has taken the position that trial judge should allow and then without let both plaintiff and defendant cite in their brief the standard that this court should recision and that is defective based on the record before the trial court in that plaintiff had filed originally a complaint or contract seeking monetary damages  and each the amended complaint in this case and the post amended complaint alleges the basis for recision is non payment i believe that you set forth that you can't or are that you attack the parties right to title under the contract and then allege nonpayment if you're unwilling and i'm unable to accept payment under that contract by citation proceeding attacking the title to the point you can't then in turn i think the case will stay so you can't ca that they would set forth on the basis of perception that effect cannot be cured and if this court finds that that is true then the rest of the remaining three we do not need to go through but for the sake of i will go through those because i think even going through underlying state case which went on for a period of two years backhauls was dismissed on what we can tell the eve of trial just to them pursue the breach of contract case so at that point time my clients actually go through the process of defending that action to have that it's missed at the last minute before trial the tragedy using his discretion allowed the breach of contract action brought plaintiff that brings this breach of contract action represent this court at that decision i think it is with the exception of the c r p payments that i reference that there was not payment on that but i think our position is that there is no body part d and no more body or no entity available to make that payment to his mother passed away so that the monthly or the yearly annual payments cannot be made to his mother there was an administrator appointed in two thousand acts of its title to the property unwilling or unable to accept payment under contrac this administrator in two thousand for having his title to the property and it was not till two thousand and six that they say that they want a payment under the contract so i think it's yes he did make a substantial payment on  reading it is that they're trying to contend that they were always wanting performance under that contract and that it was a matter of a couple of months or passed for her or weeks had passed and that they'd made a proper demand asserting your rights are you suggesting it is just the passage of time no i'm not suggesting it's just the pas to putting the parties to task basically making them prepare and be ready for trial and then the last minute many minutes doing that twice and then not only having for you a motion to dismiss where  defendants are asking for dismissal with prejudice and going through a hearing on that and then finding out your complaint has been dismissed with prejudice then and only then asking for a minute basically besting saying you have five a valid cause of action there and concerned just time factor i think that's going to make it impossible for any defendant to be in a position to defend courses of action brought against him if you can always amend it whether it's a valid cause or an invalid caused to be forced to go to the point of trial and compare those costs i think that puts plaintiffs at it unfair advantage in negotiations to force the famous to come to some sort of unjust settlement i believe going on to the third step of the test whether the motion to amend this time we certainly contend that the motion was not timely and that is for all factors the passage of time from the inception of this minist foreign ministry to being appointed in two thousand for twenty two years on a citation proceeding before dismissing that at the last minute then filing a breach of contract actually for two years dismissing it and then seeking  and not doing it what we would consider probably even with this current council a way to try the current house i believe came on in may of two thousand and eight and then waiting until the date of trial on the breach of contract that's certainly one time position that because it changed counsel late in the game that this council should be equally entitled to a number of the minutes as if he was two or two or three months into the case and we're not talking about just drafting deficien pleading to get one cause of action before the trial i certainly incur with the i guess standard that the amendment should be granted freely to let technical problems with but that's not what  has to use i think it's back to whether part and i think that's incumbent upon the already and it's turning whichever it chooses whoever it chooses represented to make sure that if it's going to the history of the case i'm sure you're going to have adequate time to be brought up to speed before taking on the case and to now make that argument that he wasn't given adequate time i think that that is not the standard nor is it  i think that opens up a dangerous precedent if we allow the parties to have an opportunity to amend its complaint simply on replacing its attorney they again provides fourth amendment of  all these reasons the trial force decision should be