if the court your honour's this appeal is brought by our clients richard time and still come limited on two very narrow issues i think it's important to note at the outset your honour's that the second issue is now moot because  the district court has corrected a typo in footnote five and i assume the court is aware of that we are yes so from our standpoint the district court has clarified that he that mr hines gave up his interest in  l c when he transferred it to his company still com we don't take any issue without and from our standpoint we would not have any we wouldn't have appealed footnote five had the typo not been there so as far as we're concerned this appeal is not just on the one narrow issue and solely at the district court's finding of fact conclusion of law and declaratory judgment that quote content so is wholly or partially owned by of law we asked this court to set aside vacate and strike that portion of the order now there's three legal ground for this court to reverse the district court on that specific finding conclusion and declaration that content so is wholly or partially owned by paul pro l l c and rico for owning and rolling hard to most or in the first ground is that the district court's declaration improperly exceeded the bounds of the parties pleading and the matters adversely adversarial the at issue in this trial the second ground which is the one i'm going to focus on the most is the district court declaration is not permitted or authorized by the federal  declaratory judgment act twenty eight u s c section twenty two a one because it fails to definitively resolve any controversy between the parties in this particular l so that is one of the our major complaints with the ruling is that it is adjudicating the rights of non parties and just so i can finish this intro that the third round is the district courts declaration lacks sufficient evidentiary support but in this argument with my limited time i want to focus i would like to focus on the district court's declaration not being permitted or authorized under the federal declaratory judgment and if this court agrees it doesn't matter whether the relief was requested which we don't think it was or whether there is sufficient evidence to resupport which we don't think there was and i think you're out of the starting place is the language of the act itself twenty eight u s c twenty two zero one and in relevant part it says in a case of actual controversy within its jurisdiction any court of the united states may declare the rights and other legal relations of any interested party seeking such declaration and then it goes on and says that any such declaration shall have the full force and effect of the final judgment importantly the arc doesn't contain any provisions indicating that the clarity judgments or authoritative views of the non parties to the litigation but the ownership was sort of a zero sum game right either if a party owned it in whole or in part that would affect the ownership interest of of one or more non parties well i think it goes to mr hyde i didn't put the ownership of his ownership interest in context of an issue there's nothing in the counter claim that says that the only there's one sentence in this hundred fourteen page complaint that puts the contents as ownership in interest and it's in paragraph two eighty nine of the corrected complaint and that's basically says they wanted a judicial declaration that went as a stockholder in kentucky so they bit they bore the burden of proof on that and they failed and it really was after they failed that they changed their game during the closing argument and decided to to argue that somehow it was a power pro company i think what it comes down to is whether they requested or not the court doesn't have jurisdiction to to rule on the ownership interests of non parties especially non parties that are not even in this country and so that's really the first fundamental flaw with the declaration is that that the court doesn't have jurisdiction over contempt sophrony or hearts and most are and without getting too deep into it power pro sued kentucky so in two thousand and ten in switzerland and that litigation went on for five years until may of two it was in the context of that specific that was the case or controversy that the controversy that they alleged in paragraph two eighty nine of the corrective complaint was that a high level didn't have the authority to enter that  in the trial and it's i want to say it's fifty four twenty five is our own number is an affidavit and september of two thousand and ten six years before the trial five years before the trial and went to saying so if i go back to the sought after the son a mental disease of not having the parties you also look at whether the statement wholly or partially owned that phrase in the declaration it doesn't definitively resolve any controversy between the parties in this lawsuit or even the parties that it purports to bind and really it comes down to the cases that we cite on pages twenty two to thirty of are brief we cites of it through the act in nine different cases if you look at their opposition which only covers two and a half pages they don't cite any cases they don't discuss a single of the nine cases that we cite which talk about that the us supreme court has observed that the declaratory relief is available only for this is the public services commission case on page twenty three of our brief says it's only available for quote a concrete case admitting of an immediate and definitive determination of the legal rights of parties in an adversarial proceeding that same case says the decision finally settle and determine the controversy we cite the vantage trailer's case on page twenty three that's this court five sixty seven f thirty seven forty five its fifth circuit two thousand and nine and it case says the declaratory judgment act twenty eight u s c section twenty two i want to edit requires actual controversy between the parties to the declaratory judgment action it goes on to express the note that the supreme court directs the dispute must be definite and concrete real and substantial and admit of specific relief through a decree of conclusive character so even if we assume that they asked for the relief that the district court granted them there's just no authority for that there's no jurisdiction and it's not it wouldn't be a request that finally settles in determines any controversy between these parties in fact what it does it is sensually creates controversy when there wasn't one before meaning they the swiss court said it was a valid sale between contract so and paul pro l l c and then paul pro l l c appealed that and the support and finally after six years the swiss court just of the end