you may or may not know because i don't i don't recall either of you before but we're pretty liberal slow if we ask a lot of questions we'll give you extended time but don't keep this here all day of our grief i would like to address a citation that we have on page twelve of our opening brief it's the case the separate hearses villa livy i realized when i was preparing for today's argument that we cited in error it does not stand for the proposition that that we say that it does so i would like to withdraw that with my apologies to the court to counsel and i do submit that the proposition for which we cited is adequately addressed in other cases such as mclean versus russell moving on to the merits of the case the issue here before the court was whether or not the lower court committed error when it in essence required mr on tomorrow to prove his case at the pleading stage the case was dismissed with prejudice and the only grounds for dismissal were in essence that he did not actually prove the allegations of his complaint in order to survive a motion to dismiss he need only to prove that the elements of the legal malpractise case which is duty which i got to say realize that there are two issues are regarding two depending on which count you're looking to breach of that duty and then excuse me yes i just want to point out these microphones do not amplify ok so the people in mic can't hear you and if you see and close you too it will actually catch your voice for the recording that's being ok thank you thank you sorry and then in fact that attorneys there is counsel raises in his brief excuse me an issue regarding the duty and i think that that that counsel is turning the duty element on its head when he does that with the duty is that mr onto my knees to show here is that there was an intent to benefit him as the third party beneficiary that is what gets him over the duty aspect of this and makes him give him the standing to i would say your argument makes good sense but when you have more than one beneficiary then it becomes the estate is is the client in the client is the total us in this case the total parties except he signed off therefore you have a tremendous burden to say that the suit tourney was not representing the  fact nobody else complains why i think we're in order to address that question we need to break it down by count that the complaint that was dismissed was brought into counts the first count was for  negligence in the drafting of the will and trust documents the second was in administration of the estate i understand what your honor saying with with regard to the second count because that obviously affects under the state in there is a higher there's a higher burden to show duty in that instance because we need to show in cases where there is a potentially adversarial relationship that the intended sole purpose of that relationship was to benefits mr and from our as a third party with regard to that higher burden on the second count our position is that the trial court erred not only when it dismissed the complaint that would never gave us a chance to reply that second count plaintiff was given multiple opportunities to replete the complaint and the first count which was the legal negligence in the drafting of the will and to state the second count in terms of the administration of the will after the death  of plaintiff's father was that we were never given leave to replete that that was that was dismissed with prejudice at the outset so the error there is that the court napper i mean on six point five the issue the issue is to give the plaintiffs notice of possible deficiencies in its complaint and then to allow the plaintiff to cure those deficiencies re pleading an amendment should be liberal to those ends to t ends of justice there is nothing that you know is for the court to say this is dismissed with prejudice denied him of the opportunity to address that now with regard to the first i don't think that we need to show  in i don't see any cases in either of the briefs that shows that the sole intent was to benefit mr i'm only mr on tomorrow or there isn't the heightened duty requirement  in the case of the drafting of the will and trust documents because it is and not adversarial proceeding that's as opposed to the administration of the state all that mr entre needs to show and it can be rise from the language of the well it can be surmised from the language of other documents for example we incorporated into our complaint some correspondence to the attorney the intent can be surmise from that language it need not be expressly stated and i submit to the court untermeyer did in fact meet that burden going back to the intent issue the intent that we need to cleat and i do not approve but plead is meyers father frank had an intent to leave as much of his estate as possible to the beneficiaries by sheltering those assets from excessive taxes so w trust arguments because you didn't give me any evidence of what his intent was and with some of the gifts north you do give me any specific evidence of anything he would do different what in that is he says he would do that he communicated to me in there's there's two things i want to address with that question number one is that is that what he says and by he i assume you i think i just this briefly before there is no law cited in either brief that stands for the proposition that we need to plead and show at the pleading stage that mr untermeyer walked into the tourney's office and said quote my intent is to do this his intent meaning his intent to shelter his assets for his beneficiaries can be surmised by his other actions and by the words of the trust and the w that at the pleading seach what we need to say is his intent was to shelter assets but they didn't do that the fact that one third of the estate had to be paid out in taxes and therefore mr on tomorrow was damage for us to have to argue in proof at the pleading stage that this trust could have been utilized it would have resulted in this type of tax savings goes far beyond what we're required to plead that in essence would require us to get an expert witness i