appellant will have fifteen minutes and we're going to argue the entire case within fifteen minutes so if you're appealing you have to address all the issues that you're going to  honor there's there's three issues that we raised in this appeal this morning i'd like to emphasize a few points starting with the st point on appeal and that's the question of whether the trial record in this case supported judgment against lisa bateman and brooke decker in this case the bankruptcy judge determined that they somehow interfered in prevented jim ca as well as kalani farms from recovering certain assets certain property a few important points that i'd like to reemphasize we had a receiver at the time appointed by the state court who was in control we had a trustee appointed by the bankruptcy court at the time who was in control in fact the batemans had been even did from from one of the properties i believe the the  property that the bankruptcy judge took issue with is a property identified as a kind of leo which was not part of the asset turnover however there were purportedly assets belonging to  polani farms that remained on that property at the time that the adversary cases were filed hence there was a preliminary injunction entered the bankruptcy judge went on to hold trent lisa and brooke all in contempt and awarded damages for interfering with and and failing to return certain assets that were on the kind of you property but the record in this case shows the gem cap's polani farms being person on the ground john trowbridge admitted that he made pretty much no effort whatsoever to even access the property in fact trent bateman may demand never even asked trent bateman where the missing assets were or whether he could have access to the property whether he asked the receiver or the trustee and was unable to gain access to those ability is of this more of a coercive sanction than a compensatory sanction in the sense that the bankruptcy judge said you still have a chance to remove the consequences of any prior bad behavior or lack of appropriate activity by turning over the assets of haven't been received i think that might be a fair characterization and even if that that's  true then the question becomes was was contempt appropriate well it was anything but again he content and that's really my point to the extent that i guess the point is they can obviate the consequences of the content entirely by now turning over assets so what's the problem with that i don't see a problem with that but what the record doesn't support  is you know any evidence that if they failed to do so those assets were made available trent bateman in fact invited jim happened polani farms to remove their property by a certain date and it went  answered so right so really if contempt were ordered in this case the contempt should be for violating the preliminary injunction violating the preliminary injunction would mean that they actively refused  turn over property or prevented jam kept from from obtaining property in the record simply doesn't support  that especially again especially and most importantly with respect to brooke and lisa i think you know i submit that that argument applies to all three however the one witness that didn't testify a trial was was trent bateman for some reason the judge found his in person testimony to be not credible but it was consistent with his written testimony consistent with prior testimony in the case that the preliminary injunction hearing that there was really no reason not to believe what he had to say and then in fact john trowbridge testified in person and he confirmed he corroborated that he in fact made no effort whatsoever to ask where the assets were to ask if you could have access to get the assets and in fact trent are there what would have you know what are we going to pick up what do we need to remove this stuff simply stated that the party of it is guilty of an action at least with respect to recovering these disputed access again those are the issues that i wanted to highlight this morning i can address any additional questions the court might have otherwise i'd like to reserve my of my remaining time for rebuttal there doesn't appear to be any question thank you decided under a clear error standard others no argument the judge ferrous misapplied the law or applied an incorrect legal standard in this case it's even a little bit more because what we have is not an argument that judge ferrous excluded evidence improperly or he saluted a witness or lead in testimony that he shouldn't lead in what it is in this case is really an argument the judge ferrer has heard the evidence and waited in correctly and that is something that has a very high standard applied to it for overturning  the decision of the trial court in making that decision the judge ruled on the credibility of the witness he listened to the witnesses judge their credibility and based his opinion at least in part on the credibility of those witnesses to point the court to the court to several instances in judge ferris's opinion where he specifically addressed that on page nine of his opinion he stated that mr bateman's testimony was false and this testimony was incredible as a not credible on page eighteen he characterized mr bateman's testimony as falls on page nineteen he said that mr bateman's claims were false and with age twenty he found mr bateman statement to be fundamentally false and legally unsustainable he made these findings after a four day trial that we all sat through in addition he conducted a two day preliminary injunction trial and they have two thousand and seventeen where he again had the chance to judge the credibility of the witnesses and made some our findings and that point in our injunction order so your honor what we have here contrary to what mr aren't smart wants the court to believe that his client was credible and the judge should believe this testimony the judge heard the testimony didn't believe it and this court shouldn't substitute