panel i know we have seasoned attorneys here so i'll be brief on the rule so please recall that when the yellow light comes on you have two minutes the red light comes on you need to wrap it up now we're still asking you questions you don't get to run out the door ok but you need to wrap up your argument please recall that rebuttal is for rebuttal only and we always appreciate citations to the record when you're telling us what the evidence is so there's no dispute that it was paid handsomely for that and of course now there can be no dispute that the contract was the three engagement letters were not adequately placed upon the minutes of in a room city such as to be enforceable contractors a purely based on that the district court held there could be no professional relationship for purposes of a male practice action it's not entirely clear to us whether the district court meant by that that there must be an enforceable written contract in order for professional relationship to exist over the court meant that in the absence of writing on the minutes there could be no showing of a consent to a professional relationship by the public body with regard to the former mississippi laws now long settled that a written contract is not necessary for the formation of a professional relationship with regard to  position is i can say hey i need your help on something gobby your lawyer and we've got a deal we've got a professional relationship we're good to go the problem is here there were limitations on what that relationship was that were contained in these letters so if these letters are not enforceable because of the failure to spread on the minutes then the horn is put in the position of having responsibility without authority  will they they are responsible for whatever you feel like they're responsible for and any limitations they put on that so let's give an attorney example if i agreed to represent you in one case and then an answer wasn't filed in some other case you can't sue me saying you didn't file an answer in the second case and a default was taken i say well we were limited to case number one our case number two how do i prove that the letter where i said i'm only going to represent your case number one and but you're saying not spread on the minutes can't put that letter it how do we resolve this problem of professional relationships whatever that is can have limitations on them and i think the reality is we look to what for now actually did the audits that it produce this hospital is higher with or rather was highly dependent on medicare medicaid funding commencing in two thousand and ten with the implementation of the rock audit arrangement who are i think generally familiar with  the rac audits which has now been terminated they were by private parties and there was a sixty day period in which to respond to the rac audits failing wage failing which that claim was lost with a massive impact on the revenue here this hospital i did not have a system in place to respond to attract maugham's let's stipulate that obviously a lot of accounting work was was done here i do recall that  was you all that brought up not me not you personally but your client a sort of the minutes rule for the purpose of striking the arbitration clause well no action we we followed suit on our tour claims lawsuit right the supreme court informed us there know it it was there k p and g or here who are injured responsibility to put this on the minutes failing which it cannot enforce the contract my court is invalid party who did not meet its requirement of putting the contract on the minutes in other words it's an issue of first impression from mississippi well no not actually it is it in wellness of the supreme court held that the contract there is a court called the facts a public body contracted with well that's to expand a point to renovate his hospital a suit was in a file for breach of contract and other to work theories against the contractor the contractor moved to judicial notice that that case is then been litigated actively with the public body as the plaintiff in district court and was recently resolved in the current duo of cases involving singing river which is i said i remained it for further proceedings i certainly acknowledge it suggested by horn that it did not address the issue per se of whether there is going to visceral ration of the professional relationship but it's difficult to imagine  i don't know that i can draw that conclusion typically particularly appellate courts don't run around reaching a bunch of issues nobody raise and say hey by the way when you're back there i mean somebody has to raise the issue and so here they have and there isn't a case squarely on point that says having said these contracts word spread on the minute these letters swear on the minutes and then raising the point that horn is raise which is a very specific point it's not saying we could never have any kind of whatever professional relationship  they're saying the claims you're making about we were supposed to notice x y and z were limited to our audit was limited by these letters so you can't judge us on some generic common law theory when we were proceeding under this approach having invalidated these letters you can't kind of you know have your cake and eat it too so to speak invalidation as i think it i said when you as a lawyer sign up with a client i feel sure you're not saying you're going to do every single legal thing they need for the rest of their lives or whatever you are signing up for a case number one or you're signing up for deal number two and representation which is affected where we end up here because there was no forceable group begin that's where we ended up and there are a series of pleadings i filed which are the subject of the