among siblings over the proper disposition of assets and ministered by their parents the states and their fathers trust decades ago after resolving every last contested fact issue itself the district court entered a five hundred eighty four million dollars judgment against the defendants essentially giving plaintiffs everything they asked for including damages in the amount of distributions that their own children had received retained we believe that judgment is legally fought in the respects before you here this morning i'd like to focus on three aspects in which the district court err number one as a threshold matter most or all of the plaintiffs claims are barred by the probate exception to federal jurisdiction and the kentucky statute of limitations number two even accepting all of the district court's liability fund in the district courts five hundred eighty four million dollars judgment is grossly excessive and legally fall flawed and number three at a bare minimum defendants were entitled to present their defense and their arguments to a jury because as the plaintiffs explicitly just stated below and as the judge makes clear plaintiff sought and received the paradigm of legal relief money damages now beginning with the probate exception this court's decision in wise carver vs more makes clear that we are cl focused on a property that was disposed of as part of a probate a probated estate they're off limits for purposes of federal court jurisdiction and here i'd like to point you to a couple of documents in the record that make clear that with respect to the stock and property that flowed through the estates those properties were axed absolutely disposed of as part of the estates in the kentucky courts first i would point you to the one nine hundred eighty seven interim settlement of rose ellen griffin's estate that's document four thirty thirty nine at page one nine nine five one and second i would point you to the one nine hundred ninety eight settlement for john l griffin's estate  record document seven six two zero seven page nineteen and what those documents will show you for example taking the one thousand nine hundred seven settlement they'll show you that the specific assets at issue hundred seven the sale of the griffin industries stock from rose rose ellen griffin's estate were squarely before the probate court those those assets were part of the race in the estate the sales were approved by the probate court in fact the document i gave you will specifically list the sales the proceeds of those sales went into the estate the estate was dispersed it was approved by the kentucky courts and for that reason we think the claims challenging the stock that went through the estates and the real property that went through john o griffin's estate in the probate process before the probate court concerning  know the central objection that the plaintiffs make before this court is that we're not seeking the race the assets and selves we're seeking damages for the assets and this court's decision and wise carver versus more squarely resolves that argument in fact why is cover is exactly on all fours with this case involved in the state there was probate in kentucky involved is dispute among family members claiming that the executors of this the estate essentially duped an older man into reed disposing his assets the plaintiffs came to court seeking claims for breach of fiduciary duty and damages and this court said you can't do that under the probate exception because allowing plaintiffs to recover damages in the amount of the assets they were probated in kentucky courts would be tantamount to setting aside the estate i mean that's what the court said on pages seven fifty seven fifty one and also one of its decision it's squarely on point now there were some claims in w coverage that dealt with interview those transfers transfers made during the dissidents lives and the court said that those claims were not within the probate exception but with respect to the claims that targeted assets that had already been probated by the trust and the argument with respect to that property is different but it also falls within the probate exception and the reason why it falls within the probate exception is because one of the things this court made clear and wise cover as well is that the federal courts cannot hear challenges to the validity of a person's will the federal courts can't and the will but with respect to the transfers from john l griffin's trust that's exactly what plaintiffs had asked the district court to do and what the district court in fact with the probate court having no idea of what was really happening with regard to the sales and the transfers in terms of how the brothers were actually behaving well in those arguments they could have and should have presented to the  they didn't know and arguments it's not a court the federal courts are open to entertain these claims their arguments it could have been made to the probate court as it turned out betsy did seek to file claims in the probate court if i could shift to the statue imitation because i have a very brief period here today one that the central problem with the district court's ruling is that the district court applied an actual notice standard to hold that these claims of which clearly the plaintiffs should have known of them could be brought decision but i guess but before you get that if where you're headed here is the should have known yeah as opposed to actual knowledge that's completely dependent upon factual findings made by the district court it seems to me you're saying that the sisters should have known because and the district court found that they shouldn't have known sort of because how would they have and so so this isn't the question is the district court clearly in error in finding that they wouldn't have known it that there wasn't any way that