mean we would be getting into application of trust laws we would be getting into application of of state drafting we would be getting in the application of texas lies who if you look at the various complaints that we did plead throughout leading up to this one that was finally dismissed with prejudice in each one we say ok here's something that could have been utilized here's something that could have been done to shelter more of these assets and then what defendant would do would come back and say well if you look at this tax law you know what the way they set it what the it's going far beyond the four four corners of the complaint in going far beyond what we need to prove to survive a motion to dismiss under six point five that maybe down the road after expert discovery that may be an issue that could be for summary judgment assuming they're correct which we're not prepared to do what they are asking the court to do and what the trial court did do is to look at laws that are not within the four corners of the tax in the pleadings to genesis one five motion but there's a big difference between the cases cited for that proposition and what happened in our case there's a difference between and i'm thinking of the i think it's the balls to case which is the regulatory case where the trial court said  you know was fine we'll take judicial notice of the fact that this type of law does not exist anywhere else in the country there's a big difference between a court taking judicial notice of yes there are tax laws that apply versus here's how they would apply and what you're saying should have been done would never work to shelter more assets it just goes beyond what he should be required to prove and what he is required to prove and six one five i want to address to the issue raised in counsel's response brief regarding the statue of limitations argument you know i can say that statute of limitations is never appropriate for six one five motion however it was not appropriate in this case in order for statute of limitations to be appropriate for a six point five it needs to be a parent again on the four corners of the complaint there are several things that are not apparent on this complaint that you need to know in order to analyze whether section two one four point three applies there's nothing in the complaint about whether or not letters of office were issued there's nothing about the deadline to file claims there's nothing about a deadline to contest the validity of the will these are all things that in order for the court to dismiss for suit a statute of limitations it would need to get from outside the complaint and that's absolutely inappropriate the other issue with this spiritual limitations is that it really has never been decided by the trial court and it was a big ended pretty early on the first motion to dismiss didn't it was brought percentage six one five and six one nine was decided on six one five and there's never been a six one one aspect of this motion to dismiss brought since then and if you take a look at the case for later case you know you need to be real clear about what you're calling your motion and what you can bring under your motion you can file a motion to dismiss under six one five and then pull in affirmative matters and say oh go ahead and dismiss it pursuant to that that case was a collateral estoppel issue the court said you know what  that may be true but listen this is a six one five motion and for us to take notice of sort of a ruling in another case is and the four corners of the complaint is inappropriate so i submit to this court that  either and then i just want to address i think i mentioned it earlier but the separate duty under count two vs count one the cases cited by counsel regarding the duty of attorneys in the administration of a will do you say that there was no duty in those cases they do say that in those cases the sole responsibility of the attorney was to the state versus to the beneficiaries however none of the cases either party say that it can never be that in a state attorney would have a duty to a beneficiaries while it simply says that in it in cases where the relationship becomes adversarial there needs to a clear statement of intent that the benefit was to run to the beneficiaries opposed to the estate and again this goes back to the error of the trial court not letting plaintiffs replete that one count it may well be that that could be  that was actually admitted inappropriate was signed on september sixth of two thousand and two if there are documents it is attached to our youth and i can see i've got a hold on and the settlement sequence of events in for example page i'm sorry in your brief you mentioned that you you attach copies of your complaint and you say that the that abraham untermeyer your client did not receive any notice of i guess up the court date is what you were talking about and this is on page thirteen fifty two of the record but isn't it true that your client did receive your client's attorney did receive a letter from the state's attorneys in january of this year telling your client and his attorneys that there's a court date on march fifteenth and that the years had forty two days to object i don't have the area of the brief that you're looking at in front of me i don't know if you have a pager number i can pull that out but if i recall the notice that we talk about in the brief is not a notice of a court date it's a notice of his right file an objection well as i under there is a document in the file that clearly says from the a state attorney's to your client's attorney at the time who instantly i can't buy an appearance in the probate case for so i don't know whether any attorney days to object which would have been taken you know march ninth of two thousand and seven to object and to my best search of the record can find no such such objection ever filed by your client or any motion filed in court to extend the time to file objections so wasn't this all properly before the the probate court to begin with and didn't your client just sort of blow some timelines off well number one i think that that requires us