and it involves two different services in this case the first service being nursing services that are being provided by mrs johnson individually and the second service is the home care service is your birth can i ask you a question just a yes or no this is a a messy factual case it it i think so i want to make sure i understand where you're starting from so i can understand where you're going what contract and i know your argument is that there were two different services that the hosting contract did not take care of the skilled nursing services and that rescuers still had an obligation to pay mr johnson for the skilled nursing services right correct ok i think i have that what contract if you are right what contract governed rest carers obligation to pay the skilled nursing services separately which document or which agreement governed that payment obligation we submit that the document to govern that the professional service agreement that rest care claims they did not sign the two thousand and seven agreement correctly and any subsequent agreement that she would know that's that's the thing that's where i'm confused because i understand your argument that the two thousand and seven agreement dealt with the skilled nursing services and that even if rest cared you may not have had a copy of it they acted pursuant to it and we can accept at least that summary judgment that was a contract but that contract was not infinite in terms of time right it was not so what contract when that a contract ended because the host contract took place in like twenty twelve right to record so between two thousand and seven and twenty twelve what contract to govern rescuers obligations to pay ms johnson for skilled nursing services there was no written contract that governs the nursing services it's our contention that there was an expressed agreement and express agreement as this court is aware can be either verbally or by the parties actions and the parties action in this as it was an employment at will so to speak and any point either party could decide they did not want to provide the service they could decide they did not want to accept the service but in this case they continued they being rest care and mr johnson that were being provided the merger clause that's contained in that document specific to the whole so home care that was being provided which is totally separate now the defendants in this case want to conflate the issue and of course incorporate and say that m johnson was obligated contractually to also provide nursing services priscilla to the home agreement but that flies in the face of medicare long which required them and they required her to have two different entities billing  one for the nursing service which she did in our individual capacity and the other for the host home let me go back to the question about which agreement govern what were the terms of the oral express agreement that you say existed in twenty twelve when the host agreement was entered into it was the same term that existed in two thousand and seven two thousand and eight two thousand and nine two thousand and ten and that was she would provide nursing services at sixteen dollars and sixteen dollars an hour as required and they couldn't nobody could change that amount it was just to continue for whatever the parties concerned in the green a go she ate that but again this was another you're saying it was in terminal i'm not saying that did they well that's the effect of what you're saying they paid her up to a point and then they say i understand that they paid her to a point and said this is been a mistake and we're not paying you any more well they actually didn't do that what they did and she wants to cut recover as i understand it after today they did what they continued to utilize her nursing service side i understand that but they didn't want a place she wants to be paid hourly rate from today when they said this is the end and unlimited up to now i suppose or whatever that's precisely even under your version of what happened rest care kept paying mr johnson the additional sixteen dollars an hour for a period of time a short period of time after the host agreement was signed right correct then they said oh we've been doing that by mistake and we are stopping right correct if you are right why isn't that statement we are stopping them ending the contract for sixteen dollars an hour well we agree that they can stop the contract but they can't breach the contract which is expressed that this is their rate that we're paying but they but they say we're not paying you any more from this date on  terminations of the skilled nursing service contract they still utilized her services she never agreed to us a lesser rate and why didn't she stop or for providing the skilled nursing services and tell them if you're not paying me i'm not providing them and that's an argument it's our position that the evidence in this case creates a factual basis for this case to be sent to a jury based on the two competing agreements and their argument that in the court reviews the record the merger they decided they did not want to pay her despite the fact the state was still a lot in the amount of money for nursing service specifically for miss johnson argument kind of like this is like a law school exam and the judge had two competing stories and she picked one but not gave you a chance on the other one so the granting of a summary judgment was improper  as i mean that's the point of some of those disputed facts in this case as to whether or not a it was an express agreement whether be verbal or in writing and whether that agreement was breached and opposition is that emerge a cause and the whole some agreement doesn't capture the nursing service that's a totally separate agreement and parties are different and so you can't say that the parties to one agreement prevents the enforcement of another grima that was virtually entered into by the parties and i was there in the five minutes for the rest of my argument is limited but they provide services to disabled individuals it can be in a multiple types of contacts it could be in a person's home could be in a group home that