won't waste too much time i'd like to just get right into the crux of this and that is that we believe that the lower court abused its discretion in this in applying a form of selection provision in a contract that had absolutely nothing to do with the issues in the complaint and in dismissing it the court we believe made basically may have to make factual determinations in order to link this year invest contract to the power of attorney that was granted pallies in this case so you have you have a situation in two thousand and nine where power of attorney was granted to my client's brother and this power of attorney had to do with the for corporations at the time was to corporations but it became for corporations all based in washington and subsequently they entered into a second agreement in two thousand and twelve that had absolutely nothing to do with the properties or the call that the shares in the for corporations it is that your invest contract that had the form selection provision in there but the the your invest agreement had nothing to do with the allegations in the complaint had nothing to do with the wh improper transfers of these shares in these corporations to to the shell right and so the only way for the court to get to the form selection provision was to basically in a defacto way make findings of fact and we believe that in doing so it didn't apply the appropriate standard in a motion to dismiss based on a form of provision so we believe that the court should have used the proper analysis of accepting the plaintiff's pleadings as true construing all facts in in the plaintiff favor in this case and we don't think the court did that we basically believe the court took the position that there's an agreement the agreement has a foreign selection provision we go no further to the year investigating and i think it doesn't play a role here and i think the arguments that responder has made in this case is a bootstrap argument and i think that just the court unfortunately fall along with that so you basically had an opportunity to litigate the validity  that michel relies on the november twenty third agreement so i looked through the complaint to see it in his declaration says otherwise this declaration says it relies on a much earlier orally reman of course and that was there at the time of the motion to dismiss was before the court but the complaint finding there is an allegation in the complaint that michelle relies upon the november twenty third agreement as a defense if i may respond to that i believe that that was misconstrued i think what plaintiff was saying was that he was  brother's defense he's not alleging that that was true i understand counsel that i fell against and i looked in the complaint to see the allegation and again if there by the time of the motion to dismiss became right because it's in michelle's own declaration that what he's actually legroom right i believe he is relying on an oral agreement as well is relying a lot of different things so let me just follow up on that because that's my understanding as well a minor thing was that we would only get to the euro invest agreement if the court found that there was a second oral agreement that existed between michelle and john here for a trading of the shares in euro invest for them i think minimum that's possible that's true i don't i don't know how they can get to the or invest agreement under any circumstances unless there's some there's some link between some valid link between the euro invest shares and the cause of action that are alleged in the complaint yet to i'm sorry that really finished my same a but for trading the euro invest shares for the shares in the washington or control of the washington corp i know that responder has made that argument that that's the link but that's not something that the particular case you have so many persuasive arguments as to why this matter should be or i'm not convenient argument you have you have all these arguments you have the you have the basic arguments that the the the complaint was brought in in washington it was brought against the i'll come back on that i believe that those arguments were made in a lower court and we we looked at all the various policy the terminations the policy issues that go into those issues such as the the the allegation the t t that was allegedly committed was done in washington involved washington assets involves a washington respondent applying washington law all of the traditional forms on communes public policy arguments apply in this case and in my opinion we want this case remaining in washington i think that if you look at the case that we cited the most important case in this case is murphy versus schneider national which is cited at three sixty two fed third eleven thirty issues that are in genuine dispute as a result until the facts are resolved then and we in the in many cases the number one party will survive the world will be three motion i think that that case is right on point in this in this particular case and all the arguments that that the respondents made in this case all start with sort of a bootstrap approach where we have this agreement and therefore the district court should go no further we have a valid and forcible form selection provision and therefore that a decision as to whether or not to reply should be done by a swiss court and not the district court here but i think that you can't get to that in chile you decide whether or not that that agreement has any basis in this in this complaint and the only way to do that is to make some findings of fact because there are a lot of disputed factual  on on the facts but based on finding the facts as it did that the court the court applied the wrong standard here if i may from my notes on th can i come back to that when i come back on rebuttal i'd like to do you don't want to see some time yeah let me say two minutes were but i don't want to minutes i just want to touch very briefly on i don't spend too much on the list pendens arguments i think the court is really with the argument understandably and i don't spend too much time with it i wouldn't waste verbal and written agreements between the brothers who are who are the really the main thing that gets your case why did the district court dismiss it on a twelve b motion as opposed to waiting for rule fifty six or maybe even a trial on the gottlieb whether or not there was a second oral agreement trading stock for stock in euro invest for control of the washington corp well it's the undisputed fact is that that is what michelle's defense is going to be that but sorry i interrupted you forgive me it's just that i'll just finish so you can maybe wrap your questions around their answer right it seems to me if that's the case then then the november twenty third agreement is a relevant note actually it's quite the opposite because if the nov twenty third agreement doesn't exist then michelle has no rights in the euro invest company that he can then trade back to john pierre for the shares in the washington corporation but not with medicaid and cart before the writing right so judge thomas point is regardless of whether it does or doesn't exist meaning the november twenty third agreement if there's a subsequent or like remit then the nov twenty third contract i guess i call the contract could be   an enforceable contract if if there's no enforceable contract then we never look at the form selection but if if michele isn't the owner of your invest because of the november twenty third contract which is the first contract that's that's the starting point for the analysis is that i guess that's where i'm parting company with you because i think you've got to first start with the question of whether or not the oral agreement is in forcible i think if the answer is no then we never get to the euro and agreement well