obviously the merits of this appeal have to do with an unlawful bankruptcy plan modification but as i'm sure you've noticed there are some number of preliminary issues to deal with first of all that the entire dispute is moot and it's moot because the go correct that would be the end of the case and and we submit that that language could not be more explicit and we've cited quite a bit of california case law that describe what that language means so that is not only the first of all it's an article three issue so it is a move this issue and should come first but it is also the simplest way to resolve this case which is simply to hold that the conditional provisions never came into effect in the us the entire dispute has moved  in addition the district court incorrectly held that my client lacks preventions standing to appeal and that's that holding was incorrect for two separate reasons first it's and it's wrong as a matter of state  and the probate court said so the probate court explained what the specific powers of the trustee ad litum would be and my client has appeared as trustee of litum in this case it appears so today in that capacity and appeared so in the bankruptcy court and in addition to our part defeated in appeal in this court specifically on the ground that my client the trustee of litum was in fact and can challenge the modifications on appeal and that position was reversed in the district court so somebody has to be able to raise this objection under the bankruptcy code and we submit that s court held at our parks urging that it couldn't be the better the beneficiary because tower because the trustee have litum was appealing this court should permit the trustee ad litum to appeal and the district court was wrong to decline to do so california court of appeal held that adding a modifier to a term like any reason would be entirely inconsistent with its meaning the courts below declined to follow the plain language of any appeal because they concluded it was unreasonable girl under california law that is not a basis of the parole evidence rule under california law is pretty robust and it does even if the language is plain it does say that we're supposed to look at the credible extra and say evidence entities prior to f d i c getting involved to say now we ant that any appeal was the sort of appeal that we had in mind so why did the court earth in looking at that have in mind what they were most concerned about at that moment which they said was some sort of collusive appeal between between one of the signatories and a third party creditor so that may have been what they had most in mind at the time but as far as i'm aware there is no extensive governance that says that they and that anyone believed or intended the term any appeal to be limited in that situation and to the contrary are our brief cites evidence that explains that what the party we're most concerned about in negotiating the settlement agreement was finale and that makes sense because the provisions that were to be approved by the court were to set the tone and the requirements for the parties economic relationship going forward and it would be very damaging to the party's economic relationship if there is uncertainty going forward about whether the the conditional provisions would what was the concern there i didn't understand it well i'm not sure i understand it either but they're worth there were some shenanigans going on in fact recall that this entire settlement was negotiated in  that happened during the trial in the probate court in which these same code trustees were being were to be removed as trustees and they didn't let the probate court know that this was going on which is partially explains t response of the probate court so there was a lot of shenanigans going on and obviously pretty sure a trust international is trust and light him was not in the room was not in that conversation at all what we do know is looking at the ambiguity that they argued exists it's simply not relevant to that point at all significantly decrease the total amount of money owed to the trust in exchange for releases that benefited the coach trustees personally and certain faster payments but not twenty four million dollars so the other issue by the way and the other reason that this is that this arrangement is a concern to all creditors and why it would have been importance as a plan modification to raise an objection to it is that the kinds of provisions the kinds of changes that were imposed made it actually less likely that tower park would be able to successfully develop the property which was a core part of the plan well first of all it had to pay ten million dollars before it even got started it had there were additional limits put in place on vertical construction and and so forth that did not exist before and the exit financing facility which was to provide some seed money to be able to make this all happened was decreased by one point four million dollars in fact these changes actually according to terra park in a pleading they have filed separately these changes apparently put our park in such a cash poor position that it had to borrow money and end up in a secret arrangement with one of their insiders to sell the property if in exchange for that loan so that's of an allegation they've made separately that we've cited that the court can take judicial notice and so would all of one and all that together with that demonstrates is that from from the perspective of  creditors to the estate the particular changes that were made to the confirmed plan made it less likely or at least arguably made it less likely that the tower park would be able to successfully develop the property which was the whole point of the confirmed plan for the benefit of the creditors so these were material changes that that had that impact and they alternately resulted in a significant issue cash issue for tower park it's al by february twenty third to mean three years later there were still ongoing appeals and include that involved the beneficial and what was with what were you you at that point did not have fun allocate your certainty about what issues you think you were entitled to have them back we don't have finale today about whether the conditional provisions ever went into effect and and of our position did offer that payment specifically on the condition that that the successor trustee agree that that payment would would be accepted under the contract it was specifically conditioned on that and that fact that the understanding and my client said well the successor trustee said no that's not the case we're not going to waive anything about this we're not going to agree that the conditional  provisions are in effect as we think they're not and as a result they refused to pay they now say that refusal was unreasonable was was quite reasonable but that's not the test for good faith tender and we've made that separate argument as an additional basis why this your appeal right now it's actually because of the beneficiaries appeal we're not arguing that our appeal created the uncertainty the benefit beneficiaries appeal is what created the uncertainty it was filed within the  i suppose it would have been final well no i mean that this is the provision in the contract was not satisfied that had we not appeal i guess the uncertainty would be over but the reason we went down this road i think is just to explore what could the parties have contemplated by the term any appeal and by requiring fidelity by a particular date the important thing frankly is not whether it turned out that that was disruptive the important thing is what does that term mean at the time and did the alexander hughes appeal create a failure of that contractual condition they chose a very term very broad term any appeal they