quick summary of the case this case arises out of the major rehabilitation of historic property in baltimore city the kaiser entities and i'm referring to the opponents of kaiser entity's spent eight years of their time energy and over three million dollars to bring the redevelopment of this property the northern district police station to fruition only to have the right to recoup those funds and to be paid for their efforts as both minging member and developer of the project stripped from them by the tax credit investor member just weeks before the project was certified as complete and at that time the investor member received millions of dollars in tax credits the kaiser entity sued to enforce those rights under the operating  agreement the amendment that are issued today and sufficiently alleged breach of contract claims based on holdings removal the company's refusal to pay the developer fee and refusal to repay loans at the kaiser and she said made to the company those are the claims in a nutshell the dish a court granted the eighty nine elsie's motion to twelve the six motion to dismiss and that's really the key here is that we're here on a twelve b six motion to dismiss for failure to state a claim we appealed from that ruling because the district court failed to adhere to the proper standards for considering such a motion to grant a twelve b six motion based on a contract where there's a contract between the parties the contract must clearly and unambiguous claims the relevant contracts in this case namely the operating agreement and the amendment there to and other project documents which are incorporated in the operating agreement do not clearly and unambiguously bar the plaintiff's claims in this case the four claims really at issue if you distill all the counts into four different issues is the removal of the managing member the payment of a developer's fee the loans and the claim for an accounting talk about the in order to hold that small deal who is the investor member here the tax credit investor member federal tax credit member properly removed holdings from its position as managing member of the company the district court made a factual determination that merely because operating agreement requires to remove for the investor member to remove the managing member the mansion member must violate a term of the operating agreement must not cure that violation and the violation must have a material adverse effect on the company there are several factual determination that had to be made in order for the dish to court to conclude you keep saying that if factual determinations have to be made in reading the district court opinion it seemed to me that she was a hearing fairly scrupulously to the language of the contract itself most specifically section six point which is not good for you here are section six point ten a it speaks to the violation of the nation to provide funds and as we've we've argued in our brief the obligation to provide funds it's not the same as an existence as the existence of a lien judgment and the reason that is is because the there's other language in the operating agreement that contemplates that the project can be completed which is really the nanjing members ultimate obligations to complete the project but there's language that says that the up the project can be completed if in the existence of liens so long as there are plans in place to satisfy those planes and as a factual matter in this is in the amendment the means could have been paid as soon as the investor members made that next installment payment which would have been at project completion less than weeks just weeks away taking the contract  what the contract did was set up a fairly common division in commercial dealings which is one party is an investor and the other party is a manager and your home your entire duty under contract to the managing partner was to see that the project ran smoothly the investor is remove the investor simply hired to avoid having the project run into debt to avoid having all sorts of outstanding mechanics only to avoid having the thing crash where short falls into being and having cost overruns overtake the whole thing and you and your job as managing partner was to avoid the very things that happened and if that happened you had to make up for it on the managing partners dept and that's that is what this contract says the very things you hired to avoid happen which i suppose is ok that's the whole point of the contract we are i mean there's a few several different issues but the point is here that isn't exactly what happened because there were plans made in arrangements made for the investor member to make additional  to provide additional funding there was promissory notes signed by small deal which are in the record which have a small deal was was essentially stepping in that obligation to provide funds and the rally agreement which is alleged in the complaint the ral agreement was not is not in the record self of the allegations are there that states that the rally agreement under that agreement small deal took over some of those obligations to provide funds for the project and again that amendment gave a additional payment to the company at project completion which would have paid all of those outstanding debts and again those are all factual questions that have to be weighed not this isn't a twelve the six situation where you can say emphatically that the language in the operating agreement clearly bars these claims simply because those are what the managing members obligations were there's enough facts to show that there were changes made in the saying they don't know that you've isolated any of these factual questions in your brief or wherever with any sort of pr one of the things is that you know you myer contracted ceaseless litigation like you wish to do you deprive the bardi parties of the benefit of their bargain so long as the contract itself is is reasonably document which in the event that it's clear will save them the expense of litigation and to throw all the same to litigation simply deprives one party of the benefit of a bar and particularly i think that i've been in the developer's feast situation in this case the operating agreement in this is that joint appendix two hundred specifically states that respect the developers  that the developer fee shall be deemed earned in its entirety as of the date of construction completion which in this case this in december of two thousand and eight and it goes on to say that the developer shall be paid such forcing the developer fee from deal with it in equity proceeds of the company when you have an e mail leds that in fact there were plans outside of normal operating expenses ok that that you and i mean i think in place and in the in the allegations that that you know if there is fines then actual payment is made and with respect to that there's no specific claim that the company had funds available that it was not using brother legitimate purposes and refused to pay is there i think we've led elsewhere outside the december