they they rhyme or in this situation which is akin to foster care they can place a disabled person with a host home provider which is what mr johnson did from two thousand a weapon the subject matter of this appeal is very simple this was a foster care it's a quick it's essential essentially foster other adults so that it's not like the i in did the district court correctly decided to issues as a matter of law and granted summary judgment for rescue and the two issues with this whether plaintiff had met her burden of proving that a written agreement because that is what she argued below  if the document is clear and it's in the record step page fifty want to play it's deposition of i could read your honor she said i had a nursing contract to be paid for the nursing service sixteen dollars per hour and i asked her ok and that's a written contract correct and she consequence there is there is no doubt that rest care miss johnson had a contractual relationship through the time of the host agreement we agree what governed that relationship as you pointed out there was a this but this wasn't a lot o the plaintiffs but it had to be an oral agreement that was trying to do what to provide freelance nursing services in the time period what rate sixty dollars an hour in the time period between ok so she's right ms johnson is right up to the time at least that up to the time of the host agreement being entered into the parties were travelling on an oral agreement to pay her sixteen dollars an hour for skilled nursing services we agree with that right it was that will it was a at will as i understand it that is correct could be terminated by either side on the note at any time and that's exactly right and so we think that that arrangement that oral contract that we're talking about terminated it fifteenth two thousand and fourteen we stopped paying her that extra amount that we were mistakenly paying her and she admits that her claim is from that point forward into never i'm sorry and definitely indefinitely right she just give me the time that think about i think was last year so it's not indefinite as to that period of time because she can't she what she actually quit whatever the circumstances right she certainly couldn't recover for nursing services that she didn't provide after that point in time that's right so although it's a much longer period of time it's not technically indefinite has an ending point right ending point is when she left well a source respectfully disagree because at the at when you're talking about arrangement  r that never was raised below let me tell you let me tell you the one part of your case where i think you may have an issue and it may not be fatal to you but i think it's at least for me a concern and that is the merger cla the problem for me is the technical one the merger clause says that this is the entire agreement and understanding am i'm paraphrasing between the parties and there are no other agreements understandings eccentric cetera no other compensation is going to flow whatever whatever whatever that merger agreement isn't a contract between mike's angels and rest care not between rest care and miss johnson so if you're looking at contract principles she is technically not a party to that hosting agreement and so that merger clause could not possibly apply to a nonparty who never signed the agreement in an individual capacity you know what's wrong with that understanding yet first of all that argument was never raised but understood that and secondly that you but you presented the argument about the merger clause below so i want to test that argument and see whether it stands up certain that's my question to you here and that argument is an alternative one based upon there is no  or argue that rescue of georgia which is the name on the post time agreements and rescuer inc are so there's some ambiguity there is not in her own briefings in this case in her motion to a man she refers to resecure of georgia a rescue of georgia there's a no not that's not like there's any question on them mike angels host tom if you look at how those agreements are signed and your honor i can give you an example there signed by kelly johnson in her individual capacity there's no indication b because if she's signing in her individual capacity she can't bind mike's angels and mike's angels is not listed as a company on the front of those documents either and so the person providing the services with kelly johnson in her personal home then how in the world are you paying a non signatory entity for those law required payment to be made to a separate entity and not to the individual providing skilled nursing services i don't know the answer that question to be honest i don't think that's the case i can't say that with certainty but why why in the world would someone like m johnson have to set up mike's angels why was it why wouldn't it be easier for her for you to sit to tell her ok here's a hosting agreement we're going to pay you one hundred eighty or two hundred dollars a you know whatever for these patients who need a lot of care signed his host agreement were done rest care and kelly johnson were done we did i think they do that all the time that in this situation people may choose to say i want to run this or some sort of company or something like that for their own personal reasons tax reasons whatever it really doesn't matter because she signed in her individual capacity if she was providing the care you were more does mike's angels play into this whole thing we don't think it dies i mean it was just an entity that existed for no reason more the if you look at the very first paragraph of the plant's complaint and this is it says plaintiff kelly johnson is a resident of georgia and a host home and that agreement was never signed them climb it dealt with behavioral support services with which mr johnson at mid she was not qualified to do was not expected to do and never did her clients didn't support plants and so the court below what was facing judge evans when she was looking at a motion for summary judgment was plaintiff's argument that that written contract required my client to pay her sixteen dollars an