generation plant in montana but mr blunt do and the other four harley excuse me the other three owners of b g are going generation x were all residents of the state of idaho mr slotman was a resident of the state of new york none of them were residents of the state of montana and the although buildings generation inc was the general partner of this partnership that ran this plant in montana it was a boise idaho organization and was any corporation and we ran a business out of boise the trial his manner was one in which mr swelling was claiming that he and agreement had been made between the two of them that they would file a lawsuit against the other three owners  i there had been a deteriorating relationship amongst the five owners for some time and the two of them decided that they needed to file this this complaint that the complaint was filed in montana and the it but it also found that an underlying portion of that agreement was that they were going to share costs and fees related to left a complaint in its decision the court said the court has to look at the totali circumstances that is not only what was said but what was done and any documentation like that might support one side or the other and went down below and said my judgment that the plaintiff and the defendant agreed to file his complaint and the attend of accomplishing these being an experienced respected for all judge and united health that these two had that relationship now because of the fact that they had that relationship they had a relationship of this oral agreement that also flows through to some of the other issues that are before the court on appeal the first one is whether or not the court properly ruled with regard  motion that was brought with regard to the choice of law it was our contention that idaho law should be or should be applied with regard to the issue of contribution   the law of montana should apply because he found the significant contacts there were with montana however this was done before the trial and i believe that if the judge had the opportunity to listen to the evidence and he would have not made that decision and that's reason i'm asking this panel to reverse judge lodge on that issue with regard to where the most significant contacts were in this case  earlier of the five owners of billings generation and four of them were idaho residents the business of the rings generation inc was run out of boise idaho eventually was brought with brought in montana but the agreement and the agreement is what's the cross in this case was made in idaho about attorneys fees that were generated in articles so i believe that the  other three and so the issue of contribution is significant because if it were brought in idaho arguably he would have a right to request contribution against against mr blandy for the monies that he was found liable for and in that lawsuit the second issue that i would like to deal with as the our motion for  been a change in the context and so while we agreed to allow that to in this case to the state during the period after the period of time it was stated we began discovery although we were happy requesting attorney's fees are under the idea of a contract we had not requested specifically the issue of allowing mr slot october the case was not tried until until february at least four months away and it did not involve the new evidence involved strictly secondary interpretation of the evidence with regard to another contribution by different me i wasn't contribution by different names contribution by different cause of action a different theory would be that the the end result would have been the same and yes the end his language was very specific and i could read it three that i don't have time that in fact mr blandy all the money he had made some plaintiffs against that he counsel mr king out of london to pay it but he found some procedural difficulties with regard to the collection of  to bar that recovery and after the trial and after the most reconsideration and in fact during the time that this was briefed the bankruptcy court in new york did make believe he made a fundamental error as a matter of why with respect to his finding of an oral agreement between these parties and the simple reason is this the record reflects that in august two months prior to the filing of the montana lawsuit there's a handwritten note from mr slightly which correctly identifies the relationship of these parties they each had individual counsel mr blinding had counsel in washington d c mr alice mr scotland had counsel a new york toth they were jointly going to retain montana counsel the golf waterman firm and two months later prior to the entry of the complaint in the montana litigation they did exactly that and by way of a written agreement they retained montana counsel to prosecute the action we believe judge live who did not address this issue in his findings before the court violated the montana  parole evidence rule because by entering into the written agreement with montana counsel all of the prior negotiations or all agreements were merged into the written document and that merger and the written document meant there was one agreement going to share the fees on a fifty fifty basis and we go over separately for their respective portion of the agreement so i consider to be a tri peregrina not just a dual agreement between counsel in the client and is there anything out of that agreement that tells us how long much the answer to that question is no it is not in fact it simply says for purposes of litigation in the montana court and so it's our view that with all due respect to judge lodge and his his choice to to issue or a fine is right after the trial was completed within thirty minutes of the completion of the trial that issue of law was never addressed we raised it we also raised  obligation of mr slightly and to the firm in new york and that's fired by the montana statute of frauds so there are two statutes two nine zero three and two nine zero four that we believe judge lodge erred on as a matter of law the second issue that i'd like to raise for the court is the second error as a matter of law that i believe occurred in this matter and that's mr blandy was the prevailing party in this case it's really very simple the idaho local rule fifty forty one says that the party that prevails on the quote main issue is the prevailing party for purposes of peace in this case it's undisputed the main issue was the request for contribution montana judgment that being one point five million dollars in total mr slotman saat one million seven hundred ninety eight thousand nine hundred sixty nine dollars and fifty cents per mr blandy what judge was awarded we believe the erroneous really was forty four thousand dollars i think it's it's inconceivable under any reading