columbus equipment company had a priority above highway put mint which may be confusing as columbus equipment i represent highway equipment who perfected and had a lien priority based upon a creditor bill as of december twenty ninth two thousand and fourteen initially i will state that the measured judge in ruling on the inner pleader action rendered a decision that is cannot be reconciled on its face because that term nation was that columbus equipment had a priority on the funds at issue based upon a garnishment in a creditor's bill but garnishments and creditors bills are mutually exclusive methods by which a creditor can attach garnishment is when there's a present right nothing contingent so a bank account the money sitting there it's that claim it's money and they can go in and grab it through a garnishment creditors bill is for the situation where there is not a present right and it  not contentious and i don't believe that this court needs to reconcile or deal with that reconciliation because both p c s relied upon by the district court for both the creditors bill as well as the garnishment were in  take it right into that and misnomer i don't think it takes us right into a misnomer although your honor yes that is certainly one of our arguments and i guess i will start with the aspect of the misnomer if i recall correctly was truly dealt with when the court was talking about the garnishment and that's when the court made the determination that that was some sort of unregistered trade name that  defendant or one of the defendants in the creditors no access and p operating was operating under called access access midstream my policies and so yes that is one of the major issues with all of this and if i may take a step back in dealing with that issue with respect to the creditors bill and i will deal with it with the garnishment as well creditors bills are unique in that it is a lawsuit filed to  debtors debtor so a creditor is going to collect monies from someone who owes someone who owes them money and the in this is under ohio law one of the issues or or one of the things in obtaining a  perfect or perfect a creditor still is you have to identify the defendant correctly you also have to describe the funds with certainty in then you have to commence the case commencing the cases what establishes once you've met those two are two criteria that your priority that your pecking order as to where you stand as to when those monies do become available to that debt or that owes you money that is where you have now stood in line or player or have placed yourself in line  the issue with respect to columbus equipment's creditors bill is it named this entity this entity that no one knows what is good access midstream whatever that is there is no no co after just access mid stream and i think it's important to point out that in the ohio supreme court's case in patterson the high spring court says a lawsuit can never be equipment which was ultimately removed to the northern district of ohio and so that was a case that was alternately consolidated into the statutory or leader action where all the parties were competing in that the magistrate held that judge lloyd noted that uncontested service was affected on october eighth and why service matters because that's where you set your place in line but what the judge failed to recognize is is that prior to that answer being filed access m o p operating l l c which is the entity that held the money that everyone was fighting over remove the case to federal court in stated in paragraph fourteen of its removal petition that access midstream is not a legal entity also in the answer that was relied upon by that measure it should show some below she failed to state that there were things that cut against sort of that argument that there was the service and i think specifically if you look at the creditors bill complaint there was a denials of paragraphs three and four of the creditors bill complaint where access m o p operating is been labeled as access midstream there was also from their defenses out there failure state claim upon which relief can be granted as well as fair to join necessary and or dispensable parties so i think that's important because at that point in time which would have been october twenty seventh two thousand and fourteen highway equipment knew that access midstream was not an entity the tru contracting party that owed the money to the individual that everyone's waiting about was an entity called access n l p operating l l c and you say that you make the argument that  access and are you saying that they had some knowledge during all of this time and and that they didn't act on that to name the proper party and so what that's correct your honor if i may take a step back to the original predators bill complaint that named access midstream which is the non entity that was filed i believe around october third two thousand and fourteen yes it was there an amended complaint that was filed that i don't think there's any proof in the record when that amended complaint was served that's truly i think in relevant from our point of view because our creditors bill which correctly named access and lp operating l l c was filed in we obtained service on december twenty ninth two thousand and fourteen with the fed puts us first in line correct so what had happened though is is in that motion for leave to amend the complaint filed by columbus equipment which was prepared by columbus equipment provided to the judge in the state court action after it was remanded had language in there that it relates back in so that relation back was not to save a statute of limitations which is typically the relation back doctrine is this so that you can preserve a statute of limitations it was to jockey position in that shocking a position i'm sorry you're on the court have already to like that bad rather related back well it wasn't contested so i think two aspects of that your honor it wasn't tested it was proposed order provided by columbus equipment that was ruled on the next day so no one had the opportunity continue to contest it and frankly at that