me please the court counsel my name is tom paul and i represent every stables of business that is in minnesota and owned by jeffrey nielsen in his family and i'd like to thank you for allowing me to present today as to why they're entitled to a jury trial and why the court below erred in granting summary judgment i have three matters that i'd like to focus our attention on today the first is the patient bill claims the second are claims under the november agreement and the third is the claims on the fourth amendment complaint we begin with talking about patient bill which was the single most valuable asset that every stone and had intrust  to the care of crestwood that horse was it admittedly no single document is in existence that sets force and contemplates all of the terms and conditions and duties of crestwood but what we did submitted to the court below were a number of agreements correspondence deposition testimony that reflects the course of dealings the practices of the parties and the duties that crestwood was willingly undertook for almost twelve years before it was no longer in their best interest to do so in the abdicated those duties this is the management claim this is the management claim correct and essentially the court said that there were no definite or concrete terms and nothing in writing and i submit to you that that is why i pled both an express contract because you can have an expressed contract by oral agreement as well as implicit contract or an implied contract which is where one or more of the terms are not stated and expressly agreed upon in a or in a written sense of the word but you look to the parties conduct and that's why we submit whether it's an express contract or an implied in part contract side of things what would you say your best evidence for the express management agreement which we look at is there i think there are a number of things if i can your honor first of all take a look at the contracts themselves they're in document one fifty nine i believe exhibits five six seven and nine and each of them reflect that crestwood was doing the selling of these stallion seasons are you referring to the ninety eight agreements you're saying looking at those would be the the solicitation letters and those i believe are found at exhibits ten eleven and twelve under document one fifty nine and that's where crestwood is promoting to the public to mare owners come have your mares be bred by state patient bill he's a stallion with this credential and this background please contact us nowhere in any of those documents can you find ever stables or jeffrey nielsen's contact numbers the reason being that you get around your very own client saying crestwood performed in will husband tree and cared for my horses at the farm and had no part in my breeding decisions in thank you your honor because that gets us to the animal husbandry i believe that's in the handle husbandry letter and that has nothing to do with and over on this side are one hundred or more mares that some of them are being bred to patient bill but vose breeding decisions as to the brood mares and what to do with a win ling in what to do with the reasons that our response to that is one is absolutely my client have the final right to say yes or no to a particular breeding that was going to be matched up with patients bill that doesn't alter  if a real estate agent is acting to sell your house that doesn't mean you don't retain the right to say yeah i'll take that price as the principal or i'll ask for a higher price as the principal it means that the agent still owes agency duties to go out and market and sell and promote the house just like it would be a stallion and the services to be provided by  contract so i think we've also presume the same protocol says all requests should be accompanied by merit pedigree race record or prada shoes and last year reading history and sent to me that is correct that's not even a minutes not even just a basic approval on price and it seems like it nielsen's retaining the management side of things and in fact what nielson's testimony is in the record is that would prompt a discussion between himself and paul maclean sr as to whether that was suitable and so again there were duties that were concomitant to crestwood along with that protocol letter it didn't simply say send it i'll do it all my own by myself and i'll call you back and say yes or no it prompted a dialogue and that is exactly the words used by mr nielsen's deposition testimony and presented to the lower court that said it prompted a dialogue between the two of us as to whether that was a good match for both our purposes as well as the possible merit purposes because remember one of the things that happens in a meeting is there's go running on a track someday and both the owner of the stallion wants to make sure that that's appropriate and the mirror owner wants to make sure that that's a good match for a lot of different genetic reasons and and fertility reasons and and sale price reasons so what i'm trying to explain to your honor's is those kinds of dialogues and those kinds of discussions were what was presented to the court below and what jewellers case that that is enough to create a factual dispute such that summary judgment should not have been granted your theory of damages an injury on the management contract whether implied or explicit is that that you know what it's told that it's a city outside of port au prince in in haiti i see and that's how they pronounce it it is and all right not not exactly material