suffered either extreme physical harm or financial relief none of those are present in fact no damages at all should have been awarded the court recalls and looks at the actual jury verdict the question was asked what some of the money if any and i'm paraphrasing would have been recovered in the underlying what's been referred to as the house trustee and the jury entered zero dean just it's interesting because in that perfect question the burden was actually shifted to wells fargo and rocky and i'm in somewhat of a quagmire because even on that ship it was in iraq which should result in reverse all the subsequent question which happened is at the last minute after having been denied a right to amend their pleadings and after been expressly instructed we are trying this case on a very narrow issue which is was the nonsuch improper plaintiff was allowed to raise a new issue which was the non suit either improper or fall too late and that was basically it tells you when and ahead it's always argued because one of the two things would have occurred based upon their theory we didn't w terminations so we'll forego was trying to self deal it was of trying to increase its ok but that's factual look what they want to do i mean what i'm saying is that's the argument for posturing that and i'll tell you i mean as a state judge in texas i presided over a lot of reach pretty strict they all shifted the burden it wasn't very hard to do that so i don't think it's very it's not uncommon to shift the burden the way this question was in fact this is the more common in my experience  actually did receive these up until the point in the record confirms that the trust assets were tend to minimize and it actually stopped collecting ok but that's not directly related to the failure to monsters which was the only claim that was supposed to have been tr motion which i think was proper because why waste a week of trial when you can later dismiss it now i get that but then after the jury i mean we still enter judgment on it or you wouldn't be appealing it and so it just is it i feel like i'm missing  door deals with the cross appeal i realize it's a little out of order but i want to ask them about it i want to know what your position is there's this argument about double billing in the stash limitations and all that and your brief says well i want any double billing him and he launched into the limitations what is your answer to the to invoice is that show the same amount of money being billed to mr jones and his niece because they split the cost of that that's what i was wondering because that's when i looked at that i thought well that doesn't necessarily show double billing it could it also could show that there was a three hundred dollar bill and they charge one fifty to mr jones or one fifty to his niece of the same bill from somebody and that would be double billing do we know is there evidence in the record to show us bloodsoaked bill that gives it so in other words there's a bill from cot blood so to the trust or to the bank and the bank then either splits if it tween the niece and mr johns or doesn't and double bills so there would be an originating bill there's a number the beginning here i don't i don't quite understand when you're in it ok so is it was was was the bank you know out to get your your client was the bank angry at your client was bank vindictive in some way i just don't understand i understand the jury came back with a verdict that it that it did but what what what facts justified that in terms of result dealing with respect once you get you give give give us your opening jury argument in terms of you're going to tell the jury you know what it was that was so terrible that this bank did and you're going to put on witnesses and and documentation to do shows certainly  had a had a conflict of interest that it was going to double deal or in some way be taking money in through the back door here what what what do you mean by that actually are all these are that in a three parts of buying the first is that  individually now reading what you did as richard jones as wells fargo would have the court would render that first prong in that statement superfoods you know you clearly whether there was a soon or you just argued the shouldn't of non suited and so it does seem like wells fargo has absolutely no way to satisfy you or your client more accurately because whatever they do they're going to get sued  want to consent to a non suit so they keep trying to pursue the case and finally say you know we just we're just not getting anywhere here i mean i have certainly seen cases not suited after several years that's not unusual so that doesn't mean that the original case was invalid or the original case was wrongfully filed just means eventually you realize time to cut your losses and that totally proper particularly given your you know either way you're worthy and and you know representative in that sense the piece in a litigation is not an exact science i don't know if you've ever had to do the settlement analysis and decision trees for clients like assistant as if this could be scientifically done and i was found that to be very difficult and i would tell the client you're trying to make a science out of something that's not a science so i agree looking back on it maybe there could have done better but that is not the equivalent of a breach of the judiciary duty which is a very strong charge to make against a trustee and then to add on an exemplary damages me in all honesty i've seen a lot of cases involving very significant crazy conduct that didn't rise to this level of example or damages under texas law could be one where a man died and i was reversed as a trial judge for every judgment on exemplary damages and your honor my response to that would be that that while certainly not as serious as the death tax law does recognize for mr johnson what evidence is there that mr jones himself is financially ruined your saying the trust was was dissipated by this lawsuit we've discussed that but what about mr jones what evidence is it that mr jones is now out on the street or living under a bridge or  because because of the cell dealing and you know b because whatever whatever rights wells fargo may have felt it had in the trust trustee trust been officially relationship randy wilson of wells fargo testified you know he said that was the reason we know once you did he testified you know in no uncertain terms that wells korea was trying to avoid losing its own money and there are four therefore did this non suit end on the catch twenty two that your owners mentioned this w in two thousand and nine and i think the data that showed you know the and by the way this was after the case of dundee for ten years this was a month before the trial setting and without even happened and i know that all discovery speil that you would find out that it happened because you set the case for trial or be freaks out because nothing's happened so the length of the case pending doesn't tell me at what juncture where the money's being spent that's sort of dissipated the tru at you know other calculations i mean i think that you know when when your trustee is saying let's keep this on the docket let's retain is on the docket filing these motions through team on the docket you know that would that would certainly cause  me when i looked at it i thought well i've gone to dinner and paid the bill and we've are likely to split it then i would you know charge judge smith fifty dollars and judge you know fifty dollars for the exact same bill and all of that but that's not double billing because the whole bill is one  you have it to me by pointing to that you haven't shown that that's a double bill as opposed to a split bill and your honor i would say the summary judgment stage which is where this was dismissed i think that that you know gives rise to an inference you know of the billing and if there is evidence that it was a split bill and not a double bill that evident my knowledge is not in the record and so i don't think dismissal of the summary judgment stage is appropriate perhaps if it were reminded him and you know that if it were put in the record maybe that would be a different story saying that you know that the briefing is extensive and i think we can pretty well rest on our brief but you know the the evidence in this case gave rise to the exemplary images there was there is evidence point so what would happen if the case it had some merit you're proceeding on get ready for trial and there's just nobody left in the trust and here we are in the trial set tomorrow what it was supposed to happen how does the lawyers get