totoo twenty seventeenth deadline is when at that point the manchu member would actually have to borrow funds in order to pay the developer fee but at contest construction completion which was december two thousand and eight it was due i mean the operating it says it shall be paid and the district court made a made a determination that the company actually did not have enough funds to pay the developers which the district simply didn't have a basis to do that it so there's there's several you know there's several reasons why the developers the districts the term nation us the developers fee was incorrect we're going to be this independent action in accounting wise in accounting generally just a part of discovery  tied to for example developers fee we don't know really how much money there is there to support our developers claim fee and thus we have an accounting and no your honor was stating previously what whether they owe that money and th good morning your honour's may please the court my name is represent a pelleas in this matter the district court properly dismissed the amended complaint because the express language of the company's operating agreement forecloses any possibility of liability at this time on the claims asserted in the amended complaint i want to begin with the six counts as judge wilkinson pointed out during his burton's argument section six point one of the operating agreement required holdings to cause the completion of the rehabilitation of the project and if available sources of funds were not available holdings needed to advance any development funds necessary to complete the project and until the date of construction completion also cover any operating expenses that same section deems all such payments capital contributions and under the operating agreement capital contributions are not repayable at all unless a removal occurs and or a sale and in the event of removal there not repayable for fifteen years what is the word in section mechanically i mean is it is it a kind of an omnibus word in your view your honor if you look at that full sentence as a whole sub one first there's a reference in the first clause to available debt equity rental income or other so this was an operating commercial real estate project with tenants and it was also under development so there was not only income from the operations of the property there was also construction loan so loan proceeds and there were capital contributions that the investor member had made all of those sort of sweat equity refers that's right all of those sources of funds were available to have it refers to the income of the income in proceeds the first line refers to the cash reserves and they all that money right the first line refers to that and then someone talks about rebuilt rehabilitating that's the construction piece and two refers to provide for all of their payments and expenses the importance of th second clause is that there is really a cut off it construction completion if operating cash if operating income is insufficient after construction is complete the managing members permitted under six point one one to make loans for operating deficits and those would be repayable i didn't want to know that this is after construction complete ok under six point one one in applicable in this case but if they're managing member had reached construction completion and there were deficit ongoing going forward loans were permissible under that circumstance before construction on what we have here now because construction completion had not occurred during this entire period so during the construction rehabilitation phase the managing member is required to advance funds for both operating as capital contribution for both operating deficits and to deal with any cost overruns business action says on or prior to construction completion exactly but the point is that first sentence of refers to the available income you have you have a revenue stream arising from from debt equity rentals all the proceeds and the assumption is that's going to go a good way to funding the project but it might not and deficiencies might arise particularly in construction work where you know cost overruns and delays for making up the difference and the parties allocated the risk you know every contract involves a risk at the bottom and the question is who's going to cover the risk and the risk is that things might not go as swimmingly is as one hopes but the risk allocation is allocated through the managing member  that's not an implausible allocation because the managing member is in a better position than the invested member to avoid those that and to make sure that they they don't have he's the one at ground level that's correct and that's what this contract seems to do that's correct during the construction phase where this project was mired until the removal the managing members responsible for advancing any costs above what the funds available in those other sources what is the phrase development advances mean development advances is a reference to this six point one zero it's it what it is that term is never defined it's not a defined term but that create a problem i don't think so your honor because when you read six point one zero eight it's clear that they're developing their rehabilitating a project  and as i mentioned earlier there's this cut off in construction completion so development advances have to do with any money put in by the managing member during the development phase then why why exclude development advances in this of the full agreement it referring to money advanced by the managing member which is addressed in six point one zero eight zero if it wasn't what i said language and the reason it's there is because this is asserted this provision six point zero nine k is a certification from the managing member that it hasn't made any advances any loans or advances it starts by saying the managing member has made no loans or advances and then it says of course except for development advances it's not it's not it it's there it's not it's included because because if you took out development advances from that parents radical there'd be a certification that no development vance's had been made which is untrue ok so your view is that language then to the extent of exclusion it simply defines doesn't apply but states that there may be development advances and they are all supposed to be treated as capital contributions that's correct and if you look at the two the two provisions in six point zero nine k one is loans it says no to no moans or advances and then in parents rad l it says loans under six point one one which again are these these operating deficit loans that only can occur after construction completion and development advances again a reference back to six point one zero way there is no  defined term but it's a very clear i think from the context of of the full agreement what's intended by development advances in that clause the district court dismissed these loan counts be based on the pro level and to rule because  the supposed