you may proceed thank you your honor may please the court jeffrey platt on behalf of the poland class plaintiffs jeff roberts and john johnson there are two main issues here today the st issue is the reversal of the trial court's ts to find zimmerman for shareholder oppression and an aiding and abetting claim against time and kept the zimmerman the st issue involved a garden variety breach of fiduciary duty case the trial court acknowledged just as much in its ruling noting that quote under ordinary circumstances the action of buying a substantial amount of product to benefit a family member rather than buying at the best market price would indeed constitute a breach of duty of the corporation and that shareholders the trial cou and eighty six the parties here set up our wood loft limited which i'll refer to as our all with the defendant as the two thirds shareholder and the plaintiffs as a combined one rd shareholder when they did that and already existing business called outstanding world looks which i'll refer to as outstanding which was one hundred percent owned by plaintiffs helped defendant open i'll by loaning materials providing cash building infrastructure providing customers and setting up processes in accounting as well as providing eight hundred and fifty eight thousand one hundred dollars in inventory on an interest free basis with no personal guarantee due to the investment by outstanding in the business of all the parties agreed that outstanding could charge an inflated price for lumber that it sold out on the plain language of the one thousand nine hundred and eighty six agreement provides that all products and inventory purchased from outstanding would look shall be paid for by the instant business which our at the rate of quote best price possible close quote as determined by the current frank tax the number catalog that inflated price was referred to as the paxton price which included profit built into the price this language is clear that i will only have to purchase lumber from outstanding wood looks at the paxton price not any other company and certainly not lake city hardwood company which i'll refer to as lake city form twenty six years after this one thousand nine hundred and six agreement was entered into the only reason why outstanding could charge the paxton price was because it had made substantial investments and i'll and had an agreement with all no other individuals or entities were a party to the one thousand nine hundred and six agreement then we fast forward almost thirty years to two thousand and twelve and i'll start buying lumber from a new company called lake city lake city is owned by defendant to find zimmerman son times imerman time is also an employee of our working as a lumber manager so tom as an employe start buying lumber for all from his own company lake city and set of just purchasing lumber for allah in his job as lumber manager for our will but i wasn't buying lumber from lake city at market price i'll started paying an inflated price to lake city instead on average over twenty three percent over market price unlike outstanding lake city did not invest in our all in fact lake city is not providing anything of value at all to alan exchange for the inflated price defendant lake city as an unnecessary middleman to divert al's profits to his son tom the trial court erred when it ruled that this case did not present the ordinary circumstances of a breach to share a duty this case presented the ordinary circumstances where defendant bought substantial amounts of product from lake city at inflated price to benefit his son this was and continues to be a breach of for the sherry duty that amounted to close to eight hundred thousand dollars for just the time period of two thousand and twelve to two thousand and nineteen and evidence presented at trial to prove such a breach and damages at trial all the following things were were were proven to find it was a fiduciary defendant's tom son tom has worked at all continues to work at all as lumber manager tom's job was to purchase lumber for al the fund and was responsible for overseeing all lumber purchases including those by tom tom set up lake city as a side business with defendant's knowledge and concern tom purchased lumber for our from lake city his own company the lumber purchase from lake city was shipped directly to al from the seven vendors of lake city lake city did not do anything to modify or increase the value of the lumber in the in any way lake city had has no facility for processing or storing lumber lake city has only one customer our all and only one employee tom who works on average only five hours a week lake city does not advertise and is not on social media lake city on average charges over a twenty three percent markup on the lumber it dropship to our all lake city purchased lumber from seven vendors two of whom were already doing business directly with al there was undisputed testimony from the seven vendors of all that they could have bought directly that these facts proven at trial demonstrate the defendant greases producer duties by tetchily diverting nearly eight hundred thousand in profits to his son there was no reason to compare prices to the inflated packs of priceless in the one thousand nine hundred and six dollars agreement as only outstanding was allowed by zimmerman should be reversed and judgment entered for plaintiffs on this count with remand in the trial court for calculation of updated damages get a damages prejudgment interest in attorney's fees the nd main issue here is that the trial court erred when it dismissed  motion to dismiss when you have stated all the elements of underlying facts for each of the claims that were dismissed with prejudice therefore plans requests that the dismissal of the thirty minute complaint be reversed so the claim can be reinstated there are also a number of ancillary eviden no breach of the nikkei to a six agreement with respect outstanding being a primary supplier we never made that an issue in the case it was never a complaint that was never discussed a trial but somehow it ended up in the trial court's decision some some comments on that but  and shareholders about standing you tell me where that analysis is wrong well i think the i think the judge did rule properly that the last year was to the corporation