approximately november twenty seventh tina is counsel for next year and we've read a rule on particular fashion as being the missive for a response to a motion to dismiss naturally if i were to do this all again i would do it differently but that's not a matter at hand here what transpired was that the teacher have subsequently dismissed the opposition prejudice and i've looked high and low and have not found any statutory regulatory basis for dismissal with prejudice under these circumstances  have found case law in the from this court in the in response to a peach have decision in a similar situation where the dismissal with prejudice was vacated essentially the issue i think that is before the court hearing that i'm asking the court to review is whether or not the teacher as a matter of essentially a per se rule when a motion to dismiss is is filed and not responded to that the opposition is then dismissed with prejudice i think this is particularly important as a matter of practice and i'm probably not the first attorney to have read the rule a certain way and given that the case law from this court indicates that there are circumstances under which a dismissed opposition will subsequently bar a cancellation proceeding essentially what i have is a situation where my client is being punished for perhaps a misreading of the rules by its attorney so it is your understanding  that's correct why i did not respond to that motion to dismiss i'm willing to go through for the court the reason why i didn't respond in my reading of the rules and i think there are several rules that are at play here for the opposition to have been dismissed under those circumstances had it not been with prejudice we could've either elected to file a subsequent opposition or waited till much later date to file a cancellation proceedings under the present circumstances it's assumed i had correctly responded to the motion to dismiss and for some reason the court have then found a lack of standing under the rules as far as i can tell that would not have attracted a just miss with prejudice that would have gotten us further than this case is even seen there's been no discussion at all of whether there was actually standing there was no discussion about whether any of the other reasons that were provided for the opposition being filed as to why this would be an awkward thing to go to registration none of that has been that he gave it so none of the merits of the case have been decided ye i've not found them i have some cases that i can i can cite where there were some dismissal without prejudice and there were dismissals with prejudice but in terms of a clear defining line as to when the teacher is going to dismiss with prejudice or without it looks like they're applying a per se rule which is really the basis for me that is that also a subject of his discretion my contention you really a matter of practice of the teacher that seems to be that the issue dismissals with prejudice as a per se rule which is the point at hand here is i feel that that is an abuse of discretion when i look dismiss it's clearly instructed that one is not to put on the record proves at that point so essentially all of the issues that were raised in the original opposition were disputed by the by the opponent by the by the registrant or the applicant the rules further indicate that actually the teacher has an obligation in order to do justice to decide whether or circumstances i feel that there's a lack of clarity in the rules such that someone as myself could have misunderstood and misread it and then compounded with that and this is really one of the  what i'm asking the court to provide here is an indication of the need to clarify those rules and in addition under the current circumstances whether or not under the present circumstances a subsequent cancellation again i i believe it is permissive for the teacher to have treated the matter as conceded but it's not it's not obligatory and when i look at the the  situation in the peach area it was clearly held by this court that is showing him a dismissal with prejudice when none of the matters had been litigated which would not so it's a it's of it's a decision currently that would have a later effect i don't think that makes it advisory it forecloses a direction that under the law my client would otherwise have had had i filed dismiss you are asking for advice not so much advice i'm asking for clear indication whether under the circumstances we would with the rules properly construed one required the dismissal with prejudice and to whether under those circumstances there would be a foreclosure of a subsequent cancellation proceedings and that and the case law at the moment does not seem to be one hundred percent clear on that may the the ruling that i'm referring to is it was clear in unconditional a brief in response to motions shall be filed within twenty days so there isn't any conditional last backed about the requirement to file a brief the may comes in later what it says and if you don't file the brief they may treat to the motion as conceded that's what has happened here and that's what they normally do they'll treat motions  yes and we moved to dismiss that there was no response filed to the motion and so the t t have then pursuant to its rule dismissed the proceeding so it was inherent in the motion that that was a dismissal with prejudice we weren't seeking to postpone you know the issue down the road to a cancellation proceeding we felt that we wanted to test the case right at the outset using the concession is on hardly any point in making the motion because then you're just going after litigate the issues as a later stage and your honor pointed out that the standard review here is abuse of discretion i don't think there's been any effort really to show brief filed and so that was the key to have prerogative to set up a motion procedure and a lot and or insist on people participating in it they made clear in their cases that they don't want to visit act as an advocate for the party they don't want they do want the party to tell them what's wrong with the motion of party doesn't want it conceded most importantly they want the love party to participate by opposing motions that they don't reply thank you i'd like to point out to the court that there's another rules in the t v m p five of three or three which essentially says that in response to a motion dismiss if no mended complaint is filed after a motion to dismiss the board generally will permit the opponent mentally it's a rebuttal in the sense that i had indicated in my initial argument that there are a number of inconsistency is between the rules and essentially what the learned counsel on the other side has indicated is that it should be a concession on the merits if that's the case then why do you the rules permit for a situation where if there is no amended complaint after a motion to dismiss the board generally allows the opponent to file an amended pleading which didn't occur in this case