appeal turned squarely on issues of law should be reviewed distilled to its essence this appeal seeks to remedy order and judgment which directly contradicts prior orders of the court the crux of the moloney we enforce the arbitration clause i'm sorry we enforced arbitration clause so it's now before court arbitrator and that set to be heard but the reason why the specific assets what's going on in probate court  nothing right now what's what's pending withstanding is arbitration on the validity of the amendment the amendments to the trust instrument correct sort of a last minute amendments to the trust is absolutely ok and just to touch on that quickly the validity and the outcome of the arbitration is completely irrelevant to these proceedings because under any version of the trust appellate economy is not entitled to these proceeds specifically so whether or not that many months or later determined to be invalid or not is irrelevant for these proceedings again pellicano is not entitled to the proceeds themselves in fact the district court ruled that it was the trustee was entitle to the proceeds and the proceeds  distributed in accordance with article six of the trust which names are sally maloney as the residual beneficiary because this is the case are selling moloney appellant today is the true recipient of the proceeds well the district courts there the insurance proceeds and the for a one k belong to the trust correct that's absolutely correct ok is this record say anywhere  that alone he is the sole beneficiary of either of those plans yes it does where is that in the district court decision if you look to exit of record motion summary judgment i believe it's page forty eight of that order says it's supposed to be distributed in accordance with article six of the trust article six of the trust advisors one specific real property to eric martinez and the balance of the trust assets are to be distributed to our selling moloney so everything besides one real property is supposed to go to our selling moloney pursuant to article six the court also said it's not going to determine the validity of the amendment but rather order it to be distributed in beneficiary in her trustee capacity she breached to produce your duty that's what the district court says there so maybe i'm missing where you were referencing well on rebuttal all look at the exact page number but they make an order that it's to be distributed according to article six of the trust that specific notation for the record is in our briefs but regardless if she breached her duty there she was  to ultimately it's to herself in her capacity as an individual because it breached their fiduciary duty to the trust presumably i think that's been the difficulty with this litigation is the mixing and matching of the duties correct and she she kind of views herself as the queen of everything as opposed to having specific duties such as trustee duty to the trust as opposed to duty to hersel it seems to me that's the crux of all issues and well in part so the real issue is regardless chicana has no one title meant to an equitable lien it's maloney who would have an enticement to an equitable lien in her capacity as beneficiary duty who do you think would have an obligation to well that's where the difference in capacity is and how she's representing herself is really at issue and it becomes a moot point essentially the same way if you look to who is owed an accounting the probate court code specifically devise an exception where if the trustee and the beneficiary are the same person you don't owe an accounting to yourself in your capacity as beneficiary you technically would owe it if you weren't the person who was entitled ultimately to the proce but then if you go on what i think the part i just read you related to the proceeds with respect of the four a one k benefits the court says maloney liable as a matter of law for duty and designating herself as the beneficiary of the forty one dollars k benefits correct and so what is there legal infirmity with that ruling well that's what we're here is what's contradictory to the order attachment specifically the order in judgment and what we're here challenging today gave appellee to qana an equitable lean over an asset to which she is neither entitled nor suffered any loss because she's unable to establish those elements that's the error on the part of the court beyond that the district court awarded relief for which appellee chicana never prayed for or otherwise abandoned because of this appellant maloney was denied her due process rights she was neither provided fair notice of these causes of action nor a showing of entitlement as they were never plaid beyond that in the courts final pretrial order it's clearly an expressway stated the sole issue for trial was whether or not mr connor was entitled to either a constructive trust or an equitable lien so to later award an equitable lean over an ex beyond that under any version of the trust even if we're assuming here today that appellee giancana is one hundred percent successful and her arbitration proceeding and all the amendments are invalidated under no version of the trust i thought that one of the things that was occurring in probate court was that the validity of the meaning of the last minute amendments to the trusts was going to be adjudicated that's true that's before i go in once that happens then won't this problem good sorted out well not entirely because there's a nd part of our of which is the underlying dependent or if you will a stakeholder ruling to keep your client from taking cruises and buying when the low shoes tall the all the trader can figure out exactly where this money is her personal retirement to survive and the fact that the underlying equitable lien was erroneous in the st place says appellee giancana was unable to show an entitlement or any harm and under any version of the absolutely and there is actually a case rosie vs jack way which we cite our brief where this was a similar circumstance and the court held that you cannot attach a lien or a judgment to an exempt asset which is a personal for a one k so my client needs these monies to survive and she's being unfairly prejudiced when mr khana hasn't proven her case at the bare minimum to show that she's either entitled or suffered a harm even if we're to consider what the the arbitration are also disputing the integrity of the restated trust itself on different evidence for grounds so i disappoint those issues are up in the air and once those issues get resolved then at that point we can in term and you know exactly who is entitle to these these benefits or to these retirement benefits and i think judge lose decision is is excellent in he concluded that they belong to the trust and during the arbitration proceeding you know we determine who are the true beneficiaries of the trust and i think asset which is the ira what is your response to that but we at the trial your honor we trace the four a one k benefits that belong to the deceit and