but then she she went on to say that she thought there were some extraordinary circumstances here and the only thing and complexity of the case and she never explains what the complexity of the cases but the extraordinary circumstances can only be this application of the paxton price which you know from a pla review of the language in the agreement is just wrong i mean the language of the agreement says clearly the products and inventory purchase from outstanding shall be paid for at the best price possible as determined by pacs and it doesn't say that are would love to have to extend that price to anybody else you know from like city of the packs a price there wouldn't be any damage but that that this is just an incorrect reading of the of the of the of the contract because as you noted already your honor outstanding was not the exclusive you know  provider they were just a primary supplier and so there are already other people that were supplying lumber the only person that gets the justification of using that paxson pricing which is an inflated price that includes profit built into it is outstanding it's not lake provider yes i do believe it and that's what we called our brief the phantom contract issue we believe that the judge picked up on this and had a whole you know whole discussion of you know we didn't prove that we were the primary you know the only supplier we didn't prove the volume all these different things and it was never never part of our claim i mean our claim was simply that you know lake city doesn't get the benefit of the paxton price for her damage analysis was based on them being exclusive supplier  seven vendors of lake city all of those those vendors that they would have sold directly to our would loft at the same or lesser price that they sold the lake city and what lake city did tom zimmerman just picked up the phone and ordered lumber and as capacity as as lake city to get drop shipped to all but he up charged over twenty three percent so that's that's the problem i mean if he had sold it at the exact same price the vendors were selling could have sold it directly to our web lot then there would have been an issue but he up charged massively and he didn't add any value to it he doesn't have a storage facility he doesn't modify the lumber you know he doesn't otherwise inspect it it just comes directly to allah and then he's wearing his hat as an ol lumber manager inspecting this lumber that was dropship by lake city so this over twenty three percent of charge is completely unnecessary calls the seven vendors and says i need ten thousand board feet of each of these types a lumber ship a doll or if you picked up the phone and says hi this is tom from lake city and orders the same number it's exactly the same quality there is no quality difference say that the defendants tried to i do think you so let me ask this if johnston was sitting at all and reach down directly to the seven vendors to order these various wood products and just paid directly these vendors paxton price you could argue breach of producer duty because a business manager calling out to these people not negotiating paying the pax the price to vendors that there's no family relationship even if that was poor judgment from a management point or a business of things and one of the things that can be rebutted with is you know when the transaction cannot be attributed to any rational business purpose so if there was a clearly better price out in the market and he failed to do any due diligence to investigate it then it could still be average british area duty you can  duty in that conference i do i do believe i think there's an argument there that that transaction doesn't have a rational business purpose he has a duty to maximize profits for the company and if he's doing a poor job you know that the business judgement role in this is he's buying you know high priced you know items when he can get the exact same price exact same quality for you know twenty five percent less than yeah i would argue that's a breach producer a duty or i thin if i hear you say that you didn't believe the paxson price was relevant in these proceedings correct we filed a motion in limine a before trial district excluded we filed that again  didn't have to pay them at the paxson price he was under under no obligation so i mean the paxson prices it was completely a red herring would it be relevant for the stablish from the damages to the extent that it would be the amount of money that  city who then mark that up so you know that you know they you know that the price that was paid was just you know wasn't was grossly inflated fully to benefit the def on does it have any relevance to damages i'm not sure that you answered the question i know you said it was a red herring i don't i'm sorry go ahead the the payment of the paxson price is as i understand your argument not relevant because the price differential between the best price possible and the price that thomas charged our will is the damages correct and that's what our accounting experts from sullivan fox you know demonstrated that the price they could have paid versus and the judge even senator ruling that that that that was the measure of damages what price was paid and what price could've been paid and our expert witnesses from sullivan foxley laid out the correct measure of damages here and there spreadsheet laying out those damages it closed eight hundred thousand dollars in lost profit was admitted by that by the court and those damages are what they paid and what they could have paid and we had direct undisputed testimony from seven you know vendors all saying yeah we would have sold to them at the same or maybe even a lesser price than we sold the lake city so there was absolutely no need for this over twenty three percent of charge assuming argue endo that acts and price is irrelevant was it not still referenced by the trial court judge in i think you've argued that the judge's syllogism her rationale for ruling was wrong and it was wrong because it brought into account the paxson price as far as you're concerned the paks price has nothing of any value whatsoever in so far as whether or not there was or wasn't a breach even though the trial fortson it was correct that's correct i mean the judge said that so if that is the case then the only reason why