court definitely appears to be on its toes the this case is different this case if we stand back and look at what happened in this case mr mclean started this enterprise it is one of the prime commercial properties in the city of chicago he built it he renovated it he invited mr tully to come into the deal after it was almost complete with renovations to take out another partner the tali defendants invested one point five million dollars as the court i'm sure is aware there were two loans in this case both of them mr tolley was aware of were being done he didn't attempt to stop them the tolly defendant the tali plaintiffs get one point two five million of their one point five million investment back within three years they now have two hundred fifty thousand dollars invested they're getting in twenty zero five as the record shows six hundred fifty thousand dollars a year in income and in this case because mr mclean kess was his want as was his tactic for cash flow by old and repaid monies for this enterprise bio didn't steal didn't take it wasn't attempting to take retail money yes all of it yes except but yet the money that was taken yes and if you go in this case you have actual damages which some of which i would you commit which the appellant does not dispute about nine hundred thousand dollars of actual damages fees late penalties that were paid actual costs of the enterprise absolutely that's not the issue here but in addition you have actual damages but at our unit of a nature liability corporation borrow money at thirty percent interest i mean they found it to be an ok interest rate for that eagle yes so now it's the reverse of the macor a mclean company lo one time he was so the he couldn't even post in this case that's a record and half the money was that he was worth over one hundred million dollars so when the trial judge imposes a if if that were the standard i would say i couldn't say that was on reasonable but the standard is not punishing this person and deterring this person based on the assets he testified that this property was worth based on offers he got back that thirty six million dollars mr mclean testified it was worth forty there was as undisputed there were eighteen million dollars in loans outstanding that's thirteen or fourteen million dollars of equity mr mclean has crossed before and his kids have lost a good of all this isn't five million dollars a punitive this is thirteen million dollars  and his when i say thank you depends speed and so i have five six years and more than one hundred incidents that's true i mean it's pretty community everybody knew that they had and if the president of boeing if the president of going authorizes an improper accounting practice you take his kid stock or rape that's what happened here and it's wrong it's a it's excessive are we saying he should have no punishment when i say we're not saying that this is a matter of the degree he's lost his hurdle in fact decide which are going to decide about punitive and rollback and dissolve this thing sell the enterprise let everybody get repaid and put it on the market at a free market rate and let everybody go their way if that's what has to happen that's the and although in the trial court mr mclean tried to argue the what he did and i heard a little bit of that today from counsel was appropriate and it was simply a business practice that he engaged in the trial court in this case when he heard all the evidence found what mr mcqueen did to be quite shocking and i think that was even more shocking wasn't the fact that he took money and use that destroyed other businesses but the attitude that this was used it in connection with the punitive damage award i think though it does reflect the trial judges had a to do about what i'm talking about is the attitude of this defendant for what he did as a fiduciary as if he had no fiduciary responsibility as if because this was a good investment what is totally complaining about he's just using some money to help himself but he's going to pay it back that's his addict too i don't think all the money he after after we caught him yes now what happened here is he was taking money since the year two thousand shortly after mr tully invested mr tully called him in june of two thousand and two was supposed to stop them for the next twenty half years and it's a six year period for next three to half years excuse me he kept taking money but he hid it in different ways so when when we caught this in two thousand and five by that point it was two million dollars that was outstanding yes that money go out and up had to go to the marketplace and buy our money but would they have to pay what would the interest rate be in other words mclean got the free use of o t d's money to shore up his other businesses he gave it to them but wouldn't they have to pay if they went out into the market place and said ok i need a half a million dollars to shore up my business for the next six months or a year whatever it was that was the issue we were trying to address in the trial court and what we looked at this entity that the thirteen percent came from was four so when we went to four fifty five central park west we saw that mr mclean himself when he loaned his own money the first fifty five central park west each action for ten percent why because it was a risky  mine there was no security here there was no pledge of assets there was no mortgage council makes reference to the mortgage loans we had that the underlying property a security that's true you can get a lower interest rate when yet again in this case there was involved in this money going to if mr mclean to drop dead and tony was left with this partnership we would have no record of where this money went or what happened or how what you know what went on and tried to get the money back from the these failing businesses that's the reason why we said thirteen percent was appropriate we used that as the standard to say ok if mcqueen could and felt that he deserved thirteen percent to loan money for this for fifty five central park west why should no t that one that is derived because of the leverage in the situation i totally agree with you but the question then is what is a reasonable rate to take money from o t d and loaned it to businesses that needed shoring up without security without a guarantee without documentation what is a reasonable rate to do that if a problem would a reasonable person do in that situation was a rather evidence presented to the trial court judges toward a realistic re yours the only evidence that was presented was a count mr mclean testifying that what he thought a reasonable rate of interest was which was the crime rate this was two thousand and five yes this is this these loans began in two thousand the year two thousand stretching through two thousand and five so interest rates were fluctuating then but clearly clearly what we're talking about is what benefit that mr mclean received by using our money as opposed to having these companies where we're effect essentially what mclean argues is the only way that tully had to get rid of the manager in this case a manager that he caught still the only way he had to get rid of that manager was to dissolve the the company loses invest that's what they said that's their right their argument is the only way to get rid of the manager in this case is the dissolve the investment it's a great investment council's right about that how he loves us and doesn't he doesn't want to lose but they're saying he has those because if you want to get rid of the manager that's the only way you have to meet the the the agreement and the statute together because they are an integrated that they are integrated the agreement is very specific the only way to remove the manager is it's just says the other manager can be removed and then there's a dissolution