point you contested post and three where we argued about it with respect to  the state court action said well the stick or said it relates back so that forecloses in the that was the actual language as it forecloses highway equipments argument that service was deficient or the complaint improperly sought property in the possession of access ministry so your honor does a court in that court have the ability to relate back what i think it depends on the what arguments are made and i think the statement that was made by columbus equipment and presenting that is no party is going to be prejudiced well maybe no party to that case but certainly parties in the statutory inner pleader action were being impacted by that case there was no other reason for it to relate back it to creditors bill it's not like you're trying to preserve a statute of limitations the only reason that language was put in there was once again to jockey position back in front of my client and if we look at the ohio constitution article for such and five b it says that the rules of civil procedure upon which the motion for leave to amend was filed cannot a bridge in a larger or modified any substantive right that's what it's doing here it is modifying  right that highway equipment had in time on december twenty ninth two thousand and fourteen when it perfected itself the many complaint was filed well after had knowledge that it was the wrong party but was filed well after and had it relate back by a judge that was unrelated to the statutory in a plea or action that was pending in the district court and also i would look to your honor is that in this is the case in re in re garden in steakhouse bankruptcy case of northern district of ohio let's say it states that presumably if there was an intent to provide for a relation back of perfection the all hell legislature could have easily included in the statute that's dealing with priority of liens in this case the a political statute two three three point zero one which is the creditors bill has no relation back aspects and so i think it was improper as a matter of law for the court even apply issue preclusion for a matter for which we were not a party but second of all even if it were to it was ineffective anyway because it was violative of ohio law but in this case you all have not yet conducted discovery placed in that court that happened a while back in then a few months later what happened it changed magistrates and the magistrate had a couple status conferences and says well before we get to that point was there any  good morning may it please the court mr ashton my name's jeff sams i represent columbus equipment in these proceedings i believe this matter turns on an application of high revised code section thirteen twenty nine point c and the ohio supreme court decision family medical foundation vs bright a two thousand and two ohio supreme court terminations and the upshot of those two doctrines is that have supreme court held but don't they have to still be diligent in trying to ascertain that true name and it seems like there's an argument that there was a lack of ability on your part we actually submitted to the trial court what our diligence was that we had conducted judgment their examinations twice we had issued for garnishment proceedings three of which had been returned on served and where we learned of the access midstream name was in the perceptive hated by the app appellant's brief between this use of nonexistent entity and unregistered tradename i would submit the same thing different courts use slightly different language perhaps to employ that it's the same thing it's an unregistered trade name is what access midstream was and it judge donald to go to your question of counsel about this time we filed our creditors bill gets access midstream in early october two thousand and fourteen in carroll county ohio commonplace court at the end of october after we could obtain service against all of the parties access midstream and that your service certified mail service back with green cards in the file access midstream follows a removal of that case to the northern district court in ohio and at that point basically were stopped in our tracks  demonstrated by the fact that the judge learoyd never took jurisdiction in that case she remanded the case and said she declined to take jurisdiction for reasons that aren't germane to this appeal but also texas state bank filed a motion to intervene while the case was pending to that extent in federal court and when judge leo a ruled on the motion to remained and remained did she said not only by my remaining i'm not considering this because i'm not taking jurisdiction and therefore i'm not right ruling on any other  consent of all the parties the basis for the remained was that the access i'm sorry that at your service did not consent until after the time period had run even though access midstream represented an error not only their removal petition but there were men to petition that they had to consent of all parties when in fact they did not and judge alito in her opinion which is in the record in my view had a rather scathing last half of the opinion of access midstream for having removed this knowing that they did not have  proper basis to do so in the consent of all of the parties in order to knew that but once she remained at it we then moved diligently promptly to file a motion to correct the name because by that time we had learned about it but also to remember th after and we dressed this in our brief even after they had to get this opaque notice that well we're really our heroes our name once they remove it they continued to fall pleading saying access midstream this and access midstream that continued in the garnish proceeding in franklin county ohio where we got our judgment referring to themselves as access midstream so they didn't even begin referring to themselves strictly by what their true corporate name was they continued to use the access midstream name for an extended point nobody objected nobody followed a subsequent motion nobody appealed and coupled with that mr ashton's visit there is prejudice