good she said i expected the university to tell me other things in other words the university to prove cleverly it didn't reach the burden is on the plaintiff to show if you bring a contract action the defendant breached that's what on reasonable by the trial judge the standard review with respect to that the civic issue would be of use of discretion the standard to review with what we would suggest is really what the court needed to look at is did the complaint even state a positive action a motion to dismiss in other words would be to no focus that would be as a matter of law and here this complaint if we look at it and we feel that next to what judge an art did at trial there's no measuring there's no matching the complaint sought the university would agree subject to the restrictions that would impose which are not restrictions that are fully shut the door but they certainly have the impact of never going t as being one and it may very well lead to be that we have harm to a student which is not reachable yet for which the plaintiff would not have standing because he doesn't represent the student but that doesn't two thousand and nine secondly the university is provided discretion and as i've suggested the university is that haitian institution rather than simply set to move out of our dorms to not live at home you must have at least a c average case it seems and i want to stab bush certainly around facts here it seems there's no dispute that one freshman had no who are not commuters and not approved as being commuters had no choice but to enter into a resident all green yes that's right ok so then it means in other words that they have now greek words they have basically discourage in a very meaningful manner that doesn't take really more than common sense any such  move by that freshman during that time it technically lets the commuter join it also lets the students engage in other kinds of fraternity experiences it gives back some increased rights to the to the fraternity but those increased rights are talking about as considerations a meeting place because they don't proceedings that are rare activity did not change the contract if i agree with you i will pay you timely and for forty five years pay you in five days well besant mean if i pay you in six days i reach and they're suggesting that the contract was in its action in two thousand and nine it was based on a variety of principled reasons or is going to do is they were reasonable action that was taken the principle reason is that were established were beginning they were financial in nature they were also principal reasons that dr graham testified with respect to that it should not be on the burden of a brand new student they have to move it into the dorm and they want to beg the question whether this is faith whether this is a breach of the good faith of the implied covenant of good faith and fair dealing what constitutes fair viewing is a legitimate interest of the university  own best interest the question has or its own best interest so antagonistic to the interest of other contracting parties that it's not in good faith here by the university providing in putting forth specific said university you prove that you didn't act in bad faith not plaintive you prove it your breach of contract action they did we cannot lose sight of the fact that there is no common law right here that this injunction this injunction must rise or fall ruling on the notion for such relief controverted facts on the merits of the case are not decide i read her oral pronouncement four times now she made at least four decisions with respect to the posture you had  success for the various reasons with regard to this particular issue as to reasonability did the university act in such a way that it breached the covenant as relates to not withholding its designation reasonably i think there the court did make a specific finding that its actions did the court went on to say and i wanted to hear either evidence i didn't hear it's like ruling against you and therefore switched the burden of proof to the defendant say you need to prove reasonability in articulation of the elements that would be considered in determining in this context what is reasonable i want isn't reasonable no one has reasonable under the four corners of this agreement i think the court is correct the only place i would depart from the court and that is i believe that we presented to the court when we were required to put on evidence that we acted reasonably principle reasons as to why i made the decision to go forward with the great move i'll see so if we do look at this record on the question of reasonability only evidence that's before the court at the trial level or here it was the evidence presented by pretty existing policies and that is reasonable another words under the four corners of this agreement what is what are the priorities really shooting for when they say that the that the university shall not on reasonably reject the designation of fraternity i might submit the argument could be made that this doesn't call for new academic a rather strong one about your motives she basically said this is all about money and that's not right you shouldn't keep these kids from going into it simply in order for your but that seems to me now that she's decided she's going to run the would that enter into why wouldn't that validate the reasonableness of yet david and i think it does and i think that's what we present this is lacking analytically is definition no one is really and try to clear that you would be able to continue your great policy and your requirement that because you had already entered into these agreements with these kids that would go one step further and the status quo was all of the kids are in president dorms run by the university and they're paying to ration and it's our policy that if they want to leave and go to a