represent them in certain shareholder litigation that was ongoing at that time those agreements in relevant part had contingent fee arrangements which basically entitled the  twenty percent of any recovery by settlement or judgment exclusive of a specific song set forth in the agreements of three one hundred and twenty five thousand dollars per individual p next i think judge it was a mixed agreement because as you could see from the exhibit of the fee agreement there was a initial nonrefundable agreement that was signed by plaintiffs ty kim and you re a similar agreement essentially the same was signed by plaintiff kim by agreement of all the parties that it would essentially be the same agreement as the other two plaintiffs so they all model each of the ninety seven dollars well that yes that agreement was autographs not correct your honor so let me just briefly give you the history here of these agreements there's really two agreements at issue ok all three of the plaintiffs signed a similar them had the same contingent fee provision in them as part of it and all of them had a offset of a specific dollar amount in them to be used in the calculation the cases that the firm was hired to represent them on were settled in two thousand and four pursuant to that settlement a final settlement statement was prepared by the firm and circulated to all the plaintiffs that settlement statement set forth the amount of fees that the firm said it was owed pursuant to the agreements which said upon recovery or settlement or judgement so that was in two thousand and four counsel average all that re t v retainer agreements in this case and nowhere do they provide when the value of the property was to be determined for purposes of calculating the twenty percent speak its escapes of the century at recovery in real estate how can you say that the trial court ruling was against a man because your honor there st of all with respect to the issue of when the value is to be recovered that again in our position is only a big us in the provision be that states twenty percent of any recovery by settlement or judgment the recovery was the realist real estate has a value as we all know on a particular day in time used was from five years prior not date of the settlement you did not go out and get and isn't as of the settlement date the year that this was settled so how can you say that nine the settlement was in two thousand and four it's it's well known in the court can take judicial notice that the real estate market was on an upward trend from ninety nine all the way through two thousand and seven before the market change but in addition to that appraisal we also provided to the owners evidence of a comparable sale from an appraiser who researched and provided a sale of a property in the immediate vicinity of the subject after about the date of two thousand and four that sold for three hundred and twenty five thousand dollars an acre similar property sold in or about the same time similar type use in addition to there that wasn't the only evidence there was additional evidence the owners received offers to purchase the property and her about their time and her about their value of six million dollars now it didn't write been into a transaction for whatever reasons which we don't know but the point is that we provided both to the plaintiffs at that time and to the court in this hearing evidence that's generally accepted by all poor us in everything from eminent domain cases to t all types of property value cases evidence of market value of the property a sale in the vicinity offers for the property an appraisal that could be adjusted obviously for the difference in time this fee was due isn't that correct this twenty percent contingent as in you say is unambiguous but there is a trial and there was testimony at the trial with respect to that issue is now correct there was testimony judge but i do not agree that they said or take the position that the money wasn't due until the property sold that is  sentence i'm sorry go ahead that is totally an episode to what they did why did they pay four hundred thousand dollars towards a fee that they didn't even know what it was or are you never be done ok bet there was correspondence just out of parole evidence there was parole evidence that came in at trial isn't that correct did you know with respect to all of the interactions  the exhibits came in that was no objections to that well that's true there were no objection there were no objections on either side to any of the exhibits because they were all you know they were sign an agreement there's no allegation here of duress coersion fraud onto influence these are sophisticated plaintiffs they're all highly educated they were all in real estate transactions well before the firm came along there were negotiations there were testified to there was agreements signed by all of them so  it wasn't a mistake i think it's taken out of context it's not the agreement he's just saying that you over this money and the person of the little cross well that's a term i mean i you know money until the property sells nothing could be clearer from the evidence that they understand they had an obligation they wrote it on the checks partial payment  admitted it in his deposition yes we knew we owed fees that's why we paid it i'm sorry that his trial that i'm sorry judge i i can't tell if i'm interrupting you so it's breaking up for some reason and i can't one second jester's and off you i'm sorry yeah my internet unfortunately wasn't for our st argument it says it's not stable so i apologize   certain offsets sale price that's what was put in those letters those letters were introduced into evidence th million which clearly shows that the sale price was an important factor in this case it defer ever object to those listing price we never were aware of the judge at the time there were happening we did have become aware of that the property was even being listed during that time period it was only upon the filing of a lawsuit and discovery so two thousand and fifteen and later that the diff plaintiffs disclosed for the st time that that it they had listings of the property so we were not aware they did not provide those to us during that time period during all these years so we didn't become aware of them had about the time the property was being listed is