the paxson price is relevant is because of the false logic that the trial court used correct i have no further   mr klein you have five minutes to make your argument relative to the parents of thomas stephan and kathy one proceed thank you and good morning i had the pleasure of representing stephens zimmerman also known as steve and his wife kathy throughout the entirety of this case and what i'd like to suppress stress very briefly this morning  the slow development of the facts of this case that is to say that in one thousand nine hundred and eighty six the critical business operating or business operation agreement was entered into as everybody acknowledges that's twelve or about twenty six years i will pay the paxton price two outstanding what in approximately two thousand and sixteen or seventeen the testimony was from stuff find that you started to complain about lumber quality to jeff and john and basically was told by from whomever you want know he always could but he specifically in the face of complaints father the president about resourcing or other sources for good quality lumber he reached out to a number of companies as the record shows about buying direct for  and got refusals so in two thousand and twelve he set up lake city the purpose of lake city was to get quality lumber or below the paxton price and sell it to a whole make it continued up to the date of trial to purchase from but also to lake city or even below the paxton price to lake city as well as other vendors so st approximately seven years before trial i will was buying from a number of suppliers and the result when it purchased from lake city was buying at or below the paxton price and we went to great lengths to wring the entirety of this case through deposition testimony as well as at least three motions st summary judgment only the last of which was argued to show him in the exhibits thirty nine cents the differential from paxton to the price charged by lake city and the court walt while not making any findings and we didn't ask for a finding that actually saved over two hundred and twelve thousand dollars by purchasing from lake city when compared to the paxton price but basically the court rightfully honed in on the paxton price and i think rightfully determined that whether the price was paid to outstanding or the price was paid to lake city the net result is a zero incorporated in that logic is if  to any supplier the net result would be zero given paragraph sixteen two of the stock purchase in business operations agreement exhibits thirty nine and forty illustrate the paxton praised when compared to lake city the zimmerman family relationship had repeatedly been explored during the case and repeatedly rejected by the court judge wheaton did not find that was inappropriate for time to form lake city the plaintiffs did not contend did not argue that it was a business opportunity being scouted with or misused by lake city so the relationship the familial relationship mattered zero in the court's analysis frankly and the ordinary circumstances that the court was i think hinge ing it ruling on was twofold number one the defects in the plaintiff's presentation the nd page of her honors order which is c four thousand nine hundred and eighty five volume three is replete with about a half a dozen references to what the court was trying to listen for instead she recounts that the court heard no testimony saw no evidence was an able to determine was not provided also found lacking information so that's part of the extraordinary circumstances i believe secondly the fact that there was a clearly in no way can it be said that judge wheaton finding were arbitrary or unreasonable or not based in the evidence nor that the opposite conclusions are clearly evident from this record we respect twelve when the lake is incorporated it that time they had no obligation lake it no obligation to sell to al at anything lower than the paxton price is that correct i believe that when lake city was formed by thomas zimmerman in two thousand and twelve he had a free hand to do whatever his business judgment required sell at a better price ok so when late sells to all lakes motivation is to make a profit i would say that's generally true hopefully of all corporations right and so when stephan over sees dollars and sees that al is paying an inflated price compared to vendors if it were a direct sale tell me how that's not a breach of fiduciary duty sure the testimony from from steve on that exact point was clear he knew and all of the parties agree geoff johns steve all and eighty six the benchmark they would use not only in the relationship with outstanding but really in relationship to all vendors was going to be the paxton price steve was keyed in on that constantly i will paid more than the paxton price is and a very small percentage of instances because they couldn't get the same lumber from paxton so there was about a ten thousand dollars over the course of seven years overpayment above paxton otherwise again steve's rationale in buying from lake city or anybody else was if i can pay the paxton price which is the benchmark correct that prior to lakeside with regularity purchases will be made from various vendors who love the packs and price i am not aware of th so the record doesn't tell us one way or another i don't i don't recall that it contains that that kind of an inquiry so i cannot say with certainty the record did the plaintiff documentation regarding prices paid though did disclose that the vendors in certain circumstances would have provided the same materials at a lower price than the paxton price is that fair that's the testimony was that thomas determined from his experience having worked with paxton who these suppliers were and he contacted them and had two thousand and twelve they would not sell direct to our so in order to get the quality in the product he set up lake city after the fact after the case was filed with all due respect i don't know any affiance potential sales person who wouldn't give the same testimony and say sure i'll sell to anybody and i'll sell out a better price i think that has to be discounted and i think that the court although not making a specific reference to that made no reference understanding that was the real dynamic here well isn't the whole point of outstanding for