our position is that you can't start the debate on whether or not the oral agreement isn't forcible until you determine whether or not the shell was the owner of your own best by the terms of the november twenty third agreement because i guess i think i understand your example the tri cities case i mean you have a there are a number of cases where parties have a series of of written or verbal agreements and sometimes claims that arise out of subsequent contracts are found to relate back to an earlier agreement even though you could i guess as as a matter of an intellectual effort exercise debate whether or not those claims are proper under the second agreement first so help me here counsel you filed a lawsuit essentially seeking damages and injunctive relief for violation of the durable power of attorney and that doesn't have anything to do with the euro investor greenman it has everything to do with issues under washington law of overreaching breach of fiduciary duty wrongful filing of notices of lease pendens wrongful transfer of stock in washington first and foremost he was the owner of your investment per the terms of the november twenty third agreement and therefore had the power we were arguing the same thing again we're back to the problem of whether or not the court has to first determine that there was actually an agreement to exchange dating back to i think two thousand and eight or two thousand and nine by which that your invest was always supposed to be he was the mastermind behind and provided the business model for euro invest insolence of course then there's the number twenty third agreement which of course was written and then my understanding is he makes third allegation is that he resold the euro invest back that's correct all right so if so focus point when i talk about the oral agreement maybe this is why we were missed communicating i'm talking about the second one if the second one exists then how is the first one relevant because john pierre has claimed that at all times he was the owner of your invest to fight that first that first oral agreement and that's the whole reason they entered into the november twenty third agreement because michelle was concerned th  op back to john pierre why would the court need to construe the november twenty third agreement because the court can't determine that michelle had control or the ownership of your own best in order to transfer it back pierre without first determining that the november twenty third two thousand and twelve agreement is valid ok so that's what i understood you to say the first time if that's your argument it just strikes me that you're on really thin ice if we're talking about argument and the reason is that i mean again i'll go back to try city in the in the next the next trade cases for example in tri cities the initial contract was a supply contract between the parties they then there after ran into some issues they entered into a subsequent and the plaintiff sued on the promissory note but it was the first supply contract that contained the form selection clause directly the district court could have said well you haven't violated the terms of the promissory note so i don't need to go back to the supply contract but the  court did the exact opposite it's that there's a form selection clause in the supply contract that that i have to deal with that relates to the terms of of the promissary note and thus their claims fall within the scope of it and that's the same thing with the next trade contra or the next trade case where the initial the initial claims were based are the claims were were based on a a wrongful to their wrongful termination claims but they were the party said earlier in entered into a different contract that contained the form selection clause and so again theoretically the court could have just said we don't have any wrongful termination claim so i don't need to deal with this form selection clause but again the claims did relate to each other and as i said if michelle did not have the ownership to euro invest he the he cannot have transferred those shares back to jump your pursuit of the match i agree with you on that point but let me just ask you one follow up question whether that whether these claims do sufficiently right relate to the selection clause in the agreement which make clear that any litigation not any claims but any litigation stemming from the conclusion execution or interpretation of the scream it must be heard over and geneva that's a very broad after the claims against jumpier were dismissed jumpier actually went and filed notices of blizz pendens in the district court claiming that that action over in geneva affected title to property and in the us corporations those claims were understanding is that it was going to just be an expensive process and you know when i have to waste money on it and then there's this also isn't in the record but here has it some point also started an action over in geneva for  first of all because that's what the parties agreed to by the terms of the november two thousand and twelve agreement but it forces the parties to actually go over there and participate in litigation decided he didn't want to you know deal with the litigation over there because was holding his hopes up for this appeal but if this court rules that hail all the all of the claims have to go over to switzerland pretty sure that they're going to engage over there i don't think we can transfer claims regarding notices washington is that pennington's only proper if the underlying dispute directly affects title to real estate here the appellant's concede that the dispute is at its core one of capital one over the ownership of capital stock it therefore cannot directly affect title to real estate that's because visitor eight one of the u s corporate defendants has at all times in the owner been the title holder to the real estate that's at issue and whether michelle owned the stock in that corporation it will remain the owner and the title holder given that fact it's not surprising that cases from around the country in the cited six or seven cases in our brief have found that li pendant should be cancelled where the dispute is one over corporate control and notably the appellant's don't cite a single case that holds otherwise and those results make sense and comport with washington law because washington the washington supreme court has held that a corporation is a separate and distinct entity from its shareholders and that those shareholders have no property interest in the corporate assets so given that fact again appellant's claims are or ones over capital related to the capital stock they cannot directly affect the title to real estate appellants make one argument in kind of an conclusory fashion that this court should appears the corporate veil through an alter ego theory but they never made that argument below so it's been waived and they've provided no evidence in support of it in addition the parents argue that the correct test is a right incident to title tests and they rely on a single washington case for that proposition real property even if the right incident a title test applied it wouldn't change the result and that's because courts have held that incident to title means that a judgment would expand restrict or burden a property rights  seeking equitable relief in the form of the return of capital stock and they cite to some constructive trust cases however they never claimed or sought relief or constructive trust they can't do it now but even if they did the cases that they rely on in particular of the tucson state's case that's the case that the schwab court relied on it's an arizona case it acknowledged that liz pendants art are improper for constructive trust over capital stock so for all those reasons it's clear that this dispute over corporate ownership