of last year affirmed that so that case is done valid assignment that he did have authority and so essentially in the five declarations that they asked for they lost all five of them not just the two that were at issue in this case and specifically they wanted a of no force and effect and they didn't even put on the air on any evidence that the assignment agreement was backdated so i mean this whole case was was styled as this elaborate civil rico fraud case which they got up there on the first day of trial and they dropped all the rico claims and really what they what they really wanted to do in this was invalidate the transfer of patents from power pro al see to contest so that was really the whole heart of this case and in that they wanted a finding that went was a stockholder in  t and they had a complete failure of proof on that issue and i guess how it was since i have my limited time in this first part is i would point out to the court that their suit their whole theory of the case and their contention was that went had this individual interest in context so and that pile pro was never to have a direct ownership interest of contempt so i'll prob was never to be a stockholder in tech so and one of the big problems in this case for pile pro is that contest so is this fair share company which is permitted under swiss law and heino is the holder of those bare shares and when to admit it at trial that he had never possessed them he'd never even seen them and he never contended that pile pro l l c ever had possession of  and that was the reason well it's really doing to the beneficial their whole theory that the only reason that power pro had any control over these patents according to win is through their dual ownership and that's why they focused their i believe there is evidence on both sides by both parties that they aren't parties they were not parties no what i would like to focus on right now  relief which i believe was the first time that i asked for that was again after the jury had left after a trial the result of that injunctive relief was that now the plaintiff got attorneys fees so it was something that was new damages basically for the defendant a new claim after trial that's not what happened here at all what happened here is that we've got mr hind on mr wynn who have are disputing ownership and control over context and this is something that was raised in the complaint plaintiffs it was also discussed thoroughly at trial as i go into a deep discussion about the facts and in my brief and they cannot claim now that they have any sort of surprise and that just the short version is on the record section page two seventy two and two eighty two are the two places where ownership of context first discussed in the in the complaint as requests for the court to make a declaratory judgment ruling the last one was for an order requiring defendants to divest themselves of any interest in the enterprise including context and that is the record at two eighty two bell has a baseline rule about rule fifty four c which allows district courts to grant any appropriate really following a general prayer by plaintiff even if the plaintiff did not specifically seek it that relief is otherwise legally permitted here both sides presented evidence and argument about the ownership and control of contacts of mr hind all claim that he on one hundred percent of it mr went completely contended that it was a power pro company formed hearts and what's in front on some or all of context and that is a very definite statement it would be like if my wife is planning a trip to disneyland and i say am i going to disneyland or can i go to disney land with you and she says i'm going to disney disneyland with the kids it's clear to me i'm not going to disneyland that is what the district court ruled here and i frankly i don't even know how that had standing to complain that it's the ruling was not definite enough because the ruling only gives rights to my client and to not parties it does not give rights to mr hyde but it says that despite mr humble saying he won one hundred percent of it it's actually only owned by opponents make an argument about the bare shares on page sixteen of their reply as though they have solved some new riddle the problem is they raised that same issue in front of the district court and they found the court apparently found it not credible so this is not new information harvester on page seventeen of their brief again the facts are just not analogous they admit here that ownership of context so was at issue they split hairs by saying that went to ownership but not how close ownership was an point it's been made in a briefing in this morning already there is only long including the finding proposed findings characterising when was the owner and that's not good if you did found it seems to me that the evidence is very thin on who owned it but there's all the evidence to judge had to go on how do we get from your assertion that we owned it to prompt her alone because there was testimony from both sides from mr chang in his deposition mr yes i believe mr went testified that his testimony was that it was a pall pro company as i did he thought that he had he was managing member paul pro had control over and i think the district court had plenty of complaints about both sides the credibility frankly of both sides as well as the organizational history of both sides how much of this is semantics they both had in into this should one stage in power pro when it has an interest to power pro and that's one way i look at his declaration to distributed in a way he was saying when has an interest but it's power pro l l c isn't one of his findings the breakdown of the ownership of the l l c is exactly th thirty four point five percent and that that company owns in texas therefore i agree with you entirely it is just semantics contest so is now controlled by this entity that they each own fifty percent of which goes along with every bit of testimony cited by a p y really every case that was cited by accounts that i can see is a case that has nothing to do with the order the language of the order that the district court entered they instead have to do with whether the issues are hypothetical or theoretical versus concrete just a simple issues the cases that he cited to believe public service persons wh coughed that case was a dispute that had not yet mature to concrete controversy it asked it asked the court to declare that something was considered interstate commerce it was at not asking the court to resolve a controversy  the other case that they mentioned today was let's see into trailers that is was also completely i believe very relevant to this issue because they were seeking declaratory relief that there was a it was