over a decade ago between it in a lawsuit between mountain dews president called flip rock in that lawsuit ended up with a judgment against a trucking for about one point one seven million one hundred  holding that note was in the amount of point seven million and carried interest rate of about four point five percent per annum we did discover that note had been renegotiated and to be a payment of eighty percent of whatever the net revenue was of these built right now what had happened is split rock eak had done a development in st george utah and in that develop they had recorded against the property these items called build rights and what that was it would sell and would buy a property and they wanted to build a house they would be in they would have to use a rocking to build a house but rocking whatever it was able to get from the bill of rights that would be eight percent of that and so essentially went from giving split rocking at two point seven million dollars to a contingent no that might be worth as they testify to trial upwards of three million but there was no guarantees and that actually paid out just a little over two hundred thousand dollars so in the second action the action that's before the court today mountain dew suit split rock holdings and a number of other was breached and that was and it was the modification that created the fraudulent transfer by hindering its value or was that you had some right under the absolute purchase agreement that was whether it was executed or about mr platt was the main witness he would have the jury come out on that the jury didn't answer that question they didn't answer that question but but mr platt testified that he thought that the no even signed and the other evidence  asset purchase agreement the asset purchase agreement and also we could sue under right under that and then what was the what was the him if that's your theory what was the the tied up to a fraudulent transfer under the statute i think is a legal theory it does preserve it because at that point you have a jury that answered some of the questions but not all of them and the questions of fact that there are just at that point needed to determine whether there were remaining questions in first raised then in your motion for a jam on j lo yes that's right the theory that we presented that we were moving forward with is that there was a fraudulent transfer through the expect you're going to agree with all this with that was not raised in a fifty a motion at all it was not raised in the fifty b motion at all the district court on its own spontaneously came up with that these arguments were race for the first time by the judge following up on that problem is the weighing of the evidence with the with the determination rethink lucian of the note wasn't signed and what's troubling to us is the court says you know even in its motion because on a motion for judgment as a matter of law if the court declines to weigh the evidence or make credibility determined then in the next sentence it says the only testimony weighing in favor of it being the side know was the testimony of plaid who admitted not to be the most reliable witness and stated that he had been not been candid with the court past so in this very same sentence or in the same paragraph in which the court  a fifty be especially when with our witness mr platitude in our estimation in our apartment was not as truthful with the court when it benefited him but when it did not benefit him he had no problem being truthful and q requires you know form not actual harm how do you how do you get around that broad language what i think rather than easier case than that it looks like on the face of the rug case what it happened is there was a brother in law had allowed his sister in law a single mother of eight children to live in a house rent free for eight years and they had attempted to trustee bankruptcy trustee after the brother in law had filed chapter seven bankruptcy had attempted to get those reds under the fraudulent transfer and the court of appeals came to the supreme court came down and said that assets not allowed under the utah project transfer  way it was and it comes up with this kind of no harm no foul explanation and the court in this case the trial court in this case read into that saying that you also need to prove an extra that satisfies that away as well and we are relying on the asset purchase agreement along with the promissary and decor you know on its own latched onto this unsigned promise or you know claiming that that was the consideration for the agreement because that was not side there was no agreement which we disagree with the agreement was executed and as i said before you the problems are not to say there's still a promise to pay the two point seven million that could be executed and i'd like to theory of the case now it were to prevail on their claim it was therefore in common upon mountain to produce clear and convincing evidence that what they refer read it is structured that's a contingent of grieving the original agreement said that this agreement is not consummated till the purchase price is paid of course the purchase price would be the delivery of the note not even just the execution of the note i understand that was the theory but where in your fifty eight or your fifty b motion did you say we want his verdict basis that the district court your later granted a fifty b relief for you on that theory which was not released in either your fifty b or your fifty a motion and i would dip respectfully i would disagree with the way the court who just characterize it what we have to recognize this is not a situation where the jury deliver a verdict that provided relieved the jury stall the jury on a no single claim did the jury enter findings on the critical elements for every single plane they stall the jury never made them find this is not the suit a situation where a jury made a finding one way and then the judge took it away from the jury the judge essentially reinforced exactly what the jury did the jury basically said there was no evidence and were jammed up here and the way that it's on page eight thirty four of the record and this was before submission to the jury where i was arguing to the judge in support of my motion look one of the problems in the mountain has is they keep trying to dance between  attention and we began focusing on that now the reason this went once so long is the court kept going back to mt do's and seeing you know mounted your meeting arguments that you don't have support for any give you an opportunity and if we look at the record it's   the jury never entered a verdict and was discharged because they were correct so are you saying that the fifty eight and fifty b standards are in a political poll here because we don't have a derivative and that even though they call it fifty and fifty b it was really a belated motion for summary judgment that we should look at it no i'm not saying that i am not you are agreeing that this is a bonafide fifty wait and we said could be it was really fifty eight i mean these are