with respect to the dollar came to something that's confusing me is that the court seemed to treat the dolo claim as a solo claim challenging the formation of the contract yes  so you you don't view it that way correct we are not challenging the validity of the contract we are the main claim is if you were you couldn't get the damages that you want right by our rice what he did pay compared to what he should have paid correct or what do you have to say about the real cavil case in connection with the issue of making  up people propose a pretrial or they get together they propose a pretrial order you know the district court describing the contentions beef stock right all right you're wrong so what we have here beginning on page thirty of the appendix is a proposed pretrial order is that proposed order agreed to by both are yes you're on the i'm sorry yes and that proposed pretrial order as i understand it describes the plate i perhaps in the original complaint was a mistake greg you're on the my right that he does it the judge below dismissed the breach of contract claim when it will be said yes and that's a separate point yes of concern for you right yes wrong because but but i guess i'm trying to figure out how to think about that the judge seemed to be under the view that there was only a dolo claim in the case of rect well if the judge is of that view in entertaining the motion for s judge then your view is if i just look at the face of the complaint as amended in it as it developed there's no indication that a breach of contract claim that you claim was planted ever dropped out all right and so that that aspect of the district court's order is just error because it was a breach of contract claim and there's never been a reason given for why the breach of contract claim was dismissed correct or wrong and if and if that's right and even if you lose on a dolo claim could you just explain to me in your view what the difference between the dolo claim and the breach of contract claim is because i have to say i'm having trouble grasping what the distinction between the two might be if you're not challenging the formation of a contract because the existence of a contract and in the breach of contract we have specific laws or that allow you know the  put your misrepresentation claims with respect to the dollar claim depend on the existence of those same provisions don't think they interrelate your honor so much fun trying to see is there any way in which they can be disentangle the court oh yes if we if we think that there was a claim plant ok thank you thank you court was and correct in finding that the original complaint is not legit which right now they weren't because there were no elements and how the breach of contract and what about the representation all a complaint ok in the complaint just looking at the complaint he dismissed the lower court dismissed as the breach of contract claim under twelve b six despite you not asking apparently for him for the court to do that so just looking at the complaint ok does the complaint alleges a breach of contract claim yes it is ok for the lower court in your view erred in dismissing the breach of contract claim for failure to sta here ok just at that point you can see just read the complaint it was alleging we take the allegations to be true the elements of a breach of contract with your nonetheless the lower court dismissed that under told p six for failing to do that is st of all our contention is that the stock purchase agreement is just that a stock purchase agreement if you spoke about purchased or stocks of percentage of stocks it didn't mention anything anything in that take it as true and the allegation was that there was a breach of contract in which i thought you said you agree he did make out a breach of contract but if you insist on playing yes well that that's not based on the verbal representation that's based on the clause to help him so he was he he was a sophisticated buyer not is not a material fact to be created by a jury that's a fact you know why because he hired three experts and he so what's the test for whether you are one or not and why does he tell you what is that if you're to legal question i would be a reason not to give it to the jury yes so what are we supposed to considerable weight on the location social background economic status and business experience of the party legend deceit ok but there is questions you want is whether is this rest and two is whether the fact is a on the last point that just i just asked you about in the same case citibank that you're on it announces the task we read we say in misrepresent all you want to the sophisticated barnet's on him and he's not just only the sophisticated buyer it says that you rely recently we rely on and that's th well because he is there is no evidence that he's a sophisticated buyer and furthermore he had he he had more people to advise him so it is obvious that  reliance stan do believe only in the cellar when you have the experience and when you and you have your experts you're not being reasonable and that's not something to be decided by