of thank you and may have please the court and with many thanks for all of you for the efforts to keep these arguments going this case is before the court on an issue of law the district court stated it i think as the same clear as it can be stated when she wrote when it wrote if the court finds that the continuing breach theory is recognized under south carolina the law polymaths claims alleging breach of the agreement would not be barred by the statute of limitations merely because one more of the alleged breaches occurred outside of the three year limitation period as from the order of the district court granting s in this case we faced the issue of whether south carolina would in fact adopt a continuing breach theory with regard to breach of contract claims i would respectfully that the cases that were before the district court as well as additional case additional cases that have come from the court in south carolina show that our court would in fact recognize such a  application of a theory here one thing i would like to say quickly before i get into the facts of the arguments in this case is essential to everything that we touch upon today i am not asking in any way for any of stoppel type arguments at all nor for that matter i am i trying to toll a statute of limitations if it's it's it's ok with the court i would simply like to refer to things as stale breaches which are breaches that are outside of a three year statute of limitation or if we're talking about a statute of repose case outside of the applicable statute of repose and fresh breaches those that fall within the statute of limitations or within the statute of repose if we're discussing a statute of this case as the court is i'm sure aware this case involves a contract between my client polly med which is a family owned company that develops serious polymer products in the state of south carolina and is up against novus series of companies that we entered into an agreement with the predecessor that then got assigned to the contractor what we just simply refer to as the agreement products right of selection of potential products patent rights patent ownerships pat assignments just use and disclosure agreements manufacturing and limitations on specific use of the product for hernia repairs related to harney herniated tissues at their notice products only so it is an executor or a contract it's not an executed contract where there's a simple one provision you agree to it you breach it except for it but i ead it's an ongoing contract that has continuing and ongoing multiple rights obligations and restrictions between the parties which is to be expected and the environment we live in today the agreement also i would point out has to waiver agreements one thing in a waiver should not deprive either party of a right to terminate than a standard waiver agreement which is found pages nine thousand eight hundred and ninety nine his record in this case for a lawsuit was brought for breach  contract that related to use and sale beyond the hernia repair including briskest reconstruction manufacturing of the mesh for non hernia repair lation of the patent provisions contained in the  the trial court granted summary judgment against all causes of action saying that the contract were violated that the discovery rule came in to violate statute or to bring about the statute of limitations as a defen honor this very legal question and i do not believe this court needs to touch the discovery rule ok i did not believe it is implicated in anything we have here and i think you as we get further cases that our supreme court's decided you'll see that they they work together they're not inconsistent with one another so no ma'am i'm not asking for any rehashing of the discovery rule ok i'm simply asking the this court finds itself to a lot of law would recognize that contract claims that are based on biology sions that give rise to independent causes of action that occur within three years before suit was filed are in fact actionable especially in an exact story contract and especially one that has a no waiver provision or non waiver provision sorry again i'm just trying to really pin down what exactly is in front of us if we were to agree with you that you're going to fast carolina supreme court would likely recognize this continuing violation theory about fresh benches there's been no finding out right that there were any french beaches what we would do then is we manned for the gets record to figure out whether in fact you can show that there was a fresh breach within the three year litigation think you could remain on your honor although i would point to point out that the court said if the court finds that a continuing breach is recognized polymaths claims alleging breach of the agreement would not be bored so no i keep that i'm sorry i think it's  understanding i did ask you to certify not like you certify if you have to certify and i don't want to be critically greedy you know growing up in south carolina they teach us pigs get fat  slaughtered however since this case was decided a new case came out from our supreme court that the district court did not have the ability to review and determine its applicability to this issue so i will make the sort of selfishness argument that i believe there are enough cases now from south carolina this coworker this court of appeals can make a determination of the law that south carolina would apply or this court of appeals can certify to the that south carolina law is clear on this subject without having considered the case that you're now bringing chart tension what about this new case  to in your mind if you could give us the citation to the new cases well yes ma'am yes your honor the new case is called marshall and it's it's actually cited in all our briefs and i decided extensively in my briefs and it's called supreme court of the law i believe you have the information in front of you to decide that decision but if there's any doubt i'd ask you to certify because i and again now that you've given us the site the marginal marshals the medical malpractise case isn't it and you're talking about a tort there and that suit of clothes who aren't talking about a contract practices act k i think it is another step forward from wilson i think that that may be the reason that we end up asking if there wasn't the certainty they are to go forward and certify it because south carolina does not have a breach of contract case directly on point all those bright cases in south carolina that i've been able to locate or what i call single breach cases on executed contract they're relatively simple contracts  i will tell you a couple things