here to the contrary to show that there was any reliance on any financial matters but to an extent your aunt actually to a very significant extent that that is sort of a moot point because as of march two thousand and two is jennifer his brief are correct because the power of attorney creates a fiduciary relationship which as a result shifts the burden of proof and showing that the transaction was properties and all the home of the properties there is no evidence presented that they can ever be long to the seeds are all the evidence in the case that was presented show that these were direct transactions i think she does because the complaint wasn't alleging title to the point alleged frank the two franks father son bought property to be held in elder frank father's name but the intention of the two parties involved father and son resubmitting that there was no effort david to that effect that was raised so our complaint our allegation still stands and that issue is being and refuted and the house of crappy which was deeded to jennifer in two thousand and three that was after march of two thousand and two naturally therefore after the creation of a fiduciary relationship and therefore that transaction has reconsidered presumptively fraud as for the the transfer of the better property that's what i was sort of driving at when i first started my  says when you have what i have here that means for say or forever more you lose on summary judgment that's what i'm advocating here but i think the real heart of this case concerns what happened after may first and then it twelve o five jennifer went to the bank and did something there with the evidence as those transactions come out which are not in the record all when they occurred transactions that occurred they later are subject to the  know which came first which is a question of fact we don't know we know that they were done the same day so how do we resolve remain for further proceedings because we have to determine which came first because there's a question affect on this issue that's  power of attorney preceded the well why should we even engage in speculating that there's an issue of law because there's an issue of i was not the move in bold jennifer was it's her burden to show as a movement and that there is no question of material fact there's no evidence as to which came first but it was not by burden to show which was first and again this was only just discussion we're having now only goes to come to the counter to love we're going towards interference it does not change the fact of count three which is dull it in your interview goes transfers because those occurred are allegations are after the execution of power of attorney and we don't have any evidence of when those occurred either which again in opposition creates a question of fact which it was there were i think three meetings one of which jennifer attended think it may have been the first meeting and then like there is nothing to show that she was that's really the third factor it's not enough with regard to the execution of a will matter of law i think that all of the other interference were taken place or and in order for us to topple to to follow you there we would have to agree with basis for finding that he was sure would be to find her through shiria as a matter of fact because she was in the mode of intending to sign him which would have made her for sure is a matter of law  that that's why you're there and i'm here i get to ask for everything under the sun and you get to decide what's reasonable or not i think you have to sift along with the they have to show why i'm and as i said before i don't think i had a should given what they presented we don't think we had to show anything except the facts as we've sort of laid out so far those  transfers jennifer's affidavit talks about the property transfers primarily and the references are makes it it makes to i think it says only i didn't pressure my father to do anything that doesn't dispel the twenty or in other words i've got to ask you something clearly out of the woods because you don't get a trial musters an issue of fact except that the supreme court in the standard that it applies to summary judgment applies the standard of love that's applied for a judge and stop withstanding the burden so that if you have an axe is overwhelming  behest what purpose is served when it occurred who was present anything therefore she can't simply say it was all good and have the circuit court or describe respectfully say oh that's fine with us that's not what she did and it was her burden to do and she did i may lose a trial but the point is we should get a trial because as it stands right now the presumption is not then rebut she  the complaint as a player in determining whether there's an issue of fact and have you effectively her first the allegations in the complaint that she used undue influence at least with respect to the as you pointed out the affidavit of my clients that's been addresses the transfer of the accounts into joint accounts furthermore and the deposition of attorney murphy who was mr gets to his attorney at the time and who conducted not only the well but also the bellevue transfer included in that now i do want to point out miscarriage atory separation was taken as part of this and i think it's interesting that you know part of that was attached to that response to the motion for summary judgment they have their opportunity to ask her in detail and basically you raise those allegations and look for one that said that she used undue influence on those trends and i think the i think when you go through the facts and the evidence that was presented not only by the  of my client but her two brothers the doctor and the deposition testimony of attorney rocky those talk about the relationship between them and i understand that once the power of attorney is executed that as a matter of point here is that they not only took her deposition and have the opportunity to present the evidence that he's talking about right now is missing detail real questions about those real estate tractions information that he feels still need almost as if in making this appeal that the plaintiff has completely has not only presented at that anything to refute the evidence i presented below there's almost ignoring certain facts for example the holes property the plaintiff can put in his complaint that he had an agreement with his father that the two of them would have a joint interest in that property even though the property was in his father's name as we showed not only through the affidavit of my client but also the attachments of the closing documents the real estate agreement the mortgage documents that property was never held in the name of their judgment i apologize i wish i would have written this down on the record before hand but we had attached a copy of the real estate agreement a copy of the mortgage a copy of  the the the property was originally actually bought through a trust we attached the trust documents all in support of her affidavit that she was always the sole owner of that property and that her father never had an interest in it and that stated in the in the affidavi that the father did maintain an office in the building it was a two flat or problems on the second floor the first floor was office space the father had an office in there but in the contract documents that it's always been my client after it believe it was november two thousand and three is when the assignment was actually only had a third or less interest and that interest got smaller and smaller as it as it went on but he had a third interest in it and by november two thousand and three under the advice of attorney murphy transfer that interest which joint interest in the property he had the independent advice of someone with whom people doing business with for years and who had don't hurt the family had known personally for years this was not done at any insistence or suggestion of my client and i think the fact that attorney murphy testified at length about that transfer rebutted any presumption which we still believe did not exist for undue influence so i think even if the support assumes that there was a fiduciary relationship based on power of attorney and that be as a result any transactions thereafter with the result of the new influence we provided that for the testimony of attorney murphy the actives my client and the doctors that are attached to those a i think renders the affidavit of jennifer good story pages to eighteen through twenty one of the record it's four pages i'm not going to read it all the first three pages have nothing to converting his personal accounts and other accounts with mice into joint accounts with myself that's conversion of those accounts into joint accounts was done at the request of my father frank as statutory that's it no i didn't say she said before what they were when they occurred why who where when the miller case which i saidin or brief says if once there is a president once a fiduciary relationship exists the presumption arises that all transactions with the agent are presumptively fraudulent and is the agent burden to prove a clear and convincing evidence they had the transaction was fair and equitable and in that reserve from the agents undue influence these two sentences we submit come nowhere close to doing that that is why so many judg right maybe she didn't i don't know maybe she wasn't question about it maybe at the time or deposition was taken the focus of the question was on the procurement of the will because it is a d v d real estate transactions and the friction of the will or the bulk of affidavit stands for what it's worth and if those two sentences are going to be considered clear and convincing evidence of propriety in all of the transactions whatever they may have been then jennifer you know i don't think that's the case i don't think that's such as the doctor's testimony as there is on the city of the fact that he engaged in business substantial business transactions on its own the depositions of a brother determining whether there's clear and convincing evidence here plus the fact that there is not a shred of evidence other than the presumption introduced that it's well let's look at dead dead evidence the first of  record they talk about the will and their father being of sound mind and i think maybe they talk about the fact that he ate in a real state practice they don't talk about while ok the doctor says the guy was of sound mind as far as he saw and our position is once you look at all that quote evidence we expect and hope you would agree that it does not rise to the level of clear inference and convincing to defeat the presumption of fraud so for that reason we would again answer how are we allowed to my client it is have we presented an error a factual basis that would arguably entitle us to judge and i would rather prefer that we presented of evelyn's of evidence but in this case what we have is a presumption of fraud that we