and the other entity gulf coast farms bloodstock lp i will try to refer referred to as the partnership or the lp but i may call it bloodstock instinctively unless the court has any other directions in that regard here betty thank you i believe this case goes down to a dispute the resolution of which requires the court to follow the following factors whether to limit the inquiry to the play in terms of controlling a written instrument whether to strictly construe that written fact that the district court found there was no genuine issue material fact and come to that conclusion on our own yes your honor and in fact i would argue even further but yes your honor and i would argue even further in fact i would argue that this court can find based upon the record that as a matter of law the appellants are entitled to judgment as of my ok then if we find that then we have to  there so they had to go to the bank something where they would oppose it is that what you're telling us now sir in fact i would dispute that two different ways number one there are five elements for fraud under kentucky law which would control representations that the l l c owned this year that would be the argument if it were to reverse to this district court and second of all the the fifth or bank certainly got the benefit through over second element of a fraud claim which is your original question and the settlement would be damages and i would argue that they didn't have any damages because they enjoy the fruits of the use of the share of that one day they went out to the stable and the horse that they group that owns the horse in your view that is correct your honor but this case boils down to is what is the thing that fifth third claims they have a security interest in it's not just a horse it's an undivided share of the horse and more importantly it's not least six times in that syndicate agreement there is a blanket prohibition on transfer of shares except under express limited conditions now let's  its intention never attempted or accomplished a transfer of the share under those terms of the syndicate agreement the bank has argued and listed a number of and dish of ownership that indicate the l l c on that share but those are moot in a lot of the fact that unless one of the two ways to transfer the share heard that under the document that creates this thing that the bank wants a security interest in that could not have possibly belong to the l c in terms of the human bein's ultimately behind the partnership and the l l c are they identical are they overlapping nor are they completely different they percentage ownership being one and two percent mr ken ellenberg who had been one of the owners of the lp he wanted to get out of the business and buying him out was the reason for forming the elsie mr ellenberg own one of the larger shares not a majority but a large share of the lp the l l c was formed with new ownership and they added a larger share to mr jett dunford and added and completely new owner in the form of in the person of who'd had no previous relationship with the lp thank you so there's there is not identical ownership of the two entities contrary to what i think was found by the district  we were to look at those six instances are very briefly highlight them in the cynically but first i will say that the same agreement says right up front that these specific rights and obligations pertaining to the fractional interests and the members sh as set forth in this agreement there is nothing else beyond this document that terminus what a share owner has in this case of distorted humor the first big prohibition against transfers in section five  factual interest in this sort of humor shall be transferred only in accordance with the terms of this agreement and in particular subject to the provisions of section eleven in section eleven the second prohibition against transfer is mentioned the following provision so govern the circumstances under which in the manner in which fractional interests may be sold transferred assigned or otherwise eliminated or disposed of you would call the circle the district court made a lot of the fact that there was become effective that's the lack of power like which i believe your honor in this document as between the selling member and the transferee unless until you comply with section five and  section eighteen i think says it most clearly the members do hereby agree that the sole and adequate means by which an owner of a fractional interest made the best himself of his interest in the story of him or shall be the transfer of the fractional interest which he owns property and professor at law school who very vividly described the concept of a property being a bundle of rights and the bundle of rights that the syndicate gave to the lp was a limited very limited you could not decide what to feed the horse it could not decide where the horse where you could not move the horse you could not even decide which war says which mayors to study in breach to you just nominate them or recommend them the farm has the right to veto that decision you are the right to veto vote on the south syndicate manager but the rights in the bundle very limited and not included in there is the right to transfer to just anybody as this court has recognized in the stret more decision which i pointed out in the brief and below the six are going to recognize an important interest in stallion syndicates to control the the stallion at interest it's almost like a club with blazers with press on they don't just want anybody to be in the club that's why they have the right of first refusal and there are exceptions to the general prohibitions against transfer of an overall it's can be described as a that your sale of a horse to mr israel it was subject to judge by tried to first refusal was not avoid transaction it does you have judged by a contract right to pursue against as described by mr israel still has the same members in that private club after the transfer back implicit transfer from the oic the partnership to the o l c that is never changed the owners of gulf coast farm are almost identical to the owners of the bloodstock partnership the gadgets controlling jeff dunford is in both judge cowell fail and thirteen different instances where jeff down for or counsel for that group has made a specific federal sometimes by affidavit sometimes under rule eleven sanctions with the core other times in findings bad the judge he's not attacking her factual finding he said tacking that when you say finding this is on summary judge s are they're not really findings are they their statements that's correct that they're undisputed i agree with that but he hasn't disputed your honor and there actually there's actually another six that we've identified in our brief as to misrepresentations what happened was it's very obvious in two thousand and eleven judge clark the circuit court judge made a determination that fifth third wins it does have an appropriate security interest in all of the horses in fractional interests of gulf coast farms l l c and if that point in time the defendants and their attorneys switch their argument as to who the owner is they've always up argued in fact you'll recognize judge accounting that mr getty who is the attorney for all of these entities not listening to us this here