fraternity they're going to have to pay for the whole semester and i think that's the status quo i believe that's true and i think the one step further is as we've discuss financial reasons that were presented below and that are in the briefs i reasons that although judge canard for close them a profile finding saying essentially those are not reasonable to rely upon even supposing if she said that the status quo would seem to be required that she could leave the status quo as it is and so he heard on the merits and then decided all the lovely whether your policy was reasonable or whether you breached the contract that's correct and when she hears it on the merits the marriage should be able to include that the exhausted rather then they do your implementation of the policy but i think what we what we go back to is what the trial court heard was a case that was presented under a contract and as the court points out the contract only gave a very limited if you will obligation i see that they had to act reasonably if they're going to withhold the designation well didn't she put in in effect conclude that it was unreasonable yes that effectuate a policy where attitude even though they did need to proffer the reasons or we didn't have proper reasons did not demonstrate that i had acted reasonably in doing this so called move policy what the court should have done i fourth should have looked if was going to reach the question of an injunction has the plaintiff a stamp wish that it isn't a reasonable action that didn't work we went further and we presented evidence that it was reasonable it did focus on primarily the financial aspects which he took umbrage and she did that's cracked and i don't think it takes probably even much evidence because we live in the world that finances are a big part of today's society especially if university level further we did present evidence from dr graham that specifically looked at other aspects and because those other aspects go to the university experience the educational experience i believe was also inappropriate for a judge in art to become involved from the courts running the institution well they only they only become involved when there is some kind of action that they would consider arbitrary adjustable capricious and i think that's precisely where we need to focus even though isn't what she was sort of c said let's just take for example i know there weren't individuals that were part of this it was the paternity but these students that come to i t eventually end up leaving the dark going to turn their approached and there's some it's not when they just get there that procedure has been going after forty five years where i'm sure the students were told that you know what even though you have a contract there are the door you can be released from death because that's how it's been down for the last forty five years so we've been going and i'm not saying that that and they must have made one the director how as i understand it it was an irreparable harm as relates not to the loss of students because that could be obviously addressed by money if it became a money case you don't have someone to live there  deprivation of the fraternity experience for this one semester was would irreparably harmed the individual who would have had the opportunity to live in the paternity house rather than in the dormitory i'm i'm curious about the that is the small one is a comfort is a luxury are convenience it may still constitute irreparable harm to the extent that a remedy atwal one gives you the benefits of the bark but that wasn't example to live in the house there is nothing in the record no what i'd submit nothing that the fraternity do want to put forward that says a brother does not live in the house not still a brother or a brother who doesn't live in the house but moves in second semester a second nonmember and i submit as you've already pointed out the fraternity alumni board has no right to represent those nonmembers whether they're armed or not armed and i don't think that would be anyways the only evidence is that whatever activities whatever programs the fraternity had they were equally available to all in house or out of house members or before you sit down your bench and something in your brief for the first time and nothing happened you said that this may be from going back to my home my own days when i thought you danced away from that very quickly and probably for good reason since the fraternity paid two hundred thousand dollars for building that's recounts that might be an indication of greater i don't think that's that reason why it is an argument that we did present in our previous this contract does not have a trump the only term that you could find in it would be the financing terms in terms never because there is no modification of the contract that i keep this version of since the contract is the contract as we started out saying i actually submit it has all along and continues to act under the contract reasonably with respect it it's not a question of rewriting anything if we were trying to rewrite or change the contract i think questions of consideration would come in but they don't and then in this aspect that we believe on behalf of by what judge can the reasonable if you will basis the principle basis as to why the greek move policy was put in i simply say i reject it that was improper inconsistent with the reasonable expectations of the parties and i think that they have been arbitrary i think it's right they would certainly put it more common comprehensible terms and we still are comprehensible to mice maybe not the rest of the world but i think that when you talk about the implied covenant of good faith and fair dealing it means that the promise or will not do th which he fits the agreements are exits out of the agreement through a back door i would agree with that in fact particularly