all right our fourth case for today is time then against the indo foods bakeries distribution and we'll start with mr patterson thank you very much runner in the eight minutes i counted i would like to make four points first with respect to the contract bimbo foods predecessor was a new york domiciliary and it included in its contract and sexual love in point eight a new york choice of law provision that said the validity of her taishan and performance questions would be decided under new york law so that sounds like merits to me and under the usual erie regime when you have  diversity case the statute of limitations follows the forum and illinois seems to have a statute that says we want to ten year statute of limitations for breach of written contracts except when we want to for y and the for your statute does stem from the illinois uniform commercial code but i'm having trouble seeing why that's still not a statement about the time in which you have to bring a suit well the interesting thing about st limitations is that the parties can decide themselves which gate they want to try to go through to in order to get access to the court system so they didn't say in their contract new york law will apply to all procedures no matter which court  really could they if you're going to be in federal court because federal procedure follows there but your argument is as i understand it that the smith let's be extreme and say that in  illinois all contracts that are mixed contracts are regarded as contracts for sales of goods even if it's just one product sold and it's otherwise a big package of services whereas in new york mixed contracts are always regarded as services contracts and so get a longer statute but that but illinois i don't see why in our complex federalist system  we can't have a situation where for statute of limitations purposes we characterize a contract come up with four years and then under new york law you talk about your duties all you want well could could the parties could have drafted a contrary could they not that would say that hyman never got title to the goods at all that he was just a trucker they could they could have reached that conclusion they could have drafted that contract not sure they did though and we're talking about they did th time in which he can bring any kind of claim but i think we would all agree that if they drafted a trucker contract or sale for a contract he would have ten years to file suit then maybe the exception in the illinois do that under new york law and therefore he didn't interpret this concept and it is now we're not looking at the substance of this we're looking at the time to bring a lawsuit well how can you decide the time to bring the lawsuit without looking at what the contractors if it's an oral contract you have five years of it's a written contract turned up at the construction contractor for you because you see i don't the time separately and then you move on to the merits is it in time or not well illinois has never done that it terms of conflicts of law principles they say that the statue limitations this procedure but it will not impact substantive rights so if the parties decide it doesn't impact subsidy rights maybe new york does something quirky with its you see see it would be the new york rule that would apply it's just time if new york gives someone a substantive right this lawsuit within four years because as i recall he he really realizes what a bad deal this all is in early twenty fourteen the october twenty first of two thousand and eleven is when the rest of the distribution rights are sold so the relationship is over by october of twenty eleven four years from then by my is you could figure out really what's whether an injury is worth suing or right yes i understand that and i think that's accurate and i don't think anybody disputes that but i don't think anybody disputes the fact that the parties can decide by their through your blood just to take the extreme examples that you're the court outlined as a hypothetical if new york law says well i don't care about title at all and we we're going to they're going to become law contracts illinois on the other hand said if you have time for a nanosecond it's going to be covered by the u c c both those states could could do that likewise the parties could design a contract that says you never have title or you always have to they can design a contract that would say that so the parties themselves can decide what statue limitations applies in illinois and if they can do that directly why can't they do that indirectly by means of a choice of law costs by adopting new york law they have in effect said that title doesn't matter and there's good reasons for that to be true if you look at the situation i mean didn't make the dough bake the bread package it up beat drove his truck to the bimbo foods depot it's a distribution arrangement he drove it drove it to the grocery stores and he had probably sold an absolute title pursuant to section three point one of that contract during the drive until he went to the grocery stores themselves bimbo was appointed his agent for purposes of dealing with the chain grocery stores he was not required under the contract to collect money he was not required on the contract to pay money when he picked up the bread so he neither paid money to pick up the bread nor collected money when he delivered it to the grocery stores but you're raising a question which i would say is a question whether illinois would characterize limitations purpose this relationship as something falling under to the seven twenty five or not if illinois thought now this isn't anywhere near the c c territory you get a ten year statute but that's not what th for concluded correct and so why is it that illinois can decide whether this contract is subject to the u c c because that's what the illinois statute of limitations asks the court to do whether it's a state court or a federal court sure but it does if the parties decide that it's not a u c c contract why do they have to right to impose their law on the court the courts responsible for legal determination because under under because the parties have design the facts of the arrangement that a legal characterization that belongs to those taxes for the court now of course the contrary readily could have said them but will not complain if the suit is filed within ten years it could said it will not complain if the suit is filed within the lifetime of any descendant in victoria sure but he didn't say any of those things he just said new york law and then you're into this sequence in which in illinois statute of limitations is not going to be absorbed from new york they're going to use their own it develop all this can all be vary by contract but this contract doesn't do it that if that is the only way this contract was no dispute as to what there was no difference between california law and illinois law articulated by the parties or articulated by the court you know as judge kendall court of this court of saying when the parties don't articulate a interference each of those claims is type barred for different reasons counsel would have this court apply sort of start with the procedural issue under illinois law what is the statute of limitations but then look to new york for substantive law and then back to illinois to say ok under new york substantive law this is a common law contract therefore under