rule fifty's in the end you can bring them before you could break the motion before the verdict comes in which is exactly what we did in this case and that's what i read you're saying that never got to be a in any fifty a motion did you people argue to the court that you should get relief because of argument was it because for our argument was this if we if we consider this to agreements argument was the first agreement did not result in a transfer and we were saying that it never played i point eight three agreement was not executed on june twenty fourth his testimony was it was an ongoing process and they signed it some time later the reason that's critical if you'd read it states that the closing date on the note was supposed to be at ten am on june twenty fourth and that's when it's in our brief the that was the only argument that you made in your fifty's and i submit that that argument is a matter of law is probably incorrect and my argument  appendix and the other points that i want to me this morning are mounted in addition to failing to produce any evidence of this sign is regard to sort of previous original remit is it some kind of chosen action right and what happened was the mountain as they were now facing the dilemma that they failed to introduce evidence and they had no evidence because it didn't happen is patrick the special verdict judge what i've also said if you're now going to ship to this chosen actions theory you didn't produce any evidence of the actual value of that chosen action a theory that's different than an executed note and it was of the chose that action the value of the purchase price that somebody did in the contract no because when you don't have the note being completed in fact if you read the language of the purchase  says this is not necessarily does final note and what you have are the parties then saying these deed restrictions could end up being an enforceable and so if they're in force of all they have a different value and so what you have to that agreement without it no and as judge what i've said what is the market value of that chosen action because the law says you determine the market value at the time transfer and we don't have a transfer occurring in that original agreement there no time of transfer there was no execution and no the liberty bell is that's that's one of the critical points and so the time of transfer the only time to transfer is when the second notice executed and judge wanted just said to is when these groups of individuals that are involved in split rock holdings began trying to determine what they wanted to do basically a new partner came into the picture whose name was patrick they probably were not going to be able to force these to create capital out of these deed restrictions and so they said we have to come up with it with that with a note that is actually functional in it is real and if we if we make money transfer statute is to deal with situations where you have debtors not dealing in reality this is the absolute opposite of a fraudulent printer situation and that also goes into judge one of us decision a real tangible harm and judge what it said will look in this situation that we had in this trial mountain you failed to produce any evidence that there was any real harm this second no one was actually the more accurate in the trying to get around the fact that they have an incomplete jury verdict i mean there was never even a damage fine by the juror and yet now to do today asking this court to install its own damage finding and deprive my clients of their case the events were not the proximate cause of the plaintiff's injuries so the fact that they didn't answer the under other erotic truth was mooted by their finding that finding was fatal to the plaintiff's damage claim but you can't take that and run it in reverse in other words you can't tape go home and have dome and then stand for the proposition were a jury fails to find made a finding on every single critical element the plaintiff automatically gets a win because the jury found on one of perhaps the two or three or four central elements well over the under their chosen action theory why isn't the the value of the two point seven million dollars the purchase price  that's part of what i'm saying we were put in and this is also important you know just the plant testify at trial and this is on page seven forty six of the public record he testified three times at that trial  debt important we don't see mountains ever crying to pin joseph platt was there ever a final form of know when they showed him the draft no he said i can't even tell you this was the final version of this note i mean he testif that he also testified later and this is at seven forty six in the record that with regard to even the signatures on the green itself the fact that it's dated june twenty fourth he said that's not the day it was an ongoing failure of evidence and that's why your honor i was always draining my argument in forms of the transfer i wasn't saying there was no evidence that a note was not signed i was i was concept i was speaking it with a broader but i was absolutely making that side and he couldn't and but he was he was not sure with respect to mr manning mr manning was a part of split rotten till the end and there's a letter saying that he was doing some marketing mr mann it was not a sign or on any of the sale of ask that agreement or any of the subsequent documents would not have knowledge of whether it was side and even and that capacity in one instance he said he wasn't sure if it was signed and in another he said that it wasn't signed but again there's other evidence and so did you make an argument  signed there's no dispute that that was the note that was attached is the exhibit and do we have a jury finding though and you know that disputed evidence we don't have a jury finding as that is futile because there is a question of the jury  to whether there was a mutual mistake between the value of the build rates and that goes to the defense that they raise this court this jury did find that there was a huge mistake but they also found that the rock holdings was the one that that bore the burden of that mistake and then could you also respond to mr ronan's argument that the value of the contract the chosen action would be at the time of the transfer and there was it there was no evidence of the value at that time presented to the jury or to the court yet that goes back to the original point which the plaintiff studios to is that is to prove the value of the no the no that we that we presented was the two point seven million on its face defendants have the burden to show that it's worth less than that they didn't provide any evidence that the court to rely upon to show that i was worth less than two point seven million so the court actually has it backwards the trial court judge had that burden back judgment process and you're saying i'm just very uncertain about the procedure that i think it's abnormal your honor and for that we've asked the court to remand this for a new trial if they  you're dismissed in the