thank you may please the court my name is dan shot my pleasure to represent mr charles nancy in these three consolidated appeals there are a number of issues raised by these appeals and what i would like to do is skip a little bit and go right to the third argument or the third issue raised in our heel which is whether or not the arizona district court judge erred in his application of the arizona statute of limitations to this case i realize that i'm skipping over some issues but i wan focus on that issue because i think it's a very important issue in the case and frankly if i prevail on that issue many of the other issues go away that issue really turns i believe on the interpretation of two letters that were written in march of the year two thousand my client mr posner anstey's march eighteenth two thousand letter and the march twentieth response from the defendant mr give me and the two issues that are raised by those two letters are the question of whether or not the cause of action should be deemed  accrued under arizona law whether mr posner lansky had discovered enough information about his potential claim that the cause of action accrued under the discovery rule number one and number two whether the doctrine of equitable stoppel should apply and the fact is those two letters in those two documents in those two concepts are very interrelated in a case like this where you're dealing with a claim against a professional where there was clearly a fiduciary trusting relationship between the parties now just so i honor thank you here what if you just want to know when it starts when it starts exactly when did the cause of action accrue and i think it's important to talk a little bit about the factual context i want to do it specifically with the reference to one of the particular investments gives investment in a start up company called and see see what mr knew at the time that he wrote his march eighteenth two thousand letter is that because mr give me had brought this investment to his attention knew that he had a recent conversation with the head of n c c who told him that the investment wasn't going well the company doing it wasn't doing well and there was some chance that his investment would not turn out to be a good investment that's all that he knew what he did not know at that time was the fact that were the facts that were relating to mr given these violations of what we believe were his duties to mr posner asking he did not know that at the time mr give me had recommended the investment to mr pos before this letter was sent yes and what you're arguing is that do i understand correctly what you want to go through each investment and see when it starts i don't think that's necessary what all that is necessary was going downhill he didn't know the relationship between mr given his conduct and the fact that he should have never gotten into this almightily and again why would you ask forgiveness insurer and why would he ask for information on the state bar that's not the kind of thing that you ordinarily inquire if what you were doing is the thing hey maybe i need to move this money someplace else this is going down the tubes you don't usually ask for your insurance information and particularly the information that state bar but if you look at the letter that's a very good observation but if you look at the letter he's also asking from information for the better better business bureau all sorts of information things that would indicate that he was preparing preparing to file some kind of a complaint whether it was a legal complaint but he was prepared to file some kind of complaint and complaint to the attorney general has been complained to the better business bureau and those are all directed to give me personally not to n c c right has to be yes they are directed to give me but if you look at that letter in fast that context i think what he's saying is i know something went wrong here i am desperate i have lost my life savings i want to recover and since you're the guy that got me into this since you're the guy that gave me bad investment advice what can you do for me i want to know what my what my facts he could find out if he pursued that is the question he asked to be put he will have to know enough to that a reasonable person would do further investigation so he has enough of these asking for malpractise and insurance policies to cover him per information about reporting him to the some ethical board i suppose at the bar it isn't isn't that pretty strong at that time he says there's something wrong and i should be reimbursed for your malpractise no i think what it shows is that he knows he has lost his money and he is desperately looking out for some way that he can recover his money i think it's very confusing he's implying a charge of malpractise when he's saying is you have a malpractise carrier you have insurance why doesn't that go for other than just i don't think maybe anything went wrong but i'd like to find out why i'm less lost four million dollars i think you're attributing a level of sophistication and detail thinking to mr posner nancy that may be inappropriate in the circumstances we all as lawyers understand that in order to have a claim against a lawyer under their malpractise policy there has to be an  type of allegation of negligence or intentional conduct but if you look at the totality of mr posner anstey's letter all he's saying in there is you gave me lousy investment advice it was you that brought me to this investment and it turned out to be terrible nobody's fool this is this is a man who has been in the banking business