effect played around in the contract killing although he has in fact also pled a contract claim as the trustees brief noted the trial court did not decide whether he could assert a separate for benefit from trying to allow the contract the engagement that's the only one and because it gauge what letters are going to be required to determine the complaint in order to save for and did what it contracted to the trial court as i said considered equitable stop of only with respect to the contract claim and i would get to that in a moment but the point here is the trial court did not consider whether equitable stop of plot to that tort claim since the trustee has relied on it so heavily in sprit for a start there the trustee admits it's twenty three and twenty four and proof is in the central element of this tort claim and the one of the no i guess it's a fairly unfair rule but it's still a pretty clear want in mississippi that to borrowing the eight governmental entity to anything not just arbitration but to anything it has to be spread upon the minutes and so while it doesn't seem like the best way to run a road this is their system and people they do business with entities in mississippi need to know this and need to get their little stuff it spread all the min why doesn't that just in the face you can't force someone into an arbitration agreement and they didn't spread it on the minute so they accepted his forty eight thousand dollars worth of services but they didn't accept all the other stuff  contract with a governmental entity like the hospital the agency has two choices you can either accept the contract ratify and proceed or you can say it's on enforceable nothing in mississippi law says you today in the county next year set o j we wish we could enforce that contract all they have to do is put it in their minutes but is the burden of x being explicit in the minutes any different in a than it is in an authorization count well if there is no contract let's assume they have not ratified it there is nothing to sue on there is no in gage mint they cannot sue in the contract because there is no contract and that's a good result for us understand how a lawyer in mississippi with any kind of a complicated contract can give an opinion that this contract has been duly authorized and is enforceable in accordance with its terms which is what if you lawyer up a deal and you have lawyers involved and you're asked for an opinion on the enforce ability of a contract it would be extremely difficult to get if you look at the minutes of this hospital most of the contracts over years and years and years are not attached every mississippi lawyer should know it but in doing business in small towns they just sign the contract and sometimes they put it in the minutes but most often they do not that's what happened how explicit i mean it i take it here that your answer would be at a minimum you know if there's an arbitration clause in it you better say that on the minutes not position to be if there's a contract you better have it on the minutes doesn't matter who has an arbitration clause or not because of the look what happens they leave the parties where they are nobody can enforce it there's no case where they that i know of and i've read most stuff where they go and say well as a void contract so you paid forty eight thousand dollars for the outer you got to give it back basically they leave the parties where they are so i take it though you will sign language saying is another authorised and you fat eternal language the effect of it is then they that you know i mean i i think it's disturbing to think they could sort of pick and choose what they want to enforce and continue with the suit all that but is that before us on the center a lot kotori appeal because we're just looking at whether this has to be arbitrated it could be that we say no it goes back to district court the district court is up agreeing with you that there's nothing here because there was no contract there was no tour duty because there was no contract involved blah and you win the ultimate  dispute but do we even have jurisdiction to go out in that field and start looking in it or are we limited to the question of was there an agreement to arbitrate well you could do several you could say that he's not wrong as a matter of law you could say we're not going to side but i certainly hope the opinion makes it clear you had said he's right but the main thing is that the whole case is trying to assert a claim that it rises out of this contr think this contract because it seems to me the minutes do reflect we're going to hire an auditor porty a thousand that isn't that enough to give him a duty of reasonable care to do the it ought in a reasonable and prudent manner no first off  and amount of money a guy and it ought to get heard of it but it didn't so isn't that enough once i'm an auditor and i'm being paid to be an auditor don't i have some duty to do whatever i do with reasonable care i can choose not to do anything but having chosen to do something walk into the hospital start looking at the books i got to do with reasonable care why isn't that the case because fareed if i was doing it for free well first about no in mississippi built the professional malpractise has to rise out of what you were hired to do if i was hired by a bank to represent the car wreck i don't think they could say i should be given the bassem securities this car wreck morphed into some huge massive class action with a bunch of crazy stuff and whatever they're going to see from out practice and that wouldn't you still have some thought of duty that would be enough that we wouldn't get into the details on a motion prove what they've got to look at the sort of that really does i mean judge owens question is is is critical to this because if we are looking at whether there was an agreement to arbitrate you know that's a tough one on you because there's no spread on the minutes if we are saying well there's an agreement here and what are the parameters of it then it seems like that does go to the arbitrator if there is some agreement what are the parameters of it where whatever and so it's where it where does this fit in the analysis at what point in the stream are we looking at this question is it as a defense or is it as a was there a contract at all i think they you can take it one of two ways either they don't have a contract in the case of us because it is not in the minutes and there's no mississippi law that lets them say we can take two parts that we write down in the minutes and make that a contract if we had sound something that said it's forty eight thousand dollars in an audit then we'll agree to that we never agreed to that and wouldn't have agreed to that it they could a said anything in there that might const contract take out two terms and leave out eight we didn't agree to a two term contract we