that's ok that's fine your honor it is an interesting aside in a ll of these horses names usually have a story behind them so so we submit the district court erred in ignoring that evidence in that course of dealings and basically acting as the trier of fact when in fact that should have been something that was submitted to the jury in a jury trial setting we believe that there were a number of errors for example the lower court erred when she said that we presented no evidence of marketing efforts that predated that magical moment in february of two thousand and five and that's just flat wrong exhibit  eleven and twelve docket number one fifty nine are to such marketing efforts from crestwood to prospective marrow donors that we didn't see any other such evidence afterward and i would like to submit that we did present mr nielsen's testimony in which he said v never told me that they never had a dedicated sales and marketing team until discovery unfolded in this case and and while i understand that that may be self serving in may have been viewed by the lower court below as self serving the fact is under the law of this circuit just because a plaintiff articulate either in deposition or affidavit testimony something that is self serving does not mean it is no evidence and the lower court said we presented no evidence that they had know i can't speak as to why they didn't raise it i mean this kentucky law what this was going to be performed in less than a year or it would have been probably capable of being performed within less than a year it also didn't necessarily go to a personal services contract which might give rise to an additional statute of frauds type argument but i don't know for the case it was never part of the case thank you so we submit that the lower court erred  also in not finding that there was a trust arrangement or a fiduciary arrangement visa be patient bill and let me explain why that was so because when mr nielsen was out possibly finding other stallion farms in which he would bring patients bill one of the things that and it's part of the record he was seeking was someone in whom he could place his confidence in trust and mr mclean the proprietor of crust would farms vigorously and and vociferous lee advocated that they were a place in whom mr nielsen could places trust and in particular place his interest above their own and that's that mr nielsen's deposition testimony again document one fifty nine exhibit three page eighty two those words do sherry duty claims to juries because one party says i thought of the other side as a fiduciary and if it was a purely subjective and i believe the court what's your best evidence i mean trusting someone when you have a deal's true in lots of settings that it doesn't mean a deal's not an arm's length it absolutely doesn't but the three prong test in in re sally actually establishes when the parties had a relationship in advance that was of the do sherry nature in this instance mr mclean had not only known but agreed to act as the agent for mr nielsen under his revok trust maybe there's more mileage to this claim that i'm appreciating but it seems to me very funny because this claim goes to the exact same problem of the management contract right i mean the same set of damages if you went out of your duty you get the same damages you would have gotten into the management class or similar i'll agree with you that the damages are similar the claims are slightly different i'm struggling with this if there's not an express or implied agreement to manage this horse and you lose on that claim i'm just really struggling with how you can get to the saying you can say well we're going to do all this to produce your duties that just really is bizarre to me where the parties have nothing in writing or even implied from the contract they did have to just assume for the sake of argument you lose that claim i just can't imagine how you'd have enough evidence to win a fiduciary duty i think i see your point and i just have to agree that if you if you up hold the court's dismissal or the grant of summary judgment on the breach of contract then probably by definition the breach of fiduciary duty is gone to that's kind of what i'm wondering that we should really focus on the management contract claim it and i would say that the management contract our terminology it's the filly that was owed of storm cat slash island fashion and it was in the september two thousand and nine sale and that horse is one of two horses that did not get transferred in name to crestwood under the november agreement and thus remained everest's property and when it was in the ring  we had mr nielsen in everson had someone submit bids in an effort to protect the horse's value and at the end of the day we or our agent was the highest bidder and that's called a reserve not attained are in a bid in other words no money flows into the auction house and certainly no money flows back out we submit that that horse was not sold under the terms of the agreement and therefore it's our position that we have the right to do so and moreover under the killer rules we have the right to do so so when  is correct ok so i won fashion was sold in january of two thousand and nine and that's a separate breach that we've addressed in our papers and then nine months later in september of two thousand and nine one her phillies was r n a and outsold part of your argument is that you have a long history separate and apart from this last agreement under which you would be to retain some of the horses if you