mean this is a important case that the court is handling today it deals with the power of the circuit court to sanction division all in and will hopefully serve to define the contours of of that power and where rubs up against the concerns of due process i know the court has reviewed the briefs and the records and so i guess my task here is to emphasize a few points here that i think  that at a trial of their own actions to raise this issue indeed the very nature of the due process argument being raised here that they that the accounts did not receive a hearing of their own preclude such a raising of the waiver issue and hence an application of the waiver doctrine itself in essence how can someone are someone we can issue with their trial when they didn't get that trial to begin with next i would like to talk a little bit about the arguments that the sort of fall back position to the waiver argument that was raised by earth which is that he had birch that it was incumbent upon  here to file a motion to reconsider and i think the first of all as i noted the case law states that there is no requirement for a little gas to file a motion to reconsider but i think equally important is that further such a motion might have quite require surely would have required the apple wants to have taken a position or positions that were in opposite to that which they just presented on behalf of their client in the underlying sanction and so i think that that's another reason why it's particularly well up why it's not a fair argument to assert that they should have filed some sort of a motion for reconsideration here denied them the opportunity of speaking of surprises ok there are cases that neither of you have talked about that actually deal with one thirty seven and whether or not when you're sanctioned under that particular rule whether the parties  america that's two ninety three elapsed third that's a first district case fifth division that's from ninety seven and there's cases going back to eighty nine vs make new that was interpreting the precursor of one thirty seven adding to six a laugh ok that says the same thing that you're entitled to an evidentiary hearing so i suppose it's really you know something  and i guess that's the best a big part of the problem here but in that if you have the pleading that the subject of this whole thing she apparently reviewed an article that said there was you know going to be this found that that was clearly a false pleading because she had reviewed something i and had discussed it send it to her borders and discussed it with her lawyers older one sentence in particular and if i mean read from it it states that the first it begins it gives some sort of talks about smokers having these fits in the brief right ok well i guess the point that i'm stressing here is that the disagreements that we have with the trial court is that first of all you can take from that paragraph that i pulled in there and stay it's you like her state it wasn't until two years later that she became aware of this and then for purposes of before to no one that neither she nor the lawyers apparently did any further research to ascertain whether this according to sincerely post projected sale that was to close by the end  well i guess and that takes me into the next point again which you have to use your to looking at this article here against the backdrop of the other allegations which deal with the misconduct that eric was guilty of here you have a situation where your argument that if you were to subpoena information too from from these lending institutions that might have an adverse impact on the financial viability of the enterprise but it certainly wouldn't have done so to see what was in public domain where it asked for further information from the opposing attorneys saying we understand that you don't want us to subpoena humans from the  that mr gould who was there hired experts who was working with the person represented eric would have this information that we requested repeatedly updated information they kept running to rove watched and then at one point if ever if i recall correctly the made that a very difficult problem and then again that set that off against the back as i said earlier against the backdrop of what was going on here with this don't you know don't go poking around the hornet's nest you're going to sour everything for everybody if i lose you're going to lose  to go down together my point is you could stay away from the hornet's nest and still do your diligence well again it's my understanding they were obstructed every time that they try to engage in this so i don't know where that understanding comes from i didn't see that they know about well again i get a i guess and it is all goes back to whether this actually put them on notice this article and the judge believed it did i think all that it speaks to is that there's some sort of a possibility here well when we look in an insurance policy or anything when we look at the fortune i want to sion the elevations in that returning what she knew or didn't know about the exposition the sniper division compared to what she said her second deposition which was i bought it i saw an article on it i was smart enough to google these things and i did know well what else we need to be done well again i think facts she testified as she did during the discovery depositions and so when you're looking at it i think part of the problem of the truck or one of the problems with the truck or did here is they looked at that and then looked in hindsight what these attorneys did when the attorneys didn't have that deposition in front of them when they created this to four to no one but yet now they're being faulted for what occurred which i mean by this employee they'd file the pleading which they had to know was false and they're the ones  any other discussion about what they said i mean what i don't even understand how beth could be the subject off for deposition her her conversations she had with her lawyer so what is in this record about what they can't so there is something left here i don't really know how i don't know how the lawyers are going to get into these attorney client conversations anyway but i don't know it's kind of my point there is the most it's on the record her statement that she sent this article to them and they discussed it that's my understanding ok all right and but at the same time the good afternoon again justices right now with the first with respect to this due process issue as i indicated sides effect it was waived was never raised in the did the court take this on all of the documents that were filed with the most for sanctions the response the reply there was also an argument within our court referenced in its order ok in the appendix i was on the first so there was an argument unfortunately furnish the transcript from that argument ok but either way the judge then issued the order and sanctioned pamela johnson and at the same time sanction the fairness for fifty six thousand dollars no justice that's not what happened with this was a two stage procedure i want to make that clear and i'm sorry bush's fault i misspoke i take that back she entered an order finding that the conduct was sanctionable against mrs johnson the empty attorneys and then she said it's time for evidence three hearing the amount of the sanction and then there was an evidentiary exam she found it well or even a statement of the courts to a spot on tape beforehand that i am also going to be considering i understand your argument that that if a court wanted to what it says about on its own initiative not that the answer just like rights question which came out half way when would they have had an opportunity yes it medically up until that time when the i think it was february only nine  when they were first mentioned i would say they would not have had the opportunity yes again although we did have a request for such other and further relief we didn't specify mr berman mr mean but where i differ with m is he's saying