thereby for closing further testimony explanation or clarification as to a crucial issue crucial issue in this case were certain representations made concerning approval of building plans by the third party like the testimony that was given was a listener some four or five months before the third party plaintive sued mr bennett the testimony was given in a proceeding by neighbors of the third party who were seeking to enjoying the construction of a residence on a property she purchased from mr bentley under subpoena was called to testify on behalf of the third party plank and he gave certain tests that testimony relevant for our purposes really surround what representations were made whether there was an approval whether there were certain plans that have been approved by mr bentley with respect to garlock our fundamental position and site and in those statements live those statements can be offered those statements can be used by the plaintive and considered by the court but at the stage of summary judgment where we were happy those statements stood the crucial issue i believe legally is whether or not that we should be considered a part i v asli he wasn't a party to a lawsuit at the time the test he had been sued it was argued in the brief that well this is the same proceed and so it should be considered part of the same  whether or not this is the same proceeding whether this was a third party complaint or whether it was an independent action filed with a different case i think makes little difference really issue  party at the time he testified any clearly was not that's our objection we believe that he must live by what he said but he should be given the opportunity to clarify explain and put it in context given the issues that now  that test that's our fundamental position and we cited cases i'd be glad to discuss those within a second when you talk about admission given by a party the law pretty clearly states that it is a deliberate clear unequivocal statement by a party about a concrete fact the fact an issue really arises or is made an issue in paragraph twelve of the third party and its complaint which alleges ricky bentley acting as architectural control committee with personal knowledge of the restrictive level covenants approved by or garlic cultures building plans specifying the construction if it prefab modular home  remember that it was called by darla's attorney question and then cross examined by the other side it's my belief that if you look at the trans it's pretty evident that a full and complete a clear and concise definite deliberate statement as to the facts and circumstances concerning whether or not there was an approval of the third party plans building plans never was a list of it at that hearing so even if this court were to find that we should be considered a party i don't believe those elements which require the statements to be clear deliberate concise definite when i met in the transcript itself believe that the court went too far and found too much regards finally with respect to the first point on certain status were found to be admitted for posing certain issues the approval of plans the court went on and this one of the certified questions was if the court err in not then granting the third party plans and but plans in looking at the court's memorandum of judgment from which all the surprises are expressed in defendant's exhibit four defendant third party plaintiffs exhibit four offer that hearing and no where on that exhibit and apparently nowhere and actually no where in the transcript does it talk about those plants being the plans for a prefab or modular home the reason why the junction was issued in the other case was restrictive covenants prevented or did not allow prefab home to be wrecked on the lot so even if you find everything he said regarding the plans and the process and whether you approve them more than them the court found there was no evidence on the plan on the exhibit or any statement  are pertinent concise and very well reasoned by that's the crux of the differentiation i believe that either way exists between testimonial and eviden judicial missions and testimony