hour apparently in perpetuity for additional notes and nursing services and that's just not the case she couldn't perform those services she was not professionally qualified to perform a service that she never did she never was expected to the clients had nothing to do with the client she had because they didn't have behavioral support plans and so there was no subject matter upon which this contract could possibly operate again you're i'll be the first to admit it probably was sloppy i thought somebody sent her this draft doc and saying this is the type of thing that we're going to need to sign that nobody ever followed up but it doesn't make it a contract and there is no mutual set there's no sign version for my client and why would they sign a document which obligated her to perform services she couldn't perform it just doesn't make any sense there's no consideration for this doctor because she can't perform those services never did never made a promise to and never was expected to so all of it's a information that dr plaintiffs did not rely on any kind of oral agreement in the district court and in fact at the ninth hour eleventh hour with discovery closing and summary judgment motions and imminent the pla of labor the point that any information that the planet had in order to assert such a claim she had it two years ago she had it when she filed a complaint in the joint planning report she admitted she was considering amending to add those claims and then never did really shouldn't be before this court is one of the many things that should be before this court planted to try to supplement the record with additional deposition testimony that was never presented to judge of inch she denied that that motion they relied on other than their briefs there's a lot of that going on here and as  accident or not the payment of the hourly rate after the written agreement signed it is in effect evidence that it wasn't merck merged if you follow me you're going to yes but i don't completely agree if i were you i would get off  the murdered mom's but it was brought up i understand that forget it their position your argument is your argument is the first place by pay after the hourly rate after the agreement was signed they're in effect saying it wasn't part of the merger my argument that your argument is at that that will relationship they told her we're not paying you anymore but she's in time and the future money that's correct ok that's correct with respect to counsel comment that the and i've got to go back to the murder because again because the record this is why we're here because  the district judge inferred and viewed facts in favor of the defendants and that the judge used the merger club exiles you were travelling on a written agreement expressed agreement  we do argue that there was a written agreement because they submitted that their only position with respect to the written document was we don't have a copy we never signed that but that the that's a real actual issue but that agreement was not forever right you said that at the beginning no it wasn't so it turned into an oral agreement or agreed with that in your opponent agrees with that correct if there is an oral agreement to pay her first skilled nursing services right let's assume i'm assuming you are correct that they had an op that they had agreed to keep paying her separately for skilled nursing services even after the host agreement was entered into ok i agree with you why doesn't that agreement to pay her separately and when they tell her in july of two thousand and fourteen we're not paying you separately anymore why isn't it end there because you need to to have a contract and if one party the contract says we're not doing it argued they argued that the reason why we don't have to pay them sixteen dollars an hour anymore is because we created this whole so agreement that you're not a party to forget that i'm agreeing with you and i'm rejecting their legal theory so i'm agreeing with you that at the time the host agreement was entered into rest care had still agreed to pay ms johnson sixteen dollars an hour separately for skilled nursing services so when they signed that host agreement in twenty eleven or twenty twelve she's getting paid for the host services and she's getting paid sixteen dollars an hour i will further agree with you that it was not a mistake on their part to be doing that that they did it intentionally and they said we have two different obligations nursing services post services but in two thousand and fourteen for whatever reason they decide no more we're not doing it anymore we're just paying you the host amount and nothing else why doesn't that end the skilled nursing services agreement if one party doesn't want to perform anymore it does it and the school nurse and that's the end of your case then in my view right up to that point she got paid up to that point where they didn't pay her up to they didn't pa they paid her until they said no more what was the day with that until what day did she get paid they terminated the skill nursing by their own mission in two thousand and seventeen so i'm not asking you that question until what day did did did they pay her separately for skilled nursing services i believe it was two thousand and fourteen july of two thousand and fourteen correct then they said and i'm agreeing with you i'll reject their reason for stopping they said it was a mistake i'll agree with you that it wasn't a mistake that they were doing it they were paying her intentionally separately but in two thousand and fourteen they changed their mind and for whatever reason they say no more isn't that the end of your case because one party to the contract says we don't want to perform anymore it's over that in the end the case she was law abiding nursing service they've seen if she were provided them without an agreement on the other side to pay her where's the contract that's why summary judgment was inappropriate this case all because  lot on a contract basis you've got serious problems in my opinion and i think that's why you tried to add a quantum arrow account but the district court didn't allow you to add it correct so i think i