questions immediately in front of us and it's a little opaque to me as i read the papers i gather the judge found that there was a conflict of interest that prevented a single council from representing all of these parties on the contract claims that's right you are and that issue is not on boundary was between negligence and intent and here's the quote from the cali case which i think is important although a cause of action for intentional torte is not precluded under the economic loss doctrine at palace do not  action for negligence there the court explained that the primary purpose of the economic loss doctrine is to quote shield a defendant from unlimited liability for all of the economic consequences of a negligent act guidance as to what we look at when we decide to expand the doctrine there the supreme court said you look at the policy behind the doctrine and the policy behind tort law and contract law i think if we consider those three factors i fiduciary relationship why i think there are really there really five reasons and again this is a question of the nevada supreme court is not silent on the macintosh case the supreme court held that the relationship between a lender and seller of property to the buyer and bar of property could be a fiduciary relationship or a confidential relationship and the reason was because the additional role of the seller as also being the lender in the transaction could be enough to create a jury question as to whether or not there was a relationship course from around the country have recognized that the relationship between a lender and a borrower will become fiduciary when there is substantial control or substantial and i despaired in bargaining power and that is precisely what you into for its own benefit you also have the representations of g m macy's agent this case is unlike many others you'll see in the creditor bar relationship here you have an agent of the creditor explaining to the giles's that the relationship hours of operation they control the cars would be sold and happened how long did that degree of presence and control last that on their presence in control lasted for thirty days there are a number of other elements then what happens i'm trying to figure out degree of actual control which employ only a single employee can handle cash transactions they dictated how accidental and they did that because they did that because i believe the out of trust issue ation rose out of a situation where an employee may have been selling the two individuals and i think what the court said there is significant and very bears on this case as well explained that examples of special relationships and include those between insurer and insured partners and partnerships and franchises and franchisors each of these relationships shares a special element of the lines in these situations there is a need to protect the weak from the stronger in addition we have expanded tort remedy to certain situations in which one party holds vastly superior bargaining power and that was the case here even if a future a duty does not exist it was still enough to create a confidential relationship the type of confidential relationship that gives rise to an ad to an action for constructive fraud destructive fraud is where relationship implies a duty to speak that would not otherwise exist if the lower level of proof  lender bar relationship could be confidential is sufficient and one case that i think is very much on point is the florida case which is the florida capital bank case and that case there was a representation of almost identical to the one in this case the representation they flew to court rick shoe on behalf of c m a c your honor is what i want to do is go through three issues primarily one is waiver two is the district court's correct decision that the conduct complained upon was interwoven with the contract and three as a fiduciary duty issues unless you want to go out of order of course ok so let's talk about waiver real quick issues one and two raised on one and two that the erred in applying it to a financial relationship and those issues were never appealed or were never even raised or argued down below and what happened is that when we filed a motion for summ judgment on the economic loss doctrine the opposition filed by the plaintiffs they went down count by count and count four through ten bass said the plaintiffs agree that this claim is barred by the economic opposition to a motion for summary judgment where they make no argument present no argument that the nevada court would never apply the economic loss auction but you're what you're not talking about are that we're talking about explicitly and i say right that they do was to counts i think it's look at what are we talking about we're talking about duties imposed by agreement versus duties imposed by society and when you look at that we're talking about risks how are the parties in a position to contractually that relationship had been in place when this occurs in terms of the out of trust sale by the dealer here that triggers what you have here is a breach of the contract a two by mr giles and the dealerships are what you have here after that is also through contractual risk you have a floor plan financing agreement which state that the financing is discretionary it may be changed modified in the discretion of g m a c if they don't feel secure they may change of these the nature of the financing and so t discovers that there's an out of state or out of trust sale which is a very serious violation they feel insecure and they have a right to ask for additional things to be additional position to analyze the risk what's my risk here either i keep the continued financing of g m a t under these additional imposed burdens which is going to burden my company or i look around and shop the marketplace for other lenders will provide floor plan financing that is all of the nature of what we're talking about that is why the court correctly held that piece transactions everything complained about it and without considering the very real distinctions between the policies governing recovery and contracting tort necessarily shifts the focus to a particular plaintiff or group or group of plaintiffs and such an