a party has great discretion if you look at the r t c case cited in not because apparently a rich kid academics don't matter because you can buy your way out of that you pay six thousand dollars and they don't care of whit about those academic concerns all they care about is you pay that room and board at six thousand dollars if eighteen kids now i will tell you eighteen kids who joined eighteen young men good young men who joined the fraternity who didn't have to pay that be designated was not but of the in the universities the terminations of corporate character that would fit well within a fraternity he come last the fact that the discretionary determinations by either the promise or by either of the promise or as under that agreement then shouldn't that provide who is on a waiting list and not admitted or who has problems a designated back that diagnostic problems back that would require it but rather that if that's the priority finally that they have a co operative spirit and you're letting your giving them very loose ranks and the question is as they abusing those reins by attempting to backtrack out of the basic values of the i mean that would be the argument for me gaining your narrow definition of what would be a reason well if there  you have to sign this and you cannot change a comma so the university is stuck with its agreement its standard is if we designate them then they can let them and the fact that these people had housing contracts i had the entire tough they had other donor tories and they've had housing contracts and they've allowed these individuals these young men to get out of to just say fine this is if you recall from the agreement this is a dormitory he up history of first semester freshman ah fourteen freshman first semester freshman we had not you could put a dollar amount that absolutely not you could never put a dollar why not because they have a set amount of money that they pay when they were going to the fraternity house if we were in the real estate business yes if it mattered to us that we could pick up one hundred eight thousand dollars or ninety thousand whatever if i did the math a thousand times six i think that's one hundred eighty thousand dollars i could pin you down into arguing if you were if you were going to go on a street preacher on track where you could come up with a dollar amount as to how you've been injured i suspect counts that you could come up with i suspect because these are peculiar these are peculiar people because it doesn't it doesn't matter you can't get a guy who graduated in one thousand fifty eight to care about an eighteen year old kid in any other saying for incoming first semester freshmen are off limits for recruiting at a price across the board right i except for those who live at home why wouldn't it just change your recruiting procedures instead of rushing want to join it's off limits for first semester russian if they if they did that in fifty they would be preaching the agreement but at least any more intellectually honest than what they did but if they even if they did that right now if you will freshman not second semester but first semester freshman live in the dorm they can still participate in all of the activities of the fraternity you mean you think there would be something totally unreasonable and shrunk evidently significantly during this time supposing the university was on the verge of bankruptcy or having to give up certain faculties and stead no rather than back well hang on to our housing to wish for another semester and this may help us through crunch would you at if i said i was close to baker city in my financial situation his turn and therefore i don't have to pay p and c bank for my mortgage because my financial situation has changed and they the case i would disagree with it there's no evidence that i eighty is on the verge of bankruptcy or it's my pathetic all right i'm saying control the facts very good and i don't dispute that but the fact is is that the the university when the sun when it was raining in one thousand sixty four and they really needed the cigarettes and by the way this does not affect all of the fraternities and it's all of to house this that would be one of the consequences of them terminating the contractors it really says from your perspective they're really locked into this no no they're not like to get terminated they just have to go forward with their their contractual obligation was this preliminary injunction hearing all about that this was about him and he had to try again with your sense to me like she heard all kinds of evidence she listened to testimony from both sides she had three response to show that their actions were reasonable as opposed to looking to use to show that they were reasonable at least in the manner in which she discussed her decision  you get a sense from the cold record that there was a of feeling on the part of the court that for them to stress the financial issues as being a basis for reasonable behavior was somehow improper no i think that she didn't feel like they did a good job of explaining what these financial problems be sickly she said it's all about money what else could they say let's there's i think a freshman not making decisions to live off campus krim talked about the fact that it would be that you know these freshman kids are coming on you know it's a whole new world then it's just tough what they are injury unreasonable or preaches about that statement because i don't you know what i see and that society is going down and that article was written in one thousand no not all the same thing with these freshmen one hundred sixty four coming into this new experience and having to make this designation in the fall and it's sixty five and on experience was to him and you know that's what we had to go on but importantly in terms of his maturity level and terms of his ability