that there is a genuine issue of material tracks as to when the c t a reach disagreement with the retirement plans of their fear for a fundamental facts that are highly relevant to the retirement plan for the actual cost of retiree health care that included prescription drug expenses and exchange program in exchange the retirement plan agreed to pay those invoices that was the agree the nd factor set of facts that's relevant to the statute of limitations issue is across the feeling between these two parties these are two parties that have dealt with each other on occasion these are two parties with a lengthy history of dealing with each other and not just dealing with get reconciled at some point down the road and i think the best example of that for citylink is the forty two million dollars reconciliation that both parties talked about in the papers that reconciliation span started in  it was reconciled in two thousand and two was paid in several storm is over two thousand and two right it was reconciled for a seven year period and that wasn't the only reconciliation and debit and credit accumulation between these silent on a particular issue is the course of feeling between the parties the rd fact it's relevant to the statue of limitations issue is the correspondence between the parties never focus on the time period late two thousand and six one that letter is some evidence that there was communication between campus and wall prior to number two it communicates mr callahan this is understanding of how the parties are going to deal with this prescription drug rebate situation in life the fact that their contract doesn't specifically address it and callouses understanding based on his communications with ralph is that they're going to try to sort this out and that the  was reached it's our position that in two thousand and seven february two thousand and seven there was no breach what happened in february two thousand and seven is the parties were confronted with a situation that wasn't covered by the expressed terms of the contract and they did consistent with their course of feeling they did what they had done in the past they talk through it to try to sort it out and mr carry out this clearly was under the impression that there'd be some sort of reconciliation down the road so because there was no rebates would be credited to the plant if anything i would take that language as an indication that they are going to work this out there isn't a problem just situation that hasn't been covered by this contract and in the you know under the circumstances involving this case where you have these are not parties that were dealing with each other arms like these were the related parties they had a lengthy lengthy history of dealing with each other and like i said they have a history of debits and credits between them that will be reconciled at some point down the future and that's how mr kelly ottis interpreted mr mr walls conversations back in two thousand and seven and that's how we believe the trial court should have treated the two thousand and seven letter not as the what would you say that's effect question i would say it is a fact question i think the fact that the contract didn't cover the situation of the parties found themselves in in of itself should be sufficient to generate a fact question as to whether and when these rebates should have been transmitted to the c t a let me jump ahead of the court's opinion issue take it to the courts conclusions in the courts analysis the courts opinion check and failed to transmit it to the retirement plan because the contract decided what we think that was an erroneous conclusion we don't think the breach occurred when they were seeded primarily because the contract a i'm sure the the trial credit initially framed the issue for the commencement of the statute of limitations as to full day the point at which the retirement plan one of the rebates and be the point at which us today so our decision is that the retirement plan didn't happen rather that the c t a was not going to credit the rebates to the plan until october of two thousand and nine we believe that's when the breach of it would necessarily follow that be a question of fact with respect to the volunteer ie payment doctrine the run case that the court really hung its hat on the wilson case was factually very different from our case that was a i believe a trial on the bridge a contract claimed at least up to the point that the court applied the voluntary payment doctrine would be required because recall that the voluntary payment doctrine kicks in at a certain point in time and   the court's finding that these prescription drug rebates were the general contractor incentive wasn't to discount prices of drugs i think where she was going with bat was building toward a point but that somehow contract claim or unjust enrichment claim and i would suggest your honour's that it does not whatever label has placed on these prescription drug rebates whether you call them a discount against the price of drugs whether you call them a general contract incentive the reality is they reduced the c t s actual cost for prescription drugs and we know there's at least some evidence of that in the record number one c t a are admitted at trial that for an accounting purpose it works the prescription drug rebates in the same general ledger account that it booked prescription drugs francis so you know it at least placed them there for accounting purposes we also know that caremark described the prescription drug rebates in the context of the federal anti kickback statute this is right in the care mark agreement as a discount against the price of drugs so i don't think the courts finding that it was a general contract retirement plan which was will you for the actual cost of prescription drugs there was no discussion about when to keep the rebates in lieu of charging you administrative fee it was never a topic of discussion it was never negotiated in fact the st time that the evidence would have been exactly the same of our contract claims had survived the contract was no longer relevant this was a breach of fiduciary duty case when it went to trial and as your honor pointed out there are different standards for travellers reasons unless