in this case the issue on appeal is whether the district court heard in granting a rule twelve b one motion to a complaint filed by scott seldon joined in by his siblings seeking a narrow statutory trust accounting or in a massive children's trust which had remained hidden for four meant the details of which would remain hidden for many years and all of which are under a trust agreement that has no arbitration pr i want to present two arguments to the court and of course answer any questions you have right those arguments are going to center on two cases decided by this court the first is the city of bengal men versus baseline engineering authored by judge sheppard and the second is this in considering some prior lawsuits i don't want to say one word about the prior lawsuits they were built after the the on kate on the fact that there was an arbitrator who had been communicating x party during arbitrations it was a great concern so great they did filed more than one lawsuit to try to stop it but all that went away and we got a new arbitrator but that's what the lawsuits were about but it's important part about it is they were all dismissed without prejudice on jurisdictional ground and nebraska law unlike some other jurisdictions is very clear there is no final judgment on the merits for a shoot out of purposes or collateral stoppel when there is no final judgment on the merits so those cases have been those cases were dismissed not on the merits and therefore raised to cutting collateral stoppel do not apply to all and this court has said in the hillary versus transworld case said that the first forms law applies when you when you're trying to read it is based on the let me get the letters right and see em trust and do i read your complaint correctly that all you're seeking in this complaint is an accounting on that that trust did terminate after a time and and but we but what happened is there was no accounting done in that trust at all not not even one page of paper was done this was a trust that was set up by the father of siblings were also involved in that and their trusted uncles were in charge nobody questioned at the time the family wasn't in dispute there was no reason for concern there was no reporting done whatsoever it wasn't till long after the allows for that you're relying on was then it enacted after the terminations of this trust the statute that we're proceeding on simply on the procedural device the procedural device being an accounting like it's not we weren't changing the beneficial interest of any of the parties or changing the the composition of the trustees or anything like that all we were doing is we're seeking under the nebraska uniform trust act we're just speaking using the procedural device of a county which did come after that but i think we've presented some authority to the court that says when it's procedural it doesn't have any constitutional impact and so is the is the the corpus of that trust then is that what is in been in litigation  in state courts who are we really just sort of shifting that those same assets that were under that trust and is that what's been the subject of your state court cases it's an excellent question judge kelly that in the state court there was no mention of the m s c i'm trust or the m s c i'm trust agreement or any aspect there are forty three identified master this is a massive portfolio of commercial properties and shopping centers forty three of them are in that trust if you let you look if you look at the the the section two point one of the separation agreement identifies a property that's at appendix one sixty one you can then look at the m s c of trust portfolio that's at appendix twelve ten when you compare them you will see that there are at least twenty five properties that were in that original m s e interest that never made it into the separation agreement never were a part of any arbitration never were involved at all and even relates to the other eighteen those that the arbitration would dealt with a different subject matter was it was a corporate interest i'll give you just one quick example millard and was it was a mill it was miller ted and stan those are the three the three men who owned this company the montclair investment company has one had multiple shopping centers in it and one of and in one case the arbitrator found that that that that ted and stan had taken them some money  had overcharged might clear the whole unit well that was millard's millard was a part of that so he got less money than he was supposed to in montclair montclair was an asset in the trust but so but it's scott and and tracy and barry the sell the selling children they were they have a different harm a different it's represented by a different harm to them from that trust and this was all discovered and came out that this overcharging overbilling in excessive fees were  argument go ahead thank you your honor your are what i want to let me return unless i haven't sufficiently answered your question such kelly i want to return to the city of bank a month just as the standard here in city back home and if you've remove estoppel at that point and you've set those aside the only thing left and in fact their motion under rule in their rule twelve motion said it was because of an arbitration agreement that is what dictated their the jurisdiction of the court and the city of baquba which of course the district court did not have the benefit of that at the time but the city of back in one case says made it very clear that an arbitration agreement standing alone does not supply jurisdiction