oral loans that are discussed occurred during the spring and summer of two thousand and eight before the date of the first amendment where the parties ratified both six point zero nine k and six point one  a and another provision i haven't mentioned yet fourteen point zero five which is the entire agreement provision it provides that that the operating agreement as amended by the first amendment is the entire agreement between the parties and there are no prior agreements so appellants that below placed this supposed oral loans during a time period before the first amendment and therefore proof would be barred by the pro level in its role and that was the basis for judge blake's finding on the loan claims turning to the unjust enrichment count this these counts are basically there are six counts for unjust enrichment that correlate to the six lone counts and the judge judge blake found that that  these claims were barred because they are on the same subject matter as the lone claims the subject matter of the unjust enrichment counts is the treatment of these advances that managing member made the treatment of the the problem with all of the exceptions is that they all relate to a challenge to the enforceability of the express agreement so if you look at severn marketing associates first is due in that case is a case where the unjust enrichment count was dismissed because the challenge to the agreement was not to the met in the making of the contract the enforceability of the contract here appellants have acknowledged the enforceability of the operating agreement and the first amendment so we don't believe that they can take advantage of any of the exceptions that would apply turning to the developers fee that the developers fee is was properly dismissed by the district court i agree with judge keenan that it was earned on construction completion but that provision does not does not discuss payment terms there is another sentence what is that next sentence it says that it would be payable on december thirty one twenty seven is an outside date following yes no i agree your honor and that address is that it would be paid out of available debt and equity proceeds available proceeds and this is the key provision that shall be paid i'm assuming that is burton's argument when she comes back is going to be well it does say it's earned and not do that she was incorrect on that but it does say in the following sentence the developer shall be paid portion to the extent that such a procedure not required for their purposes you honor and that in judge blake's view and in our view was the critical clause to the extent such proceeds are not required for other company purposes best the new managing member with discretion to use funds wishes the managing member to remove managing member the developer in this case i am the boss is the entity that entity is entitled to six percent interest from the date of construction completion until the developer's fee is paid that's it that's correct or are you saying no no we are saying it's discretionary based on the clause to the extent such proceeds are not required for other company purposes that that clause vests the managing member with discretion to use funds how it deems appropriate until the part of the well the the that allegation is is set forth but it's there we believe it's not plausible under the circumstances here because  faith that there's been any misuse of the discretion that was vested in the in the in the company to pay this to allocate resources to other purposes until december seventh thirty one twenty seventeen now there's another issue here and judge blake also relied on the brewster versus brennan case where a case where the district of maryland dismissed a claim because all of the offsets and all of the accounting had not yet been performed here that the developer fee is subject to offsets for any harm caused by the developer or any affiliate and this this project is continuing to operate and at some point by december thirty one twenty seventeen will either make a full payment of the developer fee or make less than the full payment based on offsets available to it and if there's a disagreement at that time then we will be a dispute judge blakes finding didn't foreclose a claim on the developer fee it only found that it was an ripe until the outside date given the discretion that the company was permitted to exercise under that clause turning to the removal count ms burton's argument was that they were fact finding by by the court below in in holding that the judgment says as you point out judge diaz that they were judgments not just mechanics liens not construction if they were judgments on the liens pointing out that liens formed a basis for removal as a matter of law she took judicial notice of the judgments and she held that that demonstrated a failure to fund under six point one zero a six point one zero way specifically provides or believe it's eight point zero for the removal provision specifically provides that any failure to fund under six point one zero a is deemed under the contract to have a mere material adverse effect so there is no factual finding necessary because of this expressed terms of the contract deem any failure to fund under six point one zero way as material the court simply took judicial notice of the of the judgments and then found that that demonstrated a remove irrespective of any your no we would agree with joe with ms burton that there is a right to cure and in fact in this case in the record there is a clear letter that was sent out mean november giving the managing member thirty days to cure the deficiencies release liens and make payments into the it and the care letter specifically which is attached and is in the record specifically says make your payments under six point one zero bring everything current you have thirty days they didn't do that and in fact in response to the cure letter your honor they sent a letter and they attached that letter to the complaint so it's integral to the complaint it can be considered by this court and in that letter they not only agreed they didn't have any money to pay under six point one zero a their obligations but then they added on that lender was prepared to foreclose if payments were not made on the mortgage so they they added and judge blake had the benefit of their own letter they attached the complaint where they acknowledge an inability to pay the mortgage which would have led to a foreclosure on the project and that all occurred before the removal this occurred between the notice and the removal date turning to the accounting marilyn courts do generally hold that in accounting claim cannot stand as an independent cause of action with limited exceptions not applicable here this count judge blake dismissed without prejudice and b could not not so much because she believed that reasserted as an independent cause of action but it could be part of a remedy relating to a payment for the return of the capital contribution in future years and or for the payment of a developer's fee when that