for many many years he's got four million dollars this is not a trivial trivial amount of money and his the questions that he's asking are not how are we going to get this money  back what can we do it looks like the bottom is dropping out of the market what have i got to do here to preserve my investment or is there misconduct on the part of n c c here that we ought to think about filing some kind of a you know a shareholder riveted something or something else this is all directed to give nice wrongdoing and ordinarily you would sophisticated people invest investing with with brokers and others understand that if the stock goes down they don't always have a cause of action against the broker i think it again if you look at the letter that he wrote he doesn't say anything about your wrongdoing he doesn't say anything in the letter about how you had some kind of conflict of interest that you very badly here by the way apparently i'd be pretty nervous about that that's not just a reflection on bad advise that very well may be the very seriously wrong here that very well may be the case but the question is not sighted a little different faction area with that was the woman that went in to see her dentist had some dental work done and knew that the dental work out came out terribly and knew that at the same time that the dental work was being done she started having terrible headaches and problems with her neck went to see somebody else and the arizona court of appeals said in that situation clearly she knew of her injury at that point and she knew that it was somehow related to the fact that she was getting  treatment from this dentist but it wasn't and tell some other professional told her that the first dentist did something wrong that he was negligent in the way he had done his and his work that her cause of action accrued and i think that's very much the case here with mr pos lansky he knew he was injured he knew something had gone wrong he was searching out the scene some way he could recover his money but he didn't have the information about how mr guinea had been giving him this vice and not telling him all the properly applied i'm not sure i understand are you to ask you whether the arizona statue limitations is the correct statute your argument goes to whether or not the district court properly applied the arizona that is also in this case the noble review your honor because it's the question of whether or not a reasonable jury would have any evidence in which it could find that the statute of limitations had not yet accrued but as of march twentieth that we were just addressing that issue you know you're not aware of any cases that's what the stand review for that not a different standard review the not the second part of the argument that i want to get into with respect to this question is not only the question of did the cause of action a cruel at that point of time but does the doctrine of equitable stoppel apply mr posner nancy's letter is written on march eighteenth of two thousand and mr give me your response two days later on march twentieth two thousand and says essentially don't do anything i understand you're upset i understand your concern about your loss of money i'm handling it there are things that i'm going to do we're going to try to recover some money from here and there you really don't have any recourse against me stay the course hold on don't do anything persepolis it would only hurt me it would only hurt you stay with me here i'm going to make you better i'm going to handle this and he continues to write m stayed the course held and didn't bring any cause of action and now i'm going to take the position that you run out of time that the statue of limitations has expired and you no longer can bring the claim against me and i think if we allow an attorney in a situation like that to in essence get away with that it sends a very terrible message to the to the public because it really is a case of gotcha mr president as he still considered mr give me to be his attorney was still relying on the advice he was getting from mr give me and did exactly what mr guinea asked him to do he did not file a lawsuit he did not pursue a claim he waited to see were there anything else other than them other than the march twentieth letter that suggests the give me was skeet in fact there was a lawsuit that was brought and i guess one of the involving one of the investments and there was a partial recovery by mr posner ski on that but he had three years from the time that he writes the march eighteenth what's the problem well the problem is that mr posner he did not get advice from any attorney other than mr give me and tell the statute of limitations was about to expire and then of course you get into the whole question of which statute of limitations really apply here and it's certainly is our position that the arizona statue of limitations is not the correct statue limitations i know i haven't much time but let me very briefly touch on what i think is the key issue there which is the whole question of  cause nancy's residency and i think that's a term that we have to be very careful in using mr posner lived in wisconsin he lived in was fastened under very unusual circumstances he was on supervised release because he foreign injury because i'm not sure what mr posner connection was with wisconsin he wasn't a resident of wisconsin he was a resident of wyoming well i did this to the buy for an eye for an injury that  and the question is in a crazed where there's economic injury where does that cause of action accrued it's not like a personal injury