thank you a place court was for were before they were to whether a six fifteen motion used on a form of a complaint or specifically for lack of specificity in pleading fraud should be treated as a six nineteen motion now prairie farms would argue that it should be so the law as the workers argue say is not now there are two issues on appeal today whether this it and whether it is barred by statute of limitations i will address each in turn now the court remember may remember that when we were below this matter is about three farms alleged termination address seventy two now we'll jump up to two thousand and eleven when the plaintiffs changed lawyers and then ultimately in two thousand and twelve when this case was voluntarily smits the case was refiled in madison county  twenty thirteen in time and transferred to a coupe in county where it was incredibly dismissed as barred by at i think the clear answer is that they given and implicitly that ruling was without prejudice now within that time period the plaintiff needed more time apparently and so they moved for additional time where again about a month must absolutely and finally it's the rights part that's an order of words the final judge that's paragraph forty seven from her name we look to those orders from the it's to me three they did not do that they did not close off a portion of the case from being able be argued at some point in time future to look to the smith case fran now the richters also rely on that hernandez case the proposition that all non final orders don't become final on the voluntary voluntary dismissal of the case might go to the richardson from the bench for the general proposition that for the time allowed but the amendment of a complaint after dismissal expires without us without that amendment was it raised it up in a filing it was here it was mentioned in the  discretion i'm dismissing this because of what the original trial court said and what the plaintiff failed to do in response to what your original problem i don't understand what subsequent or gave you more time recently i've briefly point out that her farms were lying on the hudson opinion and that would be but here we don't have that we have a six fifteen motion based on fault in pleading enough facts to play from as such there's no final order but you can get it on the americans somewhere with a rhino and  not beyond the limitation period according to the public or it was related to the initial suit this case involves the plaintiff's inability to understand and grasp what rule two seventy three thus you cannot file a lawsuit have various if it didn't in or cut off or right after time runs then why would plaintiff filed a motion for an extension of time to file a leave to amend after their initial thirty days rate in this case the plaintiff stood on their plate plenty of counsel suggests the size of the defendant should file a motion to dismiss account that isn't in the complaint about the plaintiffs never and that's exactly what they did here well they never appealed to me thing they just were giving me leave to a man to take advantage of which that's exactly correct and he said well the boy to have to leave to a man is decision for this court holding just there which the supreme court of illinois smith emphatically rejected and overruled i remember the case very well where  of dumb ruling was that that you were thinking of because that was not a basis for decision and he and the supreme court explicitly rejected this notion this far as i can recall my understanding of it that they delayed in filing a motion to amend or filing an amended pleading if you've been given time to do it constitutes what you're arguing now and that points with this case that was there were no counts dismissed and dealt with in hudson this was a kid the smith case was one precisely what happened here well your honor i don't believe that that's totally correct fraud and misrepresentation and then i can not raise them for six years and discovery can be conducted on the only remaining county shareholder remedies during that six years pledge helpful said extensive discovery was conducted it was by the defendant in this case the the reason his case was dismissed with because the plaintiffs got in a box on their expert disclosure and they took a voluntary dismiss rather than try to go to trial without the expert so what i'm getting my what i understand here is if anything but my point is that going back to the first question i asked you and what point two seventy three that became a final appealable order that day they have thirty days to take that up at that point in time i'm not saying it became a final people order thirty days after he dismissed the g leap to bed or one hundred twenty days after the motion for extension time i'm saying that in two thousand and twelve when they took the involuntary dismissal of count one which was the sole remaining count amend the complaint and he doesn't do it what do you do motion to dismiss such there's nothing to dismiss now no there is still alive proceeding here the smith case made it clear that there is plenty to dismiss your idea there's a still a pending he has the opportunity to play the fails the opportunity when there's a motion or an order entered dismissing with leave to refile to refile now the courts had a deadline but that's like all kinds of the lines it's not just the smith case held that doesn't mean the case is over when the linesman reached what you need to do if you feel yourself aggr by this is ask for authority to kill this case to change the order from dismissal with me three filed to dismissal with prejudice because there's not anything you could have done it couldn't you well you're not i've been doing this for twenty five years and i've appellate judge to decide latches supplies i don't want to hear what the trial judge did say and had the trial judge has addressed that specifically and made his findings in this case about how latches would be appropriate i think that's something which would you know this is one of those things quoting potter stewart on a saturday can't find it but i know it when i see it latches it's one of those things where you know when you see it them each case is different and that's why not seeking any hope injunctive relief going forward and furthermore i'm not sure that you would seek it against individual board members of supposedly corporation any site i understand what you're saying with regard to the potential for me to file or for a definitive case to file a motion to quote dispose of the case with banality but i think that what that does the shift the burden on to the defendant in appropriate saying there for i mean because they were allowed to repleat it was not final but i think that once the judge puts a deadline on it and that deadline passes and i take my last make if you want to change the court's order dismissal from the order with leave to a man to an order of this missile with prejudice i think the ball's in your court which i would think to seventy three require that voluntarily dismissed their case fifty five days after the order was interviewed dismissing their complaint are in this case they just in both they voluntarily dismissed one thousand eight hundred  after the involuntary dismissal of their pleadings you know there's also and gelber they stated that the involuntary dismissal order specifically stated that it was quote without prejudice there reason behind these rules to stop harassing litigation you know we don't have a key share where you know the plaintiff says this isn't fair this isn't just having preforms theory defend this case know how i could be barred from doing it as i stand here before you today but clearly i would raise it and ask the court to address the issue however i still think it's appropriate for this court and you're going to do novo review you counsel indicated that the case was dismissed and twenty eleven fallen terribly when death fines were being run up against it's respectfully submitted that there are other remedies but that type of her and there were and it was plentiful during those during those time periods there's not big gaps