just a send off for you i'm going to ask could we put this for just a minute i'm having difficulty there this is happening quite often i just want to make sure that i don't believe there's anyone else using the internet and my area but if you wouldn't mind pausing for just a couple of camelot property mean the price when it's sold how can it mean anything different it doesn't judge i think the reference that was made to the sale price was all of those letters occurred after the two thousand and five occasion in which mr burke agreed that they could pay the balance upon the sale of the real estate so for the st time in two thousand and five it was agreed that they could defer payment of the balance until the sale of the real estate sold that's all it is is a reference to you don't have to pay this until the sale of the real estate which was a modification of the original agreement and that was signed the modification by all the par thought i have lost your answer this is not ever happened to me before certainly not during oral arguments and presiding justice bridges are we able there's still so much of the letters were written in two thousand and eleven and beyond after the agreement in two thousand and five was made a modification to the agreement that allowed the plaintiffs to pay the balance of the attorney's fees old after the sale of the property occurred so that's why there's a reference to sale of a property in there because the the party said modified it from you owe it from the time of the a settlement to not all you could pay the balance after you sell the property because you made this you know initial payment of the been quoted also that the balance due was six hundred and thirty seven thousand dollars but you didn't do that there isn't that correct it's not written in there judge but there was testimony of conversations between mr burke and  campbell about discussions of the amounts and dr kim could not recall the discussions mr burke was very clear about the discussions and there was no no dispute that he knew of by the but that makes it a little bit difficult for us to radio does it not i mean the trial court listen to the testimony certainly looked at all the evidence and made some factual findings and  still judge some credibility here as well if you say that it was discussed and then she had to listen to who said what to whom and make a decision based on some of that and what happened at the trial as well she did i don't i don't disagree with that judge she did hear the evidence and review the exhibits but as you know from our briefs we believe she exceeded her authority because she reformed not just that provision of the contract but two others which i'm not going to poet's brief itself initial bre filed by the defendant on october five thousand and twenty contains a multitude of supreme court rules violations by the appendix the statement jurisdiction may prove the case and especially the statement of facts six we objected to the filing of the corrected brief and appendix this court ruled on november th that the plan is motion to strike and dismiss was denied but the plaintiffs were allowed to assert the corrected that the corrected brief should be stricken in whole or in part as part of their response please we've done that now the motion to strike and dismiss the brief is not a mere exercise in form over substance the corrected brief included a statement of facts that is virtually identical to the original statement of facts and therefore contains the same substantive deficiencies that clearly violate supreme court ruled three hundred and forty one dollars h six the founders failed to present facts accurately and fairly without argument or comment or provide anything close to a complete picture of the evidence and testimony considered by the trial court i think that's even been demonstrated here this morning by the questioning of the justices concerning these letters dating  and thirteen or fourteen which are pivotal in the court's determination of the trial court to the termination of the rights of the parks and those letters they don't simply say that the the the balance of the sea will be paid upon the closing of the property that's the two thousand and five law the three letters all say the same thing that the at the closing of the property the feet will be based on twenty percent of the sale price and again nowhere is that contained in in their brief and their briefing which again is  substantive failure to provide a complete picture of the evidence and testimony considered by the trial for how so you know i mean agree with you regarding the brief in this case but was there any evidence introduced the hearing that the twenty percent was only to be determined and by the seller of the part those letters your honor those three letters indicate that the  sale price when the property sells obviously we need we don't have a sale price until the property sells but the three dollars letters drafted by mr burke indicate that that is when the  consistent with the briefs they presented if their statement of fact says that the agreements were unambiguous and that there was no dispute as to any factual or evidentiary matter then than if the court finds contrary to their argument then that there must be a reformation that's not what the court did the court looked at the agreements and it's not just the two agreements from one thousand nine hundred and ninety six it's the agreement in one thousand nine hundred and six and then it's the the settlement in two thousand and four and then it's the subsequent letters after in in i believe april of two thousand and four and september i'm sorry july of two thousand and four where there's a demand for payment of the of round out this fee agreement and and what we have is precisely what the trial court from that there will be a fee determination upon the sale of the property based on twenty its settlement and then the amount paid by camel those three mounts amounts will be offset by just the amount that they've already paid now one of the things that come out so i'm sorry excuse me counsel this is just  been a an indication that the property has been listed continuously since last settlement in two thousand and four and the ups and downs of the market have been such that that the property has not sold it and again if you fear there is there really