well we shouldn't have had to file a motion to reconsider a solid year took place between then order that we just discussed in zero nine and the beginning of a four day of adventure a hearing february twenty ten that way so i stay with the passage of time means that they forfeited or waived any right to hear i was saying that they had an opportunity they had a year in which to request it before the case went final remember that first order was an interlocutory order wasn't a situation where you have a trial you have a judgment and then there is the whole issue of whether or not you can or have to file a post trial motion as is counsel mention they could have filed as we said what we call ahem their motion a town's motion they could have raised it all your time yes all right now there are multiple case that neither of you two have addressed that  it is it's in the rule since one thirty seven has been interpreted that the precursor to sixteen to sixteen was in the six one one excuse me the beano case talks about two six one one but the question is just as well fairness is what we're talking about of due process which is flexible now if they came in and said in their brief well we had this argument that we wanted to raise or we could have raised but we were precluded from doing so that might have been one thing but i think what's very significant here you know all their briefing their arguments are still exactly the same ones that they made before the trial for in their twent page response you know what happened at the century hearing that would constitute a record that would allow them to go beyond what was produced in the writing to say but there's a difference between our former clients lawyers who are representing their clients and they're going to be sanctioned while they're representing if they don't they have the right if someone represented at war with drop or representing her in wyrick clear applique going on there representing a it would be one thing if they were i noticed that there was a possibility the sanctions and they would make a determination that there is absolutely no conflict because there's no difference between the knowledge that they had an analysis their client had but without the notice that they were being the sanctions were could be imposed on them and never had the opportunity to make a judgment about whether there was a conflict there are to defend themselves in the context of it because they had no idea that isn't the first thing with due process some notice and hear people you know this is from you that were you're suing her client you want money from her client they had an opportunity to raise it any point after that so i take the position that they don't have any defense here i am not going to say that what i want to ask you is all that in the article what you can that shows anything if they kept the article all the article says is that there may be a stay off what does how does that translate to what the attorneys knowledge is or should have been i don't get that first of all this is jackson is one thing but what about the lawyers they get should be one dollar there's no place that you've set up and you haven't responded to the notion that they don't have to file a motion to reconsider the sanction order in order to appeal i believe that if they want to raise it past the social claim in this court that they should raise it before the trial court who would then have the opportunity to give them whatever redress the trial court had she known have they had up you know ahead it been raised and that's the seven sanction generally speaking you have to have an entry hearing certainly in this case where the lawyers were not notified that they were going to be sanctioned is different than a motion filed against th risk a little bit of a difference here but there are the arguments they've raised her exactly the same well they've had full opportunity to do there are so you're saying the result would be the same no harm no foul result would be set no prejudice which is the important  the lawyers are not mrs johnson and we don't really know on this record you're right the case say that if the record discloses sanctionable and fact perhaps there's no need for never to enter here but what we have here is a statement  her deposition that she that she did have wind of an article and she forwarded that article to her attorneys i don't know how we go from that to attorneys you're saying because the court also determined that both she and the attorneys first of all knew based on this article and should've known based on the article if i may justice you said the judge kennedy struck those other group google articles they are part of in you know in the paperwork we've all seen them this court can affirm on any basis including the fact they out whether or not judge kennedy thought it was important it's still a function of should have known to fourteen no one requires you know i did know and i couldn't have known with the exercise of reasonable diligence and that's where those other articles are important because she she complains about where they complain now about cincinnati isn't all that argument demonstrative of the fact that there is something to be determined at a hearing about what these lawyers knew what they didn't know when they knew it and what they could have done in the exercise of due diligence before filing this fourteen no one motion and what information was just in the purview of their client and whether the whether they the statement that that was contained in the filing of was something that they that they were given notice by their by their client of the existence of this that would have shown that the statement in as if there was no notice until two thousand and six had to be wrong i mean we i don't want to intice a paper what the arguments with d and the evidence would be at the hearing once the hearing is held but you're basically saying that there is there's nothing that can possibly p produced at the hearing that could impact the liability of the lawyers as opposed to the liability of the leahy argument that they made in the response was this is a fake room work we discounted even though she went ahead and she directed them not to do anything else you think we would entertain any statement outside the record about what they knew from their client when when there's nothing below that that includes it in the record of course not because because you would have had the opportunity to cross examine him confront that evidence at a hearing was the argument limited to whether the client should be sanctioned because that was all that was known by the way or is at the time that that argument was hell you would not amended your pleadings to say that by the way we're also seeking sanction v the attorneys and the judge at that point has not had not given any indication that she was considering sanctioning the attorneys for anybody who was responding to it knew at that particular point in time this was whether or not  party would be sanctions other than the notice that's contained in the rule which we have one of other point about this is that we'll just yes this is that i'd like to get the opportunity to get out is that as we pointed out w settlement that was reached because the appraisal that was the reliance the basis for alliance for the deal was december thirty first two thousand and three and as we've set out it's very clear in the record that subsequent events such as may have happened wouldn't have affected the value of two thousand and three knowing you know this article and whatever other articles were available if they had wives to not do the deal in  reappraise the business they could have done there they went ahead she took the money she direct them that to do anything else if there are you know they all had this so in yet another reason for the the frivolous number of months a year to raise any issue in the trial trial court particularly with as i've stated rather than the case law i don't believe there is a  five any final words mr adams