g briefly i understand our time is short and would be happy to answer any questions that the panel has during my argument that's probably the best time to spend otherwise our primary ye tac one balance value which brought mr rogers back in again and his in his capacity as general partner at the time but at the time the complaint was pursued mr rogers was no longer the general partner was wayne rodgers and company that was the general partner but he did but they didn't properly perfect that change under california corporation well what they did is they gave notice of terminations so as a matter of public record it wasn't cancelled but there was a has a partner but it wasn't until they filed the third party complaint against him that then he became at risk again and we appealed if that's where you're losing me because because he's been a partner in this thing all  that my reading of the calipers was correct that he didn't lawfully terminate is partnership status until after the debt had been incurred by his former partnership and the former partnership is that but but that issue was not again there was a bit a separate appeal and there would have been another appeal and the ruling was not final the rest of the time not understanding and i'm just not clear on what your five when the summary judgment was granted against those third party defendants that's when the liability for the attorney's fees attached and they had the right those third party defendants had the right to challenge this on its merits and under hawaii law allows for liability of individuals under contract and other liability our belief was that the breach of fiduciary duty was under that other statute but they also argued the opposite they said it was a tort back then when it met their needs and and now they're claiming that it was a contract but i believe that the liability for these parties other third party defendants it was said in two thousand and five was it was not a final ruling that the he agreed with magistrate curran who found that in essence the central issue was that the bishop estate promised and failed to obtain financing that was his interpretation of the contract there are of the complaint in fact that was not the case at all the major wrong that occurred in this case is the bishop estate secretly obtained the loans from lenders and then turned around with a six day notice foreclosed on the stock of their fellow shareholders fellow partners fellow officers and directors that wrong in the case that we started that i think is the most helpful to the court in addition to the n against the partnership is a breach of the do sherry duty and that you cannot secondly foreclose that law essentially that b t i case i think is right on point that it shows that a general partner who cannot foreclose on that which is exactly what they did in this case the breach of the do share that the covenant of good faith and fair dealing does imply a contract but once again because of the relationship which beauty arises by operation of law oh well we weren't because what is the contract we're referring to here was it a contract it was a long commitment contract was it a management contract no it wasn't the only contract was that they continued to i think of a fraction i think you've got to look at the entire complaint you say what portion of that is it practicable to allocate regarding the claims that it's all over procedural i think you've got to treat that entire complaint  say claim number one breach of contract we didn't say that it really essentially went to the relationship between the parties and the duty that arose by operation of law at it we're now trying to bring in a third party that's bound by that i mean a third party complaint didn't establish liability and tell that point in time you didn't establish that these parties were liable for the fees and tell that point in time  rule that the fee why ability attach to the partners earlier than one is that well it was a short period of time i think there was some implication that maybe there was some impropriety that they changed that just count the number of claims and make a fraction its no case part of that effect the standard is take a look at the claims analyze them is it practicable to distinguish the claims claimed by claim based on arise in part from the expressed agreement of the parties like the lawyers representation in the case of hugo k s expressly agreed in britain contracts that it would work together with its fellow shareholders and partners to find a permanent solution and it goes on and on defining how precisely the breach of duty was spawned by implied contract and by express contracts in the law regarding whether you know how you go about determining whether or not it's the case the nature of the sums that well established case law you look at how plaintiffs described their own claims and there could not be a apples and oranges your honor because you can have a classic a classic tort claim you can have fraud i've got a van gogh painting and i'll sell it to you for five million dollars that's by my fraudulent filed the fact that there were supplementary proceedings to collect essentially a collection action going on does not allow us to on ravel the phonology of the attorneys v provision they cite no case law whatsoever for that proposition and i think judge thomas asked the question what you know could color not could cona challenge the underlying premise of the attorney's fees cohen enterprise and wasn't a third party defend that i could i could bring an the principles of balance value fund intact one against a final judgment has been entered in their behalf in trying to hold them personally liable conan utah tomorrow can't say oh wait let me go challenge the premise of supplementary proceedings it's only after they refused to pay for their costs which were never remained good to judge as or did did we say gosh you know we were not waste any time because we're afraid  for whatever manner they may be held liable for the entity that a final judgment has been rendered against their stock with it and if i can direct your attention to the stuff a model expert of record at seventy we explain this w to hold the general partner liable for the judgment against the partnership it is only for the purpose of forging the partner the opportunity to contest the limited issue of whether or not the defendant and is in fact the general partner of only after they've lost in court only after we've got pending motions for tourney's fees in sixteen days after we file you know a complaint to hold them individually liable oh gosh now's a good time to remember corporation i think your honour's correct that the fact of the matter is the third party defend this would not have their day in court and that the law discourages piece millett again should give these offered these parties an opportunity to appear and defend in the case i will say with respect to judge judge thomas comment with respect to the limited liability company the fact of the matter is there was a merger the l l c was not and there is no evidence in the record in fact that was not the case that there was an no but no collapsing event to do so i don't believe you can do that brought her acts right amount of fraud on judgment creditors but we're still back to the question i asked you before and that is assuming that there has not been compliance with california corporations law in assuming that their partnership law in assuming that the judgments were binding at the earlier or final at the earlier date from which you know people was taken then we're back to an attempt to find personal liability of that entity and they should have every right and that would have been piecemeal education or could have been and generally allow judgment creditor judgment debtors rather to continue litigating the bonus feed ease of the judgment if we can show that they were in privity with the original debtor right now i don't think so because i think you have to respect i think you basically the option of the creditor as to if it can't get the judgment collected from one of the potential judgment debtors then it can go after yes if that initial lawsuit was against for breach of relationships that arose by operation of law we're entitled to have whereas if you're seeking punitive damages we requested attorney's fees we never requested attorney or but i'm representing the appellant's in the case i'm representing obviously kona enterprises did file an appeal but i'm representing the third party defendants home right here and wayne am rogers i believe wayne m rogers and company