with regard to this number one in the south carolina trial courts which do about half appellate half trial this issue comes up on a regular basis it just has not made it to the supreme court we see it in homebuilding cases all the time you have a breach of contract there is some breach in that contract with regard to the house and the person determines not to bring suit under the logic of the district court's opinion and under the arguments being made by notice your failure to bring suit because the house wasn't painted buttercup yellow and that was specifically your contract prohibits you from suing for breach of contract for years down the road when you have a roof that was not built to the specifications and starts leaking that is is it and that happens constantly in south carolina at the trial court level where that issue is faced so it may very well be that it's best to certify it because we never seem to be able to get the right case up to the supreme court on that issue they settle and people don't take a loan i will say this with a court martial in your recognition that it's a medical malpractise statute of oppose case  i think it's interesting though that in martial among the cases they rely upon is the ortho mcneil unfair trade practices act case if you go back to the district court's opinion your honor district court distinguished or so mcneil on the sole grounds of well this is an unfair trade practices act case we don't need to it has no applicability because we're not dealing with an unfair trade practices act case and the district court also talks about state is heading in and if we go to worth of mcneil it clearly said that with regard to fresh breaches you may go ahead and bring suit for them into the unfair trade practices act our supreme court said with  marshall with regard to the statute or opposing medical malpractise actions you may go forward and bring suit as to fresh causes of action and even though there's a failed ones out there we know there are some that exceed the applicable statute of repose honor the fact that the court looked to a maryland case jones vs and used that as the basis to come up with their could put one of their conclusions as well as they used the words in the marshall case i bring that up of whether or not they should have used this maryland case which was a statute of limitations case to support a statute of repose justice hern writing for the majority on our supreme court said that's a red herring on the issues so in this twin pell ours and the st is the statute which is the legislative intent and the nd pillar is the discovery rule in this case we have a pla procedural three year statute of limitations which applies to breach of contract actions the statute does not make allowances for complicated contracts versus simple contracts or multi party time tracks versus two party contracts it is a statute that pertains to contracts and it just provides for a three year carolina it is settled that the discovery rule does not require actual notice or knowledge of the full extent of a claim rather it only requires a party to act promptly to investigate the existence of a claim where the facts and circumstances indicate that one might exist not that it does exist but that it might exist and so your honour's when we look at dollars of the statute and the discovery rule and you're ours we would say that marshall is an interesting case because the facts as your honor pointed out or distinguish distinguishable from this appeal because it  is mad mouth and some of the law of course related to those facts are distinguishable from the breach of contract cases before the court nonetheless your honour's the opinion and marshal vs dod supports would not apply outside a statutory context that it was based on that particular statute the purpose of the statute the text of the statute and would have no greater application but then in marshall which comes out after the district court rules you know th minimum we know that we're dealing with in the case and not with a sort of one off statutory decision making at a minimum don't we need to certify this to the south carolina supreme court some that would make me happy but but those two cases the similarity is the focus of the supreme court on the applicable statute and both of those cases so and the wilson opinion the court was looking at the unfair trade practices act and its decision and pertains to the per violation penalty which was included in that that statute and what the court said there is that the language and i'm quoting the language of scott itself contemplates that an unlawful method act or practice may result in multiple statutory violations and it is the violations themselves that cause the statute of limitations to begin to run so the court there was focused on the per violation language and your honor while it has been asserted by polly mad in in this appeal that the district court placed some artificial restriction on the the w n opinion we would take issue with that because the south carolina supreme court is actually the court that placed a restriction on its decision it said that scott statute of limitations began to run a new with each violation so not some other statute of limitations but the scots a statute of limitations now and marshal your honor again going back to this concept of the tw it was also focused on the statute that applied in that case and the statute as as was pointed out was a medical malpractise statute that is a different statute then the one that controls feel like i'm looking at is a supreme court that is increasingly willing to it to apply this particular form of a continuing violation ferry across different contexts and in the last two decisions they've had they've applied it two different contexts and so it is hard for me sitting here to see how it's supposed to be clear to me that they would not apply it in this rd context totally agree with you that it's a different context there just seems to be attention to the fact that marshall expressly rejected the continuing tort type doctrine says there's not to the extent that there is concern that there isn't a man on the but that's a tort both of those cases we're talking about torts and why again with regard to these hoops certification we don't have any indication what the court would do in the contract case do we well your honor we would submit that that you do and the reason and again looking at marshall what the court said there is that it was not willing to embrace  continuing tort type doctrine and it was again rejecting judicially and grafted tolling principles right but that by contract rd contracts are very different from torts as you