agreed to in tipper the parties of what you into basic contract law that's not the contract we agreed to had we made that contract yes but we did know that if they always say that in these minutes cases that aren't complete i mean isn't that inherent in the minute situation is you as the private contracting party need to be sure that all if you have ten charms that all can and not just five because if you want to enforce one of the terms it in there you're not going to get it well if if there are only five in there nobody can enforce any of them unless the agencies that well you look at the only cases where they have allowed anybody to enforce a contract where they wouldn't actually have the fiscal contract attached he goes to cheat them and that was at school teacher in the minutes talked about hiring there for a year and the promise and everything there was in they recite but the contract would have said in the minute said nothing other than what the contract said and that is the buyout the exception and that preferred to in thompson and thompson says if there's a material effect you can eat enforce it and wellness recites all of that and says it might not have to be spread on the minutes but everything there has to be sufficient there to determine the rights and obligations of the parties and that's if they don't have and there is no mississippi case none where they have ever in forced one or there was a claim that a material provision had been omitted from the minutes where they unfolded where they enforced the minutes fact other than the ones i've mentioned in cheatham there are not many where they don't have the home contract that is very much the exception and it's only if all of the terms are there what do you do in a normal case to you it actually the agreement to the minutes well or parade it here in yeah i mean if a board usually has a say you're this person is authorized to sign the contract you test the contract in and you come back later and say he signed it we ratified immediately is a two step process well the way it happens normally is the agents you sign it they say adopt minutes if the agency leaves it off they can come back years later and attach it ratified but if they don't there is no contract there is no we're going to force a couple snippets that happened to be in the contract in the that's never a contract anybody and indeed they are saying if you were a guy was trying to see this and trying to sue the hospital on this contract he'd be out of luck but with the hospital trying to sue him the hospital either accept a contract or far did we go into the merits of this case in the answer is not far at all thank one acceptance instructs that we basically go through the two step process to determine whether indeed there isn't a cream and that includes an arbitration provision and if so whether this dispute falls in the scope of that provision here that question plainly is answered in the negative the one thing i do think we need to clarify that for an endo is to remind the bench that we have an engagement letter only for the two thousand online audit as to which there's a cryptic reference in the minutes there is no reference in any minutes or any public records a purported to be minutes concerning the audience for two thousand and eleven twelve and thirteen the notion that somehow by having a cryptic reference to two thousand and nine online we incorporate all these engagement now i think what he saying is you can't have it both ways i mean he's saying if if he was going to sue mississippi let's say they didn't pay as fee and he's suing for the fee they could say ha ha got spread all the minutes have a nice day and he'd be out of luck but since you're the plaintiff i mean as the trustee standing in the shoes of ok would you talk about the hospital since the hospital is the plaintiff they can't just march in and go yeah we had a deal but we don't really know what the terms are and we'll just kind of forget about that they either after accept the deal the work was perfect delinquent and filed suit alleging among other things breach of contract wellness remain removed after remain moved or the court noted that all the court can do in force in music remit is to look to those provisions that are set forth or spread across the minutes that there was nothing in these minutes concerning the i'm going to prove that through the actual work that was done in the same way that a party who does not necessarily contract at the on two thousand five sue on the breach was duty i don't have a contract with you to do that you can you can't prove it otherwise but we're looking to the engagement letter to get to this guy and if you do that you say well the minutes don't allow us to get to engage when or if you're going to either the whole contract or not not just the  on an absent contract to fill in the duties you're going to renovate the building and you're going to put up tiles on all of these walls and then you did it or you didn't do it right that's in the minutes here there's nothing that says what he's going to do besides an audit there's no scope because audit scopes are a big big big big big big deal which we do not and so whether you are relying on management to give you records when you're just looking at whether the numbers add up whether you're supposed to go behind what management did all of this is it's what these what this auditor is live this and they and it's the critical thing to them is how far are they supposed to go versus paid they cannot do that they can there's actually no claim for quantum arrow in other mississippi law so under the under as the supreme court recognized repeatedly this rule may cause a substantial injustice we have had her pegged claim cases in mississippi where because the party is contracting with a polka agency did not meet what the court is defined as its duty to ensure that the minutes completely and comprehensively reflect the terms of the agreement the party loses the right to be paid here we're only talking about what form we're going to be fighting most recently in the butler decision for example there there was nothing in the minutes concerning additional work under the painting at all my at let's say they paid the thirty eight thousand upfront and then the paying all that wasn't done that's not in the minutes could they have sued for that because that's your case they plainly could have sued for work a  or by the agency the idea the agency can see that the agency is not bound by the minute rule only the other party see if you disagree with his argument that we both sides are down by the minute rule and indeed indeed the have consistently refused refused going to stop all has any place here in the coming other my my point wasn't a stop or one it's whether the minute rule applies to both sides and you're saying no it only decided by this court because that would be a case determinate