very good think you partnership this counts were dismissed at different times in separate orders for lack of standing and this morning i'm going to start with count one which involves the i d p partnership and that was the later order that's correct ok the first place i want to start here with this council is an issue of whether the trial court had subject matter jurisdiction to grant be essentially the relief that we saw in dismiss was that we asserted waiver last cheese and an applicable good faith type of defense response the motion to dismiss in the court's memorandum opinion and order she noted that she had some question as to whether those responses the motions to dismiss were proper because they were raised in a complaint or an answer or some sort of pleading of that nature and you know that wasn't the basis of a ruling the defendant nevertheless raised the issue in their brief and so i'm going to address it each of the three cases that defend insights in support of their subject matter jurisdiction argument i believe are distinguishable because none of those cases dealt with an issue where  always during the litigation and a motion to dismiss was filed on the basis of those facts where an issue was placed before the court affirmatively by the defendants and then in response to that motion the the plaintiffs addressed the issue and made their argument as to what they think the court should do with issue none of the cases cited by defendants involve facts like that and the cases that they cite stand for the general proposition that for the courts have subject matter  the put the matter before the court subject matter jurisdiction through its motion to dismiss now there was a case that we cited in in that you know response to that motion which you also cited in our  although the thing's aquittal relief and so we think that it would be proper for this court and we think that the trial court has subject matter jurisdiction therefore over this issue of whether the defendant's attempt to cause our client interests to be repurchased should be invalidated or not but let's assume that the court did have such jurisdiction why don't you tell us the issue of implied waiver because there is no express waiver here where there was in your judgment a clear on equivocal and decisive act they manifest there are you know intention to waive their right to bring up this repurchase agreement the strongest indication that we have of an implied waiver is the length of the delay from nine hundred ninety three to two thousand and nine without a doubt that's the strongest and issue we have and then in addition to that we have the fact that obviously throughout that time our clients were treated as limited partners they were paid distributions they were capital calls were made on them which they paid and in addition to that we have the defense of this lawsuit this is the people in the second deal correct it to the two intervening plaintiffs so really that's what we have we have the biggest factor of being the delay in the length of the delay the ongoing defense of this suit which obviously i mean to us indicates that if they if they wanted to at any point in time they could have sought to deceive to destroy our client standing to result to get rid of it as a way of getting rid this lawsuit throughout the course of time the fact that they didn't do so you know is another and issue of implied waiver is isn't it also possible that within the you know huge contract that you have here that they just had forgotten that the repurchase agreement was somewhere buried within it yes i would agree that it's possible sure seen days that really the record sure seems like that might have been the case they could be the case if that is the case how is it a clear decisive and i'm equivocal the wrong i mean i think it's whether it's it whether it's through inadvertence or intentionally you know the fact that they didn't exercise it it's almost more equitable are going to take that they didn't exercise it for that length of time it's the issue of whether a fiduciary can be in breach of his duty when he exercised discretion granted to him under a contract and so we don't dispute that the repurchase option exists in the agreement we don't dispute that it was properly exercised and at the sixteen years to exercise that option in order to get out of this lawsuit without ever having it resolved on the merits is leverage your best case for them yes it is yes or are you and again you're saying that in a sense it's it's mismanagement your partner to do there is a general purpose to do that to the limited partners correct and therefore a breach of duty that's correct your combined two six fifteen to six nineteen in the two six fifteen issue was whether the intervening plaintiffs for this count sufficiently allege that the capital call was made in  allegation that is toronto or briefs is that the capital call would not have been necessary had the bonds not been misappropriated the bonds paid the defendants over thirteen million dollars in cash initially it was over a period of years interest payments of just over four million dollars and then the bonds were redeemed by the village for nine million and so i allegation is that but for that misappropriation there wouldn't have been  court to make john the inference that none of the thirteen and a half million dollars would have been available for the partnership so he dismantle obligations over the course of the years after the money was received or after the by the village it's speculation and it's in one sense to say what would have happened had the bonds not been misappropriated but in terms of what would happen with the money because that's a lot of money to come into the partnership at one time but i believe that that's an issue that should go to the jury the jury should hear the evidence and in cedar the judge in