know toward obligation in case with the statutes in in marshall and wilson are imposed by statute that is the violation of statute the contract relates to the agreement between the parties why isn't that a material difference in your analysis well you're absolutely correct your honor that the statutes are different and that's one of the important things here is that we only have a the legislative intent that we have before us with regard to the breach of contract claim is just a three year violation it doesn't include the additional language that the supreme court took advantage of in the world in case it doesn't have the additional language that the supreme court and marshall had to deal with in the statute of repose contest so what the court was doing in both of those cases and in both it said this it was not willing to move away from what the legislature had dictated so if the court has expressed fully embraced the concept that it must hew closely to the parameters that are imposed by the express language in the statutes we have no such parameters and a breach of contract context that would allow a court to add a new exception on top of the discovery roll exception which has been applied in south carolina and so your honor the reason why i'm pointing to marshall as supportive is that the court again rejects is continuing tort type theory and  is judge parents as i read marshall and you can tell me if i'm wrong but i would be helpful because as i read marshall i thought they were actions are deeply very clearly rejecting one form of the continuing violation doctrine the one that treats it as a matter of tolling of the limitation period until one single judge headed toward is completed basically as in the medical context but i thought the one thing your colleague was very clear about when he got up and in his brief was that that's not what they're talking about here this is different this is not the pure continuing violation doctrine this is the repeated violation doctrine where the old violations do drop out there is no tolling of the original limitations period it's just start a new statute of limitations wanting so i what i understood the south carolina supreme court to be doing was to be distinguishing between those two forms of continuing violation doctrine but you read it differently yes sure understand that this concept that the south carolina supreme court rejects when it is talking about its rejection of judicially engrafted telling principles is a continuing tort type theory and when polly mad  made its arguments in support of the continuous violation continuous for each type theory it relied on maryland law in large part and under maryland law mar courts described this kind of continuing harm a continual and continuing violation doctrine as applying to claims that are in the nature of a continuous tort well that is the very principle that the south carolina courts have rejected they have less opted it seems to me that what they adopted was i don't know i can't i don't want to go down the rabbit hole of maryland law but what they adopted is exactly the theory that your colleague arguing for here not the one continuing violation with the statute of limitations told until it's complete but the repeated violation doctrine the one they adopted in wilson then in march where even though earlier violations are going to be hell outside the statute of limitations when there is a repeated fresh finally sion the limitations period don't forget and they didn't reject that in martial they adopted that in martial your honor and they adopted language they adopted they use the language of the the statute which says and this is the part of the statute of there wasn't a statute of limitations that was the statute for pez which of course confers a substantive right to a party not just a procedural statute of limitations but that portion on the substantive statute of our prez says that and med mal action must be co within a period quote not to exceed six years from date of occurrence in the quote so the marshall court focused on those specific words that the general assembly chances and they stated and again i'm quoting from the opinion the statute clearly sets forth the triggering date as the date of occurrence however we know what this provision does not say that date of st occurrence and quote so the court again was dedicated to following what the general assembly had instructed and it was not willing to ignore legislative intent and change the language  inconsistent with what i would have relations theory i apologize i submit that what the south carolina supreme court says is that in these only two instances and the well trained case and then the says we fail to see the logic in preventing and agree party from seeking redress for acts that occurred with in the riposte period it can hardly be said that the act of negligence that occurred within th were posed period constitutes a long forgotten acts or mission i mean if anything doesn't doesn't that undercut the argument that you're making right here and seem to suggest that the court is open to the concept of a continuing liability within the period even though there has been long forgotten acts or missions outside the limitations period no your honor and the reason is that the exact language that you focused on where the court refers to the road opposed period the statute of or oppose section of the med mal statute of limitations that confers a substantive right on what against that is not included in the breach of contract statute so what we have here is a supreme court and south carolina that is looking to the language that the general assembly has specifically selected and is not willing to move beyond that but it is also a supreme court that is saying we mean this seriously so we're not going to impose other judicially engrafted tolling principles because this isn't as you to shalane grafted tolling principle and the marshall person's dodson in the the wilson case and the reason it's not is that it came from the general assembly so the court is dedicated to maintaining the separation of powers and to allow the general assembly to do its job and we would submit here your honour's that if the courts were to decide that south carolina  all of the case all to the contrary we're going to adopt a continuing breach theory that would entirely change the law in south carolina and that is better left to the general assembly and the to make sure that this is clear is there's been a question as to whether the continuing breach or continuing continuing violation doctrine does constitute a judicially engrafted tolling principle and we submit that it certainly does and fundamentally