fifty fifty distribution of the net proceeds of the energy played funds the parties are just in june of two thousand and thirteen settle the pacific life case in which dr pelley had removed the met life annuity and exchange it for pacific life on it also was a previous tribute and settlement of a reason protected funds devalued between mr capelli and trust the two children in that case the state had no direct financial interest the pacific life case or as in this case the estate was the default and then once the money is paid out to the beneficiary then subsequent lenina can take place as to whether or not the person receiving the money is ultimately entitled to it yes or not we can tend lower court properly will the money must be first be paid to the trustees who subsequently appoint it was not even a party when it was first rate but the or should also have recognize that there was a seven agreement reached between the then existing defendants as actually decide that issue right the court in denying the motion to enforce stated in his order that they were denied the motion to enforce because there was an unresolved question of fact as to whether mr inequal ever communicated to acceptance or communicated his limitation of authority to me i said that he never said that he said he did the court in its term in the wording of the order says they required to be an evidentiary hearing as to whether or not he ever told me there was a limitation as authority we contend that the cases state th the terminations and because it never actually rendered a ruling on whether or not there was in fact a settlement agreement in other words it didn't say yes i find a settlement agreement or no i find no settlement agreement where is the case why does it matter it seems irrelevant to that issue whether or not there was in fact a satam an agreement between the act pallies and mr o'mara because it leaves us open to the question of race to the caught up because the issue of the there but is that a proper is clarifying in order to say that when the order itself i think anybody who reads it is susceptible of the construction that we've just described here is that seeking clarification of that and appropriate reason for reconsideration or reopening of the order i mean it seems problematic to me we've asked for clarification the order to state that the ruling the court made saying the funds should first be paid to the trustee should also lawsuit after the two speeches made and those issues were already joy well maybe not necessarily if you say you had a cross claim or tended to amend the pleadings the case could be re mantid for the court to make a determination with respect to whether or not there was a settlement agreement half interest in the in the proceeds of the net proceeds once they were distributed now i understand that that's assuming you procedurally are fine or we do is remained it back to the district court and have the district court make a final determination assuming there's jury as to whether or not there was a settlement and whether and once the money is paid by the beneficiary of the plan then the court will then make a determination as to whether or not there was a settlement court could amend the order saying that the money should be paid first of the trustee and then she paid the other half to the net proceeds to another issue that's been bothering me that somewhat tangential but here we have two lawyers about that was troubling when we had gone we were supposed to have evidence you're hearing back in april the sixteen we've gone prepared to have that hearing miss russell prepared to cross examine me on the basis of whether or not it reached a settlement with mr equal we h intended to go forward with a hearing i was prepared to have counsel cross examine me on the on the issues of what we had done the e mails we do exchanged i telephone conversations but the court but it's one of the parties and stop it and i don't want to put words in judge b now but what the judge bartol said makes me think of the advocate witness role which seems to be kind of a problem but i don't know if we need to address it necessarily here but it seems like it's a consideration you know under the advocate witness really you're not both say different things about the the soul of the case the should have had a hearing below before the court got to the circuit court the court left over that and went to dispersing of the money the trustee in this case all right thank you but you know you preserve three minutes from abo after the district court judge entered summary judgment in favor of metlife on all issues the district court's order in all respects was correct and should be affirmed i will explain briefly why that is  understand i do not need to go into the facts of this case your honour's understand that this defined benefit plan was funded in part with the met life insurance policy and that the beneficiary at all times was the plan and that upon the death of dr act pelley the trustee of the plan dr kelly was deceased and that when met life reached out to the family and asked the family to find a trustee and make a claim and stead of doing that the pallies individually in this act pelley and her minor child claims to the proceeds metlife was imprisoned it with conflicting claims and the possibility of having to pay twice and under federal rule twenty the beneficiary was to cease the estate was the beneficiary and then ask that since the trustee was dead ass the district court to appoint a successor trustee so that the play and could be named and added as a defendant which ultimately happened so at that point met life had advice the court paid and that of the conflicting claims paid into the courts registry of the amount payable at the time of his death various counter claims asserted by the act pelleas the judge granted that motion for these reasons which we believe are in all respects correct and this court should adopt it clear it has been clear for five years now that there are conflicting claims to the monies paid for by reason of death of dr pelley under rule twenty two met life had the right and opportunity to enter plead judge thrasher agreed we were entitled to also correct on that amount because at the time he died the amount payable was five hundred sixteen thousand one hundred eight dollars this policy is as we know had lapsed for nonpayment of prevent premiums intentionally the amount paid was correct under the terms of the policy now under the facts that the court had before it on summary judgment quired the payment of premiums on an annual basis the premium was paid for three years running from the there had to be an equivalency between his compensation and the amount of insurance he was maxed out he was overfunded he was instructed not to pay the premium for the two thousand and nine year that is clearly in the records he was told that if he did not surrender the policy at the bare minimum he