mr winters thank you your honor as you know this is a case in which we're taking an appeal from the granting of a twelve p six motion to dismiss that was predicated upon the application of the doctrine of judicial stoppel that doctrine was applied by the trial court relying on a petition filed in bankruptcy for getting to my client yes it would be i think it would be helpful we now have much time do you say that lincoln triumph or are both liable and didn't get paid they went to trump to get paid trump told lynn kahn told c s i we gave your money to lynch we paid them we then went to lynch to get paid for from lynch the basis for the claim against lynch is that lynch is holding c s size money in trust a constructive trust your failure to turn it over would be a conversion that would be that's the theory against lynch trump anything yet they got the benefit of the work rd there was an assignment a common law assignment in writing from lynch to the extent that they had any right to this money was given to c s i and c s i i gave it to trump with the bills at the end of the project too if and we don't know this because this case went out on a motion to dismiss but if trump paid after they received the the assignment then that's a payment over a sign that they received the assignment in december we were told by them in january go see lynch so we don't know when they paid lynch and lastly there's an assortment of facts in which that indicate that lynch in this job was acting as the agent for trump and having us do all this work so these are alternative theories on the agency theory it's a breach of contract so the unjust enrichment alternatively breach of contract and also payment over the assignment those claims are not inconsistent with the claim against lynch because it's trump who told us that lynch's got your money if we could end it in the courts the trial court's assertion that the unfair advantage that we would have over trump was which is needed for judicial stop but was that somehow we could get a double recovery we can't get it we can't get a double recovery if we collect course trump could be saddled with  exhibits because that's what this is unbelievably a three million dollars exhibit at the trade show in constructing those there's no mechanic's lien rights there's no nothing like that that you know the faxes are in the complaint we went we went and met with trump say yes i did it was going to be a direct bill meaning in the terms of the industry that that means c s i bill struck trump ace c s i and we did the work they got to benefit we never got  the petition in the petition for an involuntary bankruptcy makes no mention that the claim against lynch is that there is no claim against anybody else and the court somehow read that in to petition for the involuntary bankruptcy the court also found that the the order entered in the bankruptcy court in new jersey caught somehow gave us some remedy gave c s i some it fantods over lynch not trump the the entity in this case when as a voluntary so that so i don't see the end there there isn't an inconsistent statement at no point did c s i in any proceeding say lynch owes us this money and only lynch ny court nothing happened in the bankruptcy court other than the volunteering petition going forward and most importantly there has been no i'm very unfair advantage gained over trump the only thing that's happened here is trump has sent us to go after lynch when we go after lynch turner i said oh well judicial stop now you can't come back after us i mean i think you've been pretty clear that you be trying to get this is actually clearly a situation where judicial stoppable must pertain the trial court very clearly what is the inconsistency between asking to be paid at this money i'm asking why is that inconsistent with the assertion that trump also owes it this money one very common thing in bankruptcy use that suit against the bankrupt against the the initial question is is there anything inconsistent between seeking recovery from the debtor in bankruptcy and seeking recovery from a rd party what the district court said is just seek recovery from the debt or necessarily says that no one else owes me the same money correct and i can't follow that at all well if we look at the  the complaint for one it is there's no allegation of any kind of guarantee it is a complaint that means my went on the merits yes you're right but but the statement that trip that c s i made heyday take the standard guarantee example or an insurance example seeking recovery from the government bankruptcy does not prevent you from seeking the benefit of an insurance policy the list goes on and on ye the district judge said and this is why you want to seek recovery from the debtor in bankruptcy necessarily disclaims all efforts to seek recovery from anybody else and if you can't defend endless but they are not alleged in this case for one that sort of marriage is that's the merits it is not a claim of inconsistency the district judge  to repeat the district judge said if you seek recovery in bankruptcy you necessarily have disavowed all other sources of recovery and you can't apply that to guarantees or insurance or it's a really long list by the district courts rationale if we affirm it would be a calamity in the financial community it's inconceivable with all due respect of the the difference of this there between those examples that your honor is raising and this case is that you have to look at what this case is about what the allegations of the complaint are the complaint says that it is trump who is obligated to pay for the services rendered by c s i at that trade show c s i had already has already pursued a and made the representation to the bankruptcy court that it is lynch who owes that money for the services it rendered to lynch under the complaints didn't so i did i hear you as i look i wonder one thing it's very clear from the briefs is the basis on which you know you you're expressing some of the frustration which i think is why are we sued we've already paid you know you make that clear on page five of your brief etc we're getting pulled into this for having you encourage litigation costs and all that that may all translate in extend to we're going to win this on the merits you know we've got a very very strong defense for a lot of the reasons judge easterbrook is outlining there's no writing there's no there's no seemingly not much there but what you have to deal with is the district court's reasoning on you know entirely on grounds of inconsistency in one of the things that you saying in your brief on page twelve is that in the bankruptcy court in the involuntary petition paperwork that there was a representation that lynch was solely responsible for the five hundred thousand or five hundred and twenty nine i don't see that ite i mean i see definitely a claim has been lodged but it doesn't mean that there can't be another party that's jointly liable jointly and severally liable now whether whether they are they are not is a merits question except when you look at a petition for involuntary bankruptcy i and i'm looking at it right and the requirements under the law for making that assertion and filing that petition it is an undisputed claim that this party lynch is without  issue the party liable for the deaf and their that's true that was in it so late lit there's no question in their view lynch is one hundred percent one thousand percent liable but is that necessarily inconsistent with the view that defendant b trump is also liable but again we have to look at the complaint the complaint is not allege what it means complaint the complaint the district court a complain dismiss and the complaint and the judge chose to it to exercise discretion and take up the equitable issue of judicial stoppel when a party comes in and takes a different position in this court in the past and it certainly is in the context of this case the trial judge took into account the complaint and the item subject ishall notice which where the pleadings in the bankruptcy court which it isn't title to do that is all that came up in the context and if we're going to accept that the objective of judicial stoffel to avoid committee unlike actions to avoid fast and loose playing fast and loose with the court it is perfectly appropriate to adopt that if appropriate at that stage because the then again that is done is done day one and just is exacerbated honor your point is i understand it's not all that developed because it's merits question is look we had a we had a written contract with lynch we paid on that contract and what in the world are we doing being sued now i mean that and that that's what led you to a judicial stop all the district court agreed with the and you just you've got this inconsistency issue to deal with well the the and you're frustrated because you're incurring transaction costs and litigation i go to more than that i mean the the the yes on the ultimate merits of the case there's no question that we would assert that we would win however because of the actions taken in the dock the equitable doctrine of judicial stoppel neither the court nor we should be in a position  of having to go down that path when c s i has already displayed its position that the party who is responsible is linge it has filed that on several occasions in court the bankruptcy court acted upon that petition and so therefore we each of the elements of judicial stop will has been demonstrated  are several things are at play one is if they have a judgment against trump here and a judgment against the lynch in the bankruptcy court they are still pursuing the claim against lynch in the bankruptcy court for it it's for c s i s assertion that it is so that money or that trump it that lynch is holding the money is paid by trump in constructive trust for c s i so there's a double recovery there's an opportunity for anything assistant verdict there's also lost on where the double recovery problem is if you get judgments against who tortfeasor with joint and several why billy you can choose which one to collect from but you only get one recovery surely you don't think that joint and several wives go a t itself needs to be abolished because in secret the judgment creditor might collect choice this is not a claim of joint several i am well aware of that that's why this is called a hypothetical b and in the context of this case where the where c s side has taken the position it did in the bankruptcy court and then later comes