the doctrine to put allows the court on its own to told us that the limitations by delaying the approval of a cause of action related to the continuing violations so it would allow a new a cruel date for each violation rather than maintaining a single accrual day on the day that the early earliest act was known or had reason to be known to the plaintiff  now your honour's again maryland law on which probably naturalize recognizes this that continuing harm doctrine flows from a continuing tort type claim and says those two go hand in hand but our supreme court again and marshall rejected the continuing tort type doctrines had more than sufficient and in fact that the marshal decision confirms that and that the district court made the right call when considering whether or not south carolina  bob yes sir your honor and they please the court again i'd like to say a few things just very clearly so there is no confusion or the statements on my part  one of the one of the members of the court asking my trying to build up to one big violation absolutely not i repeat what i stated earlier and what is stated brief i am not seeking any type of judicial to or judicially grafted tolling i am looking for the right to simply bring suit for causes of action that fall within three years of my filing date of this particular lawsuit the proposes are sort of absolutes out there more so than a statute of limitation a statute of repose is more of an absolute more of a finish line so to speak this is it and our court says and those cases if you have claims that fall within the fresh period on the statute of repose you're not going to face the issues we're concerned about such as stale witnesses stale evidence stale things of that age they are and number two the fact that our court was willing to extend the doctrine on a statute of repose case tells me that they are indeed in my opinion and i know it's just my opinion and i'm on the last below so of course it'll be my opinion that they are headed in the direction of recognizing more and more of the essentially continuous a cruel doctrine which is that they're they're separate causes of action you're not trying to get the one big cause of action and so for that reason i think marshall is just very very supportive of what we're doing here opposing counsel who is a colleague of my friend said that the district court fully considered the case law that was out there i would ask this court to look at the essentially five to six cases that they looked at as we know or thought macneill was was just cast aside based upon the you t p a arguments but if you look  mcneil our supreme court goes and looks at cases from all over the country including some cases from south carolina that have to do with issues outside of the you t p a such as whether someone can sue for bringing tax credit suits whether or not they are christian or whether you lose those causes of action that a particular time in that particular case they said they would take this particular date she filed suit three years you can sue for your tax credits under a probate matter so there is a wind blowing in my opinion for recognition of this particular doctor and i would again also ask you to look at the year a case that the district court cited cited for i think footnote seventy where they talk about they the judge said he was looking for cases about a continuing wrong theory and he couldn't find any complicated case the fact pattern will drive i think even the most experienced appellate court judge a wall a little bit but when you get into it deeply you discover it's an interesting case because judge david norton very well you know district court judge here in charleston had a case before him and he did exactly although it's not in a contract action but with regard to a fraud claim and with regard to a malpractise claim related to legal malpractise he said here's what i'm going to do take the data file and go back three years you can sue for those things anything past that i'm not going to let you get there and that is in the year a case which the district court cited as supporting the proposition that south carolina would not adopt this particular case the other cases all are tolling cases may or versus t text which had to do with a pension plan polling anonymous taxpayer really wasn't even told and that was an impairment of contract case so they said there was only one h dealing county again a tolling they issue and then we had the companion property case which judge curry looked at on a motion to dismiss and this saying continuous cruel doctrine was put before her there and she said well i tell you what i'm not going dismiss this case based on that in other words she saw it as something that had to potentially viability so the case is relied upon by the district court respectfully do not support the conclusion that she reached on this matter i think that you can take marshall and you can go upside down with it but i think one of the more interesting things and i don't mean this in an inappropriate way but sometimes briefs are more tell you more about what they express as opposed to what they don't address and if you look at notices brief marshall is not addressed in any detail other than for footnote one which says we oppose judicially engrafted tolling and the other thing has to do with manufacturing the evidence is undisputed there are affidavits in the record that you know manufacturing took place whatsoever until two thousand and fourteen  filed suit in two thousand and fifteen how those claims are bored to me is not consistent with south carolina wall i will close with this comment this my  clients and everyone's client is important to them and i understand that but it's a family owned business and they have this this these patents and these rights to been taken from them just out now taken from them and then told pay because because somebody breached early and breached often and it says no action was taken on it and there are a variety of reasons why action can and wasn't taken on a you're you're stuck forever you have lost your rights your your your property has now been alienated from you you have nothing and when you add to that that the district court ruled i'm not even going to get to the declaratory judgment with regard to whether or not the contract was terminated because there's no cause of action out there for this to  that's not the law if it is it shouldn't be and i think the issue should be put before the court own the certification you know you asked the question judge king early what i wanted i was a little greedy you're right there are no contract cases out there and i think it's pro let the courts rule