he went to hell so you are when you step up please and it's called a payment agreement ok a payment it's attached to the brief ok we'll speak in a few minutes about some of these firms but the basic deal was that whatever or the record on a particular part of the claim would go for the benefit of i'm told so here we have a situation in which we're doing is controlling the plane or of the plane of boredom is the party and for what it's for the benefit divided because this is a construction case so the klingon barbecue only money for this problem you want me money for this problem the relationship between for me any of songs we don't know  the trial judges find that the reman that you entered into your client was only eight to earl and that there was an absolute obligation to pay the one hundred  value that anything has been collected on that doesn't make any difference you have the judgment how can you contend that you have been harmed by the lawyers prosecution of the settlement when you've received a judgment against for the judgment as no value and the lawyers have not come into court and moved to dismissed by saying just a minute you've gotten paid because you've got money where you could get against this other quite well on the basis of your judgement against him for him is breach of contract based say that when you have a breach of contract and that's basically the damage you're seeking then you if you file of that promise i think the case is they cite indicate that if i hear both claims there is a this is the guy who took my morning we start with the contract claim because he yes yes we do and we and we head out of citing cases from several other jurisdictions indicating back when one party controls the economics or for another party score reverses the decision belong and if we happen to collect anything and i'm not saying this happened and i'm not saying that's possible i'm quite sure that the lawyers will be coming in relationship right that's right and that theory is that it runs to the law for yes and lawyers are not and see the general rule obligated to but you're saying is that there was an additional factor there isn't a line i know that if a client comes to me and says i want to rob a bank i can't give them advice on how to rob the bank because that crosses a line if a client comes to me and says i'm a trustee and i want to take some of the money from myself i nor i can't give him advice on that because that crosses the line if a client comes to me and says i have a contract i can give him towers there isn't a single yes question site that believe the case with the pigs from iowa where they said that this is not an agency or a joint venture or anything and the court said we don't care what the language stuff and this isn't area where one should not only time the underlying case a straightforward action on a debt on one hand their allocation they received was ten thousand dollars the court is correct that the federal litigation or time we're talking about had over twenty five people vying for a pot of money the recovery was one point five million dollars after extensive litigation after several days of mediation where they went through and there was even an expert that allocated all the different percentages and what they found support for  they did and in terms of the claims there was an allocation of those amounts fireman's fund felt the most entier is could support with respect to these extra charges because remember they already got paid but a million bucks dead the additional months they were claiming were not supported you know that that fact that there's a dispute over the amount isn't really at the issue knowing this point i agree with the court that you know that mr temple filed his amended verified pleading when the creditor adopted this construction and one point it didn't come up a moment ago is we have filed the other issues that i was talking about a moment ago and somebody tried to say there's no support for these claims in terms of any evidence in the briefing mr tapper cited the testimony of mr martin of antares for the idea that this was risk free deferral of the entire payment the credit pick up on that and read the contract to say and invited us in on the ninth of november of two thousand and nine and said i read this contract is saying this is a the comment that mr tepper said he had not attorney to contest that when we stood there at that hearing and i said well your honor number one that's not even what the plaintiff pled in this case not only did mr tepper stand ute and did this it didn't stay agree with me to clarify the court that issue but we proceeded he proceeded to get leave to and then his verified pleading to specifically plead that it was an unconditional payment and raw somebody might be able to plead the only amendment that occurred was against fordham he did not include the count that sounded in equity that the county claim that was abandoned during the course of the case what they saw was that it was the kind i'm sorry the contract claims and he pled it both ways he pled both fairly diligently prosecute and the unconditional payment but remember that was after the court ordered he said as a matter of law judge duncan price read the contract is not conditional payment they seized upon that they amended their birthright complaint that was the first time there was a debt divergence of positions then between lawyer and client because the other thing i said when the court indicated that on the ninth of november as i said that's across construction the claim against the the basis that there was no underlying claim for breach of fiduciary duty nor had it did and in fact it wasn't and that was that was not granted that was the night then at the end of the case once they adopted this position we thought summary judgment the court came out of the ni and said hold the phone on anything else you're arguing i read this kind of is not conditional payment then he amended the amended a foggy amended verified complaint alleging stripy preacher contract and adopting this unconditional payment theory and that's what he pled factually actually happened then he proceed to get his judgment against freedom and young conditional payment construction that the court had adopted and told us that and now with that on with that judgement now he's standing before the appellate court saying the judge the other point we did emphasize rob the underlying case is that this really was a payment on it that any of the cases that he's trying to cite in terms of fishery duty like the general watch case anything else general clark is entirely distinguishable because that case involved think the partnership and advise one partner over the other and that was the nature of those claims even now the state cases of mr pepper cites all fall some situation where somebody is taking over somebody else's business in the strength or dominance in that they were doing was basically in charge of that or through their attorneys to negotiate and prosecute that settlement if you want to play that and test that if you look at the  doesn't recover because nothing the lawyers could or couldn't have done changes it traverses construction that was adopted and he adopted this verified lady the other thing we argued secondarily is that we've been arguing our first round of summary judgment briefing for the market and the law for market in summary judgment and knocked out all the claims entirely never once today address any of that so we explained it live what did they do or didn't do his shop admitted that the letters to do everything they could to prosecute these claims in fact that they all sent all the critiques by the experts as to what was supported by one not supportable among those twenty five claimants claims they concluded that the only thing that antares was entitled to more was four thousand dollars they venture he hung in there to more than double back and the allocation of a lot of contractors ended up with zero allocation ok a lot went wrong with her going a lot went wrong with on the project that's why the surety issues came into play and a lot of people didn't get anything it's in the record that for is zero allocation of those funds i did not keep those funds so the implication kind of running through out the brief that some sort of self healing or something that's not true at all and a dollar any more dollars that antares is trying to claim a right to have to come away from somebody else and they didn't contract for that right that's why this distinction between contracts and rich appreciated i think is very important you can't not negotiate for that you can't do it mr martin adventurous wanted to say i have a right to set up a settlement i have the right to completely say i get paid before anybody else and this is my right under that allocation of the funds in the federal case if that had been his position he couldn't negotiate it that he didn't do that yes it's a is there really any question that left did they negotiate if they spammer on the scale it wasn't shifted one way or the other than argument is a back question if need be in a different op and in a different cause of action but you already have a judgment for the full amount we  and we discussed the earlier whether a judgement which is not shown to have been collected is a bar to proceeding against another party who is liable for the same underlying damages no just on the basis of that underlying contract you would have to show why we have there not according to the contract in writing we would have no claim i can see that ok and that's why multiple defendants and the judgement against one does not stop the case from proceeding against others who might be liable for the same damages but that's what you took a position before the  large number of cases in the trial court in response to their summary judgment motion and you'll see them when you go back and look at the record for the effect that taking a legal position does not create the a sto partner was taking advantage of another and fell for the partner who was taking advantage of the other and then the reason for the for their theory go to we've discussed before when one party is controlling the economics of another the party who is in control cannot run roughshod the law says just a minute you're controlling the economic consequences of someone else whether it be a beneficiary of a trust a partner or in this case the other party and the law steps in and says you cannot run roughshod you cannot do whatever you want to have a duty to be fair and reasonable and if you benefit yourself and thereby take advantage of the other side the law will come in and slap your hand and say you can't do it and that's exactly what happened entitled to proceed with that and unless there are no further questions i think you'll have to thank you both cases will be taken under