to consider notice and that they as the representatives of the state didn't treat your client fairly and so i'm trying to figure out what you know how to sort through all of this and it concerns me that this is all based a lot of asian cases all based on the underlying for kobe case so if there were notices that were given and in your brief you're alleging that they were not given then those two extremes don't mesh i wanted it address your comment that the law division case was all based on the probate case while that may be the case for the state administration there's there's another aspect of the complaint at issue here which is answer brief page seventy eight i have looked at page seventy eight i can't find any such admission but what do you mean by that and that your honor may go hand in hand with with the case that i withdrew earlier today and i apologize to the board i will love what councils are the bomb trust was revocable trust he chose that we chose reason we can see the reason is it that changed and changed and changed again why he wanted control of it so it was a fairly sophisticated client for his attorneys so for you to this court in your brief the attorneys admit that they did not advise frank to transfer his assets to an irrevocable trust i don't see how you can make that statement and i'm just asking where is that supported anywhere in the record and again with my  reform references to texas state taxes paying taxes being subject to taxes and wouldn't man be a pretty clear indication that the dissident understood that taxes were expected and that he expected them to be paid zero and we don't say that that there is a way and i don't know that there would be a way for him to avoid taxes whatsoever the complaint is that the taxes that were paid work sas and unnecessary and that there are ways to pay last of that pay why don't you and you excuse me you believe that  if the motion to dismiss had not been allowed that you would have been able to prove it in court and that the allegations you made to that extent in your complaint and amended complaints were sufficient to get you into court to do the facts to get absolutely i mean again we're getting to the proof issue where in order to prove that up at trial we would need to be prepared to put forward an expert witness to talk about the alternatives and what the tax implications would be but that would require someone knowledgeable in trusts in wills and taxes and accountant to do that math formulation how would you ever in your at that point of the pleading in a complaint amended complaint whatever how would you ever go about documenting it or or getting to the point where you could convince a court that you had a good case a strong case and you should survive a motion to dismiss  if you if you had to do more than what you've done what would you what could you have done i am well confused by the question was a motion to dismiss and it was finally ordered  and i've been wrestling with myself ok so now you're the attorney for the venom for one of the beneficiaries and the most you can do is allege and that and the state is saying well it wasn't specific enough or can you argue it was specific enough why in the end again it but is what brings us here today is that there's no heightened pleading requirement for a legal malpractise case this isn't a fraud case where we need to plead with specificity what we need to show is that the assets were not protected that they could have been protected in effect that they weren't damaged him you know and and i think again that the reason that we're here is in order to meet that heightened pleading requirement we would need to retain an expert at the pleading stage to pull that in to show you know attach an expert report here court is is what should have been done in here court is what the tax savings could have been i suppose there is an intermediate between that you know just setting forth possible own life i did too and you know we haven't picked up this case after the fact that i really do you know i found it unusual as well that there were so many attempts to reply and i think that very very fact shows that there is something there that there is a way that it could have been planted and we submit that the last time we played it it said that you know here's here's what we allege was wrong and here's what they should have done differently the stuff that we don't have which i think is what counsel in the court order dismissing the complaint seems to be insisting that we include is and here's what the net result would have i think we just need to show i mean everything at this stage at the pleading stage all of the facts inferences need to be decided in favor of mr on tomorrow unless they can come i mean unless it is an absolute legal in possibility on the basis of the complaint that these documents could have been drafted better to better protect these assets than we have to survive the pleading stage and get on to the proofs and get on to expert discovery to show exactly what the effect would have thank you th state or the attorneys with respect to his father who died now seven years ago of two thousand and four the complaint comes into counts and if i may let me take each one of those individually the first in the complaint has to do with supposed negligent drafting of the estate documents and we've heard this morning again from counsel that supposedly but testator's and the deceit mr untermeyer had an intent to minimize taxes and an intent to elevate that objective which of course many people have as they're planning their estate that were paid that object of tax minimisation or avoidance of all other objectives so the question to begin with i'm fat count of the complaint is right in the complaint tells us what this intent was and how it was expressed and if it's not the direct statement from the deceit and then what documents or a contact permit us as counsel puts it to surmise what the and to seeds intent might be so if you look to the complaint which judge flanagan in the trial court did sixty for indications five amended complaints in the original complaint on six different statement