appended so i will read the relevant language this is from the first paragraph of that letter the second sentence where plaintiffs wrote we have been retained to represent the campbells with respect to claims they have against dicky's barbecue restaurants and related to and arising out of the franchise agreement and development agreement and the franchise or franchise the relationship between dicky's and campbell's now what are the immediately apparent from that language just how closely it tracks the arbitration clauses of the two cited we agree that is that we don't have a franchise agreement do we we do have a franchise or we actually have to franchise agreements your honor and pla claims on their face they were asserting a claim and then this letter to the two thousand and fourteen agreement the one we've referred to as the obgyn franchise agreement so from the outset they were announcing claims under two written agreements a development agreement and  thousand and fourteen franchise agreement both of which contain an arbitration clause and the arbitration clause in each agreement covered all claims disputes hundred receipts and claims arising from or relating to that  agreement or the relationship created by the agreed because that agreement was specifically fixed on that agreement was fixed on argue that as why there was a point of disagreement between the parties as to which of the two written franchise agreements government but procedure this is fascinating each side has argued contrary to what you're now arguing about trying to assert judicial stop we're or something but you're both out of luck i mean that i've ever seen and you're all in it it's one of the oddest procedural posterous i've walked into but i actually think that's how it became overcomplicated i think the district court understandably became sidetracked by the fact that the pardons disagreed as to which of two written franchise agreements govern the parties franchise relationship each of those written franchise agreements notably contain a arbitration clause under which the claims asserted would have been referral to arbitration under the terms of the written franchise agreement and plaintiffs in their moving papers will though still stuck to their position of the two thousand and fourteen agreement and the development agreement or the operative agreements and really there's a further complication which is that we moved under both section three and section four of the federal arbitration act and in light of this court's ruling in the end sorry which unfortunately had not come to our attention at the time we really should have only moved under section three of the federal arbitration it because i think this co clear and sorry the determination as to the enforceability of the arbitration clause whether to compel arbitration the law as to the district court or the arbitration belongs so it belongs to the district court in texas and to be clear in light of our understanding of the end sorry case in especially in light of the supreme court's ruling in china which we think closes the door permanently on any judicial exceptions and sorry that at least recognize the possibility of a waiver of the as to which of these two written agreements either one of which would give rise to a state government is guess what i don't have to deal with that that's the problem with this but he wants didn't he go searching for the south jordan franchise agreement and not finding that  so it's a mystery to me why there's not a self jordan franchise agreement maybe you can tell me that also bit not find in the agreement and therefore no arbitration clause he took the path of least resistance and wanted to be clear least up until the oral argument below was two sides each of whom was arguing that their planes were subject to a written franchise agreement that rigid franchise agreement in both instances contained an arbitration clause under which the claims asserted would have a referral arbitration so under section three the district court should have ended it there but gamble campbell never signed the south jordan campbell did not sign the south or the franchise over him and so then you've got the problem of trying to assert are best for you on that yes your honor the record sites that are best for us i would point to two provisions of the asset purchase agreement that was signed between the plaintiffs and the former franchisee of the south jordan franchise for section one point zero three under which zero two of the asset purchase agreement it states purchaser acknowledges that it shall be solely responsible for obtaining franchise approval from vicky's barbecue pit franchise and for meeting all continuing obligations of the actually had in its terms a provision that contemplated how this could be undertaken without entering into a new franchise agreement couldn't all of this have been avoided simply by did these having had the council sign a new franchise agreement it could have been but that was it the option your honor under the south order franchise agreements that you had here you are and you're saying this all could have been avoided and we're going through these tangles gymnastics why should we rule in favor of doing it all again next chose to to manage a business you don't necessarily interest to a contract with a contemplation of their will one day be a dispute over the franchise clause under article fifteen point two of the south jordan franchise agreement dicky's was permitted to give its prior written consent to a new they did at least they did up until the oral argument on this motion below they acknowledge that through the course of conduct from september two thousand and fourteen to november two thousand and sixteen they operated the franchise they paid royalty fees in accordance with the terms of the written agreement and it's also in the record that in june of two thousand and fifteen in july of two thousand and fifteen they received notices of noncompliance from dicky's but specifically referenced the two thousand and eleven franchise agreement as the operative agreement of a of of that news of the old franchise agreement that some of my argument hinges on your honor i would argue that there was a written assumption of the freeman as evidenced by the asset purchase agreement on end of the course of conduct confirms the reality both parties have seemed kind of flip flop on their positions and the reason being and in defense of our position the only agreements that the piece ever sent my clients were in fact the argument agreement and the bill and so that's what we thought agreements are not exclusive with respect to arbitration both of the agreements allow diddy's to decide whether they want to arbitrate it or with a want to bring a civil action and so that is a court part when it comes to ones for development but more importantly this is what it specifically says it says this agreement is not a franchise agreement and does not grant to you any right or for or franchise to operate a restaurant and all the claims  misrepresented some things about the franchise that entice this and do you know when that relate back to the acid development agreement then i'm sorry or why wouldn't those that theory relate back to and be covered by the asset will that also be related to get the prior owner and if you were going and it was an aside a bill without authorisation without express authorization from dickens we don't have any of that now they say you can orally modify even integrated agreement we would agree generally that's true to do that but not in the context of implicitly modified merely by the parties actions and bringing evidence of matters outside the scope of the agreement we disagree and goes on to say that these were the statute in our case above held that arbitration gives must in writing court like to begin with the contention that plaintiff's claims are limited exclusively to the oral stuff toward the franchise or even if you look at plaintiff's amended complaint which is included in their request for judicial admission that's not correct they are still asserting claim for precision of the written development agreement they are still asserting claim for breach of the development agreement so even under plaintiff's amended complaint there are still a certain claims of a referral to arbitration under the written terms of the agreement that they are seeking to rescind in their submit your your case through that process look under rule twenty s