parties and so if the court is going to utilize either rescue the cotterell collateral stoppel i would like to brief that issue because i don't think that either of those doctrines would preclude a different party where mr flatted was an individual flat about automotive group which was another newly formed corporation in this liquidation plan and raised land of all lincoln mercury  home to home the not part of the evidence that was excluded in this case because the very document that i started talking about the den down was which was attached to the proposed deal or agreement specifically had drawn from the evidence are for the jury to decide not for the trial court to decide by excluding from that jury consideration so  transfer we were unable to say that to a jury and we think that if we had been able to say a susan knew about the transfer had knowledge and consented therefore acqui allowed to present its damages case based on its theory which it repeated throughout the trial opening arguments closing arguments answer testimony it did not know about this transfer until december two thousand and two but the excluded other didn't suggest otherwise and if that excluded evidence had been allowed to be presented to the jury jury could very well have denied as susan's claims or reduced them because the monetary claim presented by a suit was broken down into segments that made various payments to benefit the dealership over a course of time and this jury could have carved that up i suppose in a worse case for us but the fact remains that the totality of the excluded evidence and particularly the sedan them which i think is the most  mind we never know we didn't get the chance and it wasn't the trial court's function to decide those factual questions it was the jury's function and by excluding that evidence the trial court  a constitutional right that my client had for the jury to decide those factual issue only other point that i wish to address in my remarks is that a susan also argued in its brief that these arguments were not raised at trial yes ma'am if the court works the excerpts of record page three fifteen and i told you that i had a problem and you rely upon my second statement and you bought my car and you found out that i actually have a problem now if you if you come to court and you know say i want to exclude mr the metri testimony that he told me there was a problem and you only were able to present it i'm signed an agreement prove that they were acquiescing in in your operating they said if you lincoln mercury used to operate the ice to dealership it had been presented with an application for approval of this transfer of been presented at a time prior to april twenty three two thousand and two when the president of the susan signed the document in the business of a disk aleutian of a corporation such as mr arm responsible lincoln mercury went through one of two things could have occurred here in interest in theory in the abstract one being that responsible lincoln mercury inc was engaged in the affairs of winding up its business and it was the operate tor or the franchise second is that race model lincoln mercury inc terminated and that somehow made an arrangement for flat above folks wagon to carry on these functions and the third in april of two thousand and two and it had conditions that apparently side above us working didn't want to agree to and so it did not there was never any agreement they refused to sign it point number two your honor what happened is this dealer operated until about september or october flat above folks like under the radar its right not to consent to that you can't consent to you have two dealers at the same time arguing that they should have been given the franchise but let me go let me go to your your question feel that that that's how this case was decided i don't believe that it does and let me address your comments about this this agreement  the just the district court got it right when the court said in connection with the ruling on these motions in limine e that question in this case is not whether the defendant a fight about volkswagen had permission to operate as nice as the franchise it never agreed to the terms that were presented to it and i operated on its own without the knowledge of this do the court said the question is not if the plaintiff and reasonably withheld the transfer from bracelet of a lincoln mercury because that issue isn't relevant to a dealer who is violating the trademark rights by operating they should be entitled to that the contract that was presented which flat above office wagon refused to sign was a contract that violated the motor vehicle co and the court argued that you can't or the court held that it was not relevant to the issue whether or not they were operating under these trademarks without the permission of a's losing they had to file their so but i want to be clear about this they were operating without the permission and without the knowledge of they never argued that they wanted to introduce this agenda into evidence for the purpose of showing now which that was never lincoln mercury selling under authorization selling as a motor vehicles and the completion or a finalization of an agreement between or was it the intention of the parties that all sale of azouz new vehicles would terminate until such time as the new dealership arrangement was finalized tomsula saying that this for example on page twenty of our brief dealer could not refer to float above volkswagen it has to refer to flight of the lincoln mercury because there's a reference to the failure to meet the sales and service prior to the time when i was using learned this in december of two thousand and two all it shows is that there is a dealer agreement that has been presented to float above volkswagen and the agenda refers to a dealer who has been operating in the past and it standing to assert this issue of reasonable most of concerned if it is going ahead and operating on its own under this dealer code zero four zero zero eight that had been assigned to offer but it appears that there were negotiations going on is the state of the record consistent with with the inference that defendant began selling eyes using vehicles as if it was a franchisee those were those were undisputed facts that were presented to the core and no one ever tried to argue that there is this agenda and it was never cited to be introduced into evidence for that purpose but was it offered as it was offered to show that there was a violation of the motor vehicle  code because the agreement had a one year term whereas the great flood of the lincoln mercury agreement had a longer term and they wanted to introduce it into evidence to show that the shortening of the term in the green light that was if they violated the motor vehicle code when they present a disagreement to you but you never signed it then it's not relevant to the issue whether or not you took matters into your own hands  pertain to this agreement as the court asked the question i think it's the first three members three three four and five the first motion lemony dealt with the duration question the second i'm sorry i said was to show that the there was a violation of the vehicle code in the proposed agreement with in all three of the motion if you're asking me did we believe that these agreements and done them would its approval or the business that it went through in deciding to approve of evokes wagon and the court at first allowed the answer to be given but just moments later then asked its own question and which had then sustained the objection to the evidence as violating the motion and rulings on the motions in limine so in that context an effort was body of evidence that we desired to present documentary and by testimony pertaining to those documents was relevant to the issues of knowledge acquiescence and consent and damage relevant and so the question really simply comes down to did to susan become it's the presumption that favors the admission of that evidence in this circuit and it didn't we simply want the two motions in limine so we're only dealing with three four five i believe six and seven correct in in dealing with three four and five just that the court characterized your what mr ceding the trial attorney did and the initial response and the approved supplemental absconds was to point out that its arguments went far beyond the unclean hands defense so i think mr ceding them i think you presented the arguments and general asked that the court take a look at page three fifteen of the excerpts because i think he deals with it very an exhibit to motion in limine the number three and as i said in our opening brief the same document was actually attached to all five motions that we're talking about here i just didn't include them as to all five motions on the basis of the excerpts of the record and not replicating things and i mentioned that fact but they're all the same that's how they got presented to the district court all right thank you carol thank you very much