here because it would wipe out his point that well you kind of can't have it both ways because they can't have it both look at how that's your argument ok at least we're clear yes if they know what a great position to be  you get to make the argument you can have it both ways that is correct and that is why in this area i mean i just cannot understand why anybody would do business with the mississippi nonprofit with this kind of legal well i w they did nothing whatsoever nothing whatsoever seems as i could if we were to agree to disagree with you on the have it both ways theory and say it does also bind the governmental then you would lose on ten eleven and twelve because there's like a zero obligation to anything we don't have a talk about how broad the audit and what is audit mean and all that because there's no obligation doing so well i think the city could sue on those years and all i would disagree with that i have they can put on expert testimony this has everybody in the business puts an arbitration clause in their contract this isn't your prey for guys the contract as a whole and you're the minute rule all your arguments a minute rule seems to me to be tied up with the contract as a whole operation clause he may well be permitted to put on proof of the scope of the scope of the services he provided that's entirely appropriate and that indeed if you say because it's not in  gas for a governmental entity that's my obligation and he's going to in turn have his folks show up and say no you don't do x y he was a mere volunteer at that point i mean it under under the minute rule he he was  but he illegally because there was no contract i mean he's just a volunteer showing up and then they decide to reward him with some money i mean that's your theory of this because there's no contract governing this at all and your theory of the world so unless we buy in that i can eat my cake and have it to the world that you articulate which may be right i don't know that that's how i read it but it may be right but unless we buy into that you're basically saying that he do you have a contract that you're just making up as you go along and it only now if you would we don't accept your version the world you don't have a contract and this guy's just a volunteer showed up and messed up the books and you also payment to him was also gratuitous that's that's the world we're in unless we accept your version of the cake and eat it well i don't  did completely gratuitous work and all of that but that's not what we're talking about we're talking about professional what is your cause of action called the action is no prank ok and so it would happen you would have to show the existence of a professional proximate cause of injury right this is from your brief as he said on page twenty three ok so where does the existence of a professional relationship come from you're saying it comes from the actions and therefore you can't rely on the actions and you don't need anything in the minutes but he needs something in the minutes because he can't rely on the actions that includes your see whoever it was signing the merits of the cause of action as i understood it and required to show there was a breach of the duty oh no what i'm saying is what we're going to talk about relying on actions there was an action here somebody at the hospital signed the engagement letter ok that's part of the actions that also include that they ran walked in and started looking at books or what if they demanded to talk to somebody with knowledge of the books and and the hospital present it somebody who turns out to have been a liar and a fr themselves in that part of the actions so we have a lot of actions but there's only one action you know i can that's the action of the engagement letter but so you want the case to be about all the other actions i would assume you would agree that if you all the hospitals proffered some fraud fees or to lie to the auditors and therefore they got the audit completely wrong that that would be part of the case that they could talk about that well that's not in the minutes either  and the supreme court has not been that further question i will see we now i did not know the succumb but that the trial court has ruled there is no contract based on just what i said and i would like to supplement the record with in the next day or two with a copy  if they haven't ratified it they can't sue on it if they have they can because i'm looking at this audit letter i mean the engagement letter and there's a lot of responsibilities on the hospital that are integral to the audit which is that you're going to produce you know reasonable books and not some set of cookbooks over here and then you give us your fake books and all of being that being it i mean an auditor can only do as much as really the client sort of lets them do to some degree not totally but to some degree and there's a big long list of all of that and i guess your counsel opposite is saying they can ignore that and they still see you for not doing your job even though they may very well not have done their job and it's worse than that because if you look at the gist of their complaint against the counting firm it's impaired graphs twenty six to thirty it basically said you should have done more testing of the internal controls and then they allege in paragraph twenty six that horn was engaged to ensure that appropriate controls were in place that's in direct contradiction to the engagement letter letter here is a standard gauge it's pretty much a standard i mean they all put their eye on this this is very typical very typical and it does say what it will always say unless if you do it then are graded all of it and out it is not in code it is not an audit their integrated out it's their about internal controls all the while saying but we weren't hired to evaluate the internal controls that's exactly how this lame to our attention at sap and that's exactly what the audit letter of the engagement letter says it says we will express an opinion on the fairness of the financial statements prepared by management to see if they fairly represent in the course of that if we come across a problem with internal controls we will advise you that's exactly our obligation in a review of the adequacy of your internal control exactly as they entered letter what's at issue here that standard language yes they could have hardest to do an internal control audit and for the right amount of money i'm sure that number of years but i didn't get it right you got it right judge and i guess that's how i would describe some of my failures i anticipated editor right you can't try this case on those two snippets you're going to have to have a trial and all the things you looked at we got to see what other you can't have a trial that no one what we promised to do if you're going to not do that you can have a trial or we just go