claim becomes right the accounting claim if you look at the paragraphs really relates to the return of capital contribution the paragraph disc that appellant's the main substantive paragraph of that count says if these aren't loans then their capital contributions we have a right to know what the capital contributions are except for a but this is a capital contribution return under the agreement express language of the agreement isn't due for fifteen years after the date of removal and is again just like the developer's fee subject to offsets for any harm caused by the managing member now just to give you a sense harm would would include in this case the costs because the managing member was supposed to release liens the cost  that it is that the new managing member had to incur to release liens to pay lawyers to fight the many other construction liens that had been fought to complete the project to pay any unpaid bills that operating bills that existed at the time all of those are will be offsets to what ultimate payments are made when those claims are right finally your honor below we argued that there were two entities that were incorrectly included in this case one is small deal farm which was the investor member and the other is rile consultants which was just a construction management firm engaged by holdings when it was managing member these entities were included on several counts and we believe that the obligations described here are the company's obligations in that they were improvidently included appellants did not brief that issue in their opening brief and under four circuit precedent united states versus al hamdi three fifty six f thirty five sixty four they've abandoned the issue by not addressing it in their brief now they do address it in their reply brief but in our view it's too late if the court does and without it affirming all of judge blake's opinion  would ask that that small deal in raleigh that any counts they've been included them be affirmed based on the abandonment thank you your honor there are no further questions i see my time is up i'll address the accounting question that judge keenan had i believe sensually we've talked about the developer's fee and why the accounting arises out of that i think it's also important to point out the capital contribution issue which  touched upon as the court said in andersen the watson which is cited on their reply in our repeated well unless the plaintiff is informed of the extent of his claim he cannot properly bring an action of law upon it upon it and essentially in that ties into the fiduciary duty which we believe exists between the managing member and the l l c in this case and without knowing what that capital contribution is all about without some accounting we don't even know whether the distribution was correctly done when our client you know had to pay had to take care of that k one distribution statement in his tax returns where it when he didn't receive any actual cash distribution whatsoever so they've essentially addressed it away in the briefs but there's a real question here and the plaintiffs really cannot enforce their rights and cannot properly bring their whatever causes of action that they have without portion of the developer fee from available that the proceeds of the company to the extent that proceeds are not required for other company purposes it's not discretionary it doesn't say they can wait till twenty seventeen and then figured out that it says it shall be paid if the money is there and we don't know if the money's there because we don't have an accounting and we don't have any access to the records of the company and more the other point i want to make in terms of the cure issue and also the rescue it is not actually true that the operating room it places the risk and the obligations of running the company and finishing the project on the managing member no question but the managing member had a plan in place to pay these debts and satisfy the liens and pay the mortgage at construction completion which is which was two weeks later it's disingenuous at the least to say they had to keep there's allegations in the complaint that that obligation was not provided in good faith didn't weren't given an opportunity to make those payments when again we had arrangements in place namely that invest the next investor installment which was do you act in shock to completion which was that same month i mean this was a project that took eight years the terms are the terms your honor the allegations the complaint set forth particularly timing issues that right right at this last few months of the project the man she member was asked to sign the raw agreement and bring in a third party to basically run the company for those last couple months and in that agreement we've alleged small deal agreed to provide funding and then where is there an allegation of any allegation that was bad faith in this invented complaint but i really had a react but again there there are not that bad faith in the formation of special member to replace him and i don't see anything that says that there's a bad faith allegation here that they were setting this up in b faith that they acted in bad faith in carrying out the contract term strictly even though the result to you was devastating really when you read this complaint i just don't see bad faith as opposed to not cutting you any breaks whatsoever under the contract we've argued in our opening brief that page fifty one and that you made a complaint that for allegations that the eighty nine question it seems to me the just because you disagree with them over the terms of the contract and what their contract requires you know you have a dispute over the terms and you have a dispute over the implementation of the terms you know that occurs all the time but you can't just slap a bad faith level on that as a conclusory matter that it's the equivalent in tort promised this or promise that a lot of that i don't know if that's anything but parole evidence here which the district court clotted declined to accept some of the some of the things that you introduced in the arguments you know struck me as as not arguments over contractual terms but you want to create dispirited issues of fact by referring to various pieces of  but again that goes you know behavior oral promises this and that but the argument wasn't frame sufficiently in terms of the contractual language your opponent was pretty careful in trying to address contractual language and i think that's where the  i think we've spell that out in the briefs and you know as far as pearl evidence i think again you have to look at the contract documents and the contract documents contemplate things like the loans the language is there the construction loan the short term loans these are all things that are in that car at the operating room and we're not asking the court to look at evidence beyond that it's right there in the language and the court into misinterpreted some of that language in finding that the language conclusively barred all of the claims which