thank you may please the court a christening going on behalf of the plaintiffs in appellant marshall spiegel of this case presents the question of whether a sham charity as alleged to the complaint fits the definition of a tax exempt nonprofit organization for the purposes of an exemption under the telephone consumer protection act which prohibits certain kinds of robo calls and calling people on the do not call list the ph has an exemption the statutory exemption for calls made on behalf of a tax exempt nonprofit organization a exemption under a statute is an affirmative defense and is something that the defendant must prove and so as we've argued all along we believe it was improper for the district judge to decide this issue on a rule twelve b six motion to dismiss or even to get to the affirmative defense question having to do with tax exempt organizations does does the facts of this case that the nature of these calls meet the definition of telephone solicitation oh and there was not turn of calling by the district judge on summary judgment that they do not there's an issue about there's potential issue that about whether they reach telephone solicitation but even regardless of that the fact that they used automated voices puts them within the prohibitions of the tea c p a and that was something that came out in discovery that the district court never reached because the court relied exclusively on its on behalf of the holding it had limited discovery to the question of on behalf of after making its ruling on the twelve b six and so there wasn't the opportunity to develop a full record on the question of solicitation or on the use of record voices through the soundboard recordings which are bridget regardless of whether they're solicitations they're prohibited outright and a c s is very b six a representative testified in his deposition that there were three recorded voices that were swears the skin your brief notes will well we've got a we've got a holding from the district court in an opinion you did not include in your appendix with your  required for that says you lose because these were not solicitations and where did you tell us why do you still count in response to the holding by the district court i'm sorry saying that the summary judgment opinion yes was ok we were not appealing from the summary judgment opinion but from the rule twelve portion of the dismissal on tax exempt organization which is why the just report summary judgment opinion it was not was not attached at the court concluded that regardless it because of its finding on behalf of it the other issues would opt out not relevant certainly we could have sought to conform the pleadings to the proof or take any other  action with respect to the fact that there soundboard recordings but are the appeal brings everything up ok you feel from the final judgment brings everything to this court by we've got what sure looks to didn't see a response to that in your brief on the issue of solicitations because we could have amended the well that that against that that it's not relevant to what we could have done with respect to the basis of the dismissal on the grounds of it being that the i r s is determination letteri sufficient and then the fact that there were soundboard recordings to make that particular argument maybe i'm not being clear i've got a decision from a district judge that has what looks like a dispositive holding you're appealing from that judgment and you fail to address that holding what am i missing that were not appealing from the issue of solicitation because the soundboard recordings issue could have been in an amended complaint that was conform to the proof but there was no opportunity to do that because of the erroneous ruling on the nonprofit charity exemption as it turned out discovery revealed that they were requests for money that they weren't selling to your services so we wouldn't have been able to dispute on the solicitation issues regarding mr so you accept that basis for the judge's decision you don't contest it on the issue of solicitation correct but regardless of and that's independently dispositive here we are not to go with that not not of the issue of the use of sound board and automated recordings which are prohibited a why wasn't this race then we have we have alternate grounds of decision here i understand you're taking issue with only one but if there's another another that's independently dispositive or you contesting that this doesn't these calls don't meet the definition of telephone solicitation because they were not encouraging the purchase of purchase or rental of our investment in property could surface as you agree with that yes ok you're not contesting that correct but if you've got some other i mean that's independently dispositive right i'm not a libel case because even if they're not solicitations if they're automated voice recordings that by then she then you have to explain that i think she will if there's an argument that was not made to the district court or in your briefs as to why we ought to reverse or you know did i miss something well there is no but as a discovery and revealed there was no basis to dispute the solicitation issue exactly but the whole case got sent out on twelve six on the on the tax exempt nonprofit organization issue which had that ruling not been made we would be able to amend the complaint to conform the pleadings to the proof where so let me ask this one more time when did you alert the district judge to this issue to the about a maybe recorded voices i believe we would have to check i think it was it was mentioned in the summary judgment respon correct that your client was keeping eighty five percent of the money they were collecting your honor there's a distinction between my client and upon which it was performing telemarketing for that was charging eighty five percent of the gross the allegations that my company's clients was that only fifty percent of the the north donations actually with the charities are right i'm not i don't have personality that at this time that's the allegation and that's what the trick was alleged however there's a distinction between the breast cancer society upon whom my client was performing telemarketing for and my clients a c s which reasonably relied upon iris this is a nation that breast cancer society was  to get a big enough problem with the players in that respect and i was waiting to see that rick was raised i did not notice then so i was going through the record in preparation for this argument today you know i was going to request leave to file submental brief their central thesis of their appeal here in the zimmerman case is distinct from the c p a that relates the credit repair organizations that plaintiffs attempt to draw an analogy between the non profits which incorporate the five zero one c three definition they drew a distinction between the c r a because the language the language of that act is a nonprofit which is texas sense in that he c p a and all the other statutes identif refers to a tax exempt nonprofit which is a single a single element there is no comma separated ted to dissent and nonprofit in the c p a therefore that term is referring to a single term which statutory authority and no regulatory authority for a district court to overrule an iris that's remediation of what is and what isn't a five a one c three entity zimmerman with the stink because there are two separate elements to that exemption and the court only analyze must be addressed in the way that it's commonly used which is final and c three entities as this or court has ruled the opponents cited no authority to show that the district court had he had the authority to disregard irises  in addition another distinction between the zimmerman case is the entity that was the defendant and the man was the credit repair organization that was the subject of the statute whereas here my client a c s was not the company claimin for eighty five percent of the gross i'm sorry under there's a there's a mist and a misunderstanding here where my company was not keeping eighty five percent of the gross that was the breast cancer society however my my my company reasonable  that the companies that they're working for where their money is going and seeking outside counsel a term and whether they qualify is a nonprofit or it's hasn't under the various laws of the various jurisdictions of the united states us to anticipate every conceivable basis of harmless error and rebut that in advance they didn't make this argument in their response brief that this was harmless or we could have addressed it in the reply brief and so i don't know that it would be our duty in the first instance in our public brief to try to preemptively anticipate every conceivable argument that an athlete not may see vba arguments holdings of the district court although holdings limited to at that point the only issue in the case which was the on behalf of issue in the district court it had limited discovery to on behalf of and had made that the only remaining issue in the case and then had come up with this additional argument which you know i guess is that you could characterize it is as dick to the some extent and certainly you know i'm familiar with the harmless error doctrine but i do think that would be incumbent on the apple we to raise harmless error as as an issue and i think the core should allow us to if you know potentially conform the pleadings to the proof and certainly the important issue of this charity exemption and not coming into conflict tension with zimmerman and holding that an i r s can give you a piece of paper and then indefinitely you have a basically pass from compliance with robel calling in the p c p a a is an important issue i think that that should he addressed and to some extent the whole problem with the procedural posture comes from the fact that the just court erred in the first instance in deciding issues related to an affirmative defense on a rule twelve motion and if that created a bad situation with the record throughout the the record and the appeals obviously since that this court is raising this for the very first time we would we would suggest that that would be a basis for remained as well to allow any kind of pleadings to be filed with