we're here obviously because we believe that judge mackey was in error when he granted the defendants to six nineteen motion relating to all of the counts of our third amended complaint we have pointed out to your honor's the errors of judgment he and that for purposes of the two six nineteen motion the court should have accepted as fact the allegations that are well pled in our complain four that there was a stock gift agreement and that that agreement made it very clear that the gift was unconditional unequivocal no strings attached no conditions subsequent nothing stock was later transferred by thomas to a trust that he arranged for in that was the gift was in one nine hundred eighty four the stock was transferred to the trust in hundred ninety six and until two thousand and seven thomas nor the plaintiffs in this case had any idea and that's one of the essential allegations  complaint no notice that there was any issue about the ownership of those shares but b initial trustee certainly he had a copy of the trustee not the written instrument he original trustee had a copy of the trust agreement yes yes of course so he honor is that the true neither the trustee nor the other plaintiff in this case colleen re my hair knew or should have known that in one nine hundred ninety five  the defendant's initial started with a civil conspiracy which they carried out for over a period of a dozen years to get back those shares and convert  sell them and keep the money which is just exactly what happened but for purposes of the two six nineteen motion the allegation of the plaintiffs that they did not know this and did not know of these acts should have been taken as true by judge mack the fact that the defendants in their pleadings decided to posit an alternate set of things for the court to consider hundred six at the time the shares were transferred or anytime after that until two thousand and seven when timothy mckernan came to his sisters that is initiation and met with them and proffered for them and tried to get them to accept a settlement agreement in which he described the disputed shares and submitted in the settlement agreement that yes thomas head transferred the shares to the trustee but that edward and timothy and the corporation head attempted to void those shares and so that there was a real legitimate dispute in one of our the trustee at the time mr riccio that the shares had been transferred on the books i would add your honor that the actual possession of the stock certificate is not necessary for ownership the transfer happened when the shares third in many complaints in the summer of two thousand and eight later is a right that's correct would you agree then that if the stench of the imitations had run by the time mr please show he filed the complaint in march that to mr parks stepping in of the cases the successor trustee would be of no legal significance or the different ok yes however we've made very clear that the statute of limitations began to run in two thousand and seven every single one of our the counts of our complaint beginning with the declaratory judgment count as i've just said we found out there was a dispute in two thousand and seven as you pointed out we filed their case just a few months after we found out and your honour's i would remind you that when timothy came to his sisters in july of two thousand and seven and advised them that he wanted to settle with them and to settle the issue of the disk feuded shares not only was that their first notice but their brother timothy excuse me offered them a million dollars half a million dollars each when he knew that he was selling the corporation in a matter of a month or two for thirty million dollars and it is clear your honor from the records that the sale of those shares in october of two thousand and seven for thirty million dollars was the culmination of this string of overt acts that have been committed by the defendants and i couldn't numerate them but they're of set out in her briefing with very great particulary from one nine hundred ninety five two thousand and one to two thousand to four five and s and i would your honour's request that you consider the commonly vs duly case which i think is very very clearly on point as far as our case is concerned and if the import of the c case is first of all and i would hearken back to with the main issue here and that is was the trustee a shareholder in two thousand and seven we submit that the court had to accept that fact as true for purposes of two six nineteen and not accept an alternate reality that's proffered by the defendant saying no you weren't that's a factual dispute factual disputes are not to be resolved a two six nineteen motion the court should have accepted that we were a shareholder connally however is very clear on the point because the court of kindly said very specifically that the shareholder status the stock and the distribution which did not go to mr connelly in that case and did not go to the plaintiffs in this case and your honour's are fraudulent concealment allegations are laid the court is supposed to accept their allegations as true for purposes of this motion yes we could have a nice robust round of discovery depositions document production and at the end of that the defendants are certainly at that point legally freed to file a motion for summary judgment whatever the case may be but for purposes of this motion at this very very beginning of the get of the case the court should ha father and son this is not a preparation is between two individual people and there was nothing in that which said to thomas or gave thomas notice oh you're taking my shares away no nothing like that in your honor when the defendants acted in secret essentially and attempted to take the shares in a corporate meeting by telephone where they didn't even give notice to every director they claim this occurred they never sent any notice of of the results of that meeting to the person who shares they have legibly we're going to void and it's clear from the records that these conditions were something made up eleven years later and that there was never a single allegation in eleven years that there had been any conditions that the gift whatsoever but they all of the actions they took they took in secret and certainly never gave notice to the plaintiffs or to thomas either you're not disputing there was no distribution in two thousand and one and to rectify a trust me no your honor there's no dispute honor they were wrong in any  void in two thousand and six in january the plaintiff alleges that there was a trust set up at that point in time the shares are already gone