they would have known to apply should have known standard seven four eight to eighty five and there are the court was applying a reasonable diligence standard for purposes of considering its rico and common law claims and the court found that because they knew that betsy osborne had filed suit in one nine claims against her brother before because they could have received the complaint in that case and because the complaint in that case made the same exact allegations that the sisters were bringing in decades later with respect to the growth in industry stock of course they the statue of limitations doesn't begin to run them to the victim actual no you're right your honor and that's that's a legal ruling that the court made about the standard in the reason why that's wrong is as the panel this court recognized in the ham case as the honor but it's important to recognize what those cases to what they say is that when it comes to whether the concealment has to be active or passive if there's a fiduciary relationship then passive concealment counts as concealment for purposes of the statute you don't have to show that the defendants actively sought to mislead you but whether it's active or passive concealment that triggers a tolling provision the reasonable diligence standard still applies every plane is still has an obligation to exercise reasonable diligence that's what judge white said in her through opinion for the panel on the hand decision it's what the emberton case the recent case from the kentucky supreme court says in going through the it makes clear that no matter what is the basis for concealment the plane of still has an obligation to record exercise reasonable diligence and once the plaintiff should have known then there's no longer any concealment that can told that's that's on page six fourteen of the panel decision and ham now this court had any doubt about what the kentucky law is on this then we would ask you to certify this question to the kentucky supreme court because either we are right that the of become deceased already i mean the longer this goes on they don't get the benefit of being married and your honor one of the sisters underscoring that they should have known about it one of the sisters part sued for the very same allegations with respect to the gr industry stock in one thousand nine hundred eighty and the question is whether the kentucky statue of the taisha is would have allowed the other sisters to avoided decades to bring the very same claims if i could just make two brief remarks about us or you may there's been a request from one member of the panel to give you some additional time because this is a mess and so let's set the clock for another five minutes if you would thank you very much your honor i'd like to make two quick points about the jury trial and the clear now that the plaintiffs argued and the district court found that they weren't seeking legal relief because all they were seeking was restitution and it's clear however that that's not what they were seeking the supreme court's decision in the great west a new t case discusses the distinction between restitution and restitution at law which is a legal form of remedy and equitable in order for there to be equitable restitution you have to show that the to recover the particular problem property or proceeds that was the subject of the wrongdoing from the defendants and here we know that plaintiffs were trying to do that because they sued defendants not only for damages in the amount of assets that the defendants received some of the some of the stock at issue but also for sales that went to third parties including the plaintiff's own children including other brothers who are defendants in the case and other grandchildren so in other words plaintiffs are seeking to recover and they did not recover property actually in the proces property actually in the possession of the defendants or proceeds from the sale of the property that were in the possession of the defendants they're seeking to hold defendants liable for everything regardless of who received the stock and who benefited from it characterized it as an action for discord well that's right but you still have to look to the nature of the relief sought and this is what the great white west life annuity case makes clear the supreme court case and i also  you to the second circuit's decision in the pereira case which we cite in our brief which is squarely on point and holds that duty claims of the same type seeking the same type of relief dig trigger the jury trial right and initially the district court in this case parts that missing that the part that's missing though is its property or proceeds a particular property or proceeds from the wrongdoing in the defendant's possession that's an equitable action the defendant's so the stock they receive a benefit of it and we want either the stock or the benefit back that's not with the plan of state here because they're also seeking to recover from defendants and did actually recover from defendants for sales to third parties including sales to pla children received griffin industries stock they're holding on to griffin industries stock but part of the damages award requires defendants today to pay plaintiffs for the amount of their stock that their plan is that their children has and that with you on that point i made the case well that the trouble there was about two three weeks i believe your honor and this was of fundamental fairness because if you look at that the district court obviously made finding many findings against that we recognize that but meeting that they were going to sell griffin industry stocks to the working sones it also goes to the validity of john l griffin's statement in his own will that the way he wanted to dispose of his property was to give the stock to the sons who  working in the company and to give a million