that doesn't speak to how you remove a manager who agreement is silent on the act which applies to the agreement agreement incorporates the at specifically the access the only way to remove a manager is by majority vote and there was going to be no majority vote here we have fifty fifty ownership the queen's the manager he's not going to vote itself out it's clear so we have a situation where we're stuck with the manager ok there's going to be no vote is not going to be eliminated what the loses his interest as one percent say he it's a judgment against him and somebody buys ok then because he doesn't own an interest anymore he's disqualified from acting as the manager ok that is if you look read this the act and you read the agreement there's nothing in there that says under those circumstances there has to be a dissolution and that's where all that happened in this case it was a the manager was no longer permitted to act because it was this was a fight because of the facing a manager by majority vote so tollywood effectively as on the expression of a ham is the manager gets to elect a new a new manager which is if you put yourself in the position you invested in this is partnership or this l l c agreement l l c if you have a manager that is a fraud and you who is taking money is concealing is his acting wrongfully and you don't want to give up your investment there is a is this problem could have been very simply resolved by saying in the language that says if the manager is removed the companies to solve it could have said if the manager is this is has expired as a member the company is d that would have and we wouldn't be standing here today and would have been clear but it doesn't say that it doesn't say that if the managers are excluded as a member the companies the zob the only reason the manager had to be replaced here is because of these other unusual requirement the yeoman interest the one percent interest and as i said the way this agreement was structured the way i view would it actually anticipated the situation and allow the manager to be replaced without the solving the company which is  well at the the the fact that you can remove them and you have to unfortunately these l l c agreements incorporate the statute to the extent that the agreement itself doesn't address a specific issue so you have to read the two hands and hands and they used technical language in these documents like removal like dissociation you'll see another agreements they specifically talk about this so she asian and the effects of that the so she hated member because that's a technical term in the l l c act but it wasn't in here so you the statute for what we move all means and removal under the statute is majority vote and that didn't occur here and that's what the judge that he said look i'm not removing anybody i can't remove any money all i'm saying is  this member on expelling him and let the consequences be what they be under the agreement so so so that that's the argument they're this this argument about we're taking the children's shares is simply incorrect there is no testimony it was no testimony at all by mr mclean that his children own any shares what he said was all he said was that this is a family partnership but what really happened here was is that as as we're talking here in the trial court in the answer in the counterclaim in the end during the trial during the closing arguments it was all everything was mclean all of the transactions money going out distributions and went to mclean these were and the trial court specifically found based on all this evidence how the transactions were h order or demanding or requiring a curtain to do anything he did he did not do that at all if you look if you look at the evidence your honor including high damage calculations travel motion and they're saying wait a minute this hundred ninety thousand whatever it was one ten c all construction well first off we say we should have somebody should mention that before and second off with the proof where's the proof  so so so that issue was really kind of a red herring that kind of came out of the blue as did the the children argument to something that they brought up you know after the fact saying that and the interesting thing in that shocking thing about that is what they really wanted one money to these kinds of entities and in these circumstances and using using the three times multiplier yes q the arbitrary not at all not at all your honor why not well for a couple reasons number one remember the dems we saw damages in the amount of two million dollars compensatory in this case the judge cut that in half we didn't agree with him we don't agree with him that he should cut that in half because the queen owns fifty percent of the company but  excessive was three times the compensatory treble damages is what we asked for which you know it isn't statutes it's used commonly triple damages that's what we asked for was it excessive in this case no because as justice cunningham recognised mr mr mcconnell said it was worth one hundred million dollars you you you know you have to make the punishment hurt and three million dollars to one hundred million dollars plus  they say double digits they start getting a little concerned but we're we're we're three to one and when with it with a defendant that you have to hit her you have to punish you can't say ok fifty thousand dollars into mr mclean or read a check a lot of you know we see that happening now with these banks are getting assessed the you know a five hundred million dollars fine but they made twenty million dollars and it's you know they'll write the check and walk away so did to say this is and the standard under the due process is grossly excess my worthy opponent makes three flagrant misrepresentations of this record to this court he keeps saying that the loans that mr mclean made were sure of other companies there is only testimony in this record about the financial condition of other companies was i mr mclean that they had periods of cash flow shortage there is not any evidence that they were shoring up those companies in the sense that those companies were in any respect in trouble zero secondly he keeps saying that he was caught stealing but he was taking money respectfully that's an exaggeration he was borrowing and paying back and he was paying back before the lawsuit was filed and before work he hadn't taken and paid back even before the deal my colleague is walsh points me back to the record mr it was explained that that was because that was a construction loan where commercial lenders were to were going to charge seventeen percent and mr mclean did not as he testified took not set that rate he agreed to it other people had made the loan he was offered the chance to participate in the law but let's go to the more important thing this court is going to have to make a decision on the statute and this agreement and with all due respect this court has to decide very christiane clearly and i go back to the kind of rhetoric the kind of word how printing that we were that th e chief judge was referring to does replace doesn't replace include or not include judicial replacement by order counsel was wrong mr tully was not put in his manager by a fellow maybe later he was after they were organized i don't know it's not in the record he was put in by the order of judge bork judge palmer replaced him that's not removed from of the manager you have to decide does replace include it we get an argument here well they didn't specifically say dissociation they used the generic word replace is not the finding in the statute this is not where we should record shows once represented this and i know it's real estate taxes he's very familiar he bought into this he bet into the statute he didn't have to but the deal is the deal and when they kicked out pam