standing does the does the telly here in have standing to have even appeared in this case and number two if so whether a police actual appearance in the original trial court matter prevents him from collateral attack in the judgment appellant urged that no matter how you answer the st question you ultimately must rule against appellate if on the one hand apparently does not have standing then that concludes the inquiry in the trial court erred in even considering the polies rule sixty b motion if on the other hand a pulley has standing then it is only as the substitute for the real party in interest larry hots and if judgment the rd and final issue relates to the district court order that appellant return monies received for services provided we believe that under the court's own ressa now if it had no jurisdiction over the parties then it had no jurisdiction to order the return of funds received but from a more fundamental standpoint we believe that any such order would be premature based on the current status of the partners i'll start with the last issue which i'll reference as issue number three and then work my way back to the st two and in addressing issue number three pick up where i left off in the introduction regarding the current status of the pardons i think it's important that we keep in mind where we are right here today as we sit here today all we have are these that were charged fees that were approved by the then administrator a trustee with authority to approve and then fees that were paid if there was anything inappropriate about the fees that were charged then the appellee here in has every right to file suit against appellant and importantly as is reflected in the record and in the br appellee has in fact filed suit against appellate in the probate court that suit alleges alleges causes of action that if found in his favor could in fact lead to a judgment requiring appellant to return those fees that litigation is pending and ongoing if there was anything inappropriate in the the administrator and trustee larry hyde's approving of those fees then that too can be addressed in the context of the current litigation in probate court because that suit names both appellant here in and larry hobbs the then administrator in trustee if there was anything inappropriate in the bank paying those fees that too can also be addressed in the context of the current litigation in probate court i can tell you that appellee has in fact raised just about every one of those issues in litigation in the probate court and although the entire record of the state court action is not in this record there are documents from that case that are in this record and i think this court could at least take judicial notice of the existence of that case but it isn't i think the important point to take away is that to the extent that anything regarding the payment of those thieves was inappropriate then appellee has recourse in the state court but again i come back to where we are today and that is simply steve's been charged approved by the party with authority to approve and then paid it is simply unnecessary to require return of return of the fees in order to put the parties back where they were because where they were was that the fees had been incurred approved by the a th a big picture perspective a pelleas have sort of backed themselves into into a corner and by that i mean they can't have it both ways if appellee has standing to be here  only be as the substitute administrator a trustee because otherwise he was just a beneficiary at the time of the district court case we submit that ronnie hodge does not have standing to be here today and the reason for that is the texas case law that we cited in our brief finding that the real party in interest in a suit involving a trust or an estate is the trustee or administrator respected at the time of the underlined suit in the district court contract party for legal services at that time ronnie hyde was simply a beneficiary and he was never a con never a party to the contract for legal services we also point to case law in our brief in trust or a state itself is the true party in interest now having said all that if we're wrong and ronnie hides does have standing we believe appellant still wins and that is because once has standing to appear then it could only be as a substitute trustee or substitute administrator and in that case then the fact that he's a substitute representative of the real party means that the real party in interest was present and appeared in the original suit in two thousand and sixteen importantly the representative of the trust in a state appeared with counsel and therefore had every opportunity jurisdiction do you agree that now looking at it there was no jurisdiction you're just saying but there is because of a fact i mean do you agree that we should look to the residency of the the disease and therefore there was no div agree with that principle your honor that it was it was a mistake and i'm you know it was my mistake i take full credit for it honestly it you know i could make all sorts of excuses i had never sued in a state i knew that the representative the  mean as i understand it it was i think of someone who shared an office with you was was a counsel on the other side and and you'd file this within days of the state court saying no you're not going to get these out of from the state court responder point that there was the initial point as to whether it was adversarial the the the fact is that it was adversarial from the standpoint of an opposing party having you know having counsel being represented officers in the same office there was no there was no firm relationship we've never worked in the same firm we share office space and it's not uncommon for either one of us to refer cases back and forth creditor come to me that i told them that i couldn't represent them but i've referred to ms lindauer i mean obviously there that it's not something that's in the record that i can for one way or the other mis lindauer and i have operate separate firms  even though we have office space together and you know neither one of us are in the office that often because number one we're both very busy and number two you know i work from outside the office quite a bit as does she so if it is something that has occurred it certainly not not always the case when we refer cases back and forth but but no it was not uncommon for for something like that to have happened so i believe that that the case was question that to my knowledge miss lindauer had had very little knowledge of the the happenings of the probate court however i would i would so what dispute the characterization of the court's question are the foundation of the question the probate court did never specifically rejected my fees the probate court decided and in subsequent communication i believe there's a transcript in the record that specifically says that the court simply did not address that issue at that time it was not rejected and so i think it's an important distinction that the probate court did not look at it at the request for fees and say no we are not what we are denying that the court simply did not rule on those on that request for expenses and that was later clarified you know a transcript in which the opposing party ronnie hyde head had s understand the question the i can tell you that there was no i guess rush to do anything other than the fact that the case had concluded and so from my perspective as as it related to my relationship well what i was what i was suggesting your honor was that that there was the large portion of the representation of mr hikes that concluded at that point the the state court case in which they had gone to trial and and the jury had made its findings the judgment had been renter rinder and at that point quite frankly i was looking to get paid and so it as to why i chose their report there was no particular reason i could have filed it in an innocence in another state court the probate court did not have any sort of exclusive jurisdiction over that issue i chose federal court simply because at the time i thought it was appropriate obviously  to that mistake i thought that there was complete jurist excuse me complete diversity when as it turns out there was not based on the jurisdiction of the state but but nevertheless there was no rush other than simply my my representation is largely concluded and therefore i'd simply like to be paid for the tremendous amount of work that had been done over last word your rebuttal thank you your honor i'll kind of jump around a little bit to respond to points made by the appellee i'll start with the last point and point out that all of the seas that were earned in this case on behalf appellant were were incurred as a direct result of the the extremely leafy litigation initiated by the early in this case larry hodges children simply apparently has repeatedly referred to judge lynn's observations as if they are evidence but her comments only explain why we're here today the court should defer to the state court in determining whether anything was improper a ruling in favor of of  begin with and then this can all be sorted out in state core and we don't we don't have a problem with that i mean the state court action is going to go forward here well i think primarily your honor we think the that the law supporting our appeal is why we're here because we don't believe that the that the district court acted properly we believe that the appellee was appeared and therefore i ssion regarding the payment of those fees and that's consistent with my point that as we sit here today all we have are fees incurred fees approved fees pay all we have on the other side are allegations and then in response to judge old to have breached just for the spirit duty to miss worthy in the proceedings to remove him his as administrator trustee were pending in response to that we would point out that the probate court had not found any impropriety in the payment of fees and a finding of a breach  duty by itself does not regard the payment of fees an appropriate there's plenty of case law cited in our brief in support of the notion that a fiduciary for use of funds under their purview is appropriate in a good faith the fans of a breach of seriously but the jury only found a fraction of that in damages an amount that was less than twenty percent of the total amount that implies that with respect to the other eighty percent there was a good safe and to that point you don't have don't even have to believe me you can look at the state appellate court's decision that in the record rodney appealed the judgment to the to the extent that they had been denied certain damages that would be determined to be out of statute in doing so he alleged the application of the continuing court docket for the state appellate court found we believe correctly that the continuing tort doctrine did not apply because the transactions were each discrete transactions and therefore not a  so once again we end up back to where at this point the only thing we have are allegations of wrongdoing and allegations should not alter a principle of law as it relates to the collateral attack