thought that it wasn't even mr mclean testified that the process by which my client in he would protect the value of horses in the ring for any one of a number of circumstances our name was submitted did you not disclose this to the other side it was disclosed in the sense that they knew after it was not sold after it was they weren't they  sitting there marketing because if the horse had gone to a price that was acceptable to everest the sale would have gone through making the point i get that i'm making the point why was cross would not told about the  that's what seems a little duplicitous it and at that point the parties had fractured their relationship such that we had a separate or different agent acting on our behalf at that particular sale but i mean its crest was the one who is responsible for this it's crosswords commission at stake and you think the fact that they didn't like each other justifies not telling them what they were doing and a the course of dealings that judge judge white has pointed out would have been they would have gotten their board paid for which was in effect the risk of not having this horse sold where crist would was really being rewarded if you will was they were getting their board expenses repaid through this commission as your honour's pointed out if they were deprived of that commission they still had the avenue as had happened in the prior dealings between these party of you of course get your board and expenses paid for with the difference between the two hundred thousand plus that they kept is the commission and had they gone this other route what would they have collected on average each month  you're claiming that before the auction you wanted to set an r n a and they would let you that is correct and we actually instructed and there's record evidence that we instructed them during the ring the horses in the ring bid bid on that horse protect the value to which we were denied that opportunity i think we've got your argument we'll give you a rebuttal we'll hear from the other side very good think that your honors may please the court and mr paul i'm a start sort of at the end of the november agreement because that's just what was hit most recently and i want to dress the statement about the course of dealing because there's something fundamental that's missing here the parties had a fifteen year course of dealing on how they would take horses that they boarded to a cayman sale and then in november they signed a contract to completely change everything that ever done in the past this is a contract that was proposed undisputed by mr nielsen he tried to actually take some of these horses to another person to get rid of them and then he decided he want to get rid of them through crestwood he had his attorney draft a contract he had his business advisor to nelson get involved in draft the contract as well and crestwood had attorneys draft the contradiction of an arm's length negotiation between two parties drafting a contract for the disposition of one hundred forty four different horses just the two thousand and eight agreement this is the two thousand and agreement in november two thousand and eight agreement and i start there because the island fashion philly out of island fashion island fashion female horse by storm cat the male and i apologize that we sort of went backwards on that route so that horse was one of one hundred forty four different horses this wasn't take one horse at a time see if you can sell it see what happens it was from this day forward you take control of every one of our horses you pay all boarding all costs of energy bills all fees to put the horses in the sales and you sell them over a period of time staggered out as we've laid out in this agreement and this horse happened to be the most valuable of those horses and so to say that we would have received a commission on this horse i mean when you look at disposing of one hundred forty four horses on many horses are going to take a loss if you take a hit on that point you're making or you're making a point about the phillies sale or using the two thousand and eight agreement as a contrast to the management contract oh no i'm sorry i'm making a point about the philly sale ok and that is there's a zone gesture that we benefited greatly from this philly sale because the commission on that particular filly would have been much less under the  prior course of dealing but we were not grading on the per course deal and we were operating under a new contract that we negotiated through both sides attorneys what about we had a contract prohibit them from secretly placing an r r in a paragraph for the new contract prohibit war and if i will pull that up and this is the same paragraph that the court relied upon it says crestwood shall consign for sale and shall offer for sale and sell i recognize two thousand and nine kentucky public auctions as we actually agreed upon the phone horses shall consign for sale and shall offer for sale and sell there is no reserve said in this contract he said we shall take the horses and we shall sell them and we decided the score to it you're just me is the same statement is your own you get to take them to auction and you try to sell them as long as you're behaving in good faith they ever says no right to agree to whether that sale price is good absolutely that's the exact point we're making that is what the contract says that's what they agreed to without that we take this huge risk we take on all the cost of boarding one hundred forty four horses and everest with every