into the a you know robs money out of a bank and puts them in into an example ira he can at that point tell the authorities why you can't get the moneys because it's an exact ouray i mean so is the money is basically in a holding pattern because there's a the disputed amount the judge to live found is now under equitable lien is that right yes the lane is on though it's not supposed to the money is not supposed to go anywhere well it's not supposed to go anywhere but it is going places  a summary judgment ruling that he has his trial and at the end of the trial basically judge lou traces these proceeds to the ira and then puts an equitable lose on that who wins who's who are the beneficiaries well the beneficiary at that point would be missed maloney you know to to certain degree i mean i'm not going to say completely but you know if those amendments are valid if they were not prepared by unto influence then by the clear english reading of those amendments isn't titled through the proceeds so i mean the only thing you're defending here is the summary judgment and given your very st question your honor i have yet to determine in given his decision decision where he concluded that mr pallone is or is the beneficiary because she is the residual the judgment or a judge who's ruling they were supposed to be deposit with the probate court so i know that corpus stands preserved yes that's preserved bu court's ruling this will only see be holding these funds pursuant to i mean as the successor trustee of the trust you or your adversary says that  that she was entitle to the retirement benefits personally right that she was not entitled to them as the trustee correct the trust her and judge lou decided that no she  trips that the corporate for to her are so in that respect regardless of what happens at the arbitration i mean that the attorneys fees that my client incurred to get judge lew to rule that  should not be moved or disturbed i mean that if we had not done that it is possible that all the monies that miss maloney had acquired or all of the retirement benefits would could be completely thought was an appropriately used to be placed back into the pot and what is argued as i understand it is that some of the money he's put back in the pot shouldn't be there conclude that all of the monies all the retirement benefits whether there whether it be life insurance benefits or whether it be for a one k benefits all of that money belong to the trust and he so held in his decisions will when  resolved the arbitration trial is set for march th of next year it's a five day trial and at that point we will determine you know who are the true beneficiaries of the trust of the retirement benefits that are being held by in the small loan but which are being dissipated at this point though what do you think the bottom line of this court's ruling should be would just simply holding these monies are required concluding that these monies should be held in abeyance while we resolve the underlying issues who arbitration trial i e who are the beneficiaries of the trust and i gather their concern is that so much of the money has been designated attorneys fees and they feel that it's improper plenty that well it was there it monies belong to her as a result of the underlying trial of the underlying litigation as a result of judgment decision judge lewis decided otherwise no she breached a few do sherry duty in declare the state  the status quo until such time as the march th the whatever it is isn't that the status at the moment yes it's should be there should be a status quo at this point however all right thank you thank you twenty two dollars what it says is because they are to be distributed according to the article six are selling maloney is the ultimate beneficiary of them even if we are to maintain the status quo i am looking at excerpt of record forty eight so maybe you're looking at a different page forty eight it's page thirteen of the motion for summary judgment ruling that's going to twenty one through twenty two but it gives and i may have the page number wrong but that something is quite off because i'm looking at page forty seven page which is thirteen of the summaries been looking at pedo page thirteen of the summary the order on the motion for summary judgment has a footnote and which are then payable to the trust and shall hold such proceeds for the purposes on the trust provided for an article six and have the letter different than the judge making a declaration that's basically simply quoting  the document correct correct because he was saying and even on page fifteen of this order he is saying he's not speculating as to the terms the terms are with the terms are article six mandates interpret it but he doesn't say that anywhere well appellee chicanos council just affirmed that if you read the plain language of the trust as it's written now it goes to a pallet moloney there is this is not an undisputed fact between either party if the trust is upheld it goes to appellate maloney under article six because of this imposing an equitable lien which is not justified under the law it was supposed on behalf of the unsuccessful on four of her five cross complaints she was not successful on the merits at all she did not receive one dollar of affirmative relief in fact if we are successful on in the arbitration the only successful party here i maloney therefore in order to this relief to be equitable it's unfair in can girls with the law to award such extreme relief to a party who has shown no success on the merits only success on behalf of the says that normally each side bears around costs in accordance with litigation unless a statute provides otherwise here there is a statute and that's a part of how judge lou reasoned this however if you actually read the ruling is not a beneficiary of these assets beyond that the relief that was awarded to miss qana is nonexistent the only relief that was awarded to the trust here it's a distinction without a difference as as the trust stands and as undisputed it is miss maloney who is the beneficiary beyond this council for appellate chicana a motion for receivership what he failed to mention is in judge lewis opinion on why he denied it he clearly states it's not clear if a pellicano even has a claim to these assets so he can award a receivership over assets in which she has no legitimate claim which is an underlying element for equitable ie so to award attorneys fees when there is no entitlement to relief and you didn't get relief in fact it says if you did get the relief you got the relief to say you can't spend the money it's got to go into the trust isn't that relief she got an equitable lien of which she doesn't have the baseline entitlement the relief that was granted is atrocious to the trust and that's the big distinction here is it's so the trust it's not too  under any trust version any trust version these proceeds are part of the residue which means they ultimately go to appellant moloney which is why the baseline order in judgment