could not accrue any further insurance in that policy so the record according to the documents and in the courts file reflects that dot direct pelly did not pay the premium intentionally but the policy which is good has what it's called a reduced paid up provision and that is this kind of policy as issued to a play end and the terms of it if it lapsed often times policies lapse and there's zero value at date of death this policy is not that it has a provision specifically allowing for the amount and there is a formula the policy provides that if the policy lapses for nonpayment of premium it goes into reduced paid up status that was the status at dr jack pelleas death in d c br two thousand and ten i don't there is no question of fact about that and the district judge found that because he looked at the affidavit of mr mccarthy the metlife representative who identified all of the applicable documents the premium notices he testified by way of affidavit about his personal knowledge of the process and the documents can testify and that evidence when unrefuted by the way it went on refuted in the trial court and then there was also evidence of a letter being prepared to both the metlife confirming that policy had lapsed and indeed dr jack kelly was given a chance to reinstate he was provided with a letter by metlife after it lapsed a year before he died it vising him it had lapsed giving him the opportunity to reinstate that letter went on responded to in fact none of the communiques two were from met life or his actuarial advisers did anyone ever dispute that there was no premium added or to be paid in two thousand and nine no accrual no one resisted no one wrist no one disagreed and there is absolutely no evidence that dr kelly disagreed with that in fact in fact the only evidence is that the policy lapse for nonpayment of premium he was told not to pay it and that's what he did in fact some of the handwritten notes in the court records show not to pay anything in two thousand and nine so that is that's the evidence on on how much was paid into the court's registry it was a correct amount we paid the applicable interest so the amount payable at the time of the interplay there was over six hundred thirty five thousand dollars there's no question about a fact about that and never been maintained longer than the point at which mr inequal by way of his affidavit and ms unequal who's a lawyer by way of her testimony can say did and the district court record that the proper plan beneficiary the proper policy beneficiary i'm sorry was the plan once that happened that the claims against met life individually for the life insurance proceeds and for all of those tort claims should have gone should have been dismissed instead they were not the at pelleas maintained and persisted against metlife for torts conversion frog bad  attorney's fees to the insurance company for their troubles if there is some reason why but in this case the insurance or the the need for the  litigation arose from separate claims this is counter claims that didn't really relate to the enter pleader itself in other words they could have been filed as an entirely separate lawsuit and i don't i think there would be there would not be a problem if the court had made a finding of bad faith or some other type of finding that would justify the imposition of sanctions that would then justify the award of attorney's fees but i'm not sure there the court could without providing without making a finding of bad faith and without providing some other explanation use the rules relating to giving fees to attorney to insurance companies relating to their interplay to work on these other claims these counter claims which seem to me to be not really you know the heart of what we're talking about when we're talking about defending an enter pleader so maybe you can address that for me first disagree that those claims could've been maintained independently that's why they were dismissed on a summary judgment ok what i meant is putting aside the the whether or not there was sufficient evidence of them i'm just saying the nature of the claim well so putting that issue aside under the prevention versus boyd case in the eleventh circuit and the september tide case at the second circuit if a party unnecessarily runs up the cost of litigation and causes there to be vexatious litigation and an inner pleader party to have incurred in this case over one hundred thousand dollars in fees related to these claims that could not be from claim of multiple claims and potential multiple liability is entitled to attorney fees in this case judge judge threshed didn't say there was a bad faith but he certainly in very strong terms said that none of the counter claims were maintainable by ms that pelley or her child for a variety of reasons he definitely did do that and i think it's possible that he in his own mind thought there was bad faith whether or not he reached that conclusion i don't know but he certainly didn't make the finding expressly and we've said in the past when sanctions you know when sanctions are imposed there must be an expressed finding of bad faith and the party being sanctioned must have the opportunity to have notice and be heard and that didn't occur here either that's that's what my concern is you know i don't this is not us in the players in connection attorneys and connect our players don't require a sanction and they are allowed as a matter of law under the law of this circuit prudential versus boyd there's no requirement that i'm aware of one or that case that there be a specific finding of bad faith or a sanction nor an opportunity to be heard and but indeed these these defendants act pele's have been heard all through this case on their legal points and their positions and inconsistent positions and i think if to the extent this court judged thrashed the district court needed ammunition by which to base his claims that these fees incurred by met life were unnecessary there's a basis for it in the record so i think the law the eleventh circuit allows him to award our fees and i think the facts of this case the claims that were started the years of litigation that went on as a consequence of them the fact that after the  conceded the plan was the beneficiary and they weren't to that we maintain those inconsistent positions forcing metlife to defend them is ample evidence for the district court to have awarded the fees  out of i'm not quite sure whether the fees were to come out of the inner played fund or against the pallies individually that issue was not yet resolved because you turn the award was the ward in favor of metlife was made but the court has specific questions about the evidence upon which metlife relied or the legal issues raised by our papers and or in the district court i have nothing for thank  we had the judge convened a meeting in a conference in chambers in general or of two thousand and sixteen at the end