single horse can say never mind don't sell it you guys just keep our horses for free and in for night and do whatever you want i mean there's no unilaterally that there's no bilateral agreement explains how incoherent that is in the way the horse breeding works in other words some case that says you know no one you would never do this i mean in other words if you completely take control of horses you board them you have all their expenses of course you sell them on your own terms through auctions and never know your i certainly don't have the case i don't know that it's you know come up before i can say it has an arc and say if the contract if i'm right or right near that the two thousand and eight sales agreement sets forth a whole new relationship between the parties so you can't measure one party of the other's performance under that contract by virtue of the prior course of dealings that is exactly what our course of dealings were under a different arrangement this for many many years it was completely different under the two thousand and eight sales agreement than would they have still received their board on these horses had the money not been generated at a seal to pay the board no there was no provision whatsoever they couldn't then just simply bill ever a good for the cost of caring for these horses because they've been transferred to crestwood and it became their responsibility that's exactly right this is a after the fact fiction that's brought forth by mr nielsen to say well we would just pay your board you would have been fun now i will said the title to this horse to be fair was not transferred to crestwood there were two horses the title was not transferred but the obligation to sell was no different for those two horses than every other horse under the agreement the only difference between the transfer of title is if the horse went through the ring and nobody bid on it it would have gone back to everest instead of going back to cross but that did not mean that everest could stop at the best of the philly you had the same duties in terms of boarding and all those other expenses yes all those duties were the exact same with the filly never knows there is not a provision in this contract that suggests that if the horse doesn't sell worth evarist comes in and says no not we're i'm going to let it sell then you can get your board and your f back for this or any other books and they were all again done together so this is a block of horses this is not a horse but one hundred forty four horses and you know in this given take they would split up ok we get twenty five percent commission on these horses fifty percent commission on these horses these we can sell privately we want even running through the sale because they're not worth the cost of a salem seven fifty horse just to get in the ring in there are some that we decided would even be put through the ring and that's in the contract so this is a six page agreement that mandates the sale of a horse  the kentucky lot i can sell you give your owner press would has this ongoing expense why does what's the contract say cress would can't set reserves what's the theory there because i mean they're all they're getting his commission and of course once it's sold the freeing themselves of the ongoing expense of boarding the horse so i'm just trying to figure out the business rationale for that because crest which is the party at the auction doing the sale it is inconceivable that a parting the everest would send somebody else to the sale and undo it i mean the very purpose of the contract is to have the sale occur that's why the contras injured in two of those why i'm just trying to figure out why one puts in the contract that chris would can't set an r n a to prohibit crestwood from bidding on the horses and stopping the sale because when it was entered into i would have mr nelson was insisting he wanted every horse so this is this fiction that's come forward of oh i want to take the horses so i want to set reserves this is after the fact what happens is chris would make more money on the sale and mr newsome wanted them to make he decided he didn't like the steel and wants to undo it all an hour here where he said no they wouldn't do this they wouldn't do that ignoring the contract that he signed that he negotiated through his counsel that insisted this is how you must do it and if i may i just want to bring up the answer the question is protected that the horse gets sold now and the sale isn't delayed because of the established by crestwood because he's trying to get out of the business he wants to liquidate these horses i think that's exactly what he was doing i wasn't mind i mean i don't know why he did everything he that's essentially that's the spread on the contract that's where chris would had an opportunity to actually make a profit there's all these boarding fees that would have been paid there's always stuff that would have happened under the old agreement and here's the horse that's going to make a difference and he just takes it out from under their noses the contract doesn't allow that and as a kentucky law you know the implied cover of good faith and fair dealing i think is what gets into this when parties negotiate that they're going to do something in this case a crche what's going to sell this horse the other side can't deprive them of the benefit of the bargain by doing something to undo their opportunity you cannot go forward and say well we'll just undo the sale we're going to stop you from being able to sell it and now you don't