proc i'd like to discuss in this appeal for different subjects this morning from occurring really burden of proof and issues of waiver i know i have just trust anything of that nature the insurance carrier simply said well this party isn't mature yet some last to die piracy and you're not entitled to any benefits after  about twenty two thousand nine hundred dollars a month if that had happened then the policy would have lapsed and time the policy was stuck but if my parents were still right after my mother  father survived until twenty thirteen yes at any time during that period the policy had lapsed for nonpayment of premiums then nobody would have gotten anything done and the fact that there was nothing t know we we we do have the breaks it's a complicated case and we will consider it on the basis of the argument as well as on the your papers thank you very much we'll hear the other side good morning here on earth i'm rachel agassi i represent and gerald more let's define an hour pelley judge broderick correctly found that all of the causes of action in this case six causes of action accrued out of a single alleged act of wrongdoing the sale of a life insurance policy in august two thousand and eight the single beneficiary of that life insurance policy was the trust not only is it a six years that you did limitations which would still have run if two thousand and eight is the date but the statute doesn't start to run until eve i would argue it's not an action in equity so you know in plenty of just mention three different possible equitable release actually for the first time in this appeal it does not argue equitable relief in its underlying papers accounting equitable relief right so i believe judge broderick correctly found that the counting in the circumstances not a request for equitable early but merely a calculation of the monetary damages the plaintiff is requesting  from the proceeds of the sale the life insurance policy is the trust of a single asset and that was a life insurance policy when it was sold we asked that question do you agree that if there is an  to the equitable relief claims not to the claims of of monetary early but even let me just focus on the equitable relief claim because it's a six year statute correct for four constructive trust and practice i'm talking about now that you claim a breach if you do surely duty it seems to me that the breach of produce your duty is if there's an open repudiation and that would that would start to start the process we don't have that here but as far as the trust terminated i'm not sure that the rule is whether the trust terminates whether the purpose of the trust remains to be achieved if you know whether that's the distinction the purpose of the trust and so in this situation it seems to me that once the policy was sold the purpose of the trust was achieved and that would that would be the starting point for the for the cruel that's entirely correct the trust contemplated the purchase of this life insurance policy and there was no other purpose correct that's entirely even the plaintiff in the in the complaint says there's no other purpose the complaint says the trust  revocable that the sole purpose of the trust was to distribute after after the later of the deaths of robert h surely the trust property to its beneficiaries and his whole trust property was intended to be the policy of insurance underwritten by a g l so once the policy was sold the purpose was achieved correct and the trustee even contemplates the potential sale of the life insurance policy because the premiums were fairly hefty and it contemplates that the policy might actually cost you the trust money and that right once that that happened then the policy was sold the proceeds came no nothing for that for the beneficiaries to receive after they receive the proceeds correct that's entirely right out or how that it was up to whoever purchased the policy to worry about the premiums yes that's correct and there is no obligation under the trust to pay the premiums and also there is provision in the trust that grants mr morell it says the trustee the sole just question as to how to distribute the funds meaning that he did not have any obligation to distribute the funds the fact that this was not about a fiduciary relationship this was about a specific transaction and a transaction that happened in the trust the came to an end and that is the source of everything mr murphy is complaining about  trust corpus can be expanded and more assets can be poured over it however that doesn't necessarily mean a trust and something or it could continue in this case and under the complaint what we have is a specific transaction in will be six or is it the kind of each on which some facts would be relevant and so we would have to wait until summary judgment grasps to decide i mean that for me is of a question when can we put this as it is so obvious at the purposes of the trust and act that or is it plausible possible of the facts alleged spoke mr murphy is focused on a specific transaction that was done by his own allegations by the end of two thousand and eight and that disposes of that issue it's clear to me from the complaint of these clear anyone that ultimately what he wants is he wants his one sixth he said i want what my siblings got ultimately what you are arguing is that it doesn't matter because you're not concerned with any of this anyway brief says ed and you are now arguing most of the thing that well co counsel are going to tell you that was really what i was going to stand up and talk about which is that we are strangers to this i have we started in california with a lawsuit against eighteen defendants john doe's and jane doe after that lawsuit that lawsuit was dismissed it was dismissed as to the defendants and c enough to for lack of prosecution mr murphy never even served my clients there so he comes back here and the defendant roster is pared down and i think optically it looks a little better you still made the list but we still made the last but we've got literally two allegations the one as the already high premium finance is that we financed in two thousand and five this insurance policy in effect we made it happen a couple years later we got paid off mr murphy has not raised any issue as to that transaction at all a limitations they've gone through it was out so the question is is it appropriate for us to decide that you were out were we to disagree with the argument that you do limitation or should we bet send it down back to the district court and let the district court deal with that argument well i think you could deal with that now i think you are within the four corners of the complaint you have that power with respect to and sole allegation is that they bought the policy there are some other things about what they may have known there's things or insinuated there's no agreement there's no statement that they knew they induced they acted they did anything other than by this policy an arm's length transaction which is what they do for a living thank you thank you thank thank you all