debate as to whether i met the standard of  reaffirmed by the missives record we did do that but we're entitled the protections we would have had had we done our job to put it on the minutes my response to that was let us go forth with the typical approach to a malpractise case whether account or law where there are standards of care or political to an audit for a medical facility korn is indeed the largest auditor of public knowledge it was in the state of mississippi i suspect the focus here will moment the reconsideration all the minutes from the executive session that you offered in support of your motion for reconsideration don't matter to you i don't know that they do the reason those who offer was to show that while there was contracted and that's the net result here indeed we know under mississippi law that a non client could file suit against these accounts too sure oss teaches that a there is an adequate  applies to bar contracts like us we are suing here in tort and i think that's how you reconcile it had i for example filed suit against it would bar contract claim if there was no time of here is the link between the tour and the convert this isn't like horn was driving you know a member of horn was driving a truck and ran into the hospital building that would be a pure tour no prior relationship nuffin i can't just say i'm i'm limiting my liability for driving trucks in your building you can sue we're done but here there's a connection that you keep wanting to avoid which is there was a framework for this relationship that everyone agreed to but didn't spread on the minutes so ok you who are in got the bad end of that by not getting to arbitrate but you're saying we can only we can kind of pick and choose kind of goes back to the question i asked back in the insurance policy i mean do you get to decide there's no caps on the insurance policy there's no exceptions to coverage and whatever just because that's not spread on the minutes and yet you still want the benefit of the policy i just don't think it can work that way when i submitted the end of the day  across i can't sue them for that default i do believe however i can sue them for the fault which archive sista to any audit of a public facility and let us assume this is a question of first impression what is w ultimately this is an issue of state was there and article two thousand and four this is purely a screen ation of the state of mississippi involving public bodies and i submit uniquely suited to  the court my name is alan perry let me change the way i think this case is presented was buried this was not decided on the basis that there was an absence of implication if this were not a public body of course you could prove this i didn't make this very formalistic group we didn't particularly want it but we've got it and they have to assent on the minutes that's arguing it doesn't yeah what do you say to that what one case tells us that you know well they didn't have any of your cake and eat it too or whatever well they're in any case that says that you can say the contracts assent you can't say ok there is no mutual sent but you still did the work so you're a professional and you have these free floating duties the law in mississippi and in most places  have us do there are different degrees of view of internal controls our engagement letter say that we just will look only at the target control sufficient to allow us to determine the  fairness of presentation in the financial statements and otherwise if we saw something with tell them that is a much less much lower standard than the could be a lot of news it's not like one out it is like to but not everything that goes wrong is going to be determined by a lot of dirt they have operational efficiencies and i assume for the purpose of this that they had somebody out there that may not have actually been doing their job and every case and that's not the and chooses to hide the double books and there's no way to sort that out in the books you've been given and then you can't fire back at that that's why you could always that's why the lower is for the auto there are always putting in the hundreds of paragraphs about we're only doing x y z and we can't do more and we're relying on this and that well we could do more and we would say what we did if they would pay a small work but i mean at the end of the day they're still a little bit if yes there is you would never unless if you did a review of every transaction that would be inefficient impossible due to expensive so what you do issue look at the things that are likely to create what an impact on the principles well what do you do then with the fact that i mean you all did do something and you were paid what do we do with that fact what does that leads us to it's what says this contract isn't a forced book if i had built a bridge and had not been paid i don't get paid if the state pays you great is still in on that come directly was never form this by employing any of the typical equitable remedies that just going to marriage and so forth it's a pretty low are true here's the here's the problem of those cases you've got two conflicting principles of mississippi law one is the formality of the minutes rule but the other is the notion that you can form these relationships without a contract at least in the main generally speaking is this the type of clash that should be resolved by the mississippi supreme court the first instance these contracts can be a speak there was mutual assent perhaps as a factual matter we're just debating whether it satisfied or a formality requirement that exists in the law yeah you're not denying that they wanted your work oh we did the work they did they do the paperwork they didn't that didn't comply with it when we law what i'm asking is do you