we believe that this judge committed reversible error when without notice he converted a motion to dismiss which had been pending for almost five years into a summary judgment motion without notice clarifying that as you just mentioned we objected to that submission in our motion to dismiss and the cases where pointers are can are considered to have notices or cases that where the motion was labeled a motion for summary judgment or in the alternative a way themselves were just as surprised as we were because they criticized us in their so reply on the question of when did the claim arise by saying we made two arguments that quote both are outside the scope of the court's order and asking the parties to brief the question of one point disclaimer rose they like us believe that they have the five years of an awoken to this case when wishing with thirty three supplemental submissions neither one of which spoke to the issue of this so called release of this letter agreement thirty three submissions he wanted a briefing on the legal issues so that's what we gave him but not legally kill was the document that then attached to the motion to dismiss so wasn't the judge signaling to you that given that the defendant's argument and that he might grant the motion to dismiss if he found that the claims arose later time if you made a legal decision i would not be here complaining iran or i'd be arguing that you got the question of when the claim a rose war which he did by the way but i'm here because he in his brain turned it into a motion for summary judgment weighed up the evidence found that it was knowing and willful involuntary the read the document itself is is about employment if i had a chance to put in evidence i would have put in evidence that there was no in the opposition the original opposition we we protest we objected to the document we pointed out that the document itself on its face doesn't even mention fiduciaries doesn't release to do sherry's it only took mentions hourman we pointed out that it was a fact issue and that he should not deal with this on a motion to dismiss so we did point out of your position that under the rule the district court must x pressley inform the party that it is have different approaches to this do they not they do and what do you think the law in this case i think the law in the circuit is we're supposed to do justice and if we're going to get down to facts i should have had a chance to put forth my facts with all of a references in my favor i would defeat the motion to dismiss i was not interested in volunteering to go on summary judgment they did not tell me it was summary judgment i objected to the document the document on its face doesn't even mention the fiduciary is that i sued it says it's only as to employee i said to the judge you shouldn't be looking at this you rather this is a question of fact it's not appropriate on the motion to dismiss i got no response for perspective then your complaint what the district court on notice that in your view there were material issues and disputed fa after the judge asked for a briefing on the legal issue is when your claims arose when did the judge know that you had material issues to raise complaint has allegations of misrepresentations of breach of provision that happened after july so when the judge asked for supplemental briefing on the legal issue you indicated to him that there were other issues that needed to be addressed that required additional evidence i believe on that so on the supplement to brief we just tried to answer his question as legally when did the claim arise and we told him in orissa it's when you have actual knowledge of the breach and he didn't have actual knowledge until june and that was put in your complaint so how can you be releasing a claim that hasn't yet arisen here is the so called release maybe if they lied to him in april that's even mentioned in the supposedly clear and unambiguous document so in the filing before us now what is yours from this authority or the proposition that it was a material you and you say look i'm going to pay you x number of dollars provided you weighed any thing that might come up among us whether you know about it now or not correct and let's assume it was the car accident you should question to me on the first day whether i know my leg is injured or not of god but if you christians me on the fifth day i have a new course of action and that release does not cover and this really does not cover everything i have to do and it doesn't cover the not to make it clear that he's going to or she's going to treat a motion to dismiss as a motion for summary judgment but we apply under rule fifty six the harmless error in the morning your honor may have pleased the cart therapy kind of ski on behalf of the ladies and i'd like to start by addressing a number of the points that that opponent was raising and correcting some of them as well and i'm just going to sort of take them in order that i got the said something about what we had believed based on our supplemental briefing i'm not sure what he was talking about i think it's clear from judge roberts january two thousand and thirteen order that he was going to look at the release not how court was what i think you did two things i think first of all as as you pointed out your honor i'm going to brussels counsel did point out in his opposition to the motion to dismiss that he believed that there were issues of fact he did not identify with the quest the fact were what judge roberts asked the parties to do and it's a news january two thousand and thirteen order was to brief the meaning of a term that was used in the release i can't think of any other possible reason that  have asked for that