claimant to a non contract place agreed your honor and without using that terminology bootstrap in other jurisdictions follow the same procedure but the commentary you you've got a pretty good when the last time you were here we did elected only judgement way but the result of it is you seem to got pretty good in result here what more do you want out of this case you know at some point you would have had to make it a lesson on these these remedies i mean i understand what you're saying about the bootstrapping cases looking like it between cases but i do feel like there's a pretty solid line of delaware case in saying even if you could bring up promissory fraud claim in connection with a contract  specifically look i can get punitive damages on the toward side that's why they're different and the cards and no that's not enough different remedies is not enough you need a distinct injury but if we lose is there a distinct injury here there is a distinct change this case are premised entirely the fraud claims a premised entirely on the federal year of a party to live up to a contractual promise and the promise being revalued to contribute as we would have that they could enforce the statements made by mr ianni not because wonton intended perform subjectively but because the statements were made which is all we had proved in the first and if we say the same time notwithstanding that the objective manifestation of the statements by history on are and forcible wilmington secretly at the time had no intention to perform which is what we've also consistently alleged had the judge sent both of before the claims and the breach of contract claims you can wear them twice but you can you can find the same d n a just result the different the different misconduct and as in the f h a case which specifically found that the plaintiffs were alleging the same facts in the same compensatory damages that the jury go ahead and award punitive damages that was the if h case the frazier case in maryland was the same with it all comes back double coverage here and why did the judge want to prevail a double recovery here because he thought that the injuries underlying  artfully pled claims were really one in the same and that's what it all keeps coming coming coming not to you know i appreciate the long history of cases and we mentioned this in our brief work orders have expressed skepticism appropriate skepticism of contract claims dressed up in fraud claims in order to needle to claim to make itself and there's a reason for vets skepticism or not it is not for this kind of unique and there is now recession but i'm not i'm not sure that's true because i think people contract certainty and they contract to put a limit upon their potential exposure and most jurisdictions i know of and i don't see any signs that are contrary in maryland delaware have have really taken care not to  so if the question is can contract claims even if they arise out of the same set of facts be litigated and go to the jury along with proclaims the answer is under the delaware and under frazier in maryland the answer is yes so long as you don't fall into that category of cases the policy that your honor is describing in a policy with which we agree is satisfied here that the cases that are referenced in delaware all talk about the  the point is that that the line is not nearly so clean as you're trying to draw every post you can artfully plitt you're going to artfully plead almost any breach of contract there's that kind of ill will that doesn't just sell for breach of contract but wants to tackle on a misrepresentation on a fraudulent misrepresentation on top of it all and so i i don't think  strapping standards come into play the alternative shouldn't be that clearly established freud claims cannot be pursued because there's a can commenting contract breach in the case where that ends up doing is read exactly what your honor just said we understand what the history of these kinds of names are but here we have a fraud claim that just as easily could have gone first to the juror and  believe based on what we pled that we didn't just tack on a fraud claim to a world contra we laid out all of the details almost entirely not of my client's testimony about what was said to him or what wasn't s thousand and three and early two thousand and four representatives of wilmington trust the goshi a good with the late charlie wrestler and his now deceased attorney to purchase premium finance life insurance which was to provide a tax advantage liquidity to mr bressler one hundred fifty million dollars he stated you know we've already heard his case i know you question is how we ride at this point it's not my inadvertence it's not my mistake and it's certainly not by the district court forcing anybody into a position the first ruling in august of two thousand and thirteen was suggested and that the trial on contract issues would resolve the entire case plaintiff's attorney in response said i'm interested but give me a few days to think about it just went ahead and enter and inconsistent theories so so we got him a non contract playing in the district court lot of on election the remedies acceptance of benefits and judicial stop don't you give me your perspective in terms recognize the bootstrapping problem with this case and it warrants a dismissal at this point of their client completely without getting into any of the other doctrines and i think very important is something that was said counsel in one of the first hearings judge would say i asked him what are you trying to get what do you want and the response in j for seventy two was i want the benefit of the bargain my clients want wellington to start over finding as they had read the heart of their case is one of contract and we've cited for no fewer than fourteen cases perhaps some of them some i'm not ones that we all like to talk about do can't we not all know the reason they do they are so but when when you do have an unpublished case it does have some it seems to me diminish significant and publish one but that's neither here nor there in terms of determining whether it is on this and that's not enough to move the case into the tour land from the breach contract domain it should be n where these where these alternative theories are mutually exclusive as they are here and where at issue is the very same conduct the very same representations that the representatives of willing trust willing to trust mate as they negotiated the purchase those very same representation are the basis for the fr they were horse the basis for the contract action this injury is exactly the same they want the benefit of the bargain