i think there was a question in this case about how we were going to proceed with respect to the cross appeal and we probably ought to get that resolved before we get started  sometimes do that we sometimes don't but you know we don't apply any limits on your ability to discuss it any time either and specter your argument obviously we don't try to structure it with a and as a court's aware there's two issues in this case first of all which statute of limitations to apply to the plaintiff's contract claims under the operating agreement of greenberg properties  subsection eight applies to her contract claims and that the two or three year statute of limitations codified in the michigan limited liability company act which i may be referring to he l l c a act applies to those claims that are brought specifically under the michigan limited liability company x specifically the statute of limitations of two or three years  now defendants the fende and submit in this case that all including the contract claim of the plaintiff are subject to the michigan limited liability company if this court does look at the substance of the claims this court will quickly make the determination that the substance of the claims are different than her claims under the michigan limited liability company act the breach of contract claim under the operating agreement the plaintiff brought a breach of fiduciary duty claimed under the michigan l l c act and the plaintiff brought a claim for a minority member oppression under the l l c act  numerated with specificity on page twelve of our third brief i won't go over them again here in fact not only are the claims different not only the contract claims different than the one finds under the michigan limited liability company act but they're contrary to it in particular under the michigan limited liability company act at four fifty point four three zero three sub section one subsection b distributions to members of al all cs are to be equal the default provision is that distributions would be equal here we had five members and therefore each member would have been entitled to twenty percent of each distribution but that's not what the operating agreement says the operating agreement says that they shall be proportionate to ownership interest in this case the plaintiff only sixteen point three three percent therefore she was entitled to sixteen point three three percent of each distribution so the contract claim runs counter to the edge of the your colleagues are not yet back on the bench i actually went to the roby room so we're going to get them back  was being heard well i have apologized to counsel i know it's not what you hope is going to happen when you're making an argument in front of the circuit court so we're just glad we have this will any why do we know where we do we know was i spoke with judge daughtry and it sounds like it was about two minutes cut off by about two minutes earlier so i can start from the beginning if you like me to where i can start from this i think she said something about  that indeed the point i was making is that the provisions of the operating agreement are not the same but in conflict with it right now is the point at which  lost you can start there yeah so i mean you give me eight minutes that's certainly plenty of time i should be able to finish up a little early my time to the minutes now i think i could probably do it in six but i'll take the eight of i'm good if you're  k and i'll just pick up from where from the point that judge daughtry indicated is that ok with you judge dr it is fine thank you thank you ok so the point i was i was making with respect to the conflict is that not only are these claims are contra at last for fifty point four three zero three subsection one subsection b states that the distributions to members shelby equal in our case we had five different members of greenberg properties and i'll see barry greenberg ashley greenberg stephen granites rachel greenberg and helen greenberg the defendant herself and therefore if we went under the statute we would have to twenty percent of all distributions but indeed we didn't argue that because the operating room provided that she was entitled to a proportionate distributions in accordance with her ownership interest and her ownership interest with not twenty percent was sixteen point three three percent now the best guide as to which statute of limitations one should apply to which claim is the statute of limitations your applying and at any one time defendant would have a supply the michigan limited liability company x statute of limitations to the contract claims but if you look at those two you see that contract claims that are separate distinct and different would would go to that but every claim would be measured by its applicable statute of limitation yes it that's the general on michigan and the trick limitations period couldn't by this act are subject to this death the two or three years total notations it says so explicitly in it the ones imposed by the act not imposed by some third document in this case the operating agreement if you look at four fifty point four five one five the explicit language of four fifty point four five one five which is generally the minority member oppression statute it limits causes of action to three separate incidents number one contract the conduct of a member a manager that is quote illegal number two contract conduct that is quote fraudulent or number three conduct that quote constitutes willful unfair and oppressive conduct ok it's it and that's what the statute of limitations applies to in our contract clane we don't claim that what she did was illegal we call it was a breach of contract we don't claim it was criminal limited liability company act does not require an operating agreement that's correct absolute examples of that would include charging a usurious interest rate or not paying the taxes of the l l c or not somehow  circumventing customs laws and the last particular example was the holding in the case of carpio cook versus myers this is a new case k r p u k versus my again two to seven one one seven seven so we don't claim our claims are contrary we don't claim that they were illegal what she did we don't claim that was fraudulent what she did we don't claim that it constitutes willful or improper oppression now certainly and our limited liability company x x you rather than the contract statute because but for the machine limited liability company act there would be no operating agreement there would be no l l c and therefore  our claims of the average agreement exist because they have an operating agreement and that operating agreement had provisions separate distinct and indeed contrary with respect to the nub of the main our main claim that we receive damages  the absurdity of this argument that the but for argument is is revealed judge donald but for the know what else he would exist right this court believes that the contract cause of action are subject to the statute of limitations in the l l c act that is then we would suggest that we're still within the two years be under the doctrine of the last ad and to see it in statutory construction we