what kind of doubt might allow one to infer that he had an intent to minimize taxation over all other objectives now counsel again the smore nick said to you very direct way we're not alleging that there was ever a time in which mr untermeyer walked into the attorney's office and and then she went on to describe this attempt if you look at the complaint which as i say we complaint is much more absolute than that to to avoid all texas soul those allegations the trial quote held were not sufficient to do what notice what effect pleading in your own right requires which is to state facts there's no reference to any meeting no reference to any letter so what does the complaint then tell us next road not much but the complaint then makes two references to conduct which it asked the trial court to add to deem sufficient to show intent the first was that there is a provision in in the will for in the trust for a generation stripping  race of avoiding a generation skipping tax and that was taken as evidence that meant that mr contra meyer was trying to avoid taxes but that of course does not show that that was his principal objective it shows that if one of his five children preaches seized him and then bet portion of the estate that one fifth share would go to grandchildren he was interested in ways of minimising a tax penalty that would otherwise a tax payment that would otherwise be required of him but that does not show an intent to elevate of residence of tax over all other objectives and then the other example given in the complaint which against a motion to dismiss so we are looking to the elements in the complaint the other example given was that mr under my ode to deceit and had been married and at the end of incurred graph sixteen learning from his bitter divorce from his first wife ethel untermeyer where she received a valuable house and a very favorable irrevocabl revocable trust why did they do that to make sure that the deferred defrost settlement would be enforced and frank would have to pay and what conclusion did frank draw from debt broker based on what we're reading in trust me one that he could change and so to the extent that the complaint tells us anything about mr hunter myers intent where that tells us is he having been burned in a divorce and been forced into seventy amendments thereafter right but i do have a question is it reasonable to believe that the way one might deal with an ex wife and decisions made to a current wife might be different than decisions that are made with her current one's children having learned from a bitter divorce well can we is it logical to believe that the rest of the revocable trust is an indicator that if you thought about a trust at all for his children that it also would have been revocable aren't children is it fair to believe that one would treat a second wife the same way that one would treat one's children well you and i know that the answer to that would depend on who we're talking about the roads in eighty six then amendments in ninety six ninety seven three amendments in two thousand and two amendments in two thousand and three and those less to amendments this is part of exhibit in the complaint those last two amendments were aimed particularly at his wife my shabaan who's in europe payment was reduced in the first of various amendments from one hundred seventy thousand down to seventy thousand and in the the five children risks were to proceed to a did in fact receive a larger share of the estate so in terms of again how can we determine the true intent but still you felt the word or the phrase that is actually say what his intent in or the recent testimony or one critical read in a complaint that is not the case here and the plaintiff never played it and said again this morning that it never happened there was never any explicit so interpret well one of the ways we can do it is look at these trusts these trust their although they are styled the musher bomb trust they are revocable trust but give the balance of the estate in each one of these stress to the five children in equal shares so the essentially with there were some charitable contributions to academic institutions but aside from gross to the extent assets into a trust and then give up control to that try to control it that trust towards the objective of avoiding taxation is a drastic step which most people would be disinclined to do under any circumstances and here not only is there no evidence that evidence is the wrong word not only is there no pleading fact pleading that that was mr under myers and tat in fact  his conduct is directly contrary to that now there is a question beyond that and that is if you take what the complaint describes as what they think successful end point would have been because remember this is a negligence suit against the lives we were supposed to have come up with some better solution a better solution that would have reduced taxation and given more money to the beneficiaries so it is incumbent on someone pleading but the attorneys were negligent to explain how it should have been done better or correctly the complaints go through well for the first three complaints there was no explained theory at all this is why the trial court continually said what's your plan what's the alternative how could they have done there the attorneys have done this correctly nothing in those initial complaints and then they suggested the device of what's called an p trust and for two complaints that was the theory a certain type of a state planning that is frequently used but ultimately they abandoned that and then they can up with this notion of an  without specifying in the complaint what the terms of petrus were supposed to be but they do tell us this number one the assets will go into this trust i suppose they won't tell us when the initial trust here was hundred eighty six seventeen years before he died again it is it is hard to believe and certainly there is nothing in the complaint that would lead one to infer that seventeen years before he died he would have conveyed supposedly six million dollars so there certainly would have been a gift tax so that's