good mornin to your honor's and good morning mr warren say it's a pleasure to be here this morning even arguing from my den as it were a little bit of a unique way to get started  better understand may it please the court well this may be a case of st impression at this court regarding the effect of the band of care language in a contract in a prescription analysis the notions of freedom of contract and the hold it and holding parties accountable d to the language that they choose to put in a contract certainly are not nor are the number of maxims of louisiana court to ignore the plain language and the obligations contained in its own contract we would submit that equity freedom of contract enforceability of contracts the express allegations of the complaint and established principles of louisiana law leave no doubt but that region should be held to the terms of its own contract and responsible for the devastating conduct excuse me the devastating consequences that their actions had on my client let me ask you mr johnson i'm looking at those two complaints right there the two separate cases that are now in front of us i don't see either one it's strange you don't even there's no cause of action alleged in th complaint and there's all the factual detail but a complaint usually then gets to you know negligence or breach of contract or or breach if you sure you do not i don't see those words for any claim anywhere in the complaint what's what's the story with forth or it was set forth in the complaint i came in later but it was set forth in the complaint the actual contractual terms i say that a paragraph five i see those two parts of the even there it sets out what the contract says it doesn't anywhere in that complaint say that those provisions were violated or breached at least at least directly it doesn't say that which which isn't too hard to say understood iran and if it does go through in detail itself to well backing up the region's chose to contract with plaintiffs they chose the terms of the contract and the fact that they did that has consequences on two levels the plaintiffs allegations in this case arise from a contract that gives rise to a personal obligation and a ten year statute of limitations that's made clear by the in most recently in smith vs citadel from louisiana supreme court which states that obligations flowing element the contractual language control in that case there was a breach of contract but the defendant units said no this is not a situation that this is not a breach of contract this is just negligent performs well judge from will rejected that approach and applied the tenure statute applied the ten year statute finding that the actual language which is similar to the language contained here which was that foundation systems will limitations for on two levels st from a personal obligation or arising from the contractual relationship itself and hysterical smith and also the breach of the rest terms as in louisiana pigment there shouldn't had a standard of care and you allege that in the one case but what about the the case of the oral contract does there is no allegation akam plane about what the world promises were that it contained this type of standard of care language so just assuming our new endo we were to agree with you where does that leave what the mark you case with the oral agreement it agreed that we do have sort of two different animals here on some level your are but for the purposes of this appeal the district court made no such distinction and then if we are able to go back to the district court i have no doubt that miss dorothy and her and her talented group of colleagues are going to make an issue of that but we believe that miss us a more so because she was so closely associated with the contract that was actually issued in the case the only distinction between the relationship between great when the franklin impairing a plaintiff's and regions and if they more so was it lists a more so actually just signed her lease as her cell regents offered her the same advice for the undivided for the exact same property their undivided coextensive the owners of the mineral and so i have no doubt that that will eventually come up but for  purposes of this appeal we believe they're being treated the same and we will certainly d advocate if we are able to at a later date they should continue to be treated and i do think it's important to note th resided in their complaint specific contractual provisions which regions arguably breached these allegations are sufficient at least in the present context of that point that i went in for breach of contract ok obviously came to a different conclusion but we believe that that was that she was right the st time because it isn't that funding is in harmony with smith it's in harmony with this finding this sports affirmative think meant it in harmony  what happened was is that they originally brought a motion to dismiss under the louisiana credit agreement statute which was declined and they objected then the the court made that notation in the in its report recommendation about the closer western being ex contract to versus ex dilip though they regions that objected making that the principal issue the district court remanded the matter back to the magistrate for back to the district for instance just sent back to the magistrate for consideration of that issue i think the issue never really came up until that until d the report recommendation was issued itself reasons like we've been discussing the magistrate originally finding that a breach of contract claim had been made and then finding that it wasn't we contend is evidence that we did not receive the benefit of that strict construction it's also established that if there are two believe that that that he don't sing with this well established maximum winds and law favors maintaining our claim and again and courts this court is noted many times that and bringing all breached we believe that this also favors maintaining our claim and again this court has noted this maxim of louisiana law that prescription is pretty generous and cannot be extended from one action to another nor to analogous case court that that's exactly what happened in this case the magistrate clearly extended roger by analogy to cover this case finding that she was quote confident the approach taken by roger and copeland should be followed in quote by this order because of the similarities in professions