to deal with life as a as a freshman sitting in august and september there's no real functional anything else up i just want to make just to clarify my point there will be a trial and whether one thinks that there's going to be decisive before trial or not i think there exception because the the designations have all been made for this year and presumably will have a trial shortly after whatever xiu came out here that they have the the fact is that the whatever we do here it will be fully litigated prior fists it's the session unlike the in re eight nine er and the other things where those are boxed up and plead and put on the shelf this one here you're going to no doubt make your decisions but then with the guidance from your rogers judge canard you'll be able to make that determination so that exception to the movement start from which they there's only two in the private interest exception does certainly doesn't apply but the up that exception they can't they haven't attempted to and cannot meet the first element of anything in mind the fact that the contract existed in where we're stressing and focusing on the word  their rules now if they had decided that academically it's best for a freshman to live and a dormitory without the influence of all of the social impact that fraternities happen and they make that as an the charity do a better job in preparing through the balance ma'am program you a better job of carrying these young men for the college and life experience than the university has the courts get involved in making the decision as to which one of you is doing better job i think that the housing situation is not an academic the city i don't think that housing has any any more than if the university said you know what we think that coca cola is discretion our responsibility to for for a period off campus housing for fresh that's what the youth the fraternities thrive off the fact that there isn't should not be living off campus so how can you then say that we need further determine that it may be better for him to live in the dorms rather than in the greek house is that facts not an i have no reason to believe that that making people live on in the dormitories necessarily has anything to do is supposed off campus is anything to do with academics more importantly that would be a finding if back at the trial court sh be determining as opposed to the appellate court and i think that that having people living in your dormitory and providing you with money and it has is worse i think there's a social element of the college experience but i think that the i the illinois institute of technology internet counteract with that signify epsilon alumni bo once you have a determination if the contract was in fact breached ok you make that determination then you have to decide whether or not there is no adequate remedy unlawful that bridge without a breach of that agreement you're going nowhere what i the problem i had with the trial court's discourse with respect to the ruling is that she didn't seem to need to focus on a breach and b whether or not there was an adequate remedy in law did was a lot of chatter but i didn't hear anything precise enough to give me any confidence that there was a specific ruling here that all of the requirements of a preliminary injunction were m but that's just one man's opinion and there are three of us up here and one of them is a woman i would marry a woman i wouldn't go there with a ten foot pole just for the young people just because the right question this was a very interesting case and don't really because we're playing devil's advocate to both sides don't you know don't assume that we've made any kind of judgement about this one way or the other i've made it a point that when someone please oral argument that they should have no way of knowing w about i have no and i i think you very much for providing us with the opportunity to present our position thank you council's thank you for a final word very very briefly with specific respect what the co quote congenial environment and working conditions conducive to encourage and inspire the intensive study required for a thorough education the institute deems it in furtherance of its fundamental objectives as an educational and scientific institution to include in its general student housing program the building and ownership of various buildings dormitories in the white house and is part of the college experience it's part of the education and i submit that the court is correct when it points out that the trial court inserted question counsel said they couldn't find one if we have reference to the complaint in that case in paragraph twenty one they specifically say that change will deprive the fraternity of approximately fourteen students although the number has been traditionally higher with a loss of eight thousand five hundred for student they then go on to say and the last of those relationships of those fourteen students with the fraternity those are the nine numbers council summed it up best when he talked about the rich kid maybe could get into the fraternity the rich kid to use his arms is not represented by this association if there's any claim it's fact nonmembers but even there i submit there is no claim because the evidence anyone can be a member you don't have to live in the house unless they are telling us and i would submit this is the north side the record of someone who's in a fraternity myself whether you live in a fraternity or not you're just as much a brother the bonds are just brothers no jury there's no jury here just as the court pointed out i think we can recognise in the the record was very clear that everything you have to live in the house where you live outside the house is available to a member what we both the case was very well argued and we appreciate all of them energy that you put into this case the case will be taken