money out at the front then in order to take these assets out of the a state so that they're not taxed at the time of death in order to do that then two other requirements have to come into play number one the money can't in the trust or the earnings on that money then can't be paid out to the testator's who is putting money in because if to the extent that funds are being paid out for instance income during one's life typical sort of provision but to the extent of that then vet income or the right to that income is income under the tax code is included in the estate so you haven't but it's not that this is good or bad it's just you haven't accomplished the purchase purpose of no taxation if the income is going to continue to come to the person who put it on the other hand of course he has no authority over whether that income will come to him second point again to try to  tax code this is not expert witness material this is the text of the internal revenue code is that if you want to get property out of someone's a state for tax purposes that person cannot retain the power to appoint her direct where it's supposed to go now here's a man who again justice who chimpsky you i gather actually worked at some of these amendments here is a man who over the course of about two decades periodic change where you wanted money to go some had to do with children others had to do with roosevelt university became one of the beneficiaries of the trust late on it wasn't something apparently he was thinking about in one thousand nine hundred eighty six this again is why many people would be reluctant to create in the a revocable trust and why especially given what we know about his conduct not only cannot one can out of for info in fact the complaint is contrary to the premise of plaintiff's entire first count which is that premier objective that mr under my or he had was to reduce taxes down to zero or a very small amount and finally as i think just smith you inquired right at the outset even heavier bands such an intent by mr untermeyer as part of his go to communicate that in some fashion to his lawyers in order for them to be held negligent third not having undertaken to help their praises an interesting question counsel of the state attorneys did not disclose some documents that were requested by abraham on to miers attorney taking the position that they were  privileged but without a court order they would remain privileged and if it can't get be on the motion stage it can you can never get the court order to find that out whether or not there was any communication to his attorneys we don't know if there was a letter to his attorneys and one other question before that you've indicated that and i agree with you very few people would say oh yeah i'll put all of my money in an irrevocable trust and lose all control over all of my money but there's nothing anywhere that says that it would have to be all of his money he could have put half of his revocable trust for his children or his grandchildren and and still had control over in this situation plenty of money to live out his life quite happily and we don't know whether that was ever is and ted you there because we've not seen any correspondence between the client and the attorneys well let me take the last point first could he have set up other trust arrangements including for a portion of the assets where she could now whether whether that was smart or fulfill his objectives or would have allowed him to live the way he wanted to is something that the complaint does not tell us well and it's the obligation today could take how could they possibly tell anybody that that was his intent if they have not had access to any documents that are currently privileged and have not been ordered relates that pursuant to there are some other court action there were several letters back and forth that are attached as exhibits to the complaint and i think that's what you're referring to or made any old alternate proposals to him before he signed his the ultimate will and trust documents that we see before us well let me let me go to the exhibits to the complaint which are which is some correspondence act asking for gift tax returns it does not ask for correspondence with the attorneys it does not ask for what you style as attorney client privilege and the reason that the that the gift tax returns were not deliver because the obligation of the attorneys at that point was to the state run out of the beneficiaries and there were five children and there was marcia braun who was filing a lawsuit there were there were several universities that were beneficiaries documents usually the attorneys can't release the documents until you're at the discovery stage and if you can't get past the motion stage you can't get to the discovery states so how could they ever make a case for malpractise or negligence  well your honor frequently people especially as they get older or at times in their life where there are changes in family circumstances through a marriage divorce or death a new grandchild will have conversations with a spouse with family members with others about what they hope to accomplish what they're worried about and want to avoid and frequently will do that not only orally but sometimes they will write about it the pleading burden is on the do the trust in the in the mid eighty's and second off and weaver remained his attorneys for almost two decades at least they're being childish with having done a job that makes them not only legally responsible for damages but says that they weren't upholding their obligations to him properly and who is incumbent on them if they want to make that sort of a claim to have some reason to believe it's true and i bet it presents very specific evidence in an illinois pleading which they entirely failed to do and worse than entirely failing to do it counsel admits today there was no explicit communication to the attorney's worse than that they've been attached documents that in fact show a contrary intention solo the pleading standards under two six fifteen i think are clear and they were not met here and certainly the plaintiffs had