get any commission because we stopped you from selling dark horse and the other wars he retained ownership legal title to the horse risk of loss if the horse were to die and the insurance policy were to cover it he would have gotten the risk but he did not retain any control and he subjected the horse to this contract he said you take it with all my other horses you board them you pay for it you run it through the sale and you get this commission but isn't this lease to question whether a lot of the horses are not so because the owner decides it's not enough money right yes ok so where in the agreement does he give up the right sim to  make that decision in a good commercially reasonable fashion that no this horse is simply we're much more than that and so we're not going to sell it today if your question is to where he gives up the right he gives it up in two places in the contract at the beginning of paragraph four with it says crestwood shall consign for sale and shall offer for sale and sell it recognized two thousand one hundred eighty public options be printed at the end of the paragraph i'm sorry it says as mutually agreed to determine to put ever now let me because there has been some hay about that about the as mutually agreed and the position now is that that is mutually agreed is an agreement as to the sale if you compare the beginning of that paragraph to the beginning of paragraph three the part is he to agree the crestwood shall consign for sale and sell off or sale and shall sell at the kim in january two thousand and nine mixed sale the following horses the difference between those two paragraphs is that one calls for a specific sale the generator does not make so the second one calls for at a from said sale shall only be by mutual written agreement of everson creswick and that's the end of paragraph or snow there a provision regarding the manner of sale for best effort you're talking either public auction or in private sales etc is that the provision referred to yeah i mean that says that we shall use good faith and commercially reasonable efforts to sell for the benefit of both parties these horses there's nothing in there that says hey by the way everest can undo it and i go back to the language of the in a paragraph or reasonable to sell the words that if everest had come forth with some evidence that it was not commercially reasonable to sell that horse at that price we might be having a different discussion but there's been absolutely no evidence on the record of that fact and i don't know how disability the commission was twenty five percent on the philly i believe that's correct your honor and you'll notice that the horses are broken a group one group to exhibit a horses and there were different commission set for different horses take into consideration the value of the different horses etc some of this is this is not a contract that just happened as they claim the management agreement just happened you know we get together when it came time to actually do business they knew how to do it he used deposition testimony to support this claim whether expressed or implied and then he said there was a series of other contracts that supported the claims you know what he was referring to and i think i do and i would strongly disagree with the character's a show just go ahead to respond to that or i think what he's talking about is the stallion season agreements that would have to be signed by crescent when someone brought a horse and and said we want to breed this mare to patient bill and present within follow the protocol and get ever or nielsen's permission to breed the horse yes it's a good marriage no it's not and then they would sign the contract that says you know on behalf of ever stables you guys get to breed this man and that is within exactly what he said the protocol letter and exactly what we've said which is those animal husbandry services i mean the store stood at ever at crestwood i mean it was there so while they were the manager of the horse they didn't set the stud fee they didn't make the mare selections and ultimately determine the value of the horse they were there so when people came they paid money they passed out i think nielsen describe that news animal husbandry letter as administrative services and those are essentially attendant to having the horse physically at the farm so someone comes in they sign the contract on behalf as instructed by mr nielsen yes your view is all of those contracts actually prove there wasn't a management agreement because the supper contracts were done for each man i don't think they do one way or the other i think it's like when you go to a store and you buy something and you sign a piece of paper that says you're buying it i mean it's a receipt essentially it's it's a little more than that so i guess  and say that i'm sorry testified to that mr new sort of asserts that we were marketing him although he doesn't offer any evidence of that he just well evidence is what he claims that mclean undertook that right yeah i mean he claims it but then that's a question of fact if he says that under oath and there's no written contract and there isn't then why isn't that a question  because to have a contract you've got to show some definition of what that term is he just says they were marketing and what what were they doing were they bound by a certain advertising budget and they have to contact fifty people a day were they just selling that position testimony that he says we had a management agreement his deposition testimony is i thought