illinois procedure a lot it's a ten year statute of limitations and that just is it's not the correct test as your honor pointed out the correct analysis is under the illinois uniform commercial code is this a contract for sale of goods or some other type of contract that is outside of the u c c so so why are we sure th is in fact a contract for the sale of goods it sounds like mr hyman and his company didn't i mean did they were really truck drivers they were not people collecting the money they were not people selling the baked goods why is this a u c c contract in your honor at that is a good question it is very different than someone just being a truck driver so mr hyneman when he was a sole as well as smaller sort of mom and pop shops gas stations you know little sort of bodega type stores that sell baked goods breads he was the one responsible for determining how much pred to sell to the store to buy hiding the distribution service is he selling the good series he just facilitating jimbo's sale of the goods to these various customers your honor he ultimately is making the decision about how much bread to purchase from b m bo to ensure that his customers shelves are stocked he would look at a wide variety of factors in determining that where is that store located what time of year is it are we talking about a store in wrigley ville in the summer when hot dogs and hamburger buns sell very quickly so he would need to order more of those to ensure that those are stocked these independent operators as as bimbo calls them they typically are negotiating with store managers trying to get additional display space so that they can sell more product ultimately the more products that mr hyman and g t e sold of from being bo to the stores and the stores to customers it increases the value of his personal distributorship they he owned and that he could then if you wanted to go and sell for a profit well actually so that's where bimbos dirty tricks you know come in he alleges you that being a thought that you could get a better deal with another distributor so they piggybacked on his efforts to develop his distributorship so that they could get rid of his twenty two percent commission rate and get somebody else than eighteen that's that's a that's the kind of behavior that a lot of states have particularly the researchers of wisconsin third dealer bar and other laws to protect distributors from and you have to guess that those are the allegations that mr hyman  even make in the original complaint and member would submit that it's exactly those allegations that show that he was in fact engaged in the sale of goods he was building up a business he was developing those relationships  complaint talks about the fact that he always substantially performed under the terms of the agreements that he had increased the value of his sales area how can you now turn around and say but that actually i was that was a breach of the contract what troubles me about your theory is that you seem to be saying that anytime a contract is breached the aggrieved party should also suspect that  distinguish your focus on the breach of contract from the time when he either knew or reasonably should have known that a tort was being committed against him he says it's not until late two thousand and thirteen or early tw fourteen when he finds out that it's not just a one off event where somebody sneaks into a store and pushes all of the his merchandise off the shelves but he finds out around that time late tw let's say the bimbo is trying to deliberately drive down the value of his franchise and force him out of this is and he then finds out that that was what was going on that it wasn't just a simple track but i don't know why you think people shouldn't serve from the breach of a contract that a tort has been committed also in your honor in this particular case and j t had received thirteen breach letters over a period of time and leading up to the terminations of the distributor agreement in january of two thousand and seven he had received three breach letters saying you are not substantially performing under the agreement here here is why if you do not cure the deficiencies your agreement can be breached if if it is true record i don't believe the full record of i retain the reaction of all these curable breach records i mean i realize the contract failed to remedy so he is focused on what he believes are curable breach is saying i did not breach to even if i did these were curable i was substantially performing my obligations all of a sudden you are terminating my agreement that's right and so to be repetitive but that describes to me perfectly good breach of contract action that the person who is aggrieved should know about it and should file a timely lawsuit if they wish to pursue it in litigation something like that sure your honor in this particular case it's the fact that he didn't believe that there were breaches he didn't believe that there was deficiency yet was still receiving the anybody you think you're going to end up reach of contra case should think that there's a tort not necessarily your honor again it's the facts particulars of this case where he is alleging that he was performing under the terms of the contract yet the company terminated this agreement without cause and then forced him to sell his distributorship for what he claims was less than fair market value so at minimum in october of two thousand and eleven when the rest of of this distributorship was sold for what he claims was less than fair market value he should have been on notice there was a says he finds out after he hires the private investigator so so when does it cross the line what evidence makes it cross the line it's the fact that again your honor he was he believes he was substantially performing under this agreement all right if that's your answer that's fine you've already given that so ok if no one has any further questions just about that time all right thank you thank you very much i'll give you one more minute mr patterson about a roof leak and the court said that the roof he did not trigger the writing on the statue of limitations it remained as a question of fact and therefore i think that this horse in the ferns the beginning of the statue limitations is also what kind of to interference claim is that it's as i understand it bimbo is the only defendant you can't interfere with your own contract the tortious interference claim would be made against some third party say an employee of bimbo we interfere with a contract but the only name defendant is bimbo is illinois allow a tortious interference case directly against the contracting party i don't think that issue was briefed in the court below and i know it wasn't brief but i'm asking the question that i'm not the coring with you i'm just saying i'm giving you more of an off the cuff rather than a brief torode so you searched and you didn't do any legal research on this before you filed a suit against the contracting party well i'm saying that the sunday didn't didn't object on that ground either priests who might have done a little research the answer appears to be no you can't sue the contract and party for interfering with its own contract ok  i appreciate the insight there on it but i would also say that he had relationships with the grocery stores themselves and with the relationships with the managers of those grocery stores and they would be third parties