example asking for the paxton price recognizing that outstanding would be getting a little more than perhaps it would get on the open market because the relationship been providing the seed money and everything i mean isn't the point of that yes and that's implicitly recognize that the paxton price sometimes would not be the  specifically says that exhibit thirty five dollars showed the eight hundred and fifty eight thousand dollars figure that outstanding supposedly fronted in initial startup but she then goes on to say quote that figure is deceptive however because the value of the inventory was regularly paid back to outstanding would looks by our wood luft essentially the same sums were borrowed and paid several times over eventually all the sums were paid back according to the trial testimony and quote so the purpose of that relationship and the the payment of the paxton price served its purpose and for twenty six years before lake city cable lon city charged the at or below the paxton price which then i believe under the business judgment rule or any other general business concepts allowed our all to determine whether it would buy from lake city or not lake city was not exclusive i will bought and continues to buy from other suppliers that that comprise comparison dynamic is always in play but lake city only sells to one customers correct that's the record correct are you have no additional questions thank you thank you i have some questions also what may have as well since he worked at paxton benchmark records replete with the word benchmark meaning let's take a look at this and compare the activity with all suppliers all vendors all intercompany imus outstanding did not yes thomas testified he is essentially a broker and brokers in the lumber business are often nine brick and mortar entities often a laptop or a cell phone moving lumber from point a to point b they don't need overhead they don't need transportation they find supplies of lumber and get it in the hands of companies like to sell to the public so as a broker just an analogy would be of course realtor they put parties together well my point was which you didn't answer or at least and lighten me about my concern which is outstanding apparently gave eight hundred thousand dollars plus other consideration in order to get an agreement with our all that all would to status as a broker selling only to  i didn't perhaps bring myself as clear as i needed two of these seven vendors for example that gave depositions five of them for sure would have been or would be new suppliers to if thomas had and yes if thomas had for example put any one of those five businesses in touch with all the consideration is serving as a broker finding those sources hopefully with the same quality of lumber in a timely delivery manner again i think the services of a broker i know their sources isn't really relative  relevant or material if the paxton prices paid is that correct or incorrect  i think other words if the paxton price is so important what is important about getting five new sources if supposedly they could have purchased this from old sources at the p paxton price is as important as you say it is but i think it's important because the parties agreed that it is and and it's now their party student agree that it is the parties only agreed and so far as outstanding and means that the only entity that could charge that price was outstanding because there is nothing in the contract that indicates that anybody else can so how do you reconcile the the legal maxim that because i think the principle applies to paragraph sixteen point two when the parties for whatever their motivation back in eighty six used the word primary and underlined it to mean the non exclusive that that speaks as loudly as the word primary so i don't think it does prohibit anybody from using other supplier sources and for twenty six years there weren't any issues that record speaks of became an issue when thomas zimmerman formed lake city until then and frankly after then with other vendors the paxton price isn't an issue and i think just as jorgensen made it interesting comment when when she asked about well i'll leave it that well what you're saying i think is a that i'm having difficulty with simply because the fact that only outstanding is entitled to the paxton price doesn't mean that thomas is entitled to it or any other sellers are entitled to it and if the principle is that stephan is supposed to try and get the best price possible he could have breached his duties relative to getting that price or exercising his business judgment whatever with not only thomas but with every other provider other than outstanding how do you reconcile that logic you know i can't because i don't think that the pa per se is a breach of fiduciary duty and that's essentially what's argued in the reply brief of the plaintiffs and to two to say that i think is a bridge too far it's a big player in the market all of the market forces go into making decisions and to say across the board that buying at the paxton price is somehow violates a business judgment rule i just i just it doesn't necessarily because the paxson price may or may not be the lowest price available for rect the packs in price may or may not be the lowest price of bailable i would agree with that ok but if it business that thomas purchased from that stephan was aware of would have been a breach of fiduciary duty would it not well i except for the fact that stefan as president of the company isn't micromanaging in a way that i think the plaintiffs want to suggest  are you know so many factors going into running a business that stefan testify and he had to rely on his managers sub managers to make certain of these decisions he's not looking at every single invoice  at least that was the testimony so why would stefan if the only provider his company is required to purchase at the pax and price is outstanding why would it him stephan agree to or impose the paxton price with other vendors with whom he has not received consideration and who supposedly are offering both a pax in price and possibly below again i think consideration that we talked about in terms of the broker relationship is evident is apparent in the relationship i'm putting parties together is valuable that's consideration paxton price was paid or