first case up this morning  or twelve zero seven four four well the court is as a matter of law has to look at the totality of the circumstances around the statement and if there is a reasonable construction to show that it was innocently made then we never get there you're right your honor however if looking at the totality there is no reasonable explanation as for the innocence of that statement and that there was not  is making the innuendo that cooper and neighbor as a going concern no longer exists that we own it now so you don't have to deal with hooper and the insurance look at it from a corporate standpoint if it's nicely into the financial category because if hooper neighbor doesn't exist the diversely doesn't have any financial for the capability to conduct business anymore and so from that standpoint you're imputing a lack of ability for corporate neither to continue to and it was created this fall and that it was telling another member of the profession hey all you have to do is do business with us now because in effect the innuendoes who burton lever doesn't exist now counsel we asked you to take a look at some additional right and what would you say the theme is and those cases with respect to allegations against the court's aeration well if i may the theme going all the way back to the clifford in the hayes cases  the common thread is talking about the credit worthiness of the company the incapacity or the standing of the company to continue to do business then we when we look at the v c and the american international hospital cases clearly we have defamation regarding the financial position of company and even though there was not a specific reference to the financial position of cooper pepsi called co pm call for it and said hey we acquired those companies to start doing business with us well let me let me do another hypothetical i water filter ternium law pick up the phone and call all the insurance business due to dishonesty due to financial embarrassment this out of all kind is this methods or mismanagement does it send that message not specifically your honor all we know is that she's made statement that we bought over a neighbor who knows why but it clearly sends the anyway that for whatever reason they're out of this they can't perform their business anymore and they're clearly fi am for even with the corporate exception rule regarding financial statements the best innuendo has been made this statement is not innocent within the context that it was made and again the that says send all files our way we own our competitor that is not an innocent construction in fact the thing that is our esteem is when the first civilian complaint was statement that allegation was not innocent that's in the court's order of october twenty seventh two thousand and ten he has been coming to us backwards from my perspective and perhaps the cases that were cited a statement is defamatory per se it's harmless obvious and apparent on its face and yet in your own argument you it doesn't make any difference if it's true or false the question is does it fit into the category without regard to future in your window in future implications that might be the case versus made their case your honor which is looking from the teen eighty's talks about it's for the court to decide whether a publication in this case communications capable of the meaning of this right to it and by and innuendo is that it's obvious to you you can hear it in united manically assume something bad about the person or the company that the statements being made about these are innocent words everyday words there  show that this question should go to the fact finder to determine the totality and by the by the way your honor i believe that the trial court when they reach their decision bought into the argument from defendants that linda do they think anything of it and so therefore there is no defamation well  that that's the family trip or say well your honor again when you say that a company that existed and was doing business we just bought it what does that convey to transferring all these files well we ought to for a neighbor that's sending the clear message that over neighbor doesn't exist anymore they're down there apart and so when you have a war per se defamation the statements imputing lack of ability or that otherwise prejudice a party in his or her profession or business i believe it goes right to the point you're out there are sending the message that rupert neighbor doesn't exist so therefore you must do business with us and again this is not taking any a vacuum it was done to parties within the profession mid  inability to get to the point i was also making it really doesn't matter at that level as a matter of law what linda do her any other third party thanks now and i was if that were the case that what you thought was important at this stage then like in the newspaper case you have to go out and find out what every reader of the newspaper that they may or may not before you can even get to the fact finder so we believe that we have per se defamation of the fourth prong and even with corporation exception it goes to their financial ability to continue forming their work within the context the state was not innocent and so therefore as a matter of law this question should go to fact fire for  by one of the first things that crosses my mind is hope they get a lot of money from business that's probably a good thing maybe they've retired this statement by itself and i know i'm jumping ahead a little bit in this comment but the statement is a harmless statement the area of defamation and we're dealing with your day the per se category it's meant to cover cases that is rather pointed out are obviously harmful in a simple statement that we're buying that's a question of law for the trial court to decide so we heard properly we don't have a question of fact that we need to push back the trial court on whether or not there's any innocent construction now one thing that i think i find troubling  i know that the trial court made reference to the fact that the duke didn't find this statement to be offensive out of the ordinary i think he said it was a non issue i could step stuff all the time in council said no in her deposition is critical here because she's the person that the statement was made to and she didn't respond by saying he's just a family i have a terrible impression of this company so even if the court were to case to the statement now the other thing they counsel points out that i'd like to discuss for a quick second this is comment about this twenty ten order page one thirty two of the record there's no question that when the trial court entertain the original motion in this case it was a motion to dismiss the court said the purported conversation cannot be construed as an innocent communication but it also said that that statement is based on the allegations of the complaint is this court knows when you file a motion to dismiss y