dollars or as it turned out a million dollars to the dollars now that may look unfair today but that's only because of the sale that occurred in two thousand and ten of the company as a result of the of the sons very hard earned efforts in building the company into a powerhouse at the time the john l griffin made those sworn statements he was seventy two years old and essentially the way he divided up his estate stock to the to the sons property to the daughters was  not only did not find that he was incompetent to make that sworn statement it made clear in his post judgment that it was not making an income that seemed fine and that makes sense because sure they point to some things in the record about his competence but there was other evidence in the record and why are you saying that at the time that when he was seventy two which by the way is very old i don't know but i'd just say that has a point of personal preference but you say at the time he did that seventy two is perfect he was seventy two is perfectly fair right and then things changed remarkably and in a situation where he was really not able to do anything about it if he had thought it was no longer fear he had passed away and i told her we had passed away yet but i well i understand that he couldn't even talk anymore no your honor he was able to communicate  had been evaluated by other doctors he was separately represented in the one nine hundred ninety litigation brought by betsy osborn he was evaluated by that he was determined to be competent there is another side his company just because some seventy two and has a stroke and has difficulty communicating doesn't mean they've lost their mental faculties and he had repeatedly said and i would point you to some pages to forty four of two forty four of the appendix in this case where he said he approved that sale this is how he's changing his will and he changes will so the property w something saying that they would get almost well he signed it your honor we believe he was competent to do so but that's the plaintiff's argument now if it's the case that he was competent to sign it and he has he repeatedly stated he wanted the stock to go right but if you press him on the question of whether or not he was competent to do it and get him the district court made no finding that he was not competent to do it then the case basically goes away the district court try to get around that by saying well he didn't have the facts to ratify it well that can't be right and you know i would love for an opportunity for that to happen i think you know the last point that i would make goes to damages and if i can just make three quick points and then i promise it'll be a lesson even if it doesn't provide that opportunity well efforts have been made your honor i mean frankly positions are so hard in this point i think without action by the court it's unlikely but certainly i mean i think it's fair to say that if the court for any of the errors that they would have to both sides would have to take a serious look at that now with respect to the damages let's assume that the stench limitations doesn't apply all the liability findings and factual findings are left in place look at the damages five hundred eighty four million dollars two hundred seventy five million dollars of that is prejudgment interest calculating calculated at the highest possible rate eight percent and compound essentially giving plain as a massive windfall as a result of the fact that they waited decades to bring a suit the district court found again in the summary judgment motion they should have known of and that betsy osborne actually did litigate decades earlier now secondly with respect to one part of the judgment it's clearly can't be right and that's the plaintiff's recovery for assets that their own children and other third parties received again part of the judgments more than forty million dollars allows plaintiffs to recover from defendants for the amount of stock that their own children and the other grandchildren actually received in sales that they approved now that can't possibly be right and in fact there's a kentucky case on point the edwards versus lee administrator's case which makes clear that and even if you are seeking that you can only get discourse mint of assets the defendant himself has if you want to go after third parties you can go after third parties but of course plaintiffs that want to sue their own children to get that money back so that has to be wrong secondly now this is a this is a technical issue but with respect to the distributions that the company made as an s corporation that the district court allowed to recover to try to make it as simple as possible the company when it was in existence would make distributions to the shareholders of the shareholders would take that those distributions and pay it to the iraq mess because that's the way and s corp works and so they have them own money only for purposes of pain it to the i r s but what the the judgment in this case did w to say well that doesn't matter we're going to allow plaintiffs to cover recover all of those distributions even though plaintiffs today have no obligation to pay that money as back to the iraq as the defendants initially did and so that the district court refused to take into account the s corp status at all and calculated in the judgment and this in itself was a massive error that inflated the damages award damages that goes to the question  damages your honor and the district even prevented us from putting on evidence of the amount of this harm and that's clear in the district court's record where it said i'm not going to have hear anything about good morning and may it please the court my name is ken wicker i represent the hope plaintiffs linda hold judy pruitt and cindy rader i will take nine minutes of our time and my co counsel will take the remainder