the spite having noted herself only a few sentences before that quote the undersigned is well aware that other louisiana cases even in analogous these premises all dovetail with the overwhelming amount of who's in address problems set forth in our brief in our brief which favor the finding of an application a ten year limitation period in this type of an instance and prescriptive period by contract and we contend that what regions is doing here is they're trying to do something indirectly that they can't do directly regions chose to put this type of contractual language in there in their contract and then when those terms are breached and those terms are suit upon those expressed terms or sued upon then they come in and say no this is this is delusional we can't you can't do this it's a one year statute of limitations and we should the simply plain error for the district court to have not addressed all our requests to amend in the event we were unsuccessful in the motion to dismiss phase  there were no this was a bizarre procedural posture or if the court case had a very bizarre procedural posture we actually in on page one thousand and sixty six dollars of the record which would be our objection to the and in conclusion louisiana law favors redress ability the proper contract has been let in this case and region should not be allowed to escape its inexcusable lack of elementary prudence or simple diligence through contractual s owners against their mineral manager and man to terry for breach of the standard of care in his execution of a lease agreement and i don't think there's any dispute about that when you look at the plaintiff's briefing both on the original and in their primer if they're talking about standard of care we have two issues before the court the main issue is whether the twelve b six dismissal was proper based on the fact that this was or based on the finding that this action sounds and or rather the contract and the nd issue is whether the district court abused its discretion by not allowing the plaintiffs opportunity to amend so with respect to that st issue this is not new ground in many respects for this court i understand for my research that everyone on this panel has been on a prior case in the circuit dealing with the contract tort distinction in stem fashion under the museum law so at least those kind of background principles are familiar to the work and and i'm going to kind of jump to what i see as the heart of the case jumping off from where mr johnson ended his argument he ended his argument saying that plaintiffs are alleging a specific contractual provision a breach of a specific contractual provision that takes them out of the deliberation will liability so really the heart here is whether the particular provisions that are alleged in attached to the complaint constitute that kind of specific contractual provision that will elevate a standard of care of case to a contractual claim that will support a ten year prescription period now what mr johnson didn't talk about is that there is a specific rule that governs that inquiry in the context of professional negligence cases the case that he cited on the standard of care issue as incorporating a standard of care sufficient to make it contractual is not a professional negligence so we're telling the court and we're asking the court to apply the rule that in the specific context of professional negligence the only kind of specific contractual provision that will support a contract claim is an express independent of even needing a contract a doctor malpractise against a doctor here it seems to me i mean it's only because of the contract right that there be any he any claim here i think i theoretically possible that you could have a case like this without a contract because as i understand it mandate or agency could exist on the basis of something like a parent already absent a contract normally i would agree with you there will be a contract but the same when you get your  addition to revising them i'm going forward with the sale of the claim was that the attorney as a part of his mandate was required to inspect the collateral for the sale to ensure that it had value now all parties in the court agreed in that case that the legal malpractise aspect of those claims had already so what this court was looking at in that case was whether under the mandatory kind of aspect of the case what will apply for the prescriptive period and what th fiduciary it doesn't necessarily follow that every action against me and it's areas subject to the tenure prescriptive period for example because lawyers appear in a representative capacity a general contract between an attorney and client is often considered a mandate under louisiana law so the court is basically saying that appearing in a representative acidy is like attorneys or mandate mandate just like attorneys same kind of rule by a same kind of professional rule would apply now this case was decided a year before the roger case so the court isn't talking about roger the court isn't talking about the specific rule about expressed warranty of a result at this stage the court is talking about the duty of loyalty and a standard of care issue but when roger comes in the next year roger is talking about attorneys and similar professions of course extending that to financial advisors the rogers court extended that to insurance agents right so they're all in this kind of fear of professional negligence i think geddes helps get you there and then i think you look at al the language that's in roger itself which this court approved and cited in copeland the nature of certain professions is such that the fact of employment doesn't imply a promise of success but an agreement to employ ordinary skill and care in the exercise of the particular profession ok happened in this case it just to be easily been done by a where right they could have hired a lawyer to advise them on their mineral interests and to have their power of attorney to sign for th is the same what if this what if we conclude otherwise that this is not in the professional malpractise waiting cases then then where does that leave you if it's not in the professional negligence world of cases i would still say that probably the standard of care incorporation is not enough but i will say that there is a case or two that says it is so the court would have to decide then whether the incorporation of a standard of care under louisiana law is