aaa rules are nothing but a contract they are not they are not diversity or federal question or other standards under title twenty eight so those don't satisfy and what we have here is we have a massive record on a motion to dismiss you have eleven or twelve hundred pages that have been presented to the and were were reviewed in assembled in probably in the chambers and maybe the judge the district court to attempt to do the best job they could but that's why city of bengal men stand for that proposition it does so because it should be done under a different view and i don't want to speak for judge shepherd who's who wrote that opinion but it seems that there was clarity brought to this in this circuit on that point so if it's ok i will turn next to the next case the brown versus brown will decision and in that case by this court it was no doubt to want to make that point but it was important dicta judge will open that opinion joined by i think judge riley and judge by but they it was important in that case to set this message they don't care that there was an arbitrator or arbitration agreement so even if somehow this court concluded that the separation agreement here applied to this matter brown versus brown still would still apply i want to just say one thing about separation agreement the m was not and it was not referenced in it wasn't listed as a property wasn't listed as an entity wasn't referenced in any other way there were lawsuits that were filed it's not referenced it's not mentioned it went to arbitration an answer was filed the there you arrive at a case which said an arbitrator cannot do a judicial act in that circumstance and that's what that's that's why we came to the court if we had gone to the arbitrator and there was nothing to for the arbitrator  to there the separation agreement doesn't give the arbitrator authority to enter orders on trusts or county the the m a c m trust agreement doesn't say anything about an arbitrator entering a county orders or anything else the only place that the arbitrator could go there was didn't the trustee status allow the arbitrator to order an accounting of the trust agreement itself does not only by incorporating the aaa rules there that's in the way you say the agreement does it incorporates the rules and the rules say they can't well that's and that your honor of the separation agreement were applied to that to the aaa rules but we're talking about the m s c am trust agreement itself which is not of aaa rules doesn't have an arbitration clause doesn't have any reference to any of that and so what are our position is is your honor is that when you have no it's completely disconnected what we do what happened here rogers is this is that we found out something alarming happened during that arbitration suddenly something had been hidden and dark for a long time and no one had seen it and suddenly the arbitrator started information started coming out and that's what happened and so now we have an arbitration ruling on is there no that and again maybe there's a simple answer to this is there no time limit on their ability to request an accounting on a defunct trust that's an excellent question and normally there would be but here's why there isn't the separation agreement when they just set this up it was to separate properties that's for the word separation separate the property separate entities but they also said there and that we've cited in our brief and there's an appendix side to this that there was a tolling agreement for all claims regardless of whether what you've just said that the m s c i'm trust is not part of the settlement agreement so how could any tolling agreement to that trust very good your honor the fact the way it applies to it is because the parties to the trust that we have scott on one side we have ted and stan on the other side they agreed in the separation review individually agreed we're tolling all claims between  and i think the purpose was that let's to handle this separation stuff first let's get these things separated and if there's something left over let's hope there isn't but we're just going to told everything while we're separating because if we don't do that people will be firing shots in law suits during the portion of the time we're trying to separate and we don't want that to happen so there was a tolling agreement and it applies in this particular instance and so your honor i will reserve that my whatever remainder time i have i will one minute and four seconds well  it please the court obviously i'm going to be brief i just want to indicate that i am here representing tracey seldon mosher and barry seldon they are complete strangers to this previous actions until they filed a motion to intervene they are not employed by the company they do have no management functions they were not named in the separation agreement they have never been categorized as part of the arizona sel do have an interest in this we believe that because of the difference in participation they their interests are not identical with scott silliman its interests and therefore we believe that they should be allowed to intervene as a matter of right thank you unless you have questions questions thank you very much we are to mr levy thank you your honor my name's bob lap i'm here on behalf of the happily to seldon thank you for hearing me today this appeal can be isolated to one question we're talking about a lot of different things but it can be isolated to one question and that is that the parties agree they have their arbitrator determine matters of arbitron billeted and the court