didn't say any appeal other than the beneficiary they knew about the beneficiary in fact they knew that he was a very active litigant he was at that moment trying to get the trust views the decision that is being appealed the decision of judge king is that f t i see in whatever capacity it may have been acting on the address that in a few minutes  does not have standing to appeal an order approving a settlement to which the trust that the that f d i c represents is a party that is the specific ruling that f p i c and its capacity as trusts the ad litem is a representative of a padi before the bankruptcy court that got exactly what a bargained for so if i was looking there are two things number one there was no dispute but the trust was bound to the settlement agreement did f d i c that's that was in my question my question was did f d i c in that hearing consent to the entry of the t the trust which was the only entity that f t i see represented at that point was oh twelve thousand dollars while they contend that they were the single largest creditor of the hughes estate and they've never said anywhere that the settlement is bad for credit us that argument was no home made dr also found to the contrary judge russell found that doesn't make a difference because i thought your argument was that they it doesn't really matter whether they raise creditors or not because they're speaking for the trust is that your i thought that was your position yes our position is that so i position is twofold so if the trust goes into court and doesn't consent to what we are saying is quite simply and it is the law of the case that is the record the trust was bound to the settlement agreement well they were as a matter of contract of course because they had signed the agreement the question is are they can they like you like any other party to a contract you can challenge the contract and say that was a mistake or you can say the other side breached it or whatever it is so i don't see why a party to a contract can certainly challenge a contract regardless of being a party and my misunderstanding that well they say they can but then there is a there are a breach because the very contract they're trying to challenge on behalf of the trust is a contract position was as to the settlement agreement and if you look at the transcript of the hearing most of the hearing is judge russell asking f b i c's counsel the specific questions and finally getting the answers he was looking for which is that number one there was a concession made on the record which is part of judge russell's conclusions of law the trust is bound to the settlement agreement and then you know not in the really matter and the issue of prudential standing and the cases that we have cited is if if i am party to a settlement or a consent decree decree or consent and the court approves what i am transect evidence indicating that any appeal was limited to certain parties the only evidence that was presented to the court was that the trust in that is the express language judge king and i lengthy footnote in his opinion cites california law about that says that just because an e has been found on a make us and other circumstances it you know credit card member agreements or anything like that sophisticated parties sophisticated counsel because the context is important what we are talking about here is an up this yes you hire lawyers and pay them the big bucks to anticipate and deal with these problems i mean that's my niece these are issues that should have been rehearsed in the you know in the drafting conference if that's it should have been a complete surprise to anyone in the bankruptcy court yes and if you look at the right court the only reason judge russell heard from mr hughes counsel was that he gave court right but that's not something that would have been anticipated that he might appeal i do not believe it was within the reasonable expectation of the pod is that someone who this very court found has found had no standing in the bankruptcy court would be in a position to file quote any appeal which would have the fact effect of completely undermining a transaction that paul walker i was not personally involved at the time so frankly i'm i'm not sure what that was about but the point that i will make while we're on the issue of poor drafting is that if the issue was any appeal within a fourteen day period frankly if an appeal had been filed and then dismissed which is what tom pollock attempted at one point arguably there might not have been finality so there was a contractual provision which itself baked in quite a lot of ambiguity in this whole process but the fundamental point is that it in terms of reasonable interpretation of the settlement agreement i think it would have been unreasonable to interpret it in a way that would have allowed a complete into law to the bankruptcy proceeding and also the beneficiary of a trust that had already found itself to a settlement agreement to be able to come into bankruptcy court and say all bets are off to me that is an inconceivable and completely unreasonable interpretation of the contracts and if one thing california law does require court to do it is to come up with a reasonable interpretation of the parties objects of intent and the intent we get from the attorneys for the trust comes straight out of their mouths and with that i think my time is up  first of all your honors a premise i heard a number a number of times in counsels comments was that the trust is bound and that's just not true a trust is a relationship to property it's not a legal person that signs a contract the parties that are bound are the trustees who are holding title to the property and in this event and that's why by the way and i'm going to read from this court's ruling in the beneficiaries appeal at page four sixty footnote eight trust was not a party to the settlement so the idea that there is no dispute that the trust is a party that saddam is totally wrong this courts actually held the opposite recognize that the trust is not a party to the settlement the trustees were parties to the settlement both and it later clarified very specifically that the act that the trustee of life is not bound by actions and obligations under undertaken by the co trustees that was the whole point was that the trustee ad litum was to be in a position to raise objections that were allowed under the bankruptcy code could the trustee ad litum also file some other do something else to upset the agreement i suppose maybe but the only place to raise the  of these planned modifications under the bankruptcy code was in objection to the approval order the it's also the case by the way that counsel for the trustee and lighting never admitted the trustee was bound what he said was he's the litum as it as your honor noted the transcript is a little unclear but you should know that the that the order appointing the trustee and litum was before the court the whole time and was read in significant part into the transcript so there was no  fusion in the bankruptcy court about the capacity in which the trustee of lennon was appearing the easiest way of course to resolve this case though is moot miss and on the any appeal point i just want to note that it wasn't so obvious that alexander hughes would not have had standing to raise an objection in the bankruptcy court the bankruptcy court held he did have standing actually the bankruptcy court recognized that both they have trustee ad litum and alexander hughes had standing to object in the bankruptcy court and ruled on their objections on the merits we're obviously we are now appealing and because the court addressed all those issues there's no waiver problem we're now pursuing all of those objections on appeal just like this court contemplated that we would when