as this court i'm sure has has  become aware there is an ample record in this case and there that includes one hundred three pages of very careful factual findings by the district court including the findings that the defendants engaged in self dealing in the assets of the state and trust and they've struck to the plaintiff's ability to bring their claims by lying to the plaintiffs in failing to disclose to them what they were duty bound to tell them there are a number of issues in the case i want to start with the statute of limitations issue and address the questions about the intersection of adams the kentucky supreme court case and security trust and the other cases that that talk about actual notice and talk about why actually is the standard when there is a fiduciary relationship anam says a malpractise case of course and adams does not purport to over rule security trust case the case that told us from this kentucky high court that when there was a fiduciary relationship between a beneficiary and a trustee or other for the you don't look to whether the beneficiary knew or should have known because the beneficiary is entitled to trust the fiduciary to tell the beneficiary what she needs to know to bring her claim and adams doesn't overrule security trust in fact and it's followed by cases like le master and monday and boon all of which follow the security trust to hold a beneficiary in a for the relationship doesn't have to use any due diligence to investigate the claim and adams comes out the same way it doesn't actually the skullduggery here according to your submission by members of the family as distinguished from someone else it was there were affirmative misstatements by by dentists and by john the two remaining individual defendants in this was family members one to the other that's right your honest statement of his representation that's right they were assisted by their by their counsel we would we would contend but that issues not before the court what what the district court found was that the for the areas who were dennis and john m had an obligation to tell the beneficiaries the facts of what they were doing that they were self dealing in the estate to their great detriment and until the beneficiaries receive that actual notice they were under no obligation to to bring their claims or in the mother were not involved in any of that it was only the brother rather that that's exactly right was after she died in one thousand nine hundred eighty five when the brothers made the self dealing transactions in the stock which had always been divided equally among the children before mr griffen had a stroke and and the findings about that as well because at that time the the hope plaintiffs were nominal plaintiffs in the in the suit that betsy brought nominal plaintiffs on a derivative claim but they were never served with the complaint that the judge found that they didn't know that they were plaintiffs they were not represented they never participated in any of court proceedings and in fact the defendants affirmatively told them miss tatements lies fraudulent statements about the nature of the case about how the case was resolved with betsy and those facts they relied on and they were entitled to rely on them because they were statute running all he has to do is tell the truth and then we don't have a nice issues about the lapse of time i also want to touch on there was a sort of a family situation there that the sisters my suspected that they were being treated right because of the brother's own position in the family well the district court certainly found that the that the brothers breached this fiduciary obligation that they had to their sisters but he also made extensive findings about why they were so successful in fooling their sisters for so long it was a very close knit family denis and johnny and griffin were the two oldest brothers after the parents became incapacitated they kind of took over as family patriarch's  the problem and gave a suit is that correct that's right your honor betsy was a sister who lived away from the other sisters she was off working and living in a different city and she brought an action in one thousand nine hundred ninety when she did she was ostracized from the family and dennis and john m griffin told my clients  that she was just greedy she was just mad because her children had gotten stuck and my clients believed them and relied on what they're for do sherry's had told them about why betsy does not sufficient put the sisters on notice that they better get killed and lawyers and look into this very carefully that's not sufficient to meet at least cause them to exercise due diligence for them in their own psych's not when the fiduciary is a part are telling the sisters my clients not to believe betsy not to  take any action to find out what rights they have what kentucky law says is that you have a right to believe your food to sherry and if something comes up that causes alarm or concern in your foo she says oh don't worry about that and here's why she's greedy or she's wrong or she's crazy you or she's not trustworthy if you're in a food you shiri relationship you are entitled to believe your food is sherry and there is no court that requires you to go outside of that for this year relationship to do some kind of investigation on your own what extent during those years the betsy i was born soon early years to what extent were the other sisters asking any questions regarding seeing the will seeing paperwork seeing any of that kind of stuff were they doing anything like that alas or that in two ways your honor they weren't asking betsy nonono i mean asking the brothers if they asked the brothers what's this case about and the brother said well i can't tell you the details because there's a confidentiality agreement but i'll just tell you that the case is is has no merit it's just