has never been an issue frankly as to whether or not the property is being marketed appropriately or listed at appropriate price back to this you know when this was really when the agreement was that the twenty percent was to be paid i mean both sides agreed that twenty percent of the settlement meant twenty percent of the value of the property so wouldn't it necessarily follow that the value would be determined as of the date of the underlying settlement and the other words why would a law firm agree to postpone its feet indefinitely that filed suit they have never disputed d the efforts being made to sell in this the property i guess you know if it's there or if there's an issue judge about you know will the property ever so they can always move to have it optioned off i mean if if there are some concern along those lines what you know that's kind of a last ditch effort and it don't know how to but it in terms of you know the agreement frankly is the agreement and you know  statement why didn't they immediately notify him and then why did they sign this and then without making it clear that these partial payments were just gratuitous i don't know that there was ever any indication that the the partial payments were to the testimony it at the hearing was that mr take kim received a communication from mr burke that they needed payment of their feet which resulted in the september two thousand and five letter which required a three hundred thousand dollars payment and the property wasn't sold in six months another one hundred thousand dollars pain and the payment under no circumstance was ever characterized as to is it was a recognition that there were fees owed the firm and this was intended to be a partial payment of those feats but as was brought up previously there was no there was never any kind of recognition or acknowledgement that the fees owed were one million three hundred and seventy two thousand two hundred and sixty two or anything close to that  the defendant firm that there was this agreement the feet there never was and you know again it's interesting that over the the twenty five years span that  of their agreement was in two thousand and fourteen ok this is one we know that the sale price twenty percent of the sale price of the property will be due upon the closing of the property that's what we know less certain offsets again but and frankly that's what the court there's nothing that's happened in the the last what six and a half years to to change that dynamic and again i think that's that's telling the timeframes that we're talking about in this context are extraordinary and so to to claim like mr pradelle is making the argument well we didn't know what the property was being listed frankly i don't accept that the testimonial at trial was there was never any objection to either the listing of the property or the pricing of the property that's what with the trial testimony that's what the trial court considered and that's what the trial court ultimately determine consistent with the agreements that the trial court was presented with that was it made it into evidence and the only way that any kind of reformation the only way that  even be considered is if the court accept the the version of the statement of facts and the version of the argument which we we consider to be overly  ed and overly designed to create an impression that it is improper under the supreme court rules and i don't want to dismiss that this notion  that the the opponents brief is improper and that isn't us was that i knew courts have the me ask you this mr williams i know courts have rejected appraisals that are too remote in time but in this case doesn't that the property is going to be valued at the six million five hundred thousand dollars figure and if the plaintiffs own half of the property then t s value their interest the three hundred and twenty consists of the camelot parcel you come up exactly to the penny with the six million five hundred and seventy six thousand three hundred and ten dollars and the trial court recognized this anomaly that you can't have the property value that six million five hundred and seventy six thousand but then for the fifty percent interest that that is assigned to the plaintiffs that only amounts to three hundred and twenty five thousand dollars each yes i noted dead near bree but come to you you are dead the defendant pulled this settlement amount out of the air but when you read the entire record you view that and you you see a lot of negotiations going on here see plaintiffs request for credit it's under the agreement the plaintiffs agreed to the amount oh the plaintiffs give the settlement statements and they never ninety nine appraisal and some other comparables that he looked at dr kim testified that this was a figure that burke that mr burke gave him that was his testimony he didn't there was no negotiation this was a number of that that dr kim indicated was a value that mr burke told him represented the ownership interest of camelot for his we can't dismiss the math was one million one hundred and fifty thousand dollars so one of our arguments is that the burke farm over valued the property for purposes of their for purposes of their feet calculation but undervalued it for purposes of the interest that each of the three plaintiffs have now you know you could say well this was affirmed i believe that the decision of the trial court is consistent with the evidence presented at the trial i believe that according to the manifest weight of the evidence standard there is no basis for this or to  overrule or or reject the findings or the ultimate decision of the trial court and i thank you for your time does either justice have any additional questions ok i did not  thank you judge i apologize for that first of all i would hope that the core doesn't strike our brief sore dismiss or appeal based upon the procedural arguments that councils made counsel to be let me address that another option it redo the briefs or was it correct well that there were a number of deficiencies that were complained of we did correct i think a number of them  citations counsel complained about in the record were not citations to the points that were being made so there was an attempt to correct the record as far as is the brief what were the is the factual statement sufficient for purposes of allowing