d reversible error we believe the court committed was with regard to its conclusion that actually was in the reconsideration order was that price did not properly bring before the court in try a trial the argument still don't see it frankel and the reason i don't see i see i'm starting with the first one number seven plane this will suffer all the overall harm of all the founders not required to disgorge i call it packet as it's received by them and the reason i don't see it recipient because it had an effect preserved a perfect is plain properly yes i haven't found that claim before that's the claim i think that is is found by the district judge to be late in arising and i don't find that claim here either if you're point to paragraph seven i don't see it most prominently because the recipient of the money that you're claiming didn't properly perfect his claim wasn't a defendant in the case well we believe that in the pretrial order the pretrial order of the court s the one who started suing washing organic and everybody else to collect his money the court is saying that mr brodie's is the one who is doing these things mr brody did business as  through your other theory on the discourse and in the king block himself in essence he had special control of where those funds came out of washington organic to pay his for himself or his company as l l c a few was writing the tracks that that were paid the moment when those intertwined if you two here because they control the issue is a question of did mr brody in this instance exercise enough control over the primary trust asset and and was that and by him writing is that sufficient to find a person personally liable when they are in the situation of a limited partner in a sort of that's a first impression as far as we can tell throughout the us on all the other cases of in corporate cases where you have officers  directors under partnership you have our federal partners limited partners mr brody basically set this company up primarily to sell his fruits for his benefit he then wanted to make sure right of crime that started knowing about this one starting feeling started feeling uneasy about this had his own individual mr they'll likely go in and shepherd things for a year or find and make sure that the money was going properly basically the states  been in the summer of two thousand interestingly mr prodi admits that he was not happy with the one organic operation by summer of two thousand but then the court finds that somehow he didn't know that his fruit wasn't being paid time until october twelfth when he knew that price was their price as a valid packet trust claim it was from eating fruit mr brody we submit took on the mantle of and for the benefit of himself of the financial liability because he was allowing proceeds to go out to and maybe leave you know good normal business purposes but once you take on that mantle you are subject to that case mr brody was a limited partnership limited partner in washington organic which was formed in may of ninety seven and the purpose of that was that the partnership was to sell  partnership as a sole proprietor mr brody marketed his ninety seven ninety eight crop through washington organic in january of ninety nine mr prodi for making boston natural l l c and the ninety nine out mr who lay also took steps to make sure that the limited partners were kept in the dark as to what was going on in one nine hundred ninety nine in two thousand specifically in late ninety nine two thousand without his partner's knowledge or consent he created a new label that became lost on natural label the new label a new sticker that was called washington organic he also went out and still listed in contracted with other companies approximately three hundred thousand dollars out of the washing organic account the judge also found that both price and mr brodie's company were victims of mr washing organic fair play came loss of natural l l c over four hundred thousand dollars and failed to pay a price on a little less than two hundred thousand dollars so then we turn to the issue of discord in this case  argument that is being made is that the pretrial order and then the subsequent written findings indicated that mr brody was in fact operating as a sole proprietorship and that the plaintiffs have the right to rely on that and  the bank and i question ok and what is the name of that business answer it's called king boss of natural question is that a corporation answer it is an l l c question ok so as a five and a half months prior to  blank in march of zero four i received back from plaintiff's counsel their pros pretrial order and because the filing deadline of that pretrial order was fast approaching what we discovered happened as my staff scanned the plaintiff's order onto our eight that is accurate mr brody was operating as a sole proprietorship however in january ninety nine as indicated mr brody form an l l c of his office orchard operations during trial plaintiff counsel i cross examined m limited liability company answer ninety i believe in one nine hundred ninety nine question but ok prior to that time did you offer it as a sole proprietorship answered yes i did and in the district courts moral decision which is your twenty three the judge pleadings ask for a trial continuance for seek additional discovery instead of the tactic they're taking is that they want mr brody to personally just storage proceeds that he didn't receive and how do they make that claim by claiming the district court found that mr brody was doing this just came bottom natural well if you look at the written findings see are seventy six to page three the findings state in january of one nine hundred ninety seven robert brody dva king boss of natural and our central washington organic orchardist was approached with the idea of forming a marketing agency etc that finding is true in january ninety seven mr brody was often a sole proprietorship it wasn't until january of ninety nine that he formed the l l c and the judge sukkot orally found that during the ninety nine two thousand came blossom did can blossom natural was a sole proprietorship though they knew otherwise they knew five and a half months before trial that it was a limited liability company they also claimed in their brief that they were under the impression quote unquote under the impression that mr prodi was