we had a sales team in place and they were out there selling the horse like crazy well i have no idea why i thought that but that's what he said also he does say why he thought it because he had an offer make sure that that happens i mean that's that's his testimony why isn't that a question the firm is that does not create a contract to manage the horse and i will back up and say that in this regard he's sort of backing down right at first it was management of and now it's just selling seasons of a stallion and so if the question is why isn't there an issue of fact as to whether or not crestwood agreed to sell seasons of the study and i would say turn to the question of how would you define that obligation contractually and how would you define a breach what was it the way they were supposed to do to sell seasons what exactly because selling seasons in and of itself what does that mean do they have to contact a certain number of people did they have to sell a certain quota each year how do you measure the breach of that getting the thing before hand people would just come in and say we want and then you would forward him the information but also as the only evidence of record is that we did everything the same throughout the period of time and that kind of goes to more of a breach in damages if you go up to ninety eight period time going from ninety eight to two thousand i think was actually after zero eight that he finally moved the horses not that he moved it in zero five when he claims that offer was made and everything went to pot the horse actually stayed at crestwood for three more years or four years and he just if you guys are doing what you told me you're going about a wait and in zero five is when mr neilson says he got this offer for six point five million dollars to buy the horse and was talked out of it by them clans and his i mean it is a self serving testimony by him and i understand that it creates something and i'm not saying creates nothing but the question is does that create evidence of a contract and in order to have a contract an oral contract like that there must be at least enough by which this court can measure both the performance and damages in the event of a breach and i know i'm over my time but if i could answer the damages question because i think it's significant what are they saying the damages or for not selling and by the way what is the not sales and we don't know what they're saying you know we didn't contact anyone i mean clearly seasons were still sold so some sales still happen there's a standard of whatever you did essentially is not enough and that's a definite enough to create a contract that well it just has to be good enough for me to say it's good enough there isn't and but history standard that basically suggests what somebody that's marketing seasons does not that they've put  you listed in the course magazine or you know they've not put any evidence of record on the other hand we did have two experts who we had testify on our behalf that said everything we did was appropriate for what we were doing but turning just to the damages on that contract because what they're saying is this hor worth six point five million one day and it was worth one hundred thousand dollars some five years later what's the evidence that anything we did cause that because here's what i know for sure there's two experts say the reason this horse lost value is because it was overpriced compared to the performance of the horses that it's so in the years when it was supporting fifteen thousand dollars mating study this horse had in the previous years had six and seven stakes winners which is the gold standard for your horses in the industry  drops down to three stakes winners and mr rosenberg and mr berry both testified about this and they're attached in the record and then five three zero six two zero seven two he just his performance tax performance of the number of i mean the number was the same it's just whether is outside or inside i guess at some point the number came down but we're looking at offspring several years back so it be the zero five offspring or performing in zero seven so i mean that can be attributed to the lack of sales what happens is the performance tanked and our expert witnesses said unequivocally this stud fee at fifteen thousand was ridiculously high for this performance where you go from five or six and seven grid stakes to three and two you griping at a nine hundred thousand dollar sales price i think the last bid that we placed put it at i believe nine hundred thousand we actually had a reserve number that was higher than that in mind for the value partly due to the discussions that we i mean i'm just trying to i'm going to use all your rebuttal time if you don't help me with this i'm trying i thought there was a sale offer eighty eight seventy five it didn't go through because the ernie was  under thousand that's what i thought the facts when i wrong about that you're slightly ever so slightly and it just has to do with the auction process somebody live bid at eight seventy five we next bid at nine hundred nobody knows that it's not a live bid or not nobody goes above nine hundred we're the owner as an r and a bid it's not a money changing hands going into the auction house so what i'm trying to figure out is what would have been a price that you would have been satisfied with one twenty five and the point is it's somewhere and i can't give you the answer to that because it's we never got to that point you said that we had a price in mind and i don't