need only look at one document to answer that question and that's the separation agreement that can be found at page one twenty one of the  separation agreement identifies arbitration as the exclusive means to resolve the parties family business disputes and it incorporates in this is important it incorporates aaa rules and that includes rule seventy of the  rules and that rule provides and i'm paraphrasing the arbitrator shall have the power to rule on his or her own jurisdiction including any objections to the scope of the arbitration agreement or to the arbiter ability of any claim and was as this court  fallow vs high tech institute teaches the incorporation of this rule clearly and unmistakably vest the parties arbitrator with exclusive authority to rule on all questions of substance arbiter ability in other words the parties agreed to have their arbitrator not a court the term in jurisdictional issues such as whether a claim by one party against another was subject to arbitration and the district court the lower court judge battalion along with the state court back in two thousand and twelve when the arizona of which scott is a part of tried to go into state court to evade their arbitration obligation recognized this agreement and both courts correctly required scott to honor this agreement by sending him back to arbitration to arbitrate the issue of to belittle in the first instance and they don't they don't challenge that because they understand they have to bring this to the arbitrator in the first instance and how do they say they complied with it well they not only represent the jurisdictional question at issue here was brought to the arbitrator but that he answered the question in the negative and what do they rely on they rely on one document that was called a motion to clarify and it's at eleven o eight in the appendix and it was filed by the arizona seldon's including scott after the arbitrator ruled against them early on in the arbitration on their first two claims claim one which was conversion claim to which was national tenants and that was back  in he made his awards on october seventeenth two thousand and fifteen they filed their motion to clarify after that because there were numerous findings in these two interim awards that affected them and effected the trust and i want to talk about that but they filed it after the arbitrator ruled on october in october of two thousand and fifteen and they were challenging these two awards and then the arbitrator looked at this motion to clarify it was a ten page motion and i'll talk about that also and he entered  order denying the motion to clarify about twelve days later on november twenty ninth two thousand and fifteen and scott is trying to convince this court that that order by the arbitrator called that the nihil order was an implicit denial jurisdiction over a trust account in which they have filed in the lower court but for numerous reasons scott's interpretation is simply unconvincing when you say the trust accounts are you talking about the m a c m trust yes so is that part of the settlement agreement the trust and then again this complaint is directed at that trustees are a specific yes the when you say settlement you mean the separation agreement i'm so that's except that the separation agreement i politics the trust was terminated eight years before the separation agreement was ever intended entered into it was not in existence so how then can it be part of the separation well for a couple reasons and let me just say we're we're kind of getting away over the kind of away from the issue of the scope because i think it's for the arbitrator decide is ever decided that i think that that has to be decided by him but i let me answer your question first when the trust was terminated in two thousand and two the assets in the trust were put into this entity called kenneth circle investments  circle investments is a signatory to the to separation agreement that's that's first secondly when they adjudicate it claims one and two converge international tenants they focused their evidence on the arbitrator says that in those awards they focused their evidence on these allegations that ted seldon and stance overman had breached their fiduciary duties as trustees so the arbitrator to take on all these issues as it related to this children's trust that had terminated in two thousand and two and so they put the evidence before him and what he found was one ted and stan did not breach their fiduciary duties to a release that was entered into by the three beneficiaries scott seldon tracy mosher and gary seldon his brother and sister it was in forcible release and it released hadn't stand from any and liability including the duty to account which is in the trust agreement by the way i think that section eight point eight of the trust of even they had a duty to count every twelve months but the arbitrator found that the release wasn't forcible and released them from any liability the third finally he made it or more wards one and two and he makes this finding actually in six of his thirteen awards the trust was becoming part of this litigation they of this arbitration they put at it issue but again it doesn't the agreement have to mention the trust or the trust assets or the trust residuary or the trust residual assets whatever you want to cal again your honor with all due respect that still is an issue for the arbitrator i want to make that clear atlanta liz it was really clear surely it's not for the arbitrator if it's something you know what way away far away but you say it's close