please in this case was first before this court a little over a year ago the matter concerned the trial of a number of issues including seven hundred thousand dollars in cash that was missing the quarter consistent with the ruling my client did the titian the trial court to have citations to discover s s issued that was blocked because the port knows by two six nineteen motion claiming on the issue so that you could we filed it later and it could have been done and maybe you wouldn't be having this argument over with the trial if you meant did you do that i did not why did you because it seemed to me that the ruling was basis for the side of her defense was not a claim for say we were not trying to recover the money we were simply say we believe that this might is taken by the sons therefore they have on clean hands  counter that she was not her physician was not the money belonged to her but that it was for her files the corporations were at parties to the proceeding the citation recover was brought against her individually and as i was saying  moment ago she was not strictly speaking a citation to recover in that sense because my read the case law says that generally the citation recover history cover property from a fiduciary who has never ruled on the issue of the funds and who took the phones that's really part of the yes there was no sign of the determination on that fact which is a fact it was not a claim it was part of the factual basis for the defense and it was the here again we're talking about simply a factual allegations was made in support of the affirmative defense of unclean hands so we were proceeding on this matter basis that  it's well established as a court knows that there must be a specific clear finding of a fact in the first proceeding for collaterals trouble to act as a bar in the second proceeding there was no firing effect it not my job i don't think you can get much clearer than that saying this is not an issue that i really was before you and it's not an issue i'm going to rule at that point it seems to me this clear this is not something that's going to be decided  as a defense you're raising now is the claim then you could just as easily regardless of what the trial court said it did because there is such a thing as appellate review why did you file a counter petition then making the same arguments on the same set of facts that would have allegedly it would seem or possibly assuming the trial court would have ruled in your favor to grant you relief that you're seeking to sons it was either states or the corporations phones correct correct and that was her position all the way through so there was no claim to be certain she was simply saying these funds don't belong to the state brought by the state when we were going getting ready to go to trial originally february eleventh i believe of twenty eleven it became apparent that the turning to the boys was intend which i thought you just told us was that her position has always been that the assets belong to the corporation and if she is the corporate entity or the corporate agent why didn't she raise the arguments then instead of  successful later action which mr rose is now trying to bring on behalf of the state would know by heart of the earlier rule let's talk about your first equation eluded to the judge doesn't rule have the issue of craft was very clear to me and the record if you could great pains thousand dollars again unpaid were the first two thousand and twelve during his moral ruling on the motion to reconsider he specifically said that the money doesn't exist and only sharing could be culpable for his loss those who were judged judge said he didn't care about what happened so he says culpable that could be in the legal sense or they could be that she took it as a little big this was culpable well culpable means responsible for the as against the owner of that money the bank might be liable because it breached of a duty to see to it that the money wasn't safe it wouldn't change the fact that the person who took the money still would be liable as well so those two parts of of the written order and his oral ruling trial and i didn't object to any of those questions leading up until mr rose brought up the peterbilt truck that was the attraction there race doesn't say he tried to introduce a photograph of a peterbilt truck with my client standing next to it the peterbilt talking about rights you've got to be talking about the right to discover as well  ok in any event i think if you look at it this this issue of whether or not the citation discovery assets is any action conservation or not from a practical standpoint i think i think you reveal the absurdity of mr rose's position so i would suggest that you limit what you just said to situations where the transactional bashers say or substantially say such that it is possible if they allege different brands actual facts and circumstances reconsider when he filed a motion to reconsider he made an alternative argument that it should be considered joint property a joint a asset and that she should have the right to go after her fifty per cent share he he abandoned the he said in your turn if you find that it's not the corporation's money then cherie should be entitled to fifty percent of it because it was a joint yes it is in her motion to reconsider so she was taking a position in the original trial court on the motion to reconsider that she personally has the right to go after that money and that's when judge doesn't rule all the money's gone it doesn't matter who would be lost due it's a moot issue it's a dead issue and only your client could be called for  rose's position was well i couldn't because we were claiming it was a corporation's money to their six one three being would allow him to plead in the alternative and claim in the event that the court finds that it's not the corporation's money that belongs to the estate we believe that would he could obtain half so awkward it seems to me like you're some inconsistency relative to the nomenclature was economy if he was claiming a half was he claiming a be here now if she had included if mr let me put it this way for mr whirls or share or its client thought the judge judge made a mistake by not allowing him to introduce additional evidence on the theft issue why did he feel that suddenly the both of those words were parked in the cooney address the unfairness issue and said and said where the unfairness resolves wrong the plaintiff's own meeting because they didn't the feel because they didn't preserve the issue of the trial could and he had an opportunity to rectify it matter by by the items i just mentioned if he if he thought it just does you made a mistake why didn't he appeal it he feels six different issues in the first appeal that was a one o him and i think judge doesn't wasn't clear or didn't express exactly what i was saying it's not an issue in this case and i think we could all speculate about why that was and it might have been the well it could have been for any reason it could have been just for the reason that he had forgotten about this in terms of the fence that was sitting out there but the next back to the in fairness issue if that's the case if he just forgot about this in terms of the fence why didn't mr rose in the next day didn't saying this is an issue this is not in this case and how might this or some other day and some other judge that was clearly my understanding and that's why we proceeded no further as to not finally appeal i didn't see that there was anything to appeal there was no ruling on the issue when we're the other except for the judge saying this is not in the case is the rule is that a decision is a decision to have altered the rest of your activity or so you would have us believe why isn't it something point is you stop that line of inquiry as directed by the court right and find that to be not a ruling it was not a ruling of it while i was able it seemed to me as i say he had made it clear that this was an what sherry is now trying to do is proceed on a totally separate matter which is why this is not an issue of duplicate discovery the same case discovery was attempted to be taken in the first case now we're trying to take discovery in the second case or if there will be a second case where if you try to find out if there's a sufficient basis for that and by the way we did cite authority for the fact that citations to discover has said so far i'm not claims they are simply discovery devices th funds as we've always said in the testimony at trial i didn't expect to revisit this but the testimony in trial was that sherry your husband had known these corporations originally as businesses effectively as had been the partnership immediately became corporate assets in other words all that changes the structure not the nature of the business or the assets judge judge ruling rejected it finding that they were all corporate