plenty of cation in which to plead something else if they thought they could and they did and now the second  and the challenge here is not as to whether someone was and was in fact the beneficiary or intended beneficiary the point it is that you can't allege a malpractise case against lawyers unless the lawyer has a duty a in fact in a little greater detail as ben justice broke in two thousand and six in the state of west and there are several other cases and those cases that not only are they not just distinguished they're not even discussed in  dismissed now finally there is an alternative ground for sustaining the trial court which is statute of limitations counsel is sort of half correct about the history of the of the pleadings below when we filed our successive motions to dismiss one of the first things that we ran into with the trial court is that she very  requires a distinguishing between two six one five and two six one night for good reasons and she said first you're going to proceed with your two six fifteen and we'll see how that comes out and then if appropriate will take up the two six nineteen in order not to contravene her very direct instruction but nonetheless maintain a position in every one of our motions to dismiss as you'll see in the record there was a an excruciating week one footnote in which we said and if the two six fifteen motion isn't granted then you should dismiss and statute of limitations ground the end of a  satisfactorily would have would have succumbed to statute of limitations with respect to the testimony testamentary documents that is where the the negligence took place before death but the injury is suffered after death suffered after death because that's when the tax consequences come about then the very specific provision on statute of limitations is thirteen to fourteen point point two fourteen point three as the attorneys now practice section in d c is the one that tells us if the negligence was before death what the injury was after death and you look to that the second count that is subject i think to a different statute of limitations to fourteen point three b as employed and that's the two year statute that what having to do with the representatives with a file stamped copy january twenty sixth two thousand and seven and chris that's also alleged in the complaint that graph eight so  before that so obviously they knew about that and the fees that were charged by the attorneys were were laid out in the accounting that was part of the final the state that occurred in january two thousand and seven two years after that is january two thousand and nine suit was brought in march two thousand and nine so this was not a subject that that we got into at the trial court we did preserve it and to the extent that the court  wishes or feels the need to get into an alternative ground for sustaining the trial court statute of limitations would suffice i think thank you to briefly address the homework that i gave myself which was to look for the the citation where we got the citation in our reply brief that says that the attorneys admit that they never  advised mr untermeyer about the urge to utilize an irrevocable trust and i think it is fair to say that we kind of took liberties in making an inference there i think that probably where that was gotten was pa eleven of a response brief which talks about why such an instrument would not have made sense in that case so i think that probably that was coming from you know say obviously they're saying that that doesn't make sense so they would not have  him to use it but interestingly when i was looking at that and that very same page at the top is the sentence again i think goes to the very issue here with the dismissal it says that this is the second line more over even if say kind of in my opening i just want to leave it with this you know if this dismissal with prejudice is affirmed i think that puts us in it puts plaintiffs who want to bring legal malpractise cases in a tough spot in terms of what it is that they need to show what it is that they need to plead in order to survive a six fifteen motion i think we're getting into a position where you're going to have to where you're asking plaintiffs to in essence prove well absolutely and i think we've done that two ways number one we've said in a verified complaint that that was his intent and number two because in there was a conversation about whether or not we had access to certain memos in correspondence and directives to the attorneys at the stage of litigation obviously we don't therefore we're in the case law supports that his intent can also be inferred by the fact that no other cases he did he wanted to reduce the tax implications  this this goes to the courts the trial courts of the levy to make inferences from his other acts from his desire based on other documents that were drafted by other attorneys to reduce or eliminate tax implications and also to you know especially nikki in this case i think there needs to be and i don't want to use the word assume but i think that there is necessarily an intent to reduce taxes unless there's something showing otherwise in that document why on earth unless there was something saying i intend to give this away and i know the tax implications are going to be horrendous but i want to do it anyway of course someone who's drafting a will or a trust where they're going to leave assets to their family members want the most money to go to their family members as opposed to the i r s of course necessarily and there's nothing to contradict and i'm not saying that's all that that there is both in the complaint and in the attachments to the complaint you know i think you need to look at the big picture and what he did in other instances and pull away from that what his you know infer that that was his his desire but i mean back at outlook logically and in the trial courts absolutely free to apply their logic of course he wanted to avoid excessive taxation in paying away one third of assets in taxation and i'm not a tax attorney but i suspect that that's that's there is a better way for that to end thank you thank you