whether it would be unfair under the circumstances to permit issue preclusion and the current action just missiles by the district court and this case included broad language that encompassed all counts of mrs complaint including count six which is where she alleges accounting malpractise against mr sanders despite no motion before the court to dismiss count six against mr sanders district court also found issues in this case ways st she was damaged when i told her that she needed to resign her position as trustee of the sub trust that was created for her benefit as a result of that she's been forced to pay for trust assets out of her own money rather than using trust funds to pay for things such as real estate taxes and other issues that would come up with regard to that real estate in addition there are subsequent to the filing and breaking of this case it is then finally determine that there was no oral agreement that would occur with mr roth with mr ross guidance that oral agreement that was originally in the judgment from the indiana state court resulted in three million four  funds that are at issue when you're talking about the band r t o do you count those funds were given to david burchell to correctly rather than to the trust and to his sub trust be the reason that distinction is important is because the some trust b has limiting language on it requiring the funds only be used for is health maintenance and support is not in the same way that the funds were ended up being used which is as attorney fees to sue mrs and i will tell you i agree with you one hundred percent that that is crazy to use your word but that is how the judgment is written and at this point time when the indiana  there any suggestion by the trial judge that she was going to interpret it that way so as to say that the trust is entitle to prejudgment interest for money that was in the hands of the beneficiary the way that the nd amended judgment  unlikely conclusion we believe that we have not had that hearing in front of the trial court judge there were several motions pending as part of the trial she is no longer inch and troll of the funds for her own benefit so the some trust taylor she would have been the coach trustee she cannot control any of those funds and now is forced to pay for things for the trust well that was the question is what it was we argued unsuccessfully that she was left many accounts by him what the court of appeals came back and decided was that she was left one account with vanguard ira account which is separate dollars right now the trial court judge in the indiana case has frozen that account and they are suggesting they're going to take that to recover approximately two million dollars which is two million i don't i'd like to reserve the balance of my time for rebuttal thank you thank you attorney ben rod drafted dr melton myrtle's the state planning documents including the trust and certified public accountants jones of sanders served as co trustee trustee for her own trust but the jury did not find that and the jury specifically found that shortly after her husband's dav there was a meeting on the money about it's an issue for the indiana trial who are and that's where all of this new law and where all of this has been resolved and just out of curiosity there and thirty three that they explicitly states that there is no risk of like ever excess of a real recovery under the judgement is explicit it's subject to count regardless of how many theories of liability under which it must be returned to the trust damages you know we were presented with a case of malpractise against ben roth i have to go according to what the pleadings are in this case i'm not in the indiana i don't know what's going on in the indiana case and now it's a myth showing up on the day of  argument and raising new theories and new damages that weren't part of the feedings in the case is improper you know you have to take there's a motion for judgment on the we have to take the pleadings as they stood before the district court and you know et throughout the league and based on that you disappoint was absolutely correct in granting the motion for judgment on the pleadings to simply no way that you can recover any damages and there's a lot of red herring frankly when if you go over there maybe maybe you'll tell me this is a red herring but what do we make of the the e mail that mr ross i think sent to mr sanders about both sides being fully funded you know since are and for the fight ahead in unity in the courts even the fact that we represented linda at all but we have to assume that those are correct and we do this is a motion for judgment of based on proximate cause damage only so ultimately all these other allegations that wrongdoing those are red selfie rise to a clause of the action against the board and the reason for that is simple you have to prove other things and some of those other things are proximate cause of damages which they simply cannot prove here and you can't just prove any damages yes actually prove to narrative loss of legal gray we can hear you i apologies you hear me now yes thank you to really touch on a couple of things i would direct a courtship by the district court's order where he is where the judge talks about how the defendants do turn into resignation with reference to her trusteeship this was not a new allegation this is something that wasn't intended to end the complaint it was also contained in the motions to the district court and even with order and edition no one has touched on the fact that there is a claim for accounting malpractise that was not requested to be just as that was dismissed and that must be reversed and with regard to what is being referred to as a red herring that is where mrs lawyer funded counts are one of the party against her so that he would have one million five hundred thousand dollars with which to attack her in the indiana case it is not insignificant that w mean by he fronted for the e mail from not mr roth the attorney to mr sanders said we have secured the vanguard account to david burchell now everyone is funded to go to litigation for you're saying that the lawyer funded him the lawyer took all action he was the one that put the paperwork together and sent the paperwork to david so that he would have the money individually and not within some trustee where this gets complicated is if it was in some trustee he would not have been allowed to use that money her attorney fees because it was based on health maintenance and support only of which the other both attorney roth has said that that is not a subject for a claiming your claim he's or she is claiming that she was entitle basically to win by default a case that she should have lost no it see what i am finding is that mr roth was her attorney he had an obligation to look out for her and not throw or table and i understand that point who the question is about causation and damages which your theory seems to be that she was entitle to win because david would not have been able to litigate and pursue the recovery of any of the of the other problems i'm not sure that she was entitled to end that regard i think that it adds to her damages with regard to this litigation which would be measured how by what she lost in the indiana litigation there with there is that because there is the vanguard i read part of that there is also the question because david has testif