to highway equipment they never filed a motion to intervene and almost never is there another creditor made a part of a creditors bill that your goal was to get the person who owns your debtor money look that file out and get your creditors bill and then just as judge jokes and did in this case you sort it out later who got there and got it done first and i submit we got it there and got it done first and i think that this name issue really is in part by using analogy this is a kennedy half dollar i've always had an affinity for these coins many people call them fifty cent pieces it doesn't matter whether you call it a kennedy half dollar or a fifty cent piece it's the same coin just like access midstream or access immelt be operating l l c is the same thing everybody knew it was the same thing we submitted an abundance of evidence to the trial court to demonstrate that access midstream was an unregistered trading we have to pay demonstrated that the contract we don't have at the time demonstrates on every page access midstream is their shorthand version of their name a filing at the higher supreme court by  they admitted they admitted it and the garnishment action that they were accessed midstream and that they had the money and the key i think to all of this is nobody a mis understood this fact yes the correct technical name wasn't on the creditors bill pleading but it's the same thing it's the same person and the revised code thirteen twenty nine point ten c and family medical foundation i was pretty court case clearly state that is permissible now counsel arise upon the patterson case but the patterson case was was clearly distinguished by the family medical foundation file  because that on the simple grounds of thirteen twenty nine point ten c wasn't addressed and patterson but then the four cases that their primary cases they were law upon are all distinguishable on the grounds that in that case the plaintiff or the claimant either knew the correct person or entity name or should have known because it was registered at the ohio secretary of state's office we don't have that in this case and i would also tell you they did not submit any evidence to the trial court to say here's the registration here's my compas equipment should have known when it followed its creditors bill the true name for access midstream they didn't submit that because it doesn't exist and i ask let me back up  their creditors bill their creditors ron they filed in the northern district of ohio they had got in that filing did was there any acknowledgement of the fact that this removed case was in the court it was just irrelevant but we don't know where access and it's a do you know we had jersey city they chose a different jurisdiction but that's the way creditors bills work they didn't give us notice that they filed theirs we didn't give notice to time because we didn't know of their existence but then they never filed a motion to intervene into ours either your knowledge were there where the case that had been removed to federal court there certainly would have come a point while it was pending in federal court that was pending because one of the arguments that they and others were making was we need to basically consolidate that court that case from the northern district into this case from the southern district in my case from franklin county common pleas into one case to determine all of this and frankly i'm the one who resisted that i did not believe it was appropriate to do so because we had our garnishment action filed and judge for i had ordered the money in only a magistrate judge disagreed ordered the money to be paid in subsequent amount was increased and we entered on to this  understanding of how we're going to proceed to resolve the interplay direction but i don't believe whether they knew i don't know at some point they came to prior to being remanded and so when we came to learn that they had their creditors bill no action pending in the northern fifty seven page three ninety four states that the court held a conference and the parties agreement based upon the parties agreement this is how we're going to proceed and that is that's what happened and  response to that water nobody filed an objection nobody filing a motion for reconsideration nobody asked for any discovery expedited discovery and at this point in the room twenty six f conference had already been held even before columbus equipment highway got in the case and discovering was available for all parties to move forward either pursuant to just the regular rooms or by asking for leave to do so highway equipment never did any of that and in fact if you look at the highway brief in the trial court you will see what discovery they ask for is discovery against texas state bank they never raised with the trout judge that they want to do any discovery with regards to columbus equipment they never court they never raise the name issue in the trial court that they are raising in this court they are raising that issue for the first time in this case now i woke renewed that they did raise the name issue they raised an issue about whether  appropriate to amend their relation back but they did not raise the issue about patterson in the cases i call of the highway for the highway for cases not one of those cases are referred to in either one of their briefs in the trial court we don't know how judge hopes and were ruled on that issue and thirteen twenty nine point ten c in patterson and family medical foundation because those issues were not presented to the truck court for the trial judge to resolve a very narrow application every so proprietorship knowledge by the plaintiff of the so proprietor owner and instead just the trading and thirteen twenty nine point ten c and family medical foundation suspenders put in the relation backed language in our motion to judge all of veto in carroll county and in his water he stated that it relates back i submit that based upon thirteen twenty nine ten operating l l c because it was the only name that we knew and it was clearly their trade name that they were using that was unregistered relation back