its judgment for the credibility of the witnesses for the findings made by the trial court with respect to the st issue raised and that's really what mr aren't smart discussed in his opening was whether or not there was any evidence that lisa broken decker interfered with a transfer of assets to jim kept the employee in and really if you look at that it's a two page argument the brief just says there's no evidence and really doesn't cite anything in the record if you look at the record there is evidence and in fact the pointer injunction was not just don't interfere it was turn it all over so it was a mandatory injunction not just to prohibit tony injunction that's correct your honor they were specifically directed the turn the property over and that didn't happen in the what mr decker and misspeak men did not do and by the way neither mr vait enormous mistake or testified at trial in fact that in show up for trial that counsel there so they didn't fault but they chose not to show up and testify at the trial and the judge although they chose not to turn over the domain and website that the that had been ordered to be turned over to my client in fact they forge impact jim cap to seek a further order specifically requiring the turnover of the intellectual property they did not turn over e mails telephone numbers or customer list and they did not give jim cab access to the cloak of property where much of the equipment was stored so it's not just that they didn't comply or and sat on their hands is a combination of sitting on their hands and then actively obstructing please come to get up by this date and that was well after he had refused to turn over the property so it's sort of like and after the fact attempt to try to make himself look good by saying i'll give you whatever you want but he still did not chordate access to the property even after that point part of the problem was with the receiver in place the receiver said maybe justifiably so maybe not i'm not going to just turn all this over to you without the batemans being there i'm sure because the receiver didn't want to face liability from batemans of something went wrong in the batemans exercise to pocket the zero by simply not showing up and coordinating the access to the property in fact if you look at the record by moving pride appears by moving the property around by leaving x the excavator that can never be found by moving the gator which is a four will be and leaving it on the somebody left them the side of the road could sugar in the tank we don't know and the judge didn't say who but that's in fact what happened that's just some of the property  other property was never turned over where all the records relating to accounts receivable which mysteriously disappeared so there was over a one million dollars in accounts receivable that could not be collected because the records relating to those receivables were not made available mr ba said that wasn't my job i left that to my wife and other people in the office and so i don't know where those records are but no one was able to locate them and that obviously is a real loss to jim cavanaugh the court did not award damages a habit but said that's part my read of this that the the sanction that the judge imposed was more of a coercive sanction than a fully compensatory sanction given the ability to obviate the fee the empath to the award yes do it and it was you know a a sanction to require them to do something which they haven't done  of the nd if you raise the appeal is that with respect to whether mr bateman complied with the order and some of that we've already gone through i just really want to address that specific testimony that sided in that point varies with this court and that testimony excerpted testimony from mr trowbridge and it's cleverly excerpted because if you read before during and after that testimony mr trowbridge goes through at length the efforts he went to to try to get the property and the many times he was frustrated in getting the property not only from mr bateman but also by mr bacon's refusal again to cooperate with the receiver most of that testimony that cited in the brief relates to two items an excavator in a ford truck and there's a lot more tissue in this case than an excavator in a ford truck and the efforts of mr trowbridge went to try to get that or are very much detailed if you look at the testimony and i'll give you some some record references and these are actually the page references that are the file number references when you look at the record excerpts that were filed by the appellant in this case on page five before that and i think there's a recall there that's the blue numbering on the side of those pages page five of six i said the last time he was given access to the property was in april of two thousand and seventeen and thereafter he asked mr van buren the receiver for access multiple times but mr van buren could not get the batemans to coordinate on the access to the property so being denied attempts to view the property and locate the equipment by the basements on page five hundred and twenty two through five hundred and twenty three he details when he found some of the equipment was left unprotected had not been taken care of and was simply left to kind of fall apart of personal ownership over another over a number of items of quitman right up to the trial and what mr bateman testified to a trial was well i guess i don't own it because judge tells me that no it but in fact he had consistently said that equipment that was jim cap security in fact he owned individually that it was not was not collateral of the of the in cities of the debtor entities as of the trial date the green forest website which was the new business they had started w still utilizing intellectual property and selling products that were products of the debtor and of these which jim kappa bought of the three hundred and sixty three sale he failed to turn over the customer list including a customer list