believe that the comma comma which ever occurs first close quote modifies not the two years or three years because two years always occurs before three years but it modifies whether when the defendant actually knew or should have known and basically that's just an evidentiary problem it's difficult to good morning this is a sad case but the legal issue in the legal argument is really one and it's very straightforward it's the same argument whether it's his appeal as to which statue limitation applies or our cross it these things don't exist common law it allows for its creation it allows it doesn't mandate but it allows for an operating agreement which does not exist a common law and it provides for statute limitations i'm not going to reiterate what i've said in my let me give you a couple of examples in this is what the michigan supreme court has said i think is pretty common throughout united states is that where the legislature codified is an area of the law you look within that code to address the creatures of that codification so for example the legislature has comprehensively decided to regulate what you do is you look at the u c c for the statue limitations and that's exactly what they did there and then done it in other areas as well for example contract for the sale of sale of good by enter into a contract for any kind of might be subject to the secure statue limitations like plaintiff is arguing in this case but under the u c c there is a special statute of limitations related to the sale of goods and what the legislature agreements in a general sense does it well there's not a regulatory body well i mean it doesn't it doesn't it does in fact address the types of conduct that mr asker referred to but does not address breaches of the operating agreement that would lapse sad that well it doesn't do it specifically by i think it does it in general here's where it does it could you  breach of the operating agreement and a breach as a valet ssion of the limited liability company act even though it's not conduct that is specifically prohibited by the limited liability company act little bit different than that judge and i actually have some support for those that i would like to file under your rule twenty eight j or whatever the one is to supplement authority i recently come upon basically what the claim is that yes you can bring a contract claim but their contract claim is limited to the three year absolute statute in the limited liability act and let me give you a couple of example i provided counsel with copies of these if i can supplement these citations to the court later there's two cases from the new york courts one specifically related to the delaware and the new york limited liability act and they specifically hold that whether you interpretation of the particular statute it is absolutely i believe and provide you with the citation but there is no material difference in my opinion as to what the delaware new york or michigan limited liability acts in the city of the central problem i have with with with your position i understand the notion that if a more specific statute applies to particular conduct you probably discrete cond the plaintiffs then doesn't get the been of the end of the statute of limitations apple to each klein so unless it's clearly it would be clearly reflected in the statute limited liability company that a plaintive who sues under that who brings climbs under that cannot also sue under a breach of contract choli and get relief in that will mean less to something specific i don't see how this argument really flat because i don't know of any situation where somebody brings a breach of contract klein a breach of the recline which in this case  statutory and insert up being having them soon didn't each other for purposes of the limitations period i understand and i and that's my response to that is twofold one is the horseman case which you don't disagree with what i just said is a general proposition as a general proposition but as specific as the source for your of this rather anomalous argument you m be the statute to say oh well i don't think it's an anomalous argument and here's why if i can couple things number one i i think we all agree with the proposition that the specific controls over the  and the second proposition is that when the legislature takes an area of the law that may not exist or may only exist that common law and decides to legislate and codified that entire area of law the cat of the cation controls and so i use again my example of the u c c under michigan law where the michigan supreme court says you look within the four corners of the uniform commercial code when you're doing something that falls within that subject matter the second piece is judge this is exactly the same argument this is why i would like to be able supplement this the new york courts faced where they said you've brought a breach of fiduciary duty count and you brought a breach of contract count are under the limited liability act and i've got it i've got it here it literally says it was the intent of the new york legislature that claims under this other act and contract claims for the recovery of distributions will be preserved but only as limited by the statue limitations within the limited liability act and they deal with that both in under the new york liability law and under the beneficiary of the trust was a third party beneficiary and no l l c would you argue that those two individual causes of action could not be brought and have their separate limitations period based on based on my knowledge of michigan law i would say that they were there would not be separate statutes of limitation in doing this based who just my general knowledge and let live in michigan law makes you think that the michigan probate code has been completely codified within the last six or eight years i'm certainly not a specialist in this area and it doesn't pose statutes of limitations will intrust disputes so if i became a trustee using your example that statue limitations looking within the michigan probate code is a statute of limitations that would control because that's exactly what the legislature did it took you know hundred years or so of decisions i think the code was pending in pill form for eight or ten years the legislature finally comprehensibly revised the entire area laws regarding that and put a special invitation that makes you think you wouldn't benefit from this when you're just telling us that whatever the limitations periods are in the statute would apply without telling us what it is about the sticky that would make one claim  because the yet the other claims statute of limitations well a couple of things number one what he'll what they allege is done wrong here i mean take the abstract and get to the concrete the concrete piece is they said you don't know what's in the wills and you don't know what's in the probate court i don't know i prying into this case i mean i don't know what specifically i do know that there is a separate statue limitations judge  i believe that it's applied separately just like it is in the uniform commercial code but in this case what she is alleging what the plaintiff is