of that meeting conference the judge set evidentiary hearing specifically to judge just pressured everybody then the judge decided that took a few five minutes to ten minutes went back to chambers came back and say well neither of you had standing neither if you had title to the property you know that  assets is i read that it looked to me like what happened was the judge had intended to have a hearing but in fact did not actually have a hearing on the issue here because there are no factual determinations made the reason there was not testimony did the judge take testimony from you and from mr wayne no your honor so you aren't you were called to the witness stand and testified under oath you weren't crying salmon cross examined right now the i believe that that that just trash made a finding now determination that my question is was there was no evidentiary hearing in the sense that you weren't called as a witness not mr wayne wasn't calls a witness you warning simon and cross examined under oath you're correct had already determined that neither party had a capacity or the right to settle based on a consideration that belonged to somebody else the plan you can you can read to use it wouldn't bind the plan but you could bind each other their words once the money was paid by the plan to a party that party could then say well i agree to give have to some third party and that was possible is not just about a but that was not the forum for that but the forum for it to have that that's a different case altogether that's not something that the the court have taken supplements jurisdiction and not and if they wanted to if they wanted to go to a state court to litigate that matter then does the prerogative but they're the ones that brought up the case at the federal court and the court imp implied decision that neither of you had the passage it's a contract to settle based on consideration a property that belonged to a trust to somebody else awarding attorneys fees in an interplay her insurance case on counter claims versus awarding attorney's fees associated with bringing the answer pleader itself or defending the interplay or else that's the first question and the second question is regardless of your answer to that if the attorneys fees if we uphold the attorney's fees if there's some reason why we shouldn't send it back to the district court to consider whether the attorneys fees should be apportion between the attorneys and the parties and i mean if you were to if there were sanctions kind of situation one of the things that we require is that the district court make a finding as to who's responsible that is the party or the attorney or both so so those are the two issues that i'd like you to address with respect to turn his views if you think you're on a award of attorney's fees if the record supports a finding of for listeners or bad faith even though there's just a court and make it specific findings you know not the the american rule basically of course is that each party bears they want to attorney you know that still wouldn't be sufficient because then what it means is that a party that exercises their right to file a conic claim that the court brought the pointed out could have been filed separately and i mentioned in my briefs that judge pryor is asking you to set aside the interplay her attorney's fees you know let's just assume that this was awarded him even if it wasn't can we in the first instance look at this full record and say you know what we find bad faith number one with respect to this appeal the court granted the trustees motion for the disbursement of the plan provides that the fund should be disbursed to the trustee the trustee wishes to do nothing more than to follow the specific instructions of the plane and receive the funds and disperse those funds as are set forth in the plan the court's order granting the trustees motion for disbursement was entirely proper with respect to any evidentiary hearing think judge barrell pointed out the kennedy case with respect to any issue with respect to who is the appropriate recipient that is a matter that can be litigated after the funds  distributed not before the funds are distributed and therefore the trustee has no other option but to receive the funds and to distribute them pursuant to the provisions of the plan finally the plan would indicate that it was not a party to any settlement discussions as the court has pointed out the district court judge did not make a finding that there was a settlement or that there was not a settlement district court simply made a decision that with respect to the terms of the plan the plan provides that the funds must be received by the trustee the plan mandates that no participant beneficiary you have the right to alienate anticipate commute pledge encumber or sign any of the benefits or payments which he may expect to receive individually or otherwise under the plan except the right to designate a beneficiary or beneficiaries therefore the funds in the registry of the court must be paid to the plant i have nothing be made but the ultimate decision as to how much should be paid into the fund in order not to go and you know go contrary to have excess fund in deep was between met life and the population at no to fund the plan however metlife never billed him metlife never told him ok this is how much you put in met life never at any point in time even the so called screenshots don't add up ok thank you council i think we have your argument i just have two short points as the judge bottles question the answer that we filed in the prayer for release relief stockmen i think six states that we asked the court determine whether or to the extent defendant herrera is entitled to receive the  the case so we did make a claim for the funds in the prayer for a leaf but it wasn't designated to cross claim because at that time that issue was not ripe we were still waiting for the subgame it to be satisfied back to us there was no breach of the subtle but until after the matter of law what's an attorney agrees and confirms a settlement then as a matter of law you have the right to enforce that some agreement you have the right to cut through another two years of litigation by saying yes the trustee should be paid and i'm not sure you can say that it was confirmed based just solely on the documentary evidence that's accurate the problem is that mr unequals says that he said that you know it was all subject to confirmation by his client and none of the written exchanges of information here at least in my view definitively preclude that from being correct i don't see that in my view the district court was right there is a material issue  fact if you think i'm missing something if you could point me to specifically how you think this was definitively resolved in the written communications that would be really i think if i say if you really read those three e mails the twenty third and twenty four