enough is what you're well i think in the case that we cite in our brief vel spar the courts and even there's a doubt as to whether it's covered by the arbitration agreement and you've got an arbiter ability as an issue you send it to the arbitrator and there was a recent case that when two thousand and fourteen principal life and the southern district of iowa and that said i'll give you  cite here two thousand and fourteen westlaw one two six zero one zero four zero four one i'm sorry one two six zero one zero four one and in that case there was an argued said history court case yes it is  yeah and in that case there was an argument that there the tort claims that the parties are bringing fell outside of the arbitration clause and they were trying to there's no way it could be covered and judge richard said that doesn't matter you've got the requirement the arbitrator makes the decision when you incorporate the aaa rules so you've got to send it to him you've got to send it to him in the first instance and so i do want to go back to the complaint that they filed they filed this complaint on july twenty ninth two thousand and sixteen and what they said in the complaint was that the arbitrator entered an order this denial order on the motion to clarify without explaining whether he couldn't ward an accounting so they admit he didn't explain it about a month let in and by the way they also admit in their complained that the arbitrator actually ordered that there be an accounting of the distributions in this miller children's children's trust and that was that was later that was a later award that was entered on a claim that we brought the only claim and he found liability of the arizona seldon's he found that they had breached produce year duties and violated securities law and he ordered an accounting of the trust so again it was part of the arbitration and a month later they filed a motion in state court and they were seeking to vacate another award that was issued by the arbiter and it was awarded twelve and in the brief in support of a motion it is in the record at ten twenty six they now say that the arbitrator denied this motion to clarify again this motion that says that they put this issue before the arbitrator and they said they denied it without answering whether he had authority now we moved to dismiss the complaint on october third two thousand and sixteen it was then we raised the issue arbiter ability and at that point the interpretation starts to change and they begin starting to assert that the average didn't answer the question we satisfied our arbiter ability obligation now your motion was only a twelve b one motion right there's first a discussion of the interface construction case and that was a twelve b one case and that was also an arbiter ability case and then you go on to discuss the opinion of the scuffs that we've never had just a single arbitration agreement independent of statutory or other binding jurisdictional limitations we don't have that and we would take the position that in this case rule seven a is one of those other binding jurisdictional limitations it's a rule in the aaa that we incorporated into the separation agreement now i understand that they're alleging diversity jurisdiction i appreciate that but the decision in bank homan says other binding jurisdictional limitations are different and we would submit that rule seven day which the fallow decision said was a considered a jurisdictional rule takes that out of our case because again we had rule seventy incorporated another thing that i'd like to say about being comm before judge battalion that we couldn't proceed under twelve the one that was an issue before judge cough in the bank and case and judge caught had to take that issue on another thing i think that's important to know is that scott is not argued that proceeding under twelve  one as opposed to all the six would produce some or prejudiced his interest or change the outcome and in fact it wouldn't know because if you read judge battalion's opinion only the separation agreement and documents that were embraced by the and matters of public record were little relied upon that's all he relied upon and this court has said going back to porous media back in one thousand nine hundred nine that when you review a complaint you can look at the documents and braced by the complaint you can look at matters of public record that's if you read the complaint they have all these interim awards referenced they have the motion to clarify reference they have the denial order referenced so again what would be the result they allege in the complaint they allege in the complaint that essentially the arbitrator denied their motion to clarify without explanation so even if you take that as troops because their argument is we didn't get the safeguards that we would have gotten under twelve b six if you take us through the result still the same they have to prove they were harmed by this decision if you take the position that bank i'm in required a twelve b six analysis and for these reasons i would submit that bank and does not apply now returning back to my position again is i think it's very important to note that after that motion was filed in just a corner they talked about what it would not answering the question their position change before this court it has changed dramatically because now they won from asserting that the arbitrator didn't answer the question that he not only answered he denied jurisdiction well that didn't happen the arbitrator never had this issue in front of oh he never had the brown case that