alleging is that my client breached her fiduciary duty because she wasn't paying and if you look at that provision the four fifty point four four zero four it's specific that's the that's the part that imposes upon managers a fiduciary duty it specifically basically two years on discovery but three years absolute i do want to address one one issue here that they've raised in their papers i didn't hear him argue it today is that he said that they're entitled to bring a claim for fraudulent concealment regardless of any statute limitation because my client had a duty to disclose i don't believe that's the wall but the the the reason that that argument is unsuccessful is i was kind of listening to the cases that were being argued before us this morning and basically those two prior ones in my opinion were whether there were issues of fact in other words was so should the first case of gone to the jury in the second case was summary judgment appropriate in other words where there are issues of fact one thing that's clear in this case is that there is no issue of fact that my client had no knowledge of the distributions they stipulated to it looking at looking at the compliant  looking at the breach of contract klein and the breach of contract klein there's their plant separately breach of contract clime alleges that the defendant breached the operating agreement and then about illegal distribution but then there are there are some other allegations where there's absolutely no overlap have to do with her voting her failures to disenchant in authorizing improper distributions failing to perform her managerial duties under the trust this there's a there's a w host of allegations that go to different conduct well judging let me address those ones that you specifically indicated so for example the l l c statute for fifty four three zero seven specifically deals with distributions four three zero seven and four three zero eight i don't so that's i don't think this answers the question i mean the quid i mean what do you men of the fact that different conduct is  to support each klein but i think you really have to answer the threshold question first and the threshold question is there is no such thing as a common law contract called an operating agreement there is no such that it is a creature  couldn't be a contract between individuals over how anything is going to be operated is really i mean i agree the lead is far as i know in no state with legislative authorization to create such a contract be required i agree with you that you could have a common law contract and otherwise proper subject matter my point is  a operating agreement cannot arise related to a limited liability company outside of the limited liability act because the creature the limited liability company doesn't come into existence except through the legislation  and the only way to get really you can't you can no longer lead you couldn't a valuation of contract that no different and apart from you can't the only obligations that the defendant has are to do what she's prohibited from doing that limited liability company she has no other obligation to comply with the contract in which she enters i'm sorry if i've been stated try and be clear again you can make a breach of contract claim related to an operating agreement you can make a violation of statute claim related to a limited liability company but the contract claim is limited to the statute of limitations within the limited liability act for example let me pick up like you say i will supplement it under the under the rule where the two separate courts in the state of new york have dealt with it directly that issue and said yes indeed that contract claim survives but it is limited but to the limitations period within that act actually the the two cases one deals with the l l c act in new york delaware and the other case deals with the limited partnership ok thank you with the let me deal with the concealment statutes concealments tolling under six hundred point five eight five five we believe that certainly applies to our contract claims the defendants have three arguments against us i'd like to address each those briefly their first argument against the application for concealment tolling is that there was no affirmative act of concealment by the defendant in this case in fact she did of concealment is not required of a fiduciary under the cases of lumber village versus stigler which we cite one thirty five six eighty five at six ninety four bassett the broke which we would be relevant with respect to the contract climb if you're successful in getting the looked at separately so matt question to you is what's the what's this is an affirmative that required with respect to the contract cl not require active concealment by the current defendant it only requires active conceive not concealment by one who is liable we prove that underneath against very greenberg who not only is liable but was held to be liable and we got a judgment against him for being liable and for concealing and five eight five five provides that you can do it any party liable conceals it that's enough you don't need the particular defendant in front of you and in this case she said she just relied on barry for everything their second argument with respect to concealment is that the m c l and m l l c any statutes are statutes of repose not statutes of limitation the court relied on trident the trying cases in the backs case as indicated in the damon truss case which we start which we cite the michigan supreme court has already clearly held but these are not statutes of proposals the court did it with respect to the michigan business corporation act and said very similar language was not a statute of repose these are alternate statutes of limitations so the court was just wrong on that their third argument your honor is that she didn't have a duty to disclose even as a producer even if as a few she had to disclose she couldn't disclose what she didn't know about well that as well factually wrong as proven by the stipulated exhibits and it's it's logically wrong with respect to it being fast with all the evidence submitted an rebut it at docket number fourteen dash five in particular schedule mine the page id number is two four six thru two six nine indicates that the defendant received sixty thousand dollars herself of disproportionate so she knew about it because she got the cash secondly we're not claiming that she was a bad actor in here we're claiming that she violated her duties to do what was required of her to manage this with her manager and she stipulated that she did nothing in violation of the contract with respect to with to the rule twenty issues are we how are you handling those wealth i was playing to establish to our satisfaction that there's some reason we shouldn't and we give it you know whatever import it's entitle to but certainly if you think when you see it if you think there's a reason that it was inappropriate for him to submit it then certainly you can say whatever you want to about it or if you have something of your i'm just to be it you can submit it and then he'll tell us if he thinks there's something inappropriate about it