brought because that's he's greedy and they believe them they believe them that the case was confidential so they didn't need to go to the court house and look things up they believe them that the case was brought for bad motives and and for frivolous motives just because their sister who was ostracized from the rest of the family had her own agenda and the kentucky law was the cause of  a problem it was because she brought the lawsuit your honor and when she was as hard for humans back before then because you know for many people it would have put the sisters on notice well we better are a lawyer or an accountant or somebody and see if there's anything to this but she was certainly already apart from the rest of the family because all the rest of the family never lived in the northern kentucky area and what the judge says i think very very cogently and it's on page four of his findings of fact is that the brothers engaged in this kind of manipulation of the sisters so that he would drive a wedge between them and prevent them prevent the hope planes from finding out what they need to know the kentucky law doesn't put any other obligation on the beneficiaries other than asking let me talk about the case the great western great american versus nuts in that the defendants rely on here now it's in was not a case about jury trials it was about whether a certain type of equitable remedy could have been recovered under  risk and it didn't change the court's supreme court's jurisprudence on the test for when the seventh amendment applies you look to that answer to that question by looking to history what was the state of affairs in seven ninety one at the time of the ratification of the seventh amendment with a claim like this one for this type of remedy have been brought in the law courts or been brought in the equity courts and the answer to that is very clear i think from the six circuit cases most of them relying on teamsters versus terry the supreme court case where the supreme court looked to equity treatises like story the restatement and other and and decided that a breach of trust case which is what this would have been called at the time for a remedy of disgorgement giving up the unlawful profits that the trustees made would have to have been brought in a court of equity and look at history development couldn't it have been brought in either chancery or law depending on the theory and depending on whether the plaintiffs was seeking damages or seeking the restoration race or a set of assets could have been brought in either place but what teams versus terry says is that an action are quote an action by a trust beneficiary against a trustee for breach of fiduciary duty and then the quote goes on to say such actions were within the exclusive jurisdiction of courts of equity so that's what the supreme court has said about the time this type of remedy and i disagree that the courts of equity are so  limited in their ability that they're limited to a particular race that's in the possession of a particular defendant particular time the whole reason for courts of equity of jazz record did not normally award damages did you know it didn't iran or but it had the authority to do it i mean and that what we've got here damages in the amount of five hundred eighty four million dollars when you add it all up well what what knutsen would say about this your honor i did it and it talks about this in the in the footnote number two of the nuts and opinion is that what we really have is an accounting for profits  the award that the judge made here that the disgorgement award is calculated by an accounting of the profits that came to the defendants on account of the stock that should have gone to two sisters in the initial stages so what the judge is just ordering them to do is to give up those profits that it that they made unlawfully and the equity courts had enough authority to do that as part of their attempt to do equity at their attempt to give complete and total relief and that's completely consistent with the historical practices at the time and the other point i want to make about about the jury trial issue is that whether you view this as a law case or an equity case even if judge bertelsmann had impanel the jury at the beginning of the case he wouldn't have needed them at the end all of the merits issues the the issues about whether there was a breach of duty were decided on summary judgment all of the issues about actual knowledge the actual knowledge standard is a legal issue that the judge has decided and there was no contrary testimony there was no testimony that they had actual knowledge of the self dealing transactions here equitable defenses would have been decided by the judge or stand that no knowledge even though the sister had sued on the same basic theory you know there was a division and the brothers misled the sisters but one of the sisters did sue how could they have no knowledge that this accusation and this possibility was present they never saw the complaint they were never served with a complaint and were never told what the allegations of the complaint were in fact they were told false information about what there was a loss and they knew there was a lawsuit that's that's true i didn't have enough inquiry i had to go try to find that while they did inquiry or are they inquired of the people that they trusted more than anyone in the world their brothers and that's what beneficiary relationship was all about and kentucky law allows beneficiaries to trust their for the shares i just want to take another moment of my time unreasonable about the amount of the remedy it is a large amount no question about that but it is a large amount because the defendants took a large amount and they kept it and hid the reason that they had it for a very long time so that's the reason that they were compelled to disgorge their profits