judge perry adopting findings of fact pretty much from our finding of fact there is a legal and factual explanation for that there is not in the other side brief factually judge barry at the end of the trial said is everybody comfortable with their findings in fact and conclusions of law if you'd like to amend if you'd like to supplement i would like he said you really what you're asking us to do is review this de novo and that's not appropriate the standard is well known we are not training the standard relying on andersen versus city of bessemer which is mr justice white's or pinion on the same issues saying it's not always appropriate but sometimes it can be and judges in the midst of doing their business sometimes do those things and that's ok no doubt about that and they had they had they had a chance to mend this four times they first they they terminated him and in february march twenty first their lawyer rochon letter saying but left me no doubt about it this is and they didn't we play it a waiver of that very provision is well and they really sort of change horses in midstream on that trying to make it an involvement i mean excuse me i terminations with alcoholism that's just inappropriate up briefly let me i'm going to return to the question you asked me for and that is about two point three and four point two i do think lone star fun answers this case i don't think there's any doubt about it there is no doubt that they thought four point two was a cure for two point three in their original complaint they say that and they go into detail of saying that you have to do the s and replace the business by the way that's the real reason for the combination letter for college same thing you have to do four point to cure we read the cure to be you replace that business before two didn't say that four point two said use commercially best efforts to do it and no one disputes that he did fin of claims they did get some additional business twenty and one model twelve and another not a whole lot but they got some so we got the business finally and very important replaced it with a tremendous amount of other business estimated of first the lone star case on which he realizes dispositive is not cited in their brief nor was it the subject of rule twenty eight j letter so we would request the opportunity to follow rule twenty eight j to respond to the clip ability of the case i haven't even authorities i was wondering why i didn't know it either yes or that's why to point three is dispositive of this issue because under two point three d as soon as mr buckley came to the table and son to this contract that contains two point three he violated and conflict it could violated in conflictive and resulted in a breach of constitute a default under resulted in exhilaration or created in any other party being q b e the right to accelerate terminate modify or cancel the other agreement the q b agreement this is what the entire case turns on because b was undisputedly the material client for the business their own experts said that without q b e there there was no business he's probably got result of the trial and i was curious why didn't cochran call if q b is so vital why didn't never asked for consent from them at all and never informed them we'd maybe didn't come up to trial but if they are about to purchase j p almost entirely forget the q b is wouldn't it be just basic due diligence to quote u b e and say we're going to get you right that's a solid relationship why would you just rely on one person saying we've been there number one well we asked to talk to q b before the deal closes and mr buckley d b it doesn't extend to them at all no we couldn't because he said we couldn't i mean he was there they were his client and he said we couldn't talk to them to breach of confidentiality agreement no because the confidentiality addressed only confidential business information like trade secrets and the definition of confidential information and that would not have extended to it to get severance pay it's required before each and every installment and it was so important to the agreement that it was attached to the employment agreement to begin with so he certainly had it i do believe we fired  cause there was ample cause to fire him in terms of all the misrepresentations that were made and the breach of two point three but in any of in this you know he had to choose between suing and getting severance pay i don't see any way that he  they knew they needed to consent because buckley himself had signed a consent to allow bank of america to give its business to q b a just a couple of months before and in the course of dealings of these parties and he signed that consent for  them almost a month before the transaction went through so it was standard practice for people to get the consents to do the assignment before the contract was issued otherwise you're in material breach of the contract when you sign it and that is the essence of the of the contract there's no way we would have agreed to put proceed with this transaction if we had known that he was violating the q b contract the minute he signed this one and this contract also both