they talk about they want to talk about the brown case brown doesn't apply it was an ongoing trust it was a trust remov situation but in any event we don't need to get into that because the opportunities never had in the first instance the opportunity addressed this issue which he has to do because we incorporated rule seven a and that's what the lower court held and that's what the state district court held back in two thousand and twelve and again they were they changed their position and it's because we raised our bitter ability they realized they needed to change their position the original perpetration that he didn't answer the question are you going to explain his answer in order to survive dismissal scott should not be permitted to take and change his position solely an effort to gain a strategic advantage also you cannot read the motion to clarify and the order denying the motion to clarify and the motion clarifies that eleven wait at the appendix and the denial is at eleven seventy seven and you cannot read those two documents that they say proves their position that the arbitrator declined jurisdiction you cannot read them and come away thinking that the arbitrate are just declined jurisdiction to order a trust accounting i implore that you read these documents the motion to clarify as i said earlier was a ten page motion it was addressed to the findings that i discussed earlier in claims one and two they were trying to have the arbitrator reconsider the merits and they are saying that a statement embedded in this motion was their question that they put to the arbitrator and when he denied it that satisfied their arbitrary obligation and what was the statement  paraphrase the section concludes at the end and it's on page five of this motion to clarify and it says it was unclear whether the operator believed he did not have the authority to order an accounting under trust real estate and partnership wasn't just limited the trust of his three categories or who are or whether he felt the omaha seldon's us and ted were exempt from providing an accounting and either way we want you to clarify at a compound question at best a best and but this is what they're saying satisfy their opportunity obligation now the operator didn't expect different didn't specifically address this compound request but he didn't he didn't address any of the numerous other requests there in this ten page motion to reconsider now again scott in his briefs in his filings before you would take the position oh yeah this motion was just this one question that's all that was asked do you have jurisdiction order trust accounting nothing could be further from the truth as i just indicated was a ten page motion the statement was a compound statement and bet it on page five of the motion that doesn't satisfy their average ability obligation we've been at this for eight years we're going into our ethers we've been  for seven years standstill and died last year it's ten percent that the age of ninety three he didn't see this thing come to an end ted seldon is eighty five he deserves to get closure he deserves to get closure of this situation that's occurred you could bring peace to a family that's why we come to the courts because sometimes families can't do that and this is a really important occasion because this dealt with a massive trust which was never discovered never turned out until really this arbitration process i want to address some of the questions judgment to follow up on something you said this is an agreement this is the agreement here is clear there is no arbitration provision in the m s c and trust agreement there's nowhere else to go we don't have to ask mr commander who is  now retired on every question or issue for the rest of time just because they involve them this was a clear picture and as a matter of fact we wouldn't have to ask him about whether we have to go to an arbitrator any more than we'd have to ask him about whether we have to go who is the third trustee also in this case it's an entirely different agreement a different case we did in fact there was a question asked and i would point to the footnote to in brown burst of brown phil and that case judge logan commented about the fact that an issue was raised by the arbitrator but the arbitrator never answered the question and the court's opinion was well you know what we have to accept that answer as it was that's what happened here a motion was made about whether a trustee accounting could be done the motion was denied there really isn't any other way to look at that and we can't be sending the issue back on it on a kind of a merry go round between the arbitrator and the courts and as a matter of fact i believe that it would be fun to sufficient i don't believe that the arbitrator could issue a different ruling even if they could but even if arbitration somehow was is relevant here brown versus brown film makes clear that that is not the case when you're asking for a statutory accounting order and there is nothing else here but that that's the only thin place left scott was was a well let me just let me just conclude with this your honor we're here on a rule twelve b one motion and that standard is very high and this court sits in oval and we'd ask that this court reverse and vacate the judgment and remand this matter to the district court for trial or at least consideration under the summary judgment standard that was announced in citibank thank you thank you very much for the argument cases seventeen days ten forty five seventeen days ten forty seven are submitted for decision by the court