this case i apologize should hear the witnesses and see the evidence to determine what would be well within management at a company done with back thirteen million dollars if it had gone to the partnership instead it's a down and keeping in mind as general partner stated you sure you need to properly manage the company so i don't think it's proper to simply assume that none of that thirteen and a half million dollars or didn't put into a you know it's never been litigated all these years of litigation that's never been because of the the all the things we've been going through here  amended complaint and a request that the partnership interest be reinstated right right and going through the record there was a friday afternoon motion you know right before capitol call maintain your partnership interest so my question is now how can we in two thousand and ten put this humpty dumpty back together again because at the time of the cio there was a we had presented out it ends because it want to come into court and prove that that was in the bidens or the thirteen million dollars paid out in the bonds was misappropriated into go for it misappropriation the five million dollars that was later needed wouldn't have been needed from been limited partners this was the general and if so we had come up under three zero seven zero three zero seven that would have been helpful because now what you're saying to us is is i think i think you're really opponents are now you unscramble the egg i mean how do you get this back together it sounds as if once they did process was that they the capital we were able to prove or else say that we even tried to prove before judge thomas but on that day that the capital call was was improper as a result of the repurchase and so really that's what we're doing we did with the with the t v claim was instead of pursuing a referral seven appeal and dealing with it at its hero basis the decision was let's get the out against all the evidence before the court and make complaint seek restoration because if we if we prove that in order to prove our right to restoration and we have to prove the misappropriation and right and therefore it's all you that we do have an interest in the outcome of the controversy that's set up by the directive case in so it just seemed like it fit together in one complaint is that would be the way to resolve it could they have used the repurchase agreement and the t v case as a way to remove the going to be years status or standing rather that there were there was a separate partnership agreement but i believe that there was an identical provision or i haven't specifically looked for that issue but i believe that there was an identical this might go back more toward what you're saying about the i b p matter but part of the sleeping on their rights are sitting on their hands with count two and this question of the claim for restoration on the ground that the capital car would not have been necessary if the bonds had not been misappropriated first of all i you know i i don't know that that's really adequately alleged that the capitol hall still would not have been necessary one of one of the your honour's asked a question about the accounting and you know how do you know what would happen to the money you know i think that's something that probably needs to be explained in the complaint it doesn't follow that if a partnership receives some amount of money and in one nine hundred ninety nine that it still can be sitting in a bank account in two thousand and three  i think if you know that there is you guys have a thirty five volume record and i live pretty much most of the pages of that volume so like you know there is a deposition testimony in there there's other places where it was put before the court that for tax reasons partnerships generally distribute their income to their partners because it's taxable to the partners when it's received by the partnership and there's no really advantage to the partners of leaving some millions of dollars sitting a partnership so i honestly can't tell you right now whether that is was submitted in support of this motion testily that effect i believe actually that sure event there's if it is a motion to test the sufficiency of a complaint and i and i i think there's a real question whether the complaint really connects that particular god that you can assume had the bonds not been misappropriated the money would have been sitting there when it was needed five six seven eight years later i have a more fundamental gripe if you will or challenge to to that allegation i gree that's the central allegation of the amended complaint as it relates to that count to the t v count our argument mr carroll said that our argument was that the allegations conclusory because they don't states fish and facts about why the capitol call wouldn't have been necessary if the if the bonds had not allegedly been misappropriated i or argument is different it's conclusory because it doesn't tell you why  even if you assume it's correct that the capital call would have been necessary if the bonds had not been misappropriated i don't think that it follows from that that the capital call was in bad faith so the dots that we're really primarily arguing were not connected was the connection between the two to the idea of bad faith yes it seems like from the perspective of your opponent here that they're being asked to put money into like use a card analogy the card game that they are being asked to put money into what they think is a rigged game i mean they they think that you've already gotten all this money you didn't tell us about it and now you're coming to us and asking for money when you've paid yourself you know a ton of money you know that might be right that that's what they're saying and i think i mean there's a couple of problems with it one is you know they just simply