know that it's a here's record in the making i don't think anything what you're saying makes a difference the point i'm making the point i thought i was trying to figure out whether this claim was a little exaggerated in its significance to the part monetary only my way of thinking about it would have been seventy five price seems like your client would have been satisfied with nine hundred all we're really talking about is twenty five thousand dollars they get to keep twenty five percent of it anyway so this whole claim is your client's really upset about losing one nine hundred thousand when i'm packing and i'm saying to myself your clients are spending a lot of money on this and they in and admittedly i can see that point now that i understand where you were going with it and if that was the only beef i'm guessing we wouldn't be not only in the six circuit but even if we just record you look at there were a number of other issues and obviously that was another issue or another claim and if i may this is an important topic because i believe judge mckeague pointed out well the course of dealings in the past really doesn't come into play in this circumstance because we have a new agreement the problem is and we s affidavit again it's evidence it's document one fifty four mr nielsen put specifically that paragraph seven is judge white has picked up on prohibited crestwood from our name but it did not prohibit everest from doing so it did not prohibit everest from protecting its own value and where a contract is silent the question that assumes you still have that right you don't put in inconsistent exercise it it seems to be inconsistent with the repeated reference to crestwood shell sell by mutual agree as mutually agreed we did and that's at the very end of that paragraph  number four we didn't agree after the price that it was going to be sold that we would have agreed had it achieved a higher price where both parties would have been satisfied but crestwood wanted to dump it at whatever price we wanted to make sure that it protected its value in other words your argument removed from said sale only by mutual written agreement that that act in the horse industry of removing from sale doesn't isn't limited to just not putting it in the ring it also applies to it being in the ring in the new r n a and that it's a frequent practice in this industry to buy back or are in a bid on one's own wholesome orses but if it can only be removed from the sale by mutual agreement and a horse is constitutes a removal from sale where did you have the mutual agreement from crestwood in connection with the very language you're relying upon when you didn't tell him about it and they didn't agree to it i see that point we didn't reach agreement but the point is the horse was going to be sold if mutually agreed to what  he asked you question and you say yes but only by mutual agreement that we read the mutual agreement paragraph and you didn't actually reach mutual agreement on what you did so how do you win the match the point is on this issue where there is silence on what rights we did have a the kentucky law applies let me see if i get straight so you get to r n a that constitutes removing from the sale but you're not subject to mutual agreement that's that's what you have to convince us that particular claim you reserve the right to do it because it doesn't say you can't and you weren't subject to the very language of the contract that removing the choir's mutual agreement for that type of  believe that i think that is correct your honor we're where do i look to find some sort of explanation or verification or justification as to why assuming you can do it concede for the question you can do it why isn't ok you know it's always a good idea to hear where the decision makers coming from ok so here's my point about that now try to read the contract the way you're reading it it says press which i can sign for sale so offer for sale and sell your theory is all three of those events all three of those choices by crestwood you can't do without every that every single term the horse that decides the horses we're going to decide to send at this auction the price every single thing i yes ever get done yes and they're the ones that have to continue to board them and pay all those expenses why is that the case your honor we own upwards of five million dollars worth of horses and probably more valuable than that that's just the sale that they actually went five million dollars where the horses are very good in the hands of very the with absolutely app an average one hundred thousand dollars a month on the other hand they've gotten eight hundred thousand dollars worth of profit when they would have otherwise only gotten sixty thousand dollars with a profit my point in answering this your honor is very they undertook these obligations in a quasi if not absolute fiduciary capacity they have the obligation under mr nielsen's request and under his prior trust arrangement to work with everest that was in all aspects whether it was an identification of the sale protection of the  pricing or the r n a pricing what kind of care now part of the reason why the title got transferred to crestwood was mr nielsen thought he was going to die and thankfully did not and that would have given crestwood who are they the filly eventually sell she is eventually she has sold i believe i don't know the price if that's important to you i could supplement but i don't believe she didn't sell at that september sale i believe it was subsequent to that more or