sufficient to make it a contractual but i believe that in this case this reason the bank was doing the same thing that an attorney could have done its work is dependent upon its construction of louisiana law what kinds of cl these folks need in a particular contract to effectuate the result what kind of financial situations will be how will their financial situation be better by the inclusion of particular provisions or even by leasing or not leasing so  like a financial advisor which has already this court has already held is there in that professional negligence class and this just like an attorney i don't really see that there's any difference your honor in terms of putting this court in the professional negligence will now when we look at that professional negligence rule the courts are saying all the time we're talking about implying a promise of success no that's not there but what we do have is we have an agreement to employ ordinary skilling care so they're talking about this in terms of these implied duties or this type of any agreement to exercise still in care it simply having that implied agreement isn't enough as these cases make clear to yes use into a contractual claim now we've taken that one step further now the plaintiffs are saying ok what's not just implied we have it expressly incorporated in our contract and it's a standard of care provision and it says you have to do what you would have to do anyway which is to be reasonably diligent now we have cited the bar nato case which is the case that we believe does exist address those expressed inclusions of  standard of care and the court talks about that it says at best the evidence indicates that rayna the attorney agreed to properly prepare an active sale for the parties and then that did that this active sale would include the terms and conditions the parties agreed to between themselves including a reservation of mineral rights as such rayna agreed to render to the parties professional expertise and that degree here still in diligence which is exercised by prudent practicing attorneys the evidence does not support a guarantee or warranty of anything additional to the exercise of that standard of care that would be required by all attorneys in any one hundred and eighty and i think if you shepherd eyes that case and you look particularly even echo martinez case that was cited by the district court in the supplemental are not again there is a promise there that the attorney would perform the adoption properly and according to louisiana law and the court held this promise if proven is a guarantee that zoey one standard of performance would parallel that of a proven attorney and attorneys expressed promise to follow legal requirements is not a guarantee of a specific result i don't know how you could say it more plainly than that anothe evidence of a warranty to achieve a specified result to active by activate the contractual prescription in that case again it was an incorporation of the standard of care and the court said no it's not enough so we have specific cases showing that in the context of professional negligence it's not enough to incorporate a standard of care you have to go farther and that farther means you have to guarantee a result you have to guarantee you're going to win a lawsuit you have to guarantee title to property you have to guarantee that you're going to do something and then do nothing in this case clearly reagents did something regions executed the lease amendment reports that they did it with negligence essentially but they executed it so it's not a case where they promised something in didn't do anything but they certainly didn't promise the result of this amendment would extend the undeveloped acreage there's no allegation of any kind  promise like that it's simply an incorporation of a standard of care which is not enough now if you look back in the the roger case and you kind of clicked on all of the cases that the court cited there too to show the derivation of the rule what you'll see is more language talking about implied contractual duty that with professionals it's not an implied promise of success but merely an implied standard of c said unlike engineers mechanics and ship builders a physician does not simply under to simply undertake the treatment of a case i'm sorry a suspicion does not simply undertaking the treatment of a case contract with the patient st specific result so in this case we're more like a physician and attorney financial advisor and we are someone like an engineer or a mechanic or a ship builder or you expect you're going to get your house or your ship that doesn't collapse on you because the laws of physics are the laws of physics now you know all of those cases that the roger court talks about and that discussion of those kind of implied obligations they're saying that implied obligation to follow the standard of care isn't sufficient to give you a contract so why should an expressed one be any different so what i'm suggesting is that that makes it consistent with the bar martinez case in use case which expressly say that having that standard of care expressly incorporated in a professional negligence case does not get you to the specific  duty of care issues so i think once you take veritas and you take the professional negligence cases including roger that gets us to where we are which is this is a professional negligence case absent a breach of the warranty of result there can be no contractual claim now in this case i don't think there's any dispute that the allegations relate to a standard of care as i said that's the language that's used even in the language that the louisiana supreme court used in the pure in a decision so we are talking about a standard of care issue and the contractual provisions that mr johnson went through don't go beyond that they talk about managing supervising interests doing there with what is usual and customary with property of the same kind and in the same locality they also talk about to execute acknowledge and deliberate or oil gas and mineral leases containing such terms and provisions as the bank shall deem proper that's it you can read the rest of the contract that's in the record in our record exhibits and you'll see there's nothing else there and there's nothing else that's been alleged even during today's argument beyond those provisions now as judge also pointed out in the same are so complaint we don't even have that in the same