he kept on his phone and admitted that and not been turned over the discharge ability and it relates specifically to the seven hundred and seventy one thousand dollars that was taken from a lot box and diverted and also the two plus one million dollars that was lent based upon the false barring basic gets really if the sole basis for this argument is that this is in exactly what mr inspire says is that the courts is that mr bateman gave that testimony and he says that was credible and should not of been disregarded by the court and again that goes to the judge's ability to judge the credibility the witnesses he found mr bateman to not be credible the evidence was present that was presented st with respect to the barn based if it gets was it mr was it the batemans including mr bateman supplied the information for those knew that was false we had testimony from rachel for who can who was the former for hale and who was a former bookkeeper for the batemans who testified they knew it when i went in shortly after when they told her not to tell jim cap and they said continue reporting it on the bar and basically if it gets in try to bleed it off over times a nobody notices and that's exactly the kind of of conduct that courts in the past have found to be the basis for non destroyed ability and which side of the by judge parker that was later formed by the district court of the eastern district both of which were false barring based difficult cases where the court found that those were statements that were false that have recently relied upon could form the basis for nanda short ability court also made a specific finding in this case and there was testimony from david l us president now that they did in fact rely upon those statements and what the money based on those with respect to the seven hundred and seventy one thousand dollars that was missing  again that the basis of the balance are given in this case is well we said we didn't do it so you should believe us and again that's the trial court's discretion to believe them or not believe them jim capps represented the david ellis testify that they did a forensic accounting and found that million seven hundred and seventy one thousand dollars that came into the lockbox and generally in the form of checks from customers was diverted and used by the batemans and that there was no rebuttal to that other than no we didn't do that and so there  and brooke had no control whatsoever once this case ended up in bankruptcy court a trustee was appointed the trustee then fired trent bateman at that point the receiver and the trustee were in control of the property to see that somehow that research and prove by doing nothing prevented jen kept from from trial i mean what you're what you're arguing now was is factually they shouldn't be subject to sanction because they have a defense to the claim of inappropriate in that tiffany but they didn't but again that's a big yes so the plaintiffs came forward with evidence that there was an injunction things were required things didn't happen they had obligations i think if the plaintiffs met that burden at that level did the burden shift to them to explain why not withstanding their own action they shouldn't be sanctioned of supposed to do in proving a negative i mean once they established that they didn't get what they were entitled to that there was a core quire meant that something be affirmatively done again it's a it's a mandatory injunction not just  prohibitory injunction and so they've established that they have been harmed in the circumstance well what are you saying they additionally had to that the judge needs to be careful in interpreting his his order and you know stick to the language that he used and i don't think you know reviewing that order that there's any affirmative burden especially on lisa and brooke to take you know any any action any specific action and again i would emphasize they were not allowed to do so they were not in control there was a receiver there was a trustee of it long been removed from from management and there's a you know there's this other question that came up about documents well they didn't turn over documents in fact in this court case there was discovery and they turned over all of their documents and sent the receiver sent everything to plaintiff's counsel it was never returned back to the beat means they really had nothing as far as documents that they could have turned over they certainly they weren't subpoenaed but i would maintain that the plaintiffs didn't meet their burden especially with respect to to lisa and brooke there was you know the burden of proof didn't shift because there was never any affirmative duty to  act and beyond that again the record doesn't show any evidence that they interfered again what it does show is a lot of inaction by by jim have and john trowbridge moving on to the question of trent bateman's credibility as a live witness you know i have to concede yes of course the judge you know that's that's his burden it's his duty to  evaluate credibility and weigh evidence but i think it's also important in this case to point out that this was kind of a hybrid of live testimony and written testimony and it's pretty difficult finally you know gem pap argues about a lot of well the things that were done actions that were taken to prevent return of property but again everything that they've cited two things that happened before the preliminary injunction from our position if contempt for violation of the preliminary injunction is appropriate in needs to be based upon conduct that happened after the preliminary injunction or at least with respect to some affirmative duty some obligation that was ordered under the preliminary injunction that it was a complied with your honor i submit that the record does not support that i see that i am i'm out of time for those reasons respectfully request that the issues raised in the brief be reversed accordingly thank you consul we appreciate your argument the