are various tort claims for you sherry breach corporate opportunity doctrine constructive fraud and unfair competition those claims were asserted against chang's on the lan who is the principal for easy con created a wholly owned corporation out of the bahamas that he assigned the no two there is no question that it was never really disputed and judge way noticed it right away at the beginning of the case that crest wood is not a hol due course therefore i took that note subject to any defenses that were available against mr lamb our tort claims are now up on appeal and they were dismissed under rule twelve b six by those claims of liquid that's the that's the next to show is getting to on appeal think the answer of yes yes well yes they are liquidated and but this is an issue that is been raised for the st time on appeal it was not raised as a defense in the trial court and so number one it's been waived number two that issue relies upon a couple of arizona court of appeals decisions decided i believe forty years ago or more than other cases the no gallus case that we've explained in our brief for various reasons are no longer good law in particular the court in the courts in those cases did not need to reach the issue of unlicked of whether the claim needs to be liquidated you know to assert it as a set off more importantly however i think today if the arizona supreme court was faced with this question it would not follow the the dicta in nutter which again is we also believe should be confined to the circumstances of that case which was an equitable mortgage foreclosure action modern practice under rule thirteen encourages for matters of the fish and see that set off can our claims and affirmative claims be resolved together and there is no requirement under modern practice that those claims be liquidated and i think that's a fairly universal rule we didn't find anything to to dispute that and so under current practice it's no longer necessary if it ever was across the board to have a thing st of all that's not the basis of judge wake's ruling he ruled that well the the case the set off that the claims in twenty five hundred and forty nine dollars have been dismissed therefore there is no set off he did not rule as a matter of law that in my discretion i'm not going to allow a set off to the defense to proceed plus that we've cited cases that under arizona law set off is is very much encouraged as a as a matter of  again to make sure that all claims are resolved at once and not in a piecemeal fashion there was the other issue i mentioned there were two the other one is our affirmative defense that we asserted on fraudulent which complaint however we cited case law stating that an affirmative defense may be raised for the st time in response to a summary judgment motion so long as there is no surprise or prejudice there was no claim of surprise and prejudice not only that prejudice and surprise has looks at what's already been planned well and here we had pages and pages discussing our set off the fence grounded on the non disclosure the secret disclosure of our confidential information to holland and others of the secret patent applications that were being filed in the name of of easy con without our knowledge which incidentally was something that judge wake never addressed in any of his rulings so the facts underlying the fraudulent concealment the front the non disclosure argument were always there in our in our original answer to the complaint in fact we attach the entire complaint from the two thousand five hundred and forty nine case as an exhibit to that answer and unless the court has any objections i'd like to reserve the rest of my time thank you counsel so three months ago on by after after the fraud claim had been dismissed with prejudice at that point fraud against mr land or crestwood was out of the case there was no claim and no hope for any claim pend during those three months there was no effort by andy's to amend its answer to cross which complaint to say well maybe our fraud claim in the consolidate co pending case was dismissed but we still have a fr had been dismissed with prejudice or insufficient pleading which by the way they haven't even appealed pace claims against mr land it had been appealed don't include the fraud claim they know their claim was deficient we played from the start judge way said that and it's so deficient they haven't even appealed that to this court now they're saying somehow my client crestwood was on notice of this fraud claim by virtue of a set off the fence which cross reference another complaint in a different case well that other that for failure to plead sufficient fraud claim they never even appealed that so by the time they raise this ride the fence in opposition to summary judgment which wasn't even fraudulent concealment for the st time in opposition a summary judgment we did in fact complain that we were prejudice and surprised if you look at the hearing on summary judgment which is supplemental ex urbs page twenty eight  judge wake i said had we known about this we would have taken the deposition mr you see a long time ago when i shot holes in this theory but here we are seeing it for the st time in summary judgment after by that point ten months of discovery in this case respect to this set off concept i think if you if you know their briefs closely you'll see an evolution of the theory before the district court and in fact in their opening brief to this court their theory was that s claims against easy con to set off and his obligations to crestwood under a promissory note that was the entire theory in opposition to summary judgment and said nothing about using claims that and he's had against mr lamb that syria was abandoned before the district court so that your honor that's been abandoned for the purposes of appeal that can't be revived reversed and it goes back to the district court the claims are still on liquidated all they get to do is proceed with discovery and everything else to try to prove those claims they claim to still be liquidated and the point is those claims have nothing to do with promissory note there's no genuine issue of material fact raised by those dismissed claims that would cause summary judgment on a promissory note to be improper so what you have is a liquidated claim and you have unrelated i'm liquidated claims arizona law is very clear that is not a set off situation as a matter of law and at best even if it were the district court has discretion to let one case go forward to judgment not waiting for the other case the other claims to be found liquidated that's the so called modern jurisprudence that my colleague referenced even under the moderators did prudence like a fifty four dollars b situation that's discretionary with the district court whether to hold one place and wait for the other case to catch up so they finish this in time or not and here we have to wait the promissory note claim is liquidated it's proven so many judgments appropriate the fact he didn't  have to exercise their stiction discretion rather on this set up concept because by the time the judge granted summary judgment there was nothing to say and he's had no claims against mr land at all had been dismissed six to eight months with regard to the set off of the the argument made by mr shaw that this set off involved claims against easy con that we were attempting to assert that's the devon appeal that's a separate appeal that's also before your honor's that you've taken under submission it has a different theory then this one this one is very simple there were claims directly against mr land mr lamb was sued for the to nothing to do with the promissory note that's true but that's the definition of a sat off a set off can involve other transactions it can involve tort claims versus a contract claim it can involve liquidated claims versus  that's the definition of a set off with respect to the fraudulent concealment the standard for an affirmative defense pleading an affirmative fans is lower than that for an affirmative claim the standard is fair notice and yes even though our affirmative defense was not labeled as fraud the federal rules require more liberality in how you view an initial pleading whether the proper legal theory has been pled is not important what's important is are the underlying facts there and could the opponent anticipate this theory being raised in the case and we would argue that yes in this case it was what we asserted and i think i would also assert we gave far more than a fair notice as i mentioned before we attach the entire complaint against  against mr lahn to our answer to crest woods complaint and again the theory is the theory that's central to each one of these cases easy con secretly without our knowledge took our confidential information gave it to a competitor manufactured products using that confidential information for a competitor did not tell us it was doing that and by either concealing that fact or omitting it under restatement sections five hundred and fifteen thousand five hundred and fifty one that is the definition of fraudulent concealment those facts are