either a patent or a trademark violation but they had not yet it wasn't right basically they're saying that the aluminum trailers that they're producing were not substantially fixed and definite enough when it filed t declaratory action so again it was the court being asked to do something hypothetical the final case ahmanson on that is  oh i believe the last one they cited christ is health found a definite controversy that controversy had happened declaratory relief was appropriate and the court determined the right surrounding it and it's just they split apart second there are continuing obligations and rights in crisis as to the obligations of one of the parties whether or not they had to maintain insurance coverage whether or not they  pay a development fee in an ongoing manner here the same thing applies there's a question of who had the rights to use the patents held by contest so who had the duties of paying patent fees who had the rights to manufacture or license products using those pat so the again at every page that they cite i believe has only something to do with with rightness maryland casualty by liberty called your own v they don't have anything to do with our case where there was a definite controversy there are definitely ongoing issues that had to be resolved because of a break between these two men and the district court resolve those issues they they didn't resolve it to their liking because they said that the court basically said that handle still has to deal with mr went in there their joint interest and popper l l c instead of separately owning the big asset instead he owns it through through his company still come through lossie the last issue was something i just filed additional cases this morning i don't i don't know how relevant it is obviously we feel that there is no need to change the ruling in this  case you know we didn't like some of it we do like some of it but we think that it was correct under the law if however the court disagrees with the remedy here would be dreamin and that it dealt with the an appeal from a board and where a board fails to make a finding of fact on evidence that is undisputed this court can make that finding because the evidence was undisputed and they just didn't make a finding of fact which is not the case here because the evidence is very is very much disputed as as you pointed out the bulk of this case was a factually intensive case and determining the credibility of the two parties and so i the court lays out there is that the final plaintiff if you foresee is that a plaintiff's entitle me to relief not specifically pled has been tested adversarial tried by consent or at least developed with meaningful notice to the defendant here the ownership of con was tested adversarial throughout the entire trial both parties question posing witnesses about the ownership of it they're drawing a line between the fact that somehow that that robin was saying he individually owned it but they knew that ownership was at ac the entire time and they as a response to rob point saying that apparently had their client testify that he was the one hundred percent owner of it which the trial court found not to be credible tried by does not apply here because it was not a default judgment the final playing at least developed with meaningful notice to the defendant and again and in our brief we cite to them multiple times that this issue was raised in one last site in response to their argument on page nineteen of believe their reply they cite to page thirty three ten of the record on appeal and that is the section of pipe pros proposed findings of fast however they do not cite to the entire discussion there if you read down below the paragraph that they cite read paragraph d e and f it directly discusses allegations about ownership of  i think that mr brown is focusing too much on this element of surprise issue it's not about me under and whether we were surprised that that's what they were seeking mr brown ended with the citation to record thirty three t their claim was always that went at an individual interest on the i'm thirty three thirty four paragraph ninety eight first conclusion of law the beneficial ownership of  contempt so he bear or the burden of proof on that issue and on cross examination i asked him point blank have you ever been a shareholder of contacts so and he said he said no what i specifically said is as an individual did you have any ownership interest in context so this is the record at twenty nine i started thirty nine twenty eight answer there were many ideas but i was just told it was a pile pro company and i never reviewed the documents in question that's not my question my question is as an individual have you ever had an ownership interest in context so answer no right there we've defeated the claim we've defeated the declaratory relief that they've requested and it comes down to this all this vague language about it's a power pro company if you just look at the caption there's there are the there are five plaintiffs in the case  the other is a delaware corporation this whole notion that it's just a power pro company that can't support a finding that power pro l l c is an owner of contacts so and i think what mr brown is i gnoring is the phrase that wholly or partially owned that's one of our biggest complaints with the with the ruling with the declaration it doesn't say that it's wholly owned by power pro l l c parts and most are in for even that would be problematic because we don't know what percentages there are and mr brown said at least four or five times that mr hyde said he was one hundred percent owner of content so that's the testimony actually that was that he was ninety eight percent in that  but the big thing here is the wholly or partially owned it's just not in forcible what does that mean it doesn't exclude hind all on its face if he wanted to find that hydel had no ownership interest at all they had to say they didn't seek a he transferred that to steal com which is now the current holder the footnote used to say when he did that he gave up his interest in paul protein and the court said then we appealed that because if we have another we have another case where that was important limited is a thirty four point thirty four point five percent number  issue they when they brought it up in their briefs they didn't use the word remand they just said they used the phrase sent back we mentioned that in our and they don't cite any cases we mention that in our reply brief that they were very careful not to use the word remand because it's not appropriate here there's especially given the non parties and the fact that there is no evidence to support the ruling party would submit on our on the briefing on yes thank you mr lower you