briefing if he wasn't going to take that release as a fused evidence so to speak to be used on summary judgment and then so is is your position then that even though the opposition referred to issues of fact they were just general statements and not specifically putting the judge on notice that discovery was needed correct your honor there was not not there were no and hypothetically the district court clearing his motions backlog starts issuing orders and says i need some briefing on this and gets it and then issues of judgment  scuse me grants a motion to dismiss what can the plight of next to other than appeal if the i think the judge is well within his rights to grant the motion to dismiss if the judge is converting to summary judgment with no no here's what i'm getting at as i understand part of the argument is that there are questions as to whether this agreement was freely and voluntarily entered into other questions as to whether the laid the burden is on the opposing party to repeat what i'll call the summary judgment issues i'm not sure that's exactly what happened here there are no summary judgment issues the law no but i'm just going to point is the judge granted summary judgment yes you have to anticipate that and in your opposition to the motion to dismiss brief the summary judgment issues the plaintiff because it's below is on notice that this could be treated as summary judgment and at that point you think applies to the way are cases that say the judge abused his discretion in not giving notice that's how you read that finding of abuse of discretion i read the finding of abuse of discretion as when there is no notice that there's going to be a conversion but there is no prejudice that this court in colder and holy land foundation and in hollis came out saying look there may have been an abuse of discretion which quite frankly i don't believe occurred here but even if there was an abuse of discretion and not providing notice there has to be prejudice and plaintiff appellant has not shown any prejudice because as this court has found in as judge roberts found whether or not how to interpret the contract is a question of law there have been no ambiguity is raised there have been no assertions and judge roberts is clear about this in his opinion a but what my position is that i can't think of a reason why he would want to know the scope of the release if he weren't at least considering seriously applying the release and thereby converting to summary judgment and i want to also discuss a couple of the other p include that issue at all in either his opening brief and therefore it's waive and certainly didn't address it and his reply brief the issue that he raised also with you about whether to let me just be clear though the issue he does raise before this court is explain why it was important for that notice to be given but he may be trying to do that now your honor but in his brief his his complete argument is that it's an error not to give notice that's his first point and as we know it may or may roberts may or may not have given notice we differ on that position appellant and i but that will no matter what regardless of whether he gave notice and whether or not there is an abuse of discretion there is no prejudice with respect to whether or not the waiver was knowing involuntary and that issue because a plane of on appeal had to proffer the evidence he would have offered in order to show prejudice having been allowed an opportunity in the district court to present evidence or see discovery yes i believe that's correct your honor and i think that's clear i know it's the circumstances came out differently but in the convertino case for instance it was very clear and i know both you judge rogers and you judge henderson more on that you know i mean it was a fairly recent case but in that case the appellant was able to show that he could have provided additional evidence through the rule fifty six half now fifty sixty process that would have possibly changed the outcome there is no indication anywhere in appellant opening phrase much less fifty five about what this evidence would have been other than a wandering list of twenty three bullet points ninety five percent of which were in the plaintiff's own our opponent's own possession and had he thought these were important to the issue of the release after four and a half years there's no reason he can to a apply for discovery under go fifty sixty which would have required an affidavit stating what does he hope to gather and how those facts would have changed the outcome his reply brief doesn't even explain how the facts that he thinks he could have gathered would have changed the outcome therefore no prejudice  motion to dismiss is a single sentence that says alternatively assuming are you under the court were to enforce the release here this provision would only limit plaintiff's ability to initiate a suit against one of the defendants the company itself because i quite frankly don't know how includes arista claims all of which are typically brought you there against a plan or against a fiduciary of a plan so that that issue as i said he hasn't been briefed at all and be wouldn't make any difference to the outcome because there is no  to argue that the producers are somehow different even though they may be acting in a different role they're no different than the officer or employer or director who embodies that role at whatever time we're talking about problem with their so called release that it does not mention the fiduciary when we sued them in their motion to dismiss they said you can't sue me as a fiduciary because i was acting as a corporate officer is a case p group be a two thousand from the supreme