mr horsman good morning checked contracted to purchase some historic stones from the defendant is that he's not affiliated with the defendants he's an independent collector of the consideration that he paid in this contract for the there's a memorandum there actually two documents i think it's c three zero three and zero four in the record there is a memorandum of understanding of relating to the conveyance of the modestly painting and that's that's really the essence of the contract of the two documents reflect the basic terms and i think there's a lot of supporting evidence after the research at c one six this is mark yes and exhibit two and again i certainly deposition exhibit it's the same it looks like it's the same letter but it's in a different one in h record shows that he had the authority to negotiate half of the defendants and the record also shows i think that people higher up in the organization didn't agree that he should get the stones there was always this reference to we need to talk to one more person we need to get the authority of this person which is another reason why i'm having trouble finding a meeting of the mind i don't know who the ultimate the person who was ultimately authorized to enter into the contract and not do the negotiating but actually enter into the contract well i think the evidence is the cli the authority to negotiate they said ultimately the panic had to approve it there's testimony just to support john hiatt checks testimony saying that he was made aware that made and in fact older and it doesn't want to said it several members a representative of the defendant said don't worry if you don't you're going to get the stars maybe not yet and maybe we need these and they never cut him off they never said you know there is no deal there never was a contract for purposes of this appeal defendants have conceded that there was a contract that's what i may have been a little bit better able to respond to questions but for that fact a defense of conceded that there was a con and raised only these issues of precision and accord and satisfaction so that's the predicate so the question is does the evidence does the record support this summary judgment on horton satisfaction and rescission and the record clearly reflects that the judge acted a the original ruling on the summary judgment and critically it included a number of videotapes and audiotapes these are the raw exhibits presented to the court in various forms that the trout judge one thing i'd like to point out is what we're talking about five facials to the record in their brief the plaintiffs or the defendants admit that they had all of these events including the videotapes before the court ruled in the motion for summary judgment and that's you see page pages ten forty three of the defendant's brief they said yeah we have met we have these recordings after the motion for summary judgment was briefed and argued and pages six  leave that the deal is still going to go forward and the defendants in various ways encourage him telling the patient you won't have these yet but your point your honor the conduct of both parties did recognize that there was place and really that the substantive question here is simply whether the court can find is a matter of law that the contract was rescinded  satisfaction that they had signed just a piece of paper that said i received the painting he continues to ask why are you bringing him back in the house and he continues in the words that he gets when you know it isn't the return of the painting so much as it's before that when the defendants refused to pay the stones to fight so there's some hazin motion for summary judgment that there was no and part of that is based on the question of when whether it's already the understanding of how many stones whether they would be from the surplus stones whether they w had a curse if you have a pardon refused to perform a contract and they give you back the consideration in this case that you ten instead of before and at that point precision is all about because what occurred in this case is the church gave the painting back when he brought the painting to salt lake city on february fourth as justice right pointed out thirty days later well the next day went out and flew out to nothing and immediately tried to get the stones and he was rebuffed those dogs go back home thirty days and there are some communication where he's trying to get this deal back on trying to do is the but on march fourth he knows the painting is coming he knows it's being returned to him how do we know that it's kind of funny that the fireplace that just says right brian heard involve the video evidence and here we have a put it on the table with a set he read from the camera and right there and what we have is undeniable decisive conclusive proof on his own videotape that he created he accepted in that video there is no objection whatsoever to the return of the pain besides a receipt for more than that after he gets the painting back that same day he makes a recording that was conversation on the phone when mother got back in salt lake city that  deal with it and he says why did they return the painting what's going on and when leonard does not tell him anything there's no evidence to support mr horton said about promised we're going to get you stuff there is nothing in the record to support they don't like the changes i made them at will they feel that i opened the door too far as to what you could get and they want to start all they want to start all that's consistent in both versions of the transfers of what one letter says in this phone conversation so we've got undisputed evidence of the separate return game and undisputed evidence that he accepted the return of the painting no one won that they were considering the deal as off and they wanted to start over well will they go shake but you know what maintain some control over what stones are given because glen leonard in salt lake city doesn't know anything about the stones so he except it back with the understanding that they're going to start over that  four years where he doesn't make a peep to anybody he testifies he had all kinds on going dealings with the church in fact on the day of his deposition testified he had just this is over four years later he testifies over nine years later he testifies that argument that's wrong the motion to strike that's in the record with respect to motion reconsiders a motion to strike some exhibits to the motion to reconsider exhibits that were actually part and parcel of things that were submitted in summary church they would have to i'm sure if they want but he says i'm not giving it to the church unless the church for three hundred fifty thousand dollars of the church says no we're not sharing so here's yet another opportunity for him to have attended the consideration back and made a demand for is appropriate when you look at the cases and it's interesting you know there are not a ton of precision cases two of probably the most prominent ones in illinois from this district it's the pope case and the tails and then he doesn't hear anything from this guy so he sells the house with very parting that all suddenly original buyer comes back and says i want them to vic that i want the house back and this court said no you banned that contract it may not have been a formal you know no amount of effort of discovery to trial and i think that in fairness to trial counsel before you're going to start to tell you these things to the judge as additional material you want to make sure you've got a foundation you want to make sure that it's  buell the author of the book and so just because there were some additional things that were thrown at you know some things from mr hijacks website the correspondence between him and mr buell these were things that they  trying to sort of work through some other additional facts that i thought would help or to understand the time sequence of what actually an opportunity to maybe file a supplemental brief and then we can get into that but it's not been part of the appeal of this one this is such a fact intensive appeal it really requires the court to parties made transcriptions and are not even consistent of the episode where mr hyatt checked receives the painting it is home testimony shows that was like an hour event in the tape is thirteen so not only is it inaccurate it's not complete mr high tech never bought for the accuracy of this the way it came out is he presented it as a disclosure form of discovery purposes he is fully aware of the flaws of for the first couple of months in this four year period there's no evidence at all as to what the defendants did or what the plaintiff did or said we have the first few months were mr high tech continues to try to make contact with elder this is a good deal for you i want to go through oh with that as to whether that was an objection to the rescission theory i don't have cite but my recollection is that there is an objection it wasn't in the motion substitute contract if there's no substitute contract or can't give you an accord the satisfaction and i agree with them there is no substitute  the defendants themselves big difference in this court's vulcan opinion poker struck me that's a trial case that's the critical thing here sure you can draw these inferences and mr vincent has done a great job in his brief in his argument showing that there's some evidence to support their theory but it doesn't mean you can't eliminate all the jury questions of fact this can't be done as a matter of summary judgment especially when the trial judge is hearing live testimony from improper to bring this all of the evidence was literally in the defendant's hands for a couple of months before the judge ruled on a motion for summary judgment it could have been should have been brought up it's not newly discovered evidence in any meaningful sense they had players had it only the judge the crowd just had to see him because the defendants didn't present all of the belief that that evidence supported their case i don't know if this is there's nothing on the record to see that this was it was discovered under strange circumstances mr higher check because he moved in because he transferred oh data from one place to another there's an explanation  you thank you we appreciate your arguments this morning we'll take the matter advisement and will issue a written decision as quickly as possible the court will now stand in recess until one