is owned by gulf coast farms he's threatening another arms is the partnership now yes yes yes or no gulf coast farms is the l a c right that's that's who is pledged the interest but i'm saying is that they have in your view they have been saying the l l c owns it and then all of a sudden they switch to saying the purchase yes because judge yes my question is kind of what's the the proper remedy here that is you could have the same situation in one sense where you're not charging with it but the l l c has pledged all of this stuff but there's really still in the horse from somebody else ok and then at some point the other guy says hey they stole it from me i really own it under those circumstances probably the bank can't get the horse can and i mean they can drive the l l c into bankruptcy there can be criminal charges but they can't take the horse from somebody who really did own it and i wrong about that you're c in the person or ship in some way doesn't that no sir and this is the reason why it does not in two thousand and in two thousand and ten gulf coast farms shear he says yeah i thought we owned it was pledged in two thousand and nine in two thousand and ten the entity bloodstock which is the partnership did not dissolved so it could not be the owner of the horse of the share in the horse so the body by not existing by going out of existence a teeth ok i mean i don't understand all that well the partnership revived or resurrect they we fouled up a document with the delaware secretary of state it the entity had been administrative leave dissolve so they were able to file the annual statements in the fees related to those annual statements  which i believe revived i believe would be the proper term the end and what we've pointed out that you can do that under the law of that state but it does not create an ability to have owned assets that went out of business then when it read of a it doesn't own the things that it own yes or if if the transfer between the partnership and the l l c was in violation of the syndication agreement what were be the remedies for the syndicate are they any different from what actually happened that is that there was a drawing and when star bought it  no difference in the remedy if you know from our brief that we believe that the document itself does permit a transfer from an entity that his own bat the same people that own the new minute and that's actually exactly in the agreement though do you dispute the statements he made earlier about  owned the old the will see the partnership and then the l l c and if so what do you say the human ownership was it it's somewhat complex because there was an entity that was a part owner of the partnership and that entity had the same people that ended up being owners part owners of the subsequent  that this millet at least was new yes i do he was one of the owners of cyprus that's my recollection your honor act i don't want to misrepresent i do not believe that he was new and but you do dispute that ellenberg was in the partnership but not in the yellow the i do not dispute that there was some difference at least they have been there was some difference but the reality they were the same that your view yes or in the managing members of the general partners of the partnership of the limited partnership and the managing members first right a refusal prohibit pledging the horse they didn't sell they pledged it's not prohibited not prohibited most of that most of these deals are on credit  and not all cash deal absolutely so the purchase of the seller generally in the horse industry when you're dealing with the magnitude of this valuable you know giving it to him on open credit no sir they want us they want security like fifth third correct and politically the sheriff has purchased this president's security her yes sir you get the money to pay the price right that's there's an exception as to when the right of first refusal does not apply it's when it's you said the security agreement and i'm sorry the syndicate agreement your honor when it's transferred to any doing some dot dot dot but transferred to any entity owned or controlled by the owner of the share that's not going to trigger the right of first refusal we decided the key phrase to you there is own door controlled absolutely and  basically saying the dunford dunford interest is the controller here dunford balian robinson yes or they're there they control what's going on in your honor we've also pointed out that of the arguments mysteries ale said about the ad the document would prohibit this transaction is irrelevant all that does is give rights to the other owners of the sheers to exercise of first refusal it doesn't give his client the right to defraud the bank and say oh well we really didn't do that we can't do that because the other owners would have had the right of first refusal it's not their right to argue to this could work out we've also argued your honor hand and again in multiple courts mr gary has argued and put in writing in pleadings and attached affidavits that the share is definitely own back gulf coast farms l l c e he tried to avoid paying an insurance premium as a result so that's consistently the position they have taken until they waltzed before judge clark on the issue of whether or not the security agreement was affected as to the general partner of the lp the then the tax returns of the l l c and they show definitively who the owners were and what their percentages were so you don't have to take my word for it or or mister mr miller's work for you and submit to you that they show that there's different ownership between the two entities so they're not the same companies they're not the same as each other of us argue that the misread of dissolution is not the same as actual dissolution a lot of companies but in fact no one ever got around to it not under section five of the senate agreement not understood that they continue to operate did the partnership continue to operate during the period between whatever it was two thousand and four two thousand eleven and if so what kind of operating to do got in and i said i didn't say that with regard to the lp the lp appears to have been dormant during that time but it was revived and that that was the language of the delaware statute grandmother or dead well it depends upon i believe retroactively speaking according to delaware it's as if it never was even sick but i believe one of the laws of delaware they now want you to be it was not government it was not dead it's revived it's wrecked actively it was not an ex corporation it was not it was it was always if it's revived it's always been there would be delaware's view of things and lastly i would like to focus in on that language that you're on or ask about owned or owned by the lp and the l l c was never controlled by the lp the l l c had a managing member it had members none of the ownership interest in the l l c lp so technically the lp was not owner controlled by the l l c now some may say that's winning on a technicality but a lot of cases come down to technicalities that is unfortunately the nature of the law  transfer and in every other type of contract that has a prohibition against transfer but only some ways through it if there is a way to be sort of like the provisions of the transfer and that would be bad law