that's an excellent question and i look at it several different ways if i play it you know if i think he's a good member in the fall of two thousand and ten you're looking for precise day this was question of the existence of rights that are playing fair question is now i read that stated ok now that's a fair question and you've got a lot of these conflicting kinds of pieces of evidence you know all over the place you've got lines crisscrossing and so forth and time periods you've got conflicts on the testimony and i mean on the evidence with you know what time period should belong to a vice right and and i will say i don't see that point out the proper standard of review the trial court order which grants a preliminary injunction interviewed on an abuse of discretion standard that is the water will be overturned only where no reasonable person could take the position adopted by the testimony during which time he had the opportunity to observe firsthand the testimony and the credibility of the witnesses he had further the benefit of written arguments submitted by all parties after the close of evidence and finally ju contract purchaser of a portion of the underlying property and finally most recently he is a member of happier securities and then it is the form for the sole and express purpose of buying out the underlying note and mortgage and terminating or  stands and he cannot now avoid the dictates of that order simply by throwing on a different tack in this case the happier security at the second and probably relatively minor procedural matter deals with the fact that happy hour has raised for the first time on appeal and in fact actually for the first time in the reply brief an argument that the only credit agreement act applies to the set of facts of respect we do not believe that it does and in any event i think it's a proper argument at this point which would it entitle relief on the merits instead the parties merely required to raise a fair question as to the existence of those rights once that fair question has been raised as it was here the court should preserve the status quo until the case can corporate veil argument is not proper at least at this point certainly i'm a man of the record is developed further and that becomes a viable argument will cross that bridge at the appropriate time but i dress this issue i what comes to mind as a whole refrain for certain criminal law clients and that is i wasn't there if i was there i didn't do it and if i did do it it wasn't my fault we have a similar sort of dynamic at play here with mr majestic his briefing is i wasn't a member unless i wanted me if i was a member i had no duties and if i didn't have a duty i can get around it by cleverly act and through a new en could exercise management authority the revised statute expands that duty by a limited in the writing requirement in other words effective january of two thousand and ten if a member acts in any way in any capacity consistent with the head of a manager are not active in activities that are typically associated with a merely passive investor interesting that chesney desperately wants the second operating agreement to be effective  he does that because he wants to take advantage of what he perceives to be protection under the act but really regardless of which agreement is controlling they both identify him as a member as does machete himself from time to time when it suits his needs at the end of the day though whether a work he is a manager managed l l c or a member managed l l c number one we don't think all billy's going to make a difference but number two that's determined based on the language of the statute and the statute is very clear the statute says and loss interest and yet the fact that time and that's important because it and that type of energy you might have a twenty percent interest one year you might have a one percent interest the next year you might have a thirty percent interest the following year depending upon the capital  of the various members and just as probably you mentioned the subsequent allocation that was prepared by bob ryan what he was doing there is trying to keep a running total of what everybody's participating percentages  respectfully we think that that has really nothing to do with this case there's no question that the mortgage predated the purchase agreement but in this case we're going to study come in or who is in their defense of the possibility of performance because all the cases are very clear that a purchased contract labor contract purchaser you're entitled to pursue a claim for a specific performance your title to that sort of injunctive relief in this case what they're saying is well that may be the case but we couldn't have performed because your purchase price two hundred twenty five thousand dollars was not sufficient to pay off the six hundred fifty thousand dollars more so the reason notice is important here is because the white  says we're specifically you can only knew lyle's debt offense if you had no notice of those facts at the time you entered into the agreement and this case there is no question that both parties to the agreement actually there are three part of the agreement there is the buyer o there's the seller act resources and there's the escrow we under that agreement which was the bank first state bank of illinois all three of them knew that the purchase price was two twenty five all three of them knew that the mortgage was six hundred fifty thousand dollars and the agreement and in fact the testimony of which stores and was an offer the bank was that that was going to be sufficient for a first date they could go on the way to issue a partial release that was the agreement that problem to the extent that was one is now  this is on the record page six eighty nine testimony of omar bradley i cite the same three page fifteen the banker the banker question i take it from the flipside of that the bank never agreed to authorize the sale of a portion of property for two hundred twenty five or two hundred fifty thousand dollars is that correct answer that's correct i dispute yes but he just said no there's no evidence and merely the banker sign is ask are you for taking ten dollars i'm an artist he than the ownership interest in this will say it's not x and actually against the more you society or the bank there's no way you can compel the bank to release its mortgage as the satisfaction of that man mornings there for the heritage