case where it's clear you know a car accident case where the injury occurs w and that was argument in the district court i guess if i can boil down my argument to one that at least makes sense to me as a as a father of college age children i have two kids that are in college not in wisconsin they have  bank accounts there they are not considered a residence of those states because the colleges want them to pay out of state tuition they are considered for tuition paying purposes residents of wisconsin even though they have been home more than four days in the last three years but if they were economically harm somebody scold money out of their bank account or defrauded them in some way they were harmed would occur where their bank where they lived and where their bank account was where their money was where their financial a that were affected it wouldn't occur in wisconsin even though that's where their residency is for purposes of determining what type of payments they have to make and that's really the situation we have here with mr posner lansky he lived in wisconsin his was his accounts were in wisconsin his money was in wisconsin he sent that money to arizona under faults representation is and with a breach of duty by mr give me and i think that's where his injury occurred so that wisconsin borrowing statute does not  but under the law as i understand it it isn't his keeping the cause of action away from the knowledge of your client but keeping facts away from your client what is the record  actively keeping facts away from your client mr giving that's an interesting question because all these facts i'm talking about with respect to the n c c investment the fact that mr give me had an understanding that he would get paid the fact that mr guinea's wife got seventy five thousand dollars out of this investment as part of her salary mr given he didn't have to actively conceal that from mr posner as he in the sense that mr president he never had a reason to ask about it and so there was an act of concealment in the sense that he lied in response to a direct question that he altered documents or things like that it was just there was no reason for mr posner to suspect any of these things which is why i think it it's in more with the equitable stoppel argument but certainly it was concealed mr posner esky was not made aware of these facts and if to the extent that mr give me was acting as an attorney he had an obligation certainly to the court i'm just playing a minute and i represent the defendants will you give me and give me an associates we would like to start as did mr shot with comments concerning the march eighteenth two thousand letter we believe that judge cedric was correct when he decided as a matter of law that or that letter shows a cruel certainly you could have a case where there may be a question of fact of a cruel but you don't have a question effect of a cruel where the writes the defendant and says you depleted my life earnings he has language in his letter that says the mr give me made mistakes that there have been debacle that there are schemes that he's not happy with he talks about securities the better business bureau and the bar there is no question we believe that for a jury to decide whether mr posner he had the necessary knowledge to have his cause of action a cr we also believe that that letter as judge said was observed takes fraudulent concealment of the case under the walk case you have to there would there's potential fraudulent concealment if the plaintiff does not have actual knowledge he names mike davis he names bill bradley he names he talks about these other people but he doesn't care about them he cares about give need and given these misconduct he knows he's been harmed and he knows there is fault and he knows there is a a causal connection between them he could have filed the same complaint he filed on march twenty sixth of zero two march twenty eighth march twenty sixth he could have filed that same complaint the next day if you look at the complaint the amended complaint it talks about allegations that mr give me fail to give him proper information as to the risks of the investments and that and concerning these conflicts with these other people in that he failed to do things with  documents that would have protected his assets those are the exact same problems that he addresses in his march eighteenth letter so we believe that there is no question about a cruel let me ask you  the case and point it talks about establish by inducement to told the running of the statute of limitations in that case the court said that the court must determine that the defendant's conduct was so severe as to cause duress that deprives the a reasonable person the plaintiff of the freedom of will to file the lawsuit on time there is nothing in the record that support this he had them to promise not to tell anybody about this and he showed these students these girls fourteen fifteen years old his gun he there was a sig these students thought that their lives were in danger the track coach suggested that he had killed one of their boyfriends who did die under suspicious circumstances these people those students created by their brief think a question of fact as to whether there was to rest of the summary judgment decision and behalf of their track coach who was reversed by the court of appeals here there is no record like that what the courts have said about a stop and arrest is that if you're simply denying the allegation if you are giving factual updates if you are if you have a different opinion about whether your conduct was subject to