an accounting and the second clearly was for fraudulent concealment after that parties and gauged in written discoveries interest responded to their rugby tour his requests for documents requests for statements that they believe were this representations that we didn't have any records they believe the records were with third party vendors of sun trust including higher and viewpoint so during discovery subpoenas were sent checked it's archived records at that point they're just answer without checking us archiving for the first time that i think some trust we're going to the issue here was when it was served with the complaint in terms of the allegations that there was concealment claim i know it's more and you've just been asked about the theory of recent concealment in litigation but the claim they seem to be pressing now is that except we have this case from the florida supreme court has versus philip morris which seems to say that the repos period doesn't even start to run until the concealment stops and there is no point at which the bank unconsumed disclose the fact that hey we've closed this account and done whatever so why why  complaint that the theory wasn't adequately pleaded or teed up but i'm just asking about the concealment rationale for the testimony that we have this case with respect to that showed a balance of three thousand and change from two thousand one the count was losing in two thousand and three the account could not have been closed it would not have been closed if there was money the hope that interest on that steams like an argument that the bank did nothing wrong rather than an argument that whatever the bank might have done wrong all happen closed i think the district court for purposes of granting the motion for summary judgment was we're going to assume that there was money left in the account but under the statute rico's twelve years had passed from the you are raising in opposition to the motion for summary judgment you claim you issues that were part of your complaint and i don't have to consider them at this time because your reasoning for the first time in an opposition to the motion for summary judgment but i will look at them and that's when the court said look i don't need to look at these issues again because there through these new claims are sort of a reiteration of the claims that i had already dismissed applies just the same then normally we want parties to have notice an opportunity to litigate something oh i agree i think move the initial problem here is you know you know we were set with any complaint that has certain claims certain allegations and we conduct discovery based on those claims and those allegations then you get to the point when you go through all the discovery you go through all the decisions and you file a motion based on the claims and the evidence to date and then you've got a ship in arguments as to not only the arguments on raising in opposition to the motion for summary judgment but the theories of the case i don't think it's appropriate for here we're going to at this point we're going to start this case over and take a look at everything fresh and go over a new round of discovery to address these