of our local rule on fifty four that we were not the prevailing party particularly with respect to contribution best when you asked what could have been done in montana the very simple hinge plan of the plaintiff's argument on conflict that won this case is that quote montana contribution law is substantially less hospitable in idaho that's simply not true under montana law once misters to settle mr slotman could have and should have requested an order of the court on the final negligence to allocate the negligence between the parties and had it been fifty fifty he could have gotten for all plethora of benefit of contribution by a reduction in the judgement that's the second sub part of the montana statute and contribution that we cited to you in our brief so for two years from november of seventy seven until november of ninety nine this truce while and had a full opportunity to protect his rights to the effect of contribution by simply making that request in montana court it didn't happen and so the fundamental flaw in the argument is that montana lies less hospitable simply isn't true and therefore it can support their request to overturn the conflict of law the station made based on the recommendation of the magistrate judge and the adoption of that recommendation by judge why all the roads in this case lead to montana these were montana shareholder's montana corporation a montana limited partnership a montana generating plant operated in billings montana there's no significant relationship with the state of idaho the keywords are different here it's not contacts it's the quote unquote most substantial relationship that the policy of conflict of law addresses and in this case montana law has a keen interest in its application in this case because of the can a corporation in montana shareholders and the occurrence of any negligence in montana idaho why has no interest in this whatsoever that leads to the request by the plaintiff to amend their complaint you're exactly correct all they did was restate hotrod beautician in another way paragraph thirty five of the complaint which is the one that was sought to be amended to add the quote unquote terms partnership or joint venture starts out with and therefore judge why it was correct the amendment would be totally futaba it's few tower for another reason there is no such thing as joint venture or partnership when you look at those defined profit and therefore by definition the amendment was few trial because it doesn't state a separate cause of action lastly i think i want to deal with the issue of the limitation of damages although we don't agree the judge why should he have awarded damages because of the parole evidence problems which he did not of grass he did limit the damages and he did so based on two grounds one was foreseeability and roberts based on their legal services to be g i then you must accept the judge's finding which is uncontested by the of palin and that is there was no median of the minds between mr blandy and mr slightly to go beyond that point in time and so there was never any consideration of the counted lie and there was never any consideration of protracted litigation there was never any consideration of mr sloan's eventual bankruptcy because of the finding of his negligence in the montana action none of that was within the contemplation of these parties if in fact there was an agreement in our contention is that judge lodges finding on that issue control suits and contested in the plaintiff's of problem those demand loans were made or who those demand loans belong to and likewise judge laws are used to be a bankruptcy judge in his early career found that there was no valid assignment from the debtors business in other words mr slack was stated in his bankruptcy filing that he was in it in the business of managing his energy partnership holdings that was his business he was not in the business of making the man lines and therefore judge watch found that it being outside the ordinary course of business and mr slott landed needed that after trial in his testimony that it wasn't in the ordinary course of his business and judge lodge use require that that has been said well after the trial of the matter and after judge lodge ruled and in fact i just got handed a copy of that order today because i had not seen it before today it was not something transaction there's no evidence in this record there was ever any consideration transferred from mr salon to james p slowing p c in exchange for the assignment ok and what would that mean if there was no consideration then what would that mean in terms of whether or not bankruptcy court approval is required under fundamental contract principles it's a nonevent it's not a contract every contract requires consideration for the transfer or for the assignment and there is no consideration it's evidence in this record for that assignment it's not a contract and i don't believe that it's valid and as a result from the bankruptcy standpoint it is in fact a non of that well but you can do  that could be the case however there was no evidence in the record before the trial court that it was intended or given as a gift one would have to make an assumption to that effect because no evidence where's placed in the record  evidence either way that's don't have to get the bankruptcy judges approval to increase the bankruptcy of state the next point is that in fact the the bankruptcy judge and in fact found that as he said this was the most curious appeal that mostly they ever seen i with regard to the point that was raised on the fees about this being of the evidence in the case and all of the arguments and case and made the decision that in fact the two of them in order to pursue this joint venture that they had with regard to the filing of this lawsuit did in fact agree that part of that was that they were going to have to share fees not only with the golf watermen situation but also with their own individual counsel and so that they the final thing was with regard to who was the prevailing party had judge lodged at the end of hi oral statements that there is no prevailing party in this case and what mr mr trout referred to the main issue as i started out this argument saying and i'll finish th the main issue in this case was whether or not there was an agreement between these two parties and this to blend in to fight from day one through this trial and into the days date saying there was no agreement the court found that there was agreement and that was the main issue  we didn't prevail with as much hard getting as much damage as we wanted to but we did prevail on that main issue the court took that into account and decided that there was no prevailing party because of that split let me just ask you about thank you very much thank you thank both of you