to valid criticism or not that type of exchange of information ly now the problem i'm having is that if you have if you have a condition of trust and confidence there may be a responsibility you give facts that is the family lawyer and are my client it may be that i should tell you that that i am somehow related to the person you're suing that there is a duty to come forward there were a lot of things happening that the plaintiff didn't know about that give you know that if he had disclosed like some of the money that was going to his wife cetera that that would have put him on at least greater notice so what is the responsibility of the ivy about faction his position when he has a position of trust and confidence with the plane certainly if this case would be tried there would be evidence submitted as to who knew what when but the question of a cruel and whether cruel is delayed by fraudulent concealment is governed by the holding in the similar in that case the dentist knew that there was another dentist in town that had an opinion that what that first dentist did was wrong and there is a failure to disclose that as alleged in that case here there's no evidence that mr guinea was even i noticed that what he did was wrong i mean and so when he when he when there's a conflict as to whether he's right or wrong and he divulge information that he has a responsibility divulging he so we're talking about a two year period i understand with the district judge did with the letter and i can i can understand your argument there but there's another two years and when there's this discussion of a person to whom you have a responsibility is obviously looking in and concerned because of the trust relationship between given the plaintiff at what point or does it ever occur that give me has a responsibility to come forward with facts that is because he knows that that the person who is in this process relationship can use those facts and if he did in any of that two year period if he found out some of no adversity between his interest and the interest of his client under the ethical rules very there isn't even the trigger to make the disclosure that whole mindset would have to be decided by and there have been experts on both sides that have rendered opinions recognized that there's no more trust or the trust has been jeopardized or are put into play here then he's got an obligation to file the lawsuit do is discovery and take the case on to figure out let me see if i understand you are you saying that once this letter was filed from that point on i get be is is forgiven for any response really has a person involved in this to to do his inquiry and if necessary to file his lawsuit it's the exact and if there was a trusting relationship i can understand that but if there is this trust relationship is good the ever get to the position in this two years ever to the position that he had a responsibility to come forward with certain facts because this person was in that relationship well he the relationship was ongoing the communications were ongoing what we concealment would and he subsides suppose he had known that there was money being funneled often given to his wife suppose he was aware of these other facts that might have crigger an action on his part and that's why it bothers me whether this this relationship they had arizona and met with mike davis and mr give me mr guinea's wife brought his own wife along in april of ninety eight and also again in april of ninety nine he had the private placement memorandum for n c c in his possession so even even before he wrote the letter he was finding information hearing information doing his own diligence as to these investments this information was available even before march eighteenth but certainly by mar teen he had the requisite knowledge of possible negligence to not have the statute of limitations toll for his benefit and that's what fraudulent concealments about this with the parallel doctrine of  stop was about it awful focuses on what the plaintiff knew and did he know enough not to have the arizona legislature statute of limitations apply to is cause of action we believe that on this record you transfer but it was transferred under circumstances where the effect was to cure a defect in jurisdiction so the president sixty thirty one pardon and why didn't the judge transfer but in fact judge said look decided not to side with us and follow the law doing approach and apply the arizona statute of limitations if the if the arizona conflict analysis is applied is under spewed it there hasn't been our position had been challenged by our opponents that the arizona statue limitations would apply if you go muldoon if you don't go muldoon if you go ferentz which is more i guess conservative in that approach that what we were recommending wasn't followed you it just becomes more complicated but all you do is you start in wisconsin instead of starting in arizona when you start in wisconsin you start with the wisconsin borrowing statute if it's a foreign cause of action and then you apply the stache limitations from the foreign accrued you put your thumb tack either in arizona because that's where the conduct was where you put the thumbtack in wyoming because that's where the economic harm was and we wouldn't even be a consideration here because the statute says you have to it  his lease know his legal residence is wyoming he told you that we all of his tax forms went to the i r s he claims to have quote lived in wisconsin he claims that he had to live there because the supervisory release order from judge randall in the eastern district