at all times operating as a sole proprietorship and we're submit that argument is unbelievable given the fact mr brody twice testified under oath that he was a limited liability company as of january ninety nine and the reason that's in the date is important  because the plaintiff's complaints in this case arose in september of two thousand and twenty months after mr brody had formed a limited liability company how counsel can argue in good faith that they had the rights they had a right to rely on a fact that they knew was incorrect it is beyond me if they didn't believe mr brodie's testimony they could have simply made a call to the corporations division of the secretary of state and check whether they were a l l c or not we would submit on exercise some control that put him in a position that he would be secondarily liable and the court said that when when counsel brought up after the courts for a ruling facts testimony presented on that i mean yes there was a spectacle that the closing argument mr boyd brought up which from the first time from my perspective brought up this just gorge mclean but there were no facts no testimony so substantiate the sale price and the timing it was fruit and in fact there is evidence in the record that the plaintiffs president mr price also had the same controls as to when he wanted his fruit to be sold and the price he wanted to be sold by washing organic mr price isn't a limited part here in washington organic in fact the evidence was that's very common in the industry the growers they're the ones that determine what they want the price to be and if the marketing and you can't get it price is not in a position to decide who gets paid by washing and organically through does not have and what happened there was there was a business decision when the partnership was formed that if i'm from obviously from a protection standpoint that there should be two signatures on checks and the checks that were presented as the evidence indicated all the documents were provided to mr brody at these meetings there were friday meetings usually last a half hour here related to king blossom natural fruit sales the evidence before the court was that there was no evidence presented to mr brody that any other marketing of any other fruit was going on there was evidence presented that on occasion m too late would have to fill an order so mr brody had a lot of golden delicious apples but he didn't have any food she apples well what would happen is that mr brul have the authority to go out and actually pay for   in the case of buying apples to fill an order it's not a consignment arrangement they are taking ownership they pay them right then and receive the funds back when doesn't the fact that there were checks after getting the number but there were evidence before the court was that mr brody on each of those three occasions specifically asked what are these checks for who's who's price and was told that they had to fill in order and they had that customer  wanted that mr prodi did not have in his orchard and so they simply these were payments for filling in order that it was not a consignment arrangement there was no evidence that they were operating under a new label and they had a new contract with all of these other companies mr brody always understood that the only fruit that was being sold in a consignment arrangement was this fruit i mean this was marketing and it was said mr bill a then went off on the on the on on the side and tried to cut a deal where he could make more relevant information that he would need to be able to have determined whether funds are being properly dispersed or not again or the court found based on all the evidence that mr prodi and his other limited partner were excluded brul in the case law it is you know it's clear that there must be some before the individual to be secondarily liable must have exercised some role in causing the breach and the cases that were cited by by kissed growers case that was on page fourteen of their brief the only issue addressed by the federal court was whether a subsequent pack a claim against the individual shareholder officer and director was barred by an earlier state court action against the corporation the court never addressed what constitutes patrol for purposes of secondary liability and the regs and market case cited by plane as authority of the individual defendant stipulated that they control the trust assets under sponsible for all aspects of the company and goldman haydon case also pays for a change cited by the plaintiffs the broker dealer went bankrupt and the sole principal shareholder officer and director of the company the court found absolute control companies that he was selling them for so whether or not the washington limited partnership act is controlling or not the fact of the matter is no court has ever imposed liability on a limited partnership under these circumstances  the evidence there's mr prodi did not exercise sufficient control to be responsible under these circumstances plainest you have a judgment already against mr brul and you stipulated to it and they have judgments against the rest of the end of these as well i don't don't believe that at that point the finding that the court didn't make that mr brody himself sued washington organics sued washington right partnership and through the record indicated that he was the one who received the assets of commodities being sold and it stays there until suppliers are paid in full and any time this ruby knew that that would occasionally occur any time that happened he wasn't surprised by it he'd ask questions about what it was for and things like that but that package trust was directors sure soul shareholders people you know data they control the this is a tougher case and we acknowledge that but we believe that all those cases that are leading to this focal point in fact there have was a continuing trust obligation there and he was signing checks for the new prices there he was signing checks to a stealthy of sign checks for normal business purposes and all of those even though those are legitimate business purposes are violations of the pack insider of the company washing organic was a new name a much better position to protect himself and like others and price was an outside supplier therefore we believe the court should reverse the crowd court's finding