and the discordant remedy includes profits that they cause to go to third parties that a traditional please the court counsel ladies and gentleman my name's janet cooper wittes and i represent the apple e betsy oz born and as mr whitaker noted in his argument betsy and her sisters were lie to and misled by their brothers dennis and john m griffin who is also known as griffey in connection with the handling of their father's estate and trust in one nine hundred ninety five now betty's claims are s with respect to the one nine hundred ninety five her her father's estate and trust and when mr wicker mentioned the family dynamics played a tremendous role in this case  these as the court found in his extensive findings listening to all of the siblings the children had been the younger children had been raised to respect and trust their older siblings and dennis and griffey were two of the oldest sibling so they'd also been raised in a family where it was very traditional where the daughters were to take care of the family and appearance and the sons were to go and do the work but at the end of the day the parents in their estate plans made sure that when the mother died it would go to her eleven children then living and when the father died he wanted it to go to his five daughters the court on page four of its findings and this is what is so telling about the facts in this case he said the record of this case reveals a pattern spanning decades of the brothers exercising their authority over their sisters by sharing information selectively leveraging their roles to discourage and sometimes intimidate the sisters from seeking information or from questioning their brother's decisions by pitting one sister against the other and by staunchly insisting that their actions were in keeping with their brother's wishes even in the face of the documents that reflected to the contrary so when you're looking at this case you have to when you review these findings by the trial court of the family dynamics that played a great role in how this played out and why the sisters and betsy included would not have been asking questions that you would otherwise think because they were talking to their brothers and this is how they had been raised to trust those brothers but what happened is dennis and griffey as f s with respect to the father's state he had a duty to disclose all of the material facts with respect to the father's will and trust and to tell the sisters and put them on notice if they breach their trust and as the court found they breached it in two ways they breached it in terms of not telling them that their father had left them these properties these assets that were to be divided amongst the daughters five ways they didn't advise them that their father even owned stock in a subsidiary called preg craig protein they didn't tell the sister to betsy that they also that they had five pieces of real estate that were very valuable to griffin industries and they wanted to keep control of it so even though the father said i want the property to go to my five daughters the brothers instead decided well we're going to convey it to our brothers or will create a sham corporation called mark tom and we're going to keep it out of the hands of the sisters so the court said first they had the they had a duty to disclose all material facts they didn't they had a duty to tell these beneficiaries that in fact they were going to to have a right to this property or they could choose cash but they were not given that right and last they had an obligation to tell about their self dealing because the sisters were never told that in fact these properties had been conveyed to mark tom this sham corporation that would keep control and lease back the properties and they had never been control told about the stock going to marty and tommy so with the family dynamics with this type of concealment the court held that this the sisters including betsy had been treated wrongly and taken advantage of by their brothers and the fact that the sisters didn't ferret out the fraud of their brothers they didn't have the onus to do that it was the brothers who were supposed to reveal it to him to tell them and then they would have taken the necessary steps so the district court properly held that the claims were told intil betsy and his sisters became aware of them in two thousand and ten there was some discussion earlier about the probate exception and with respect to the probate exception none of the assets in the court's judgment were part of the probate court if they weren't dispersed in either of the parents a states they were the unlawful profits that were made by the defendants in this case that war and that should have gone to the plaintiffs that were  this lawsuit is about so it's really a red herring with respect to the probate exception it's a very limited exception and the plaintiffs in this case never challenge the will they never asked for any of the race that had been part of the probate court so the probate court was found by the district court not to be a political and that was an appropriate inconsistency well your honor let me oh you know obviously if you're in probate court you don't in kentucky you don't get a jury trial either so agree right and so the question is whether  exemption applies and that has us ever theories about and having to do having to do with whether there is a kind of a race or a state as being dealt with as in the in the question is one of whether there is an equitable state or race or something that you would say is purely equitable just seems to me there's a kind of inconsistency in saying that the probate exception doesn't apply because it's damages part of something it just seems to me the two don't go together too well let me save if i can try to clarify this and i hopefully will hit the points your honor but with respect to the