gets me a stronger position in my view and to answer your question clearly the trial judge had the discretion to do that and it is not strictly a statute of limitations issue there's any number of other issues why relation back can be important but the trial court clearly had the discretion in fact i would submit under rule fifteen c had the duty because the sat to the room clearly supports it and the judge had the duty to apply it whether or not the statute of limitations was an issue the federal rule fifteen c has a statute of limitations component to it too high a rule does not and presumably if the higher room makers wanted to have that in their rule they could do so but it's not in there therefore i believe that the number one relation back is not needed to reach the conclusion that we the right party under ohio rules or law and the bright case but also even if you look at it and relate back it still we got to service done everybody knew who it was and as demonstrated by access midstream knew who they were they knew they got the order knew they held the money and admitted they held the money that they then ultimately paid into court in federal court in columbus and there was no confusion by any party as a result of any of that and of a curiosity egresses anything worth kirk excavating you know all of it well it was one of my concerns about doing all of these matters that kirk really didn't have a dog in the fight they had started this case in franklin county common pleas court they got removed to district court but they were so far down the line i mean they they couldn't beat anybody in that case and i had been imploring for a year and a half or a year before we got to the point of filing the brief so tell us what your position is tell us why you think you have a claim and there was another company called horizon why do you think you have a client and they want to respond when i think the trial judge eventually saw through that was like ok i'm going to put in a briefing schedule with everybody's consent and tell me what your position is and then one brief to tell me why everybody else is wrong and why you still when they actively pursuing really pursuing a claim for money i suppose technically they are judged also to put on an order that them and access were supposed to file some stipulation about what their intentions were and or  dismiss they haven't dismissed so technically their claim is still pending it was a concern that i had raised with mr ashton and he very professionally let me know why he thought this was a final appeal of water and i agreed with him and that's why i didn't challenge it but technically that is still pending there a few points in response to your honor's i think it's important point out the timeline and timeline in this case columbus equipment i'm sorry highway equipment my client waived service on march second two thousand and sixteen the first a brief to courtroom with us today were in the office and we had both requested discovery on the telephone conference both times judge joe wilson denied that and so the actual entry that mr sampson referred to was us agreeing to the schedule after it was already determined no discovery we're doing no discovery in the other end on the denial and no nothing was ordered on the dial and to say that the first time we're raising this discovery issue on appeal would be an incorrect statement if you look at our opening brief before judge joelson it says we need discovery your honor we're saying we need discovery we had a whole section towards the end of our opening brief before the district court on that very issue raising it for the third time basically that you wanted the due diligence issue as to what the correct name was absolutely that would be one of the issues your honor i think there were multiple things this was a war amongst four parties at that point there was a bank out there we wanted to find out what we haven't seen the loan documents at that point we knew we could only see what was in the public record so there was no discovery but there was a lot of evidence that was proffered by mr sams that was never part of the lower court record about what was disclosed during a judgment debtor exam there's nothing in the record that supports that and so part of our discovery would be what did you know and when did you know it and that flows within the case flow out of ohio i think i would refer you to the  and your great your honour's this is equity this is a this critter's bill is an equitable action you cannot sleep on your right you cannot wait eleven months after find out the right name to go in amend into something along those regards and so i think that's that's an issue  the naming issue i think also needs to be brought up because we did raise that in our opening brief that they did not name the correct party they named this fictitious entity in this whole argument that came up about it being a trade name came up in columbus of quitman it's responsive brief so there was two briefs filed in the district court we each got the file an opening brief and then a response of grief we never had a chance so the first time it was brought up that this was a trade name that they served it was brought up in their responsive brief so we never had a chance to raise it but for before this court judge olson grabbed on it and i think if you look at her opinion she cites to two pieces of evidence to suggest that it was a trade name one unbelievably is the actual contract the contract which up i will readily admit it says access midstream at the top and then you look right below it it says this is in agreement for a pipeline between access and lp operating l l c and your service construction we're all lawyers we know you look at contracts who are the parties the party page one access some of the operating l l c the last page of the signature block access m o p operating l l c so that is not something you can rely upon when you know the exact party for those reasons unless there are any further questions the district court's decision should be reversed in judgment on the question thank you very much the matter is submitted