the compensatory damages fully compensated the benefit of the bar and that's the very same injury they're seeking here and what the cases say in delaware in maryland and elsewhere is you cannot turn a contract into a tour by simply alleging promissory fraud or out i've fraudulent failure to perform when both the conduct and the injury are the same it's a breach of contract case and it's that the lead judge mazetti to isolate out the breach of contract action as a matter bifurcation which the pla and that's very significant they they were relieved of that choice and then finally as they noted over and again to the district court they had their their fraud claims their misrepresentation claims as back ups if they lost the breach of contract they still could have gone back and tried the these other claims as backup so they had a great advantage in the bifurcation and they came to severance and a heel to this court it was a very attractive they argued for the severance because they wanted a quick appeal and they wanted their money and that enabled them with the five entry of final judgment in the firms by this court to go back in demand and obtain twenty eight million dollars two hundred seventy four thousand to two hundred thirty five dollars and seventy nine cents plus interest they got by getting that quick entry of judgment the firm and and the satisfaction and now having obtained all the benefits of that they don't want any of the burdens they want to collaterally attack the bifurcation and the severance and their own satisfaction in this proceeding here and you you have many doctrines that prevent them from doing that they shouldn't get to it in the first instance by fraud and tort issue but they shouldn't be able to do a violation of remedies by acceptance of benefits by proceed on the second one that they thought so and the judge thought so and i think they probably could've because what they would have said is ok these statements were not given with intent of the intent to contract and we lose on that but we still have the case that the statements were made a by these individuals without that intent to contract and they would have had a fraud playing based on the benefit of the bar so they could have made that case if they could get by the tour contract distinction and they could have made a case in a jury trial if they were arguing both but they would have to a lack they had to take a gamble that they were go benefit of the bargain they allege in their tour one is that they would have that they could proceed without collateral but the other was that they were to get five point five million dollars lent them each year while they say they were law with respect to the collateral need there was never any indication that when we can trust was going to lend five point five million dollars per year they didn't so there was clear notice of controversy there it seems to me that contract that there was a dispute about so this argument that they got a circular but more to the point under clear law a party can't sue itself even in different capacities and that's what i want to add  far as the linda he certainly can but not on the performance of contract and the case law is clear that in other instances a party cannot sue itself and that's nine forty nine s second  the hope shareholder derivative bracket doctrine of law is based on trust law that in order to be the proper plaintiff as a beneficiary you have to demand that the trustee act and that there was no trust was playing as lender and trustee of the assets they knew all of that the plaintiffs also knew there was a very real dispute about the performance of the contract and here's the final thing your honor under these documents the plaintiffs had every right to rome move the trustee so not only do they have a duty to demand they had what exactly they needed they could have moved to remove that could have moved to remove the trustee and file any had that trust time so what happens in those instances where i say there is a duty of producer ever a duty to the beneficiary and this is does the trustee in those instances heavy duty to follow suit no but  today removed wellington trust as the trustee so they had the power to do exactly what they wanted they didn't do it they're coming out with this late at that at the eleventh hour to try and salvage a claim that they're not  entitled to under any of the scenarios but they've come back again i understand your argument on this statute of limitations and it's a it's a decent one but i'm just not sure w the circumstances well are but none of the bootstrapping cases nor did the judge in say they were all limited to the fact that the contracting issue was a contract between the estate and wonton quite trust as the judge said that's the delabar it's just if you give me one i hate to repeat it judge and i know you're going to think i'm saying over my i guess rhetorical question at this point is what is the inconsistency between our contract claim in our  we would have produced exactly the same facts so when my friend says that we have the advantage of the bifurcation because we didn't have to elect a remedy we did not have to elect a remedy we would have presented the same facts to the jury and we would have said of contract on the basis of what they said objective test fraud because whatever they said true enough it's binding on you but they didn't intend it at the time didn't object at all to the judge's   we spent twenty pages in a memo on may twenty eighth two thousand and fourteen saying as we point out in our reply the contract judgement has no effect on the on the remaining claims and even separately year later so he couldn't have been any clearer but  testifies to the same events and it's it's that kind of scenario that precluded exists to head off and so your response to me was not satisfactory and it was  talk about the fact there are different damages the injury question is sort of a construct from them not necessarily from the delaware courts the the the principal case that we rely on did exactly  delaware law supports what we're trying to do judge with risk with all with respect to your last point whether or not it's preclusion or law the case or election of remedies underlying it all has to be some inconsistency between the two theories there has to be some assertion that we have we are writing with one theory which is inconsistent with with our new theory and our our position throughout has been that we are not going to do so a single fact inconsistent in the proclaimed being cause we didn't have to prove nor what could we what the defendant's actual subjective intent was at the time well it's not