identical in both cases because i compared them you characterize your client as a statutory trust otherwise known as a massachusetts trust and you call that an expression expressed business and it is not registered as i understand it and you correct me if i'm wrong it's not registered as a massachusetts trust in washington and it's not registered as a massachusetts trust in montana am i correct about that in the us now where you get the part i was going to quote mr roach yes your honor i represent the trustee of what we titled all the resources i understand that mr rove what i'm trying to understand from you and from the record is this you you you say you're fighting in the alternative if you're playing in the alternative that that's one thing but we need to understand i need to whom did you make these assignments you've said you did it to the trust i believe that you also make an assignment to the corporation for the benefit of the investors if that's the way the court determines the relationship from looking at the documents if in the terms that relationship is a trust relationship then the trustee is suing in his own name  about the nature of this answer which it referred to based upon what you told it as a massachusetts business trustee specifically asked whether it was legally existing in washington and whether it was  and we think that this relationship shares almost characteristics and it's a legitimate way to refer to that relationship and it's legitimate for the trustee in that relationship to pursue the interests of the investors in its own name f documents and i think it's very important to not judge that in that relationship let me close investment owns in its own name all of the assets and the promissary now is to olympic house the trust and an there was no reference whatsoever in any of those documents to beneficiaries or folks that might have an interest it was all in love because naming some of the dot underlying documents had a duty to ensure that it acted always in those investors our main issue we want to address here by referring to my client's question to me and the idea is how is it that i can be sued by a party that doesn't exist and that's the question i'd like to address here because it is our position that all along throughout this protracted litigation there is no express business trust as a matter of law but there is a corporate entity or i need over its investors and i would like to address that your honor because that's where i believe there is a lot of confusion in these planes because the complaint read then we get back to the original point is if there's no express business trust as a matter of law there are no beneficiaries of that business trusts are no trustees of that there's mistrust and so you look at the complaint there's two cause of action one who breach of contract the damages are who's been damaged the trust the business trust and the beneficiaries under negligence for professional negligence who have been damaged the trust and the beneficiaries those are the parties true that he pleaded again said fisher pointed out it's a corporation one of the parties in it and it says in the pleading that it suited individually and in its trustee whatever that whether there was a trustee capacity individual capacity does that not under rule eight state a plane or a cause of action yes your honor but in turn the party has has waived any claim to damages again we're not we're not talking about success on this we're just talking as a matter of pleading which we have to liberally construed so you do agree that however of the whole business trust because olympic is not asserting a cause of action it's in a representative capacity you know if you're going to what the ultimate result would be you have an entity that doesn't exist or certainly not qualified to plead in the court but you do have one that does exist and it's one of the parties to the complaint and under rule eight it complete in the alternative it may never ever be able to prove that but for purposes of the complaint i gather you are agreeing that it does state in the alternative a cause of action that a limp the coast investment bank is bringing claims it's our position that alone because invest money is brain claims in a representative capacity on behalf n pleading honest me on half claiming that it's damaged it contracted with my client it has a breach of contract claim it has a negligence claim there's no mention of a business trust there's no mention of investors or and that's though as the court made clear and it's summary judgment hearing this is the party that lacks the past it's the business trust you claim to be a trustee of and it's not authorised to do business in corporation is no longer your honor as alex made a point they registered themselves the corporation to do business as such in montana and i believe in april of two thousand and they conceded that this is the party this is who are represent and it's really only on appeal that they're trying to with it find some wiggle room in arguing well it's actually this corporation as well even though we are representing the claims of a business trust and we really don't have damages ourselves they tried it once before my client is now you know has the second summary judgment has litigated this twice now and the first case really young fairness of the way things turned out in the pleadings i think sometimes but again we're not talking about the underlying case what will happen in the underlying cases some whatever the i'm afraid but for purposes of pleading only as jeff fisher pointed out and as i pointed out earlier if the reality is they played a cause of action here you see any remedy other than are sending it back to the district court with the instruction that to as a as a corporation only they can perceive they can switch back and forth now they can claim with the business trust and the facts whatever they maybe are going to follow what the corporation did not what a business trust do you agree with that no your honor because i think this party has as set forth in this record has stated completely opposite positions on virtually this is a as we indicated in our in in the district court there's a huge jurisdictional question that i believe that's why this business trust was theory was raised to begin with allegation that the interests have been assigned but mr sample doesn't contest that and the reason he doesn't contest that is because we provided him the assignments and discovery and those assignments have been made and the corporation has been assigned whatever claims that investors may or may not have and the company that we have yes understanding the relationship between because and its investors and purpose for the way we played it was to ensure that if it's a trust relationship then that is covered and if it's not whatever the court below might determine if it determines it's not a trust relationship and these assignments are just from one individual to another individual or for at the time and that is a trust relationship you need to invent this place have been damaged that capacity on behalf of the investors well it doesn't have any underlying interest in the case except its promise to perform on their behalf and pursue their interests on the best documents that seems like a trust