think we're the best people to judge it out or should we send this to the state court well we're deciding what should be done with the tort claim against professional and you also have a couple other principles first fairness and i think he wanted you ok but the very day being the board i'm not sure we know what they wanted the fact that they receive reports from somebody that this guy hired doesn't mean that  sat down a set of pay now we're going to vote do we want to horn yes or no i don't i've been on you know nonprofit boards not city boards but you know you sit there and when you receive a report from somebody you listen to them and then you move on that's separate from saying do i want that somebody to do my work then i have to think oh i'm about to vote i got to think about this is there evidence that there was such a vote because then i'm wondering how can there be mutual assent if the whole idea of the spreading of the minutes is transparency and make sure the board is recording and deciding things i'm not sure the board ever decided anything about  enforce the assent but not the contract because that will almost never if you know and correct me if i'm wrong was there ever a vote on home or no there was never mine was there anything ever anything through side of it do you want to incentivize a board not to record them because they can always go it anyway i don't think that's consistent with the public policy and the minute through it's hard start work it's impractical for root but it is a harsh route but there's also accountability so let's suppose and i'm sure you would you don't like this hypo but let's suppose horn got a lot of trouble with somebody for violating a bunch of rules and this and that and so the public got all upset with the board saying how why did you hire this these people are terrible the board could say oh whatever hiram may not have said we did it we you know did but we know i'm not see enough in in the minister says i heart him i mean that is part of the whole notion of public officials having accountability is when they vote on someone congress votes there's a record of the vote when board votes a city votes there's a record of the vote it might be unanimous consent you know we all vote aye sometimes it's raise your hand but at the end of the day there's a vote and they can say yes you did consent but here there is not assent in mississippi require spreading on the minutes which makes sense to me and that didn't happen here i think the argument that your opponent is making is this was a rule meant to protect cities or not and boards and so on not a rule to be used as a sword by the people that committed malpractise how do you answer that we're certainly not trying to use it is so are we would have loved to comply of the contract they're the ones that decided not to they're the ones that in effect started this and say we're not going in force any part of it we think at least the arbitration or this was not intended to be used as a  the bodies is supposed to be used as a shield by them not to take advantage we gave two examples in our briefs of one was a building contractor whose contract said i don't have to check for sol something in the example they have no answer to the unfairness that is created if a public body can sue in the negligence of the us claiming that gee contract enforced and that's the end of the debate indeed singing river had offered to stipulate that there was a contract whose recourse a belt cannot stipulate to that which violates mississippi law  ratification now i thought that a board could ratify a prior so let's say there let's i know we have this whole issue going into receivership or trust or whatever but let's just say we had an ongoing board and could have for example at the period when we were arguing about the arbitration they could have ratified that the the letters and then the arbitration clause have been forceful as would have everything else and we would then we answered i don't want to  indeed since the contract does not exist there can be no strategic choice whether to with force the contract or not that's why in my view i'm relegated to my tort claim was it determined that the contract certainly let me close if i may with the question you posed earlier which is there is nothing here that requires us to be court way and recognize that was basically being asked at the end of the day is that the penalty for a public body not spreading it on the minutes a task that's actually the contract the parties obligation is to lose the rights of the public by that's what's being asked today the any twenty arising out there the sector working this would be true hands but wants to sided they've got to live with that so they could have ratified this and a public body in general could ratify this contract for the defective equipment or whatever in your hypo where the auditor and then they would live with the deal that they may but if they don't want to live with that deal then they can't take the benefits of the deal and not get the detriments which is the limitation on the auditor the limitation on the equipment or whatever or that's the palen hypothesize that there's a lot of a car you have question i mean all this talk about sort of the creation in mississippi about right after you learned you have the right to remain silent you learn a board speaks through its minutes if there's one rule of law i've heard in mississippi for thirty years it's a board speaks maybe not at all but it's a board speaks through its meant so i just don't know what else the supreme court we need to say on the board speaks t the hospital or whatever then yeah of course you can see on that the question is whether you can assent to a relationship outside of the minutes and why is that something we need to a