it's it assumes its own conclusion it's a bootstrap in that still relying on the same single act of wrongdoing which is this alleged misappropriation that's a wrong as to the partnership and i think what judge dollars per saying in his december two thousand five million is that that that's a bootstrap that's not an individual wrongdoing is to you you're kind of just taking the same derivative claim and now you're saying it's an individual claim the  does allege and we are of course testing the sufficiency of the complaint in the complaint does allege that the partnership had a genuine need for money that's not in dispute they allege that kmart had gone bankrupt they allege the income was insufficient going at this but i suppose one thing is to ask is well then given that everyone agrees there was a need for money how were what were the defendants supposed to do instead of a capital call if it's bad faith to issue capital call say partners we need money everybody pony up your share what were they supposed to do otherwise how their complaint and their briefs don't give any answer to that they don't get it even within the facts of this case didn't they attempt to put it put together a settlement agreement and handle the in essence handle the capital call themselves the channel they did that was offer to something different and that's one way that it could have been done well there was still a capital call the way the settlement was structured was that the partners would then would lend the yet you're correct in lieu of the capital call they would have made a loan right perhaps they could if they could use some of that after tax money that they had from you know or like you just did there's certainly lots of things that they could have done but the complaint doesn't to lead that you should have done  you know they say we don't you know we know you needed money it was bad faith the kind of partners for it i think they need to say well what were you supposed to do instead if their theory is the defendant should have put in the money themselves i mean that's what i kind of infer is what they're saying they don't actually say that anywhere but i think that's what they're trying to see that's sort of what the defendants are or what yeah what the defendants were trying to do with the settlement that they're putting together using their own money in lieu of the capital cost keep the gang the that the the agreement that they didn't voluntarily you know put in the money themselves i don't pocket it is that it because i i don't think that's i don't think that's a valid claim i don't think they can they can defend their position they certainly haven't cited any any case law that would that you did so knowing that it would force itself that this is a sharp practice law for under the agreement complying with the terms of the agreement but you knew darn well it was in a sense going to push us out and it was an equitable well right and it's interesting i would say that's the point of distinction between this case in the lab of its case that they rely on in the lab in his case the general partner was sitting on a pile of money and the limited partners had large tax bills right in the past he always discretion for no business reason other than to put pressure on the limited partners so he could buy on the cheap this case is different there was a business reason that the partnership needed the money yet again else we were just i don't think they're disputing that but i think it's the question is what's the implication of that act right if the central fact that we're dealing with here is that the general partners got the limited partners in for nominal amounts of money and pay them money from time to time with the understanding according to mr collins from his detailed affidavit in deposition testimony that we the general partners were going to take these developer or g jr balance of the day and they're supposed to agree to it why is that not in the  either of the partnership agreement so i guess all i can say is everybody be happy or fair bro but you know i think that's why we're here it should have been and you know i mean if everything else is in their clothing these repurchase agreements buried on page eighty two or something you know how i was and th the absence it's a absence in the agreement doesn't lend some substance to the suggestion that this was a sharp practice and it was you know just you know well i don't do it we'll do what we can to we'll take advantage of them as much as we can because we're the general in their limited park i hear what you're saying i think i think what i'm saying i think really though that's the merits of the case that's the question of whether the defendants were entitled to have these bonds or not i mean you never got him and we didn't megan's we're saying that that judge donna's burger did hear a four day fairness hearing right where most of the evidence was on these issues on the proposed well not only the post the pro settlement but the merits of the case right because he has to evaluate is the proposed other places it is shown that the general part is in the case of tb the bonds were distributed to them against their capital accounts in the partnership so their capital house were reduced dollar for dollar by the face value of the bonds so it's not that they didn't pay for it now we have gotten into this you know we haven't had any kind of judy cation or hearing any evidence but but in it it's not obvious that in fact the bonds were misappropriated so another way of looking at kind of what's what's wrong with count two why it doesn't connect the dots is say well what if you went through this whole process and six years later you finally have an adjudication that it wasn't a misappropriation that the defendants gave proper consideration or for some other reason they were improperly entitled to to the