of wisconsin required it we have submitted in the record our document number twenty five the docket from the federal court judge rand is the criminal case the his economic harm with his economic harm was where he chose to have his economic home he chose with pollution and free will to tell the i r s to tell judge rendered to tell jokes that was to tell judged by what the bank it was a bank account  s form that he filed ever since ninety six judge randy judge judge said will keep all of them he told the world my residence my economic home is cheyenne wyoming and i'm sticking to my guns only when we they're having a problem for this as far as the foreign cause of action is that all but i live in wisconsin and i live in wisconsin because of the supervision placed on me by judge rand in june of ninety  eight a year and three or four months after the he got out of prison the three year period was a liftin he told the tax court it's the in our submissions in the record in november of ninety eight that he wants to have his trial and his tax liabilities handled in tampa florida as of june of ninety eight just like southwest airlines he was freedom room roam around the country he bought property in florida and he moved there his own affidavit said after the supervision was and was released i was released from the supervision i set up a winter home in florida hedonists leads you to believe that that was the three year period of time he was in florida in the winter of ninety eight he was in colorado in the summer says that and now i'm at home that thumbtack was in wyoming yes he did spend time in wisconsin but he was a basically a tourist he was a former resident under the wisconsin department of revenue code here he was a non resident of wisconsin and it's in our back and in our materials when you're a non resident of wisconsin even if you have los s or earnings they are not to be part of your wisconsin financial package they have to be accounted for in the jurisdiction where you economic home that was wyoming he chose wyoming because wyoming didn't have an income tax now he wants to say i lost money in wisconsin because it's more convenient for him if once you decide where you're going to have your economic you should wyoming to you years but if you do we judge said we'll get in we think you should you don't look because this is economic harm he thought of the risk still case the wisconsin court case not wisconsin federal district court case and that says this type of claim whether it be professional negligence or contract how it's played we don't think it makes much of a difference neither did judge said which he said where it's economic harm the best test is the  two year arizona statute of limitations i noticed my time is up i apologize for going over thank you and i like to ask a question about about the sanctions yes because i don't think we've got another round of i think this is i think th yeah what is what is the issue that we need to decide on the sanctions if we believe that under the macarthur case in the chrysler case that the transfer should not have been partial this judge said i didn't want the case once we believe the transfer did occur the rest of the file did follow once you got docket items one that there's a one there if there's an error here it's i don't not sure it's curable by the district court in arizona the error then would be the would be the district judge in wisconsin and we don't have any control over wondering how that might be handled by the panel here they don't suggest a remedy they say the transfer has been proper but they don't suggest a remedy we do not believe that a reach transfer is doable here and we believe that it's been waived if they wisconsin so that we can get all of this in one court you have the whole case you've got docket we don't have help we don't have the matter of the sanctions except except as the district court in arizona enforced a judgment issued in wisconsin we believe the review is appropriate but if you disagree then that's we'll accept that decision by saying you don't want to be transferred back to wisconsin try and straighten this out that we've not asked for that remedy no we have not we believe it would be inappropriate to to retransfer because they want t just very briefly i want to address the question of barring statute because i think there was some confusion that the wisconsin borrowing statute by its terms does not say anything about residency or domicile or any of those terms al wisconsin borrowing statutes as is they act if you have a foreign cause of action then the a political statute of limitations is the shorter of the statue limitations where the the foreign location where the cause of action  accrued or the wisconsin statue limitations and the statute does not give any further definition of a foreign cause of action and told they asked so the next question then is is this a foreign cause of action or not and although there was lots of allegations about what mr posner as he sat or didn't say or why he said it there is no dispute here that every dime that is at issue in this case was money that was in wisconsin  transferred from wisconsin to mr give nice trust account in arizona as a result of communicate communications that occurred between mr give me and mr posner when mr posner ask you was in wisconsin and for those reasons i think this is not a foreign cause of action and therefore the wisconsin borrowing statute doesn't apply then you do a choice of line alice's under the or products case and we believe under that analysis the wisconsin statue imitation supplies thank you thank you