arnie may please the court the case in front of you is a clever extraordinary and wrong attempt to turn a run of the mill breach of contract into a tore into tort based on a crime at that against a man who didn't even take the actions that issue district court's decision incorrectly blurs the distinctions between contract and tort and invades that principle when the liability that's essential to the l l c form we're asking you to reverse a district court summary judgment ruling for three independent reasons the first is he didn't take these actions and the third point is even if you get far enough down that road and see if by the appellee in this case did not stablish any damages specific to mr nichols i'd like to start to drill down on the first point which i think is sort of the keystone to all this which is that this is only a con breach of contract and it's not a tort and that's for three additional reasons first there was no property interest but i'm see if i had in the money that they're claiming here under the terms of the contract walking health care and the money and see if i could only be paid on an invoice the second point is related which is that there can't be a property interest because the money was not specifically identifiable and off to a mount to convertible type of thing now and method is matter of akim shot first says martin the funds were in a joint bank account where they could specific identifiable funds they came in from social security everything's up for forty five dollars was your mark specifically by statute for the care provider and and the patient could only take forty five dollars off the top and third point is that conversion when there was a granddaughter who was acting on behalf of the patient and withdrew funds at that patients request for the patient's use looks to pass the funds took a ride back to milwaukee me there are a number of contractual provisions that establish from the gate out of the gate that morkie healthcare was the owner of all forms that were coming in they were they billed in their own name so if you looked if you looked at the contract which is in the record  documents sixty three there's such an eight day that the facility meaning walking health care performs all billing accounts receivable and collection functions in its own name and the facility will collect in its own name on  own behalf section eight b establishes only that m c i five an invoice a facility for those costs incurred during the month the contract also contemplates that those portions portions of those invoices might not be paid immediately and would have to be paid at a later date subsection is eight c is the contract provision that sets up this this account but it's not an account that and see if i ever had any right to anything except seems to mean that constitute conversion well of and presumably civil theft as well either a right to be paid on a contract does not establish a property interest and the contract itself so forth health care only these funds until the point that they actually paid in voices furthermore and see if i knew that morkie alter on this one because if you were to look to section two j of the contract that we've been talking about it asks more health care to seek approval from the high from haud and the mortgage lender to allow malaki health care to grant the security interest in incoming funds related to the brain injury unit to the marquis center for independence now that acknowledges that walking health care plans because you cannot grant a security interest in something that you don't own with the funds that you're describing come from different sources don't minute you mention to me some government payments and i don't know what patient payments and that is everything go into one fund initially and then just redistributed the way that so if you're talking about walking health care's well incoming funds yeah the money the because if you pay i assume that comes into one account i don't know that into any kind of asking you what what is the fund where does it accumulate initially because you have to do have some government payments right right there are government payments i go into a government payroll lockbox and there are third party payments that you from either independent insurance or from patien applied against the balance of an outstanding loan that that is due to the accounts receivable lender all that money is then gone it's not identifiable because it's gone it's been applied against an outstanding loan balance receivables and when they get those in through the debt keeps growing the debt keeps growing and that's part of the problem that's part of the problem absolutely and they're limited to an amount in new funds that's based on outstanding accounts that means that all the money that comes that comes to malky health care to pay anything any bill that they have is a new loan fund and it's one lump song it's not set aside in any particular way and it had to go to rent it had to go to payroll had to go to vital vendors to keep the facility open and unfortunately at the end of all of that there was no money to pay m c i and that's plainly a breach of contract and we admit that but those new funds it wasn't like they said we're just going to not pay m c i buys they just ran out of money and the money didn't go to the birth receivable account that that's set up in the contract that itself is a breach of contract but and see if i had no intent on into that money they could not access the account they could not access the receivable account they only had a right under the contract to be able to view a statement on a monthly basis that's the only right they had to it plus they were entitle to the entire amount that was in that account at any particular time they were only entitle to at a maximum the amount in an invalid's marking healthcare was also entitled to be paid some portion out of that same account so it's not like me and see if i had a right to the demands every every month or week i guess and i don't know how they are at the end of the line where it spends all their money and so it's not a left eye seems to be what happens here but i think that's  accurate and it was but it was a contractually negotiated an obligation and that's what it boiled down to as they set it up like this and they had they had contract rights they could have asked for specific performance so they could they had to keep working you know but that's that's where their remedy to live is is a contract and the point of all this is that this was this is what more walk in health care was doing and it is that's i'm getting close to my reserved point but i would like to address that in order to to waive that argument there would have to be an intentional waiver of that argument and it would require what what we discussed then is that it has to be akin to a judicial admission in the sense that it has to be something that's factual and it has to be an intentional waiver of that argument in this case we argued just all over the place that there was no personal liability forfeiture issue for one moment ok what evidence is there in the record to indicate that taper was acting is nicholson's agent rather than an agent of the with milwaukee healthcare aspect i think it's important to look at the context of the relationship between notes on tape that you work together in massachusetts wonderful sense invested in a slew of companies and taber there is his right hand man overseeing those investments so but he claims they show that there were loans if only to be repaid in certain instances and the parties and the court are entitled to rely on those concessions during the liability phase nicholson tried to change gears during the damages case he tried to change gears slightly humidity again the table was his agent court probably held that nicholson was liable for his actions and that decision should be upheld now if you respond with regards to the general waiver argument unless the court has any specific questions i would refer to the pages are brief twenty nine applied against loans and then a new advance of funds so they consented to that the second point that i'd like to make is that you asked if there what evidence there was that table or was acting on behalf of nicholson there was not the  evidence is that table or was making a payment priority decisions on behalf of malki health care he was doing that in conjunction with grace health care or third party professional manager who actually made the payment decision gr from his role with malaki health care and he had no authority to act on nicholson's personally have in effect every action took was on behalf of malki health care and not on the business person the last point i'd like to make is even if you get all the way down that road what the district court found was that taylor was nicholson's agent in addition to acting on behalf of milwaukee health care and in doing so that would make a table or a double agent if tabor is a double agent then in order to assess damages you must figure out who that double agent is actually acting on behalf of when they damage someone and in this case it's abundantly clear that table was acting on behalf of malaki health care paying walking health care bills when he took the actions that are at issue here my last point is that delaware was applying delaware prohibits derivative tort plans which would say you as a member of this company interfered with a contract  as a as a representative of the company interfered with this contract and so it's the corroded case i'm out of time but if you take a look at the crow tickets it's a discussion of what derivative tort claims and what you what you cannot do when there is a contract issue thank you thank you very very much