according to the corporation so at that point in time what we have here is the in essence attempting to challenge those actions but having two thousand and seven is not rolled those shares according to the corporation's records were declared void in ninety five and never reassure to the point and the plaintiff is da try to challenge those actions look here yes it work in the conditions yes well that's a source of i guess debate there is there's evidence in the record going both ways on that but the issue is they want to know challenge that voiding that is the action to do that began back in ninety five when they wait until two thousand and started now what knowledge and how is this knowledge that fastly have pled show that this issue was right back in ninety five you have you issue also where the attorney said in the letter to the cooperation demanding that the corporation reissue the shares f because it sure will you have certain rights you have rights to be notified of meetings you have rights to do that is and the plaintiff here was asleep at the wheel there is no evidence of any notice to the believable given the f s a file which is we had our attorney send a letter back in ninety six we didn't get any shareholder notices we didn't you give it us in two thousand and the trust is supposed to be distributed that didn't happen but you can't sit on your rights or potential rights for eleven years and say we want to know raise the issue of the corporation properly disenfranchise us it's too late we're not dealing with the merits we're dealing with the time to do that has long come and  made some allegations that afterward they were promised that the corporation shares russian if you look at their complaint there are no facts but to support that there is no specific allegations played all you have is counsel's argument saying that happen there's no there so there's room enough in the complaint to put at the very least the point of inquiry notice that you had a potential claim here you're not getting surely norris's you're not getting distributions you're not getting give it out as you have your lawyer sent a letter out that says i demand that you send the surest back and that doesn't happen and yet you still do nothing that's that's a ballgame with your response to the suggestion that i believe it's made before this complaint was filed that there was this controversy and mr mckernan too is the family tried to appease her by meeting with her and dealing with and trying to resolve this so we didn't have to deal with this today and we wouldn't have to have a lawsuit  happen in the future we can't predict it but i do know that they'd like to he'd like to still have wishes ship with his family and that's that's obviously been strained by this whole series of events but legally speaking i don't believe you have a leg to night at this point in time thank you one of the most significant things the counsel just said was when they asked about the alleged conditions to the gift is that yes the conditions are up for dispute that polite way of saying there is a factual dispute but what is the important you put it that is what if there were no conditions and the documents your honour's says show there were no conditions if there were no conditions was the action taken at this alleged meeting in one thousand nine hundred five to declare the shares now and void is that something that was legal or not that's a factual dispute so your honor for put the complaint and the motion the two six one thousand motion side by side and you have two different versions with different issues affect raised or facts alleged the court is required to accept our complaint counsel  touched on the idea that somehow or other we were asleep at the wheel because we didn't get any notices or any dividends or anything that's in the lawyers argument that is not in the record not in the record there's nothing in the record that says that op sic years later is not now five years later is not known no your honor i believe that that's the trustee has an obligation to disperse the trust and if he didn't distribute it then he didn't nec properly as a trustee perhaps but that's not notice to the beneficiaries that he doesn't have the shares he never told them he doesn't have the shares and whether actually having the certificate or not is irrelevant to that is not in the record and it's not notice the fact that he didn't have the certificate as i've said before having the certificate is not necessary to be a collision and that's why i never raise that question and i thank you see if i raise the question about trustee the owner of those shares in two thousand and seven councils argument took you right back to the issue of factually why the trustee did  own those shares that's because they were declared knowing void in one nine hundred ninety five our complaint said we were the owners of those shares in a again connelly tells us that the resolution of that dispute that factual dispute as to whether or not we were shareholders is not for a two six nineteen motion if we hold the shares whatever we did in two thousand and one or two thousand and two wouldn't make any sale of the shares we certainly filed their complaint within a very short time after we found out what happened in the us so you're right i just want to so we're clear on one thing here counsel is pointing to the exhibits to our complaint about all the things that are there the ninety five letter in two thousand and one and making it sound as though we knew all those things at the time these are just documents that we got after two thousand and seven once we found out what was didn't have anything to make a distribution with and he's not and no i mean so those are those three things or are not questions i think affect those are your thoughts well i would point out of course that the attorney  telling us that the statute of limitations for all of our issues began to run in two thousand and seven and leave you with the issue could a two six one thousand motion properly deal with the issue of whether or not the corporations declaration of knowing void that's something to be resolved by a two six nineteen motion the court had to resolve that issue by saying we weren't shareholders make a determination on a question affect whether or not the trustee was a shareholder in two thousand and seven connelly tells us that it's absolutely improper for a two six nineteen motion we were shareholders that's what we alleged and for purposes of this motion we were shareholders factual arguments to the contrary are not to be considered for this purpose thank you thank you very much this case will be taken under a