this court to review the evidence and make a decision i think it was you had all the exhibits all the testimony of the witnesses you waited til the very last paragraph to even mention that there was a nd witness and just casually mentioned the st witness so how are we to consider your statement of facts as opposed to let's say at least statement of facts why is your spare inaccurate why should we even look at it at all even if we don't strike the grief well george i think that again you know know our view the material facts in this case are pretty undisputed because of the fact it was dealing with the court interpret in written contracts that the plaintiffs agreed were not ambiguous never alleged they were in the big us the writings were the writings so the testimony of the witnesses were on a lot of collateral issues there were material to the fans i mean we know what the fans were we know when the agreements were signed we know when the statement was made the final settlement statement we know it wasn't signed these are the material facts in the case so acknowledge that there is an ambiguity in these documents that washington was the letters they congress doesn't serve us right but those letters as i explained to the justices other question are letters that are written after the two thousand and five modification that delayed the payment the due date for the payment those letters all refer to that and come after the fact so there is a conflating going on here of the sale date the the agreement to postpone the payment until the property sales which was made later and the terms of the agreement in the st place those are two different things and that's what the evidence shows and i think you know the great question that was asked of counsel why would a firm enter into a free agreement with an never ending or on certain date for payment well that's that is a great question and i would also ask the question which i think is a great one why would the sophisticated businessman who invested in real estate pay four hundred thousand dollars if they didn't acknowledge that they owe the fees in the st place and that acknowledgement kongs from the beginning from the agreements in ninety seven dollars and then counsel was wrong on his historical history there the agreement the settlement was two thousand and four and it was within the year two thousand and five that they paid this money and then there was a a gap period of time for the demand for the  charge the prices never denied that they own legal fees but the question was how much and when they were when the total amount was don't isn't that correct b and so the payment that the payments that they made would be on the account so to speak but and then go to acknowledging specifically you know their position about when it was don't was different  then your firm that's not correct judge because if you look read the language of the agreement the modification that they signed in two thousand and five it says it doesn't say this is a you know just  a preliminary a down payment or preliminary it says this is a partial payment on fees old and they signed the check the no patients on the check says that as well so why would they do that if they didn't have an obligation to pay until the property sold that doesn't make sense and it's inconsistent with their own actions the last two points i want to make because we haven't talked about them but this credit of two hundred  six thousand dollars that the court out of thin air gave them it they can't take the position we didn't signed a final settlement statement and then take the benefit of it because those credits the two hundred and six thousand the forty one million fifteen thousand those were put in there by mr burke because of the settlement they're not in the feed agreements they were entitle to them he did that because he felt that was the fair thing to do under the circumstances so if they don't sign the settlement of the final statement how can they take the benefit of it and take those credits they really shouldn't be able to if that's the position they're going to can if i can go back to the argument that you made that why would they make the payment i believe that back or explain net in the record on c one hundred and fifty four when that which he testified at trial we didn't have to pay anything until the property sold that was the deal from the beginning when they signed these if that's correct then why would they make a payment at all that doesn't make knew they owed money as of the time of the settlement and that's when the fee should have been calculated and justice bridges this point brought out a good point about dr kim did his own analysis and came up with the property is worth at least five and a half one million so i'll pay you four hundred thousand so all of the evidence in the record and they didn't put any end to contradict the value of this property all of the evidence in the record shows that the property was valued at or about the value on the final settlement statement and supports them and my last point i'm not three hundred and twenty five i was not ready because you're out of time evidence to show that the parties intended to twenty percent seek to be based on a sale of property because those are the questions that were asked of the doctor and that was his response so you know if you argue reformation of the contract but didn't the judge just accept the evidence presented well no judge i don't agree that the questioning opened up the door to reformation the question he was dong to test because the law is that they have to plead reformation the law is there are certain elements that have to be proven fraud harass so far than saw one before a contract can be reformed and so the judge and again we cite the three instances in her finding she changed those terms of the contract she changed them that's reformation so she can't change them unless it's planted and there's evidence of a basis to reform the contract and the plaintiffs own it missions throughout their briefs and throughout the testimony is we're not contesting the language of the contracts we're not saying anybody forced us to do this even the judge commented i don't think there was any bad faith going on here or that anybody was trying to pull the wool over anybody's eyes so given all of that judge the only way you can allow these