junior bonds and nothing had been as appropriate if you know it kind of now what you do was not just a misappropriation or that they were entitled to them it's also the valuation you have be the issue of the gentleman from there's giving a range and then mr counsel picked a figure of five hundred fifty thousand and then ultimately they were redeemed for let's just say a heck of a lot more i think that that that's with respect to the to the one there was a letter from a different guy the underwriter for four for the village of broadview who said that he wasn't able to to put a value on them they were not marketable that he was able to test a market or give an opinion which was that that he market the senior bond was was marketed at the highest value that you know they did what they do say sold as much senior bond as the market would bear ten point two million dollars and it was his job was to go out and sell it and he did the rest of it was the amount that the tiff statute would permit but the market would not buy because of the risk profile and so it was issued as a subordinate of the and if that was not marketable and i'm pretty sure that his letter we could find it here said the same thing that it's not they're not marketable you know his opinion was it would be between two fifty and seven fifty or something like that and five fifty would be a fair number in the midpoint as i think the gist of what he said he did throw out the figure five that's again that's really talking about the merits of the case which we didn't get to and our position simply is you know there was a capital call it was for valid business reason there's no dispute there was a need for money there there are demand is that just because we  erted this claim of bad faith you're not allowed to make a capital call and i don't think that adds up and i we do make the argument our brief i think it's worth taking a minute on that this would really disrupt the functioning of partnerships you know have a situation where any partner ship makes a capital call it happens every day a limited partner comes as no you general partners have acted in bad faith you stole some money or you wasted assets you made bad investments you didn't do the property diligence on something whatever it is i'm not hing like apple because you act in that way and and and i think under the plainest construction the law give the ruling they're asking for that limited partner and that in those situations would be entitle to withhold their share of capit enforced capital calls if they were in force will only after the general partners disprove an allegation against them and it's very easy for people to make allegations so i could say and i think really you know in a way there's there's not a lot to that i can do to embellish such rochford such a decision she wrote a seven page reasoned decision that i make very clear that she did a lot of homework and gave a lot of careful thought opinion and whether five hundred fifty thousand dollars was a fair value or not what she found was the facts were sufficiently disputed that she could not grant some reason for either party ok so what we had in this case was  or undertaken in two thousand and nine and then after those don't resolve the case of a sudden somebody says the repurchase agreement how does that come from i'll answer the question b partnership agreement front to back i haven't done that a long time and and exactly as you suggested earlier it had been overlooked and you know we all spent some time kind of pointing fingers it isn't exactly the word because i'm wondering well how is it that so many people have been looking at these partnership agreements in so many different ways and you know it not just for this league ation but these partnerships are are conducting business along the way you know and the partnership agreements are being invoked for all sorts of other reasons but you know it was over look i mean these guys left in the ninet right they left in the early ninety's now three ninety four and i think that again you know with respect to the merits of of you know whether whether that delay constitutes a waiver i think you honor really gave the answer to that that said you know waiver has to be unequivocal evidence of the intent to relinquish the right and it's not an article quibble that whole evidence where it's equally possible that someone just overlook and wasn't an intent to relinquish all right and as judge shah rochford pointed out the agreement does explicitly say can be exercised any time thereafter to the extent that they're trying to make it into a prejudice argument which started to kind of  alleged that as a basis of prejudice what they allege is a basis of prejudice is that there contingency counsel have invest a lot of times the case there was that was this you know considered squarely by just rochford and they have they admit they have no authority in support of and we you know i think explain our brief why why we think she was right about that i want to come back to school once more to come to an issue of restoration which i think is is the more difficult of the two of the two cals i still struggle with how to articulate this idea that the fact of the alleged misappropriation doesn't isn't sufficient to mean that the capital call was interest was was issued and in bad faith  i think one another way of saying that might be that the general partners are disputing this claim and lesser were showing that they're disputing a claim in bad faith they don't it's wrong to suggest they have to pay the money first you know they have to they're supposed to pay back the partnership with respect of the bonds because this claim has been filed but not yet adjudicated i think that the only way that that would make any sense would be to say that it was being defended in bad faith that that has not  think i think having seen the