approach undermines the very purpose of the economic class doctrine which is to provide a boundary between contract law and tort so you're talking about that's all you that well that's all i got that at this point we do have a number of district court decisions applying and i mean we have this case which is which is something well we have another case that talks about a fine it's a breach produce your duty but protest but what we have here the best we can do is predict that the supreme court nevada's supreme court would never just district court and you have the stern case and in both of those cases the supreme court really looks at separating the duties determined determining whether or not that duty is independent of a contract or if it is imposed by a economic loss documents because it all arises under the contract it all arises because of the breach of the contract by your engine ford by selling vehicles out of trust and so when you go again when you're looking at what is  arising out of contract you look at whether the parties are in a position to allocate risk again g m a c i'm sorry your engine ford had the ability to allocate its risk by stating it but i think you're enroll mind see but when you pull that out and we're all that all the way at the summary judgment stage and we're talking about what they're complaining about they're complaining about g m a t saying i need you to sign this document i need you to do that i need  what they're saying is the representation by your quietest of course in those documents was not true they are going well that may or may not be an accurate statement of what actually happened but that's what they're saying well that's but maybe whether saying but you've got to remember this is in the record is pretty clear today bill giles never read a single document that he sayd he says i never i never read one of these documents so what they represent i mean when we develop at the summary judgment stage we're still going back to whether it's in woven within the contract all the conduct complained upon arises from and as a result of the four wholesale wholesale floorplan agreement which they admit admittedly breach  so i know i'm running out of time but i know you want to talk about the fiduciary duty aspect of it and what i want to do there is point to the parts of the record and which they're claiming is a produce year relationship and why that is just bad social you look at what they allege person who has no relationship at the beginning of the relationship in one thousand nine hundred two i believe make some comment of this is like a marriage making relationships in order to get business people look at personal relationships that is not enough to create a fiduciary duty then you go into the fact that this is a middle manager to begin with and he's replaced with someone else who according to mr jobs  as becomes a good friend of that person's name is doug snyder he's a good friend well a good friendship with a middle manager of a of a corporation that is that operates nationwide i don't think it's enough to make you produce your relationship when you look at a string of cases which stand for the proposition that the monitoring of operations and proffering management management advice without more does not show control merely taking an active part in the management of the debt or corporation does not automatically cost to control creditor must assume absolute and total control not just take steps to minimize risk what is clear from the record below is that the g m a t was doing was just taking steps to minimize  risk taking steps to because they feel and secure because of what has happened and if if we're talking about imposing a fiduciary duty or even creating a question of fact under those circumstances we're talking about shifting burdens on society here we're talking about making it more difficult i think at the end of the game it'll be more difficult for floorplan financing to be obtained by dealers it'll be encourage d lenders floor plan finance to use to basically call the financing instead of working with them to try to maintain do what they can to try to help us in forward with this business what i'd like to  point to is the nevada supreme court cases in particular mackintosh and the perry versus jordan case mcintosh case talks about two situations in which a confidential relationship might arise and that's where one party imposes special confidence in the other but more importantly as the second element which is the other party knows of this confidence no evidence in the record about g m and g m ac supposedly knowing of this confidence imposed upon them they were run in the business of holding cheese and basically protecting your security now your time is running when you're finished i'd like to address the rest of the reason i'd like to have that were brought back could have but that could have been brought and so at the time when they filed a lawsuit on behalf of your thinking for it they could have brought the the issues with bill giles motor company the contract say exactly the same thing they're all incorporated an aged inventory earlier than usual whether they were applying earlier discounts requiring bill giles motors to pay off cars earlier than usual it didn't have anything to do with it guarantee provided by ericsson ford so i think that if you take a look briefly very briefly is the issue of waiver they made the same argument below the district court rejected it it proceeded to write a thirty page opinion analyzing the economic loss doctor that's precisely why we are here today the claims present in this appeal have never been dismissed no one has ever conceded that those are barred by the economic loss doctrine and i think you've heard why no one has ever conceded they are barred by the economic loss doctrine the nevada supreme court has answered that question of whether intentional torts can be barred is the answer t that question should be resolved by the jury in this case there is substantial evidence that g m ac shows to take control over the affairs of the ericsson for it did that for its own benefit to make itself feel secure but it had control over the that all vs general motors except incorporation is now submitted for decision