or so complaint there's no allegation of any specific express contractual provision so i would suggest that no matter what happens in this case ms game are so plain has to be affirmed simply because she doesn't even attempt to get into the specific contractual obligation th so once you find as we suggest that the court should that the one year prescriptive period applies this case and the decision of the district court needs to be a far because there's no doubt that  the actions are prescribed a strong because something i think your argument is driven by the one year versus the ten year i understand what you want the answer to be but i don't know why i don't understand what your answer is my answer is that nonfeasance has been construed as doing nothing at all and clearly regions did something if regions hadn't executed any lease documents on behalf of the pla apparently the act of failure to read doing not a misreading i don't think that i think that that's respectfully i think that's too specific your honor i think that the question is is that there is no specific obligation for regions to read write in the contract there's an obligation to read bits of the franking argument i understand that but the obligation is the standard of care and i'm not disputing that there was a breach of the standard of care i'm not going to say that ok at the louisiana supreme court's artist of the opposite so i'm going to accept that now but it's a breach of the standard of care it's not doing it well it's not not doing it at all regions executed the amendment they just didn't do it right in this case that is a non that is not a nonfeasance that is a misfeasance now if there are no further questions on that issue i'll just briefly address the the  now the basic argument here is that the play the plaintiffs are arguing that because the district court didn't give reasons that that person a means that this course hastur reverse because it's an abuse of discretion there are cases that they that but there are cases in this circuit that court said the district court did not provide reasons why it did i leave to amend and nothing in the record indicates that anything like the accepted reasons justifying such a denial would went ahead and looked attorney or ineffective assistance of counsel so they let him but i read that case to this court has the power to go ahead and look at the futility argument to go ahead and look and see if there were sufficient reasons for the district court to have denied leave and in this case there are two reasons why the record shows there are sufficient reasons the st is that still the plaintiffs haven't shown how they could include new allegations that would get them around the problem so if the court agrees with us that this is not a contract case because the plaintiffs haven't shown any kind of a promise of result a guarantee of result they haven't shown anything they could allege to get around that problem they haven't given us the proposed amended pleading they haven't even stated what that would be nd that and any to attempt to amend would be futile simply because we've already a contract and the contract has only provisions that incorporate the standard of care not a warranty for sol so for both of those reasons the district court did not abuse its discretion in denying women save my five minutes i might be a little scattered here but i'm going to do my best to sort of this all the st with respect to the fact that we continue to refer to a standard of care the answer the reason why is very simple but that standard they're not held responsible for that in contract it is not that there's not a single case that says when you have a contractual obligation to perform according to a particular standard of care that if that standard of care is breached that it doesn't give rise to a contractual claim that that case doesn't exist they included it in their complaint they should be obligated to follow and be held to the consequences of what is in their complaint we don't have to elevate and create something that doesn't exist in the contract the fact that they included the language is enough because every case that they talk about vornado and various included there were not specific contractual allegations at issue or answers where there were these cases did i assume that they come out of a contract of a professional relationship i know at least in europe is there was a man and you know there was a mandate in that case but no where in the end they did it say that it was composed the nd physically make sure that there was the gravel pit and that it was up and running in the appropriate that didn't exist so it's not like this case because in this case there is a promise of performance in addition to the standard of care that promise of performance is when region says that it will execute acknowledge and the liber all will gas and mineral interest containing such terms as the bank deems proper the lease in this case was not properly that's a matter of record that is a promise of better zero you know i was next on my list judge two or so with the professional negligence cases again i would go back to the fact that we see in the pigment is a professional negligence case that was the end the claim was negligent negligent performance of the duties of the foundations systems was supposed to come in and there are sophisticated operation supposed to come in and be able to manage losing a pigments of energy bills and lower that is a professional busy negligence case the claim was and and foundation systems unit said no this is this negligent performance we need to do this needs to be one year and judge trimble rejected that for these all of these professional services cases that they missed war to a refers to curtis vornado roger not a one of them has been included standard of care they would all be different cases if they all contain standard of care clauses if they all contain specific performance requirements like this contract does this time in this case completely apart from those other cases hence my reference the beginning of what i believe this in case of st impression and as far as the standard of review i would just point out that regions has gone through and allege that what judge clement had asked earlier he this court is to find that there is that this is bound by the professional negligence standards in those cases the promise of performance in this case and the abject safe see again thank you