below and came up with a conclusion that they used that i'll save over two hundred and twelve thousand dollars by purchasing from lake city assuming argue endo that there was a breach of duty what is the amount of damages that the owl should pay the plaintiffs based upon know the lowest price because you keep saying the paxson price or below and the point is that statement implicitly means that there is in fact a price below the p price does it not a good if paxton didn't have it in stock or packs to didn't have a comparable number i will bought it from from lake city i believe the answer was or below what would otherwise have been the paxton price so is there always going to be potentially a better price or potentially a higher price than paxton i think we would all have to say that's what the market would he didn't do anything other than order the goods what quid pro quo transpired between imus and pow well i understand that metaphor and i know lincoln often used it as well i still think there's a quid pro quo in brokering so i think lincoln used to five use the argument that if hailed as a leg how man is proceed with your answer please again i don't discount the value of brokerage services in this industry i understand that market prices are going to potentially be higher or lower percentages of total purchases high or low percentages from all all vendors that's a failure of the plate of to make its case and i think that the court rightfully found the plaintiff failed to meet meet claim that was raised against imus relative to aiding and abetting if he aid or abet by actually providing would of at to owl as its sole customer and charging a price higher than what supposedly providers have indicated they might have sold the same goods at a lower price well thomas and lake city are not my client your honor i would defer if you don't mind an answer be given by his come say that's right it's mr  specify the judgment purport their on the field from you know from g m c versus papa that the notice of appeal confers jurisdiction only on the parts of the judgment specified and we know from the notice of appeal filed here and that the judgments on an underlying four and that aiding and abetting claim rises and falls with the underlying force that's also implicit in the elements of the claim of the when it decided to johnson versus filler in the brief for the elements of the binding and those cla include a requirement of having an underlying principle violation we see an element y of that time unlike city must as a today defended that performed a wrongful act was an injury element to that the defendant was generally aware of their role as a part of the forces sox sympathy and in elementary the defendant knowingly in san substantially assisted the principle violation was also embedded in the elements of the claim that you need that underlying principle violation plaintiffs don't really address the elements of the claim today they they just kind of said well we established all of the elements but they don't they don't say half and they don't really in the brief five in the brief as the element one they say they so based on that the aiding and abetting claims of the dismissal of that must stand now the remaining arguments they have are about what discovery or testimony they'd be entitled to and the dismissal is reverse but they don't address the case law on why they met the specificity requirements of an offer of proof or anything like that and their arguments about needing lake city's financial records on tax deductions goes against their own position today they i do not have any questions thank you thank you justice brennan do you have any questions it relates to that i do not have any questions eith you i believe i'll ask the question of the attached as pardon me mr kline you're claiming that the aiding and abetting count correct your honor and more specifically the fact that it's not being appealed so it can't be reversed at this point welp assuming that you're correct that seems to make some logical determination that there are extenuating circumstances and that there was in fact a breach of duty by steffen that his son your client isn't also liable by aiding and abetting is failure to seek the best price of bailable understood well and as earl a tz to that portion of the client the allegation at the time was that do you have a conflict of interest under section point sixty of the business corporations and the argument from the plane to us was that that conflict of interest was due to the family relationship that created a duty for steve's government to disclose to the point of the proposed transaction of the lake city and steve's family connection to lake city and the business purpose of conducting business with or through lake city bank the bank to fail to plead the defendant banks and substantially assisted with the underlying embezzlement and larceny and instead of plaid that the defendant is assistant in operating in a separate business it's a very similar seek the best price not the failure to disclose what he was doing so would you address whether or not it's relevant material or if there's any valid defense to the argument that he wasn't aiding and abetting  in failing to seek the best price for the purchase of goods from places other than your client's business well in a so if he goes up there knowing packs the price in my mind is what we've all agreed of the best price possible and then tom zimmerman helps him get i'm sorry who is we who is we who who are you referring to when you say we are in agreement that the paxson price is the best price possible because if we are all in agreement then i don't understand why this case was even brought because i thought the argument the plaintiffs were making was the paxson price wasn't the best price possible and that's evidenced by the amount of profits that thomas business made when it bought at a price and sold at a higher price to stephan and our so who is we in the when i say we i mean the shareholders one hundred dollars into the charter of the shareholder agreement where the corporation where does it say anything other than in so far as outstanding is concerned that other providers will get the same privilege and right to sell to stephan at the paxson price it doesn't say that but it certainly doesn't say they don't have to so