probate exception i mean the it is very narrow very narrowly drawn and it only limits the jurisdiction of this court or the federal courts if in fact there is a challenge to the well or if there is a challenge to the race that is in the custody of the probate court and with respect to the  in addition the only remedy that was remaining in the case at this point that point in time was a claim for to scorch meant that you're the plaintiffs in this case aren't attempting to clearly not attempting to go back and do anything with regard to the will nor it seems it appears to me are the attempting to somehow get those properties which have been disposed of one way or another nor are they after anything which remains in the custody of the probate court in the state of kentucky you're absolutely correct your honor what they are trying to do whether timely or not is to make the case that while probate was going on they had no idea what was really going on and now that all of this is over with it has become clear in their view that was self dealing in fraud which had the probate court actually been aware of it things probably would have been different but that's not their action the action is to now obtain  profits or whatever which resulted in part from the way the estate was probated yes your honor and in fact you know discords human is in the nature of an accounting remedy as the case is talk about and what you're looking for obviously is what the the money the amount of money that was acquired through the wrongdoing it just leaves discouragements just leaves the wrongdoer in the position he would have occupied if there had not been a mistake and so in this instance dischord meant it was the appropriate remedy because you know having concealed all of their fraud not allowing the probate court process to have been done conducted correctly they in turn were the beneficiaries of their fraud to the tune of hundreds of millions of dollars and so that was the use you before judge bertelsmann who then after two weeks of the hearing taking evidence determined that the plaintiffs should be awarded the dischord meant monies that the defendants and those under their control had benefited from so with that if there aren't any other questions i would just request that the court affirm the lower court's findings thank you thank you now we really are going to hold you to your three minutes reserved thank you honors i would like to try to address jury trial instead of the taishan zz and jury trial the second circuit's decision in the prayer case that's for thirteen third three thirty page three forty explains why the great white left west case or nixon case by the supreme court is directly on point with respect to the jury trial issue here secondly judge not you're exactly right there's a phenomenal inconsistency between the arguments in exception and the jury trial in fact in arguing that the probate exception in the ply the plain of said quote this case is just about money damages this is record six eighteen the document page id to a zero eight nine to ninety and then the district court in finding that the probate exception didn't apply said that the plaintiffs were bringing in person claims for money damages that's the record document six twelve page two eight zero four zero so if there was a phenomenal inconsistency on that and also of course they're seeking money damages in person and money damages they're not seeking the equitable remedy of this of discourse minoris a touche in which is we want the proceeds or property that defendants have for the wrongdoing they sue defendants for money damages and the amount of all wrongdoing regardless of who possessed the proceeds the defendants the plaintiffs grant plaintiffs own children or other parties we were entitled to a jury trial that would have been a jury trial with respect to all factual issues including with respect to whether they should have known the claims and time the goodman case the third circuit inconsistency a bit in your argument  damages well except for this court's decision wise cover your honor which says that even if you're if you're seeking money damages for breach of fiduciary duty and the amount of the assets that is something within the probate exception that's why there is not an inconsistency on our part we were entitled to a at the exercise a reasonable diligence would allow him to pursue a claim and here that's clearly the case the district court's own findings document five ninety page two seventy four eighty five make clear that the plaintiff should have known that's he brought suit the plants could the other plaintiffs could have obtained a copy that complained had the same exact allegations cindy right or one of the plaintiffs was actually deposed in that litigation linda holtz husband one of the plaintiffs was actually a member of the griffin industry board of directors and therefore should have known about it there's overwhelming evidence that the plaintiffs should have known about it and we could debate this in other cases but in this case one of the plate is herself filed suit to make argument that they did not exercise reasonable diligence in failing to discover the same facts underline the breach of fiduciary claims that underlay the rico claims and you know that we've heard lots of arguments today about what the record discloses i would point you to pages forty when we talk about the conflicting evidence on this this is one of the many issues that we were entitled to put before a jury to see if lay people could actually agree that we're one of the sister had filed a suit making the same exact allegations twenty years earlier the other sisters somehow should not have known about those allegations no matter what was happened that's that is incredible we believe we're entitled to an opportunity to present that case and all the case including damages to a jury under the