cross motions for summary judgment you know that that would not be of viable allegation at least in this case whether it might be a way to connect it up in some other case i'm not sure that you all have to reach out and there was also some allusion made by one of your honor's earlier that there's a problem with the remedy itself of how would would it actually work and with in equity to the other partners who did fund the capital call it was funded on the partnership was successfully reorganized the mall became profitable again and since been sold at a profit and those profits have been distributed to the partnerships and in respect of their proportion of shares i don't think that just first is a matter of equity that these partners can be in a situation where had it gone south you know they just walked away as well stopping only we were part of that now that it's profitable this is what we want restoration you guys took all the risk you put your dollars on the table but what we want now to come back to the table and get get our piece of that again where they hadn't head over it all this time an option to to walk away they didn't like the result and then there's the question just a practicality that's not alleged i'm not i'm not sure actually that i know the answer because the partnership agreement is set up so they can happen a couple of different ways you know if it's if you're going to restore that interest what would it even mean in the context of a partnership that's now all but liquidated all that dissolved it is it doesn't have any active business for the other than to settle out of them that this piece of litigation so i think that that's a whole nother set of problems that the plaintiffs that have not given us  if you go to the actual paragraph of the partnership agreement it talks about the general partners ability to make capital as it's paragraph five c of the partnership agreement and paraphrasing like not going to bore you by reading it verbatim but i they decided to sell the balance redeem whatever the you know you said that they misappropriated him they came into all this money what should they have done before then him what rights to the limited partners have that were violated there should have been a bell disclosure to all the limited partners about here's here's what we intend to do before it's been done we're going to buy these bonds here's the price that we intend to buy a bad t v bonds were the part i t v was paid nothing by the de those bonds insert date if they go into all the limited partners and they would have said we're going to say we're going to take these guys from the partnership data face value of eight million dollars we think they're probably not worth eight million dollars maybe they are we don't really know  the success of the development but we're just we're going to take them and we're not going to pay the punished anything for it because we feel like you're being fairly compensated through the interest you've been given in this partnership you know that's what we're going to do you any problem with that right  i'm standing here today there are limited partners who have stepped up and said absolutely we have a problem with that you know he would have objected you know this is a confusing record and you get to two different counts here and different times everything but the five hundred fifty thousand dollars that was distributed  d some of the limited partners got some of that money does that relate to the t v partnership or the i b p that was i d p all right so how much money was obtained by the general partners relative to the junior brands or developer bounced over they were called for t v for t v there was interest paid of roughly four point three million dollars and they were redeemed for i believe nine million dollars so told it was right around thirteen and a half million dollars and what you're saying is that the limited partners and that deal didn't get anything nothing that that's and just to address a point that your i raised you know i agree with opposing counsel that it is more the merits of the case the question of why wasn't there just a disclosure made in a partnership agreement i obviously wasn't there i can't answer that question i don't have or what i can say is that in that huge volumes of documents that accompanied the issuance of these bonds there were disclosures made by the general partners that the bonds would not be immediately resold and they were so i mean i don't know if it was on the t v count has to do with the appropriateness of the remedy and in assertion that what our clients have done is to sit back and wait to see whether the company's going to beat whether t v is going to be profitable before asking for restoration i take issue with that argument because we a shopping mall being sold i said well we want to piece of that action we we've been there we've been asking for this from day one so this isn't a sit back and wait kind of situation if you were to let me just this one question if you were to articulate either the category or the amount of damages that you're entitled to come to the t v count what would your answer be thirteen and a half so yes ok and then kind of each kind of what i believe is the i b p limited partnership and also has a similar peer group i think the other limited partnership agreement there's a description of what happens if there's a profit on the sale kind of nation for closure of the just position of kurdish advances do you think that the refinancing of those lines was a was the sale kind of nation for closure other just just addition of a partnership or was it something else i have to be honest with you i haven't read that provision so long i would have to sit down to read and think about it i don't have any answers i stay right now also as it provision describes who gets what but i'm trying to figure out whether or not