of a civil complaint as to which judge sidel of the district court granted summary judgment against plaintiff all other counts of the complaint or not issue those that are professional negligence specifically in accounting malpractise which is count one and two aiding and abetting counts counts six and eighty one for fraud and the nd for unfair trade practice as the count one is a pennington with the twenty five percent equity holder in seismic a connecticut law limited liability company  seventy five percent balance of equity was held by an individual by the name of court's permission should i proceed your honor oh absolutely that was my interruption i'm sure i point out the following us why the court committed reversible error as to count one for accounting office rectus st there's no dispute that defendants below mr pennington a duty to exercise care and their review of size moons financial records the district court knowledge this duty and properly found that the senate reached that duty for purposes of the issue going to trial however the court below framed defendant's liability as derivatives quote the accountant is alleged to have failed to notice an issue caused by someone other than the accounting themself that's in the now published opinion below for twenty five some thirty two to nine here pennington alleges that the harm suffered was caused by defendants well when x pledge size and sole asset was unquestionably a factor it was not the substantial cause for the claim of accounting the practice the evidentiary record demand demonstrates a defendant saw the long proceeds pass into and out of the size and bank account seemingly having no idea where they came from issued in late september of seven not ever selling had to just make you judge leslie is it your position that their responsibility is the accounts responsibility was to report at the time of the the joint appendix testimony of pennington which places the accountant literally rendering making entries into the books and records of the company you  as a loan if that's what it was for mr for mr winnick and that never happened i understand it so let me ask you this what where in the record did you and so your position is is that at least by october when the credit loan agreement got alternately was executed there should have been some notice to you to your client and another later than january he should have been aware of the fact that a the assets of the of the limited liability that is correct and to supplement further what your honour's observation is which is very much on point it's not just size and asset that was pledged there were other  were pledged so that we had a credit facility of ten nearly ten million dollars but size mn is the only borrow or so there in lies the funds that should have and w practice but wasn't it also a question of whether you could then collect how you would be able to collect following that breach and what in your papers indicated that there was some avenue on would you be able to recover at that point in time an excellent question your honor and this could be done in the joint appendix with the excerpts of the deposition testimony of tell pennington a year before the long this and so forth he was not pleased because he found discrepancies in six and he discreet he distinctly had conversations directly with mr deplete one of the named defendants there was a short of about fifty thousand dollars and in a capital account there's no sex sometimes so that evidence shows that mr pennington was sort of a watchdog over the accounts but it doesn't show that he would have been able to recover the losses if he had been alerted by the accountant as well having i would i would disagree with your honor as follows along the following lines mr pennington is just leaving details he he's a watchdog he already caught them before the long and he wanted quarterly reports now the duty was before september but certainly convert what was it just a simple fact that there might have been some money left in the loan doesn't necessarily mean that your client would have gotten it and i need to know where in the record did you tell the court or show the court that there was something that if he had known it in september of two thousand and seven he could have actually gotten his five hundred and thirteen one thousand dollars out of the l l c in response your hon money is there if he's made aware that there is a rogue loan that still has money and his investment templeton balance immediately there is nothing i can speak to the operating agreement i'm comfortable representing that the answer is no that he couldn't just say hey i want  causation was an issue before the district court so i guess maybe apart from whether he was able to pull up the money when accounted for summary judgment did you explain to the district court in opposition to summary judgment that court as to proximate cause which was discussed the court found it lacking ok but i have your your memo in opposition to summary judgment and so you're saying that there was some separate essentially ignored this issue in the district court and pray that reason that reason alone this appeal should fail while they spend about eighty percent of the legal arguments in their briefs on this the appeal is to wait for those argue they waive those arguments by not making them below and the court really should be ignoring those arguments on appeal at this point but if you don't there really is no issue of fact here the damage was done when mr unbeknown to either pennington or the dippolito the the the the court certainly certainly looked at that and stablished and i understood that point that was down under the cherry a loan and at that time the balance of of an already existing mortgage on the lien old by the company was at least was was about four million dollars and probably more and that that does nothing which belong to the company why couldn't you make an effort from that very well and that has been drawn down i believe as of as of september of two thousand and seven was five million dollars of a drawdown at that point so i'm not i'm not sure how much more other other than the your honor i'm not i'm not entirely sure about the the numbers that were available but certainly from the accounting standpoint as they were preparing the reconciling books you know having somebody a bookkeeper go with them on an occasional basis at a cost of i guess it was two dollars or three hundred dollars per per visit they were simply reconciled reconciling books there was no aspect of this that appeared to them that require them to to make  required for that is actual knowledge of the violation on the part of the ada or in a better and substantial assistance here the knowledge requirement just can't be satisfied at best what you have is constructive knowledge and  was just so startling that it that one must infer that the accountant was was aiding and abetting was aiding and abetting the with it isn't that a possible inference primary violation but i believe that that would have if if the argument is that it would have raised a red flag and therefore there must they must have known that  did knowledge not the actual knowledge that would be required for aiding and abetting so i i understand your art your honour's argument but i i'm concerned about whether or not that actually raises it to the level of the active clear cases that you know you just you just can't argue after the fact and try to get another bite at the apple here the arguments were made in the underlying court and on appeal this is not the place to over the place or try to keep this very very simple waiver is just not an issue proximate cause was argued extensively the judge was not sufficient was not sufficiently satisfied with materials in the record for showing that the materials the other party sites on establish the absence of dispute i mean if this is the statement there is ample evidence in the record to demonstrate mr penington suffered monetary harm you think that that continuing pattern i want to take a break and just on a related note here with regard to ending a betting that aiding and abetting different causes about action having to do with wedding now practice has nothing to with ok i guess just on your st point i understand that you were pointing out a particular materials in the record i mean is there a part of your your briefing before the district court or argument where you put its records of those specific materials in the that judge sydell found some dicta favorable to defendants which should have been considered the other thing i heard from opposing counsel was that five million dollars was left but you know the asset was cause being a substantial cause this is citing from williams have seen in the ingersoll case a recent forty three with facts proven show that there are several possible causes of an injury the plaintiff was not required to exclude every possible accident that combined with the contradictory contradictory testimony of mr dippolito really i think together makes  misstep by the lower court taking proximate cause typically tied to an issue of fact and credibility that's left for the fact finder i was taken i think we have that that argument mr mchugh your time