it's not price that's true but if they don't get to sell at that price that would be at least consistent with the concept that a director and managing shot stock holder is seeking the most profit available is is that not correct is that not consistent with the idea or the principle that in a capitalistic society that profits are very important as opposed to merely abiding by an agreement with a party that you're going to accept less than the best price possible i think you're correct that it is an important part of the consideration but it certainly isn't the only part of the consideration your honor businesses are relationships than blood or affiliation so you're kind of under mining your argument when you're saying what you're saying that relationships are very important when time is the son of stephan and cathy so you know it that argument isn't working with me as far as relationships are concerned the panel might septa but i don't so i have no further questions are there any other questions from the panel i have no additional questions thank you nor do i thank you thank you thank you sir thank you  have the opportunity to make proposals thank you your honor i personally want to try to get through all these different things mr klein's argument that tom zimmerman you know needed to somehow act as a broker for lake city and he's working on a boat broker's role that was his job and are with law he was the lumber manager that was his job was to find vendors to buy lumber from so he didn't need to set up a site company to do his own job timber products and to back industries and then he readily admitted this is that record for three thousand three hundred and thirty four he never purchased from those sawmill instead he purchased from the seven vendors who all gave undisputed evidence suppositions that said they would have sold all of the same or lesser price and in fact already two dollars of those vendors were already selling to alt so this idea that oh he's a he's a broker and this is what brokers do it doesn't fly that was his job as a lumber manager mr klein also mentioned there paxton price analysis that the fund is to find zimmerman put in and you know we've demonstrated in our brief and the defendants did nothing in their reply to say anything other than well it's an abuse of discretion standard or you know clearly erroneous standard the defendant's purported analysis doesn't even use the paxton price it uses vendors like rain or blue links alexandria source then when they did their analysis we went through you know number of examples where they didn't use comparable volumes you know when you're comparing a purchase at four thousand dollars units versus five hundred dollars units the defendant admitted that you know the volume you know makes the price jump you know larger volume to get a better price so the volume was really been cracked then you know there's a number of instances where he didn't even use the actual product or similar products and then the defendant even admitted there were a number of numbers from checks and various invoices in his report that were inaccurate that you know even if somehow we get to magically say that lake city formed twenty six years later after the ninety six dollars agreement gets to use the paxton price they didn't even demonstrate that it was sold at or  k you know there was mr klein also claim that steve knew that the benchmark was the paxton price you know and that everybody knew that was the benchmark and somehow that that means that's the price to look at for trying to get the best price out there in the market they never cite to the record for any of that so i have no idea where that comes from and that was certainly not the testimony of the two plaintiffs here mr kline also made some comment about the judge saying well the in one hundred and fifty eight you know one thousand in inventory you know it was all paid back and she doesn't bother to mention that it was interest free without a personal guarantee but he also completely ignores all the other things that outstanding did they bought they loaned the materials they provided cash they built infrastructure they provided customers set up the processes in accounting so  addition to the you know the inventory which was the only thing the judge mentioned there was a lots of other consideration that was provided and then mr klein made a comment about the percentage of purchases wasn't demonstrated you know as a number of the justices appointed the not appealing the count for breach producer duty in the thirty minute complaint it could not have been appealed from it wasn't dismissed with prejudice and you know it and he doesn't say how it's any different than the claim that went to trial so there is a where the court doesn't think it's well pled we should have at least got an opportunity to repeat it it was the st time that this cause of action was planted as far as the financial records we tried to make an offer of proof and they those were you know accepted the financial records are relevant for lake city and the e mails you know and you know and all the other documents that were asked for because one of the things that we're that we intend to show with the aiding abetting is that lake city is a sham company so you know showing that it only has one customer showing that it only has one employee showing that they have numerous purported deductions of their tax return which are just false is all part of showing that that it's a sham and  well that yeah that's what we were just discussing this missile of one of the british are duty what was without prejudice so we didn't have an ability to appeal from that it wasn't a final judgment what is your response to the argument the trial court were to be affirmed that you would have no cause of action because you can't aid and abet someone that hasn't done something well i mean there was also two in the the rd man a complaint there was two additional claims that we've appealed for under twelve dollars for shareholder oppression so the aiding abetting could attach on to those claims assuming they're you know that those are reversed and we're allowed to reinstate those so there would be there would be a separate basis aside from the breach breach of a dictionary duty thank you i have no brother question so the panel have any other questions