were part of a single transaction and therefore they feel the pattern of continuity elements of the rico claim and seeing just one transaction the court the court below avoided  mistake of missing the forest for the trees however it made it as a mistake that is just a significant it missed the trees for the forest apple easing  extending over a period of nine years multiple contractual relationships with at least two separate persons wholly distinct from one another who happened to be a blood relations to one another and the two thousand four apple we define it below max ham told one of the plaintiffs in this was just one plaintiff that he was licensed to sell crop insurance when he was not how do you define a single transaction what if a single transaction and within the meaning of this case well there are there is no case law from this court defining a single transaction and we can look to the different cases decided by this court and getting some guidance from cases of a single transaction i know a single transaction could not could not contemplate a holy two holy and distinct contractual relationships holding that in this case there is a single transaction is an irreconcilable anachronism when you say go ahead  but billy miller shannon his contractual relationship did not begin until two thousand and eleven so they're not continuous they entered into these separate contracts at times completely different seven years apart and so when you have that kind of disconnect i would say that does not fall under the definition of a single transaction other words they renew their crop insurance with you but i'm out on several occasions on several occasions over a period of time would give it a continuity i would make the distinction that there is more than one victim and then answer your question yes it would give it the continuity it needed because this that every no more than one occasion several occasions he made major mistakes with respect insurance coverage and so why did they not stop dealing with the man they say in this man was just put him back in bad decisions and bad decisions up to bad decisions and we just kept on i mean to where they blind to what was going on but they may have then they began noticing these mistakes about two thousand and eleven in two that happen well and i think an important fact here too is that this is in crosby county texas there are a whole lot of options people are more blind didn't well there's just there's just not as competitive a market saves as in new orleans fact that you asked earlier there's not there's not a competitive market there in the area for competent maalox so he is now yes do you have to have a license to sell this kind of insurance yeah you have to you have to have a license a general license and then you also have to be specifically licensed by the text part of insurance to sell crop insurance did kirk have a license for it did yes ok and the fact though that mr ham did not have a license is significant because of his stature in the community he's the president of the citizens national bank there in crosby tend one of one of only one or two banks then the county so if you want to loan you probably you likely have to go through him he he is a well known figure in the community and he uses that stature to help drive business through the kirchen him insurance agency for major reason well this claim we saw that it did meet in our opinion the elements of a rico claim and so because it met the elements we thought that our clients more clearly meet the elements of a d t and you didn't want to be in state court is that no i think we we saw the opportunity of pursuing a rico claim we thought that the elements of the facts in this case met the requirements and therefore we had to follow in federal court to pursue that made on the rico attorney's fees are are paid under rico however so let me just ask you because you you had all these you know statements in your complaint and then you were required to file a rico case statement and there are more allegations in the case statement that you never amended your pleading with that's correct and we were sort of caught off guard with the granting of the motion to dismiss shortly after we filed the rico case statement it wasn't very long after we filed the requested rico case statement that the motions miss was granted and in the rico case statement which is intended to help the judge decide whether this is a rico case we show we get into more of the particular facts for a lot of the e mails that were sent we reference the dates of about a dozen e mails that were used by mr ham in his capacity or his supposedly capacity as a crop insurance agent agent thereby using the wires to execute his scheme to defraud and so it is is a pelisse position that because at least under any definition of single transaction that i am familiar with this case does not contemplate a single transaction the court should move to the open and closed period analysis set forth in the supreme court's  l would you help me a little bit with the law i know that this case was decided on the single transaction but let's say that there were two transactions educate me a little bit would that necessarily mean if there were two transactions the fact that it's not a single in there let's say there was two transaction but that necessarily mean that the current pattern and continue continuity would would would be a step it would not all it would mean is that the court would then be required to engage in the opening close pillion analysis set forth in a stink by the supreme court and subsequently implemented by this court of related predicates and they extend over a period of time then it's a closed period and there is continuity and so here you have you have this is stachel period of time element extending from two thousand and four to two thousand thirteen and you also have the relatedness element which the related element relatedness element requires that they be this have the same or similar purposes results participants victims or methods signing up for insurance from an insurance agent who they thought was licensed to sell crop insurance who was not you have the same participants it's mr max ham his insurance agency partnership  insurance doing business out of citizens bank at times using citizens bank letterhead you have the same victims and you have the same methods of community of commissions  element of a rico claim is therefore met in this case even if it were not me saying the the court felt that it was a substantial period of time i think it's hard to  the it was consummated by use of the wires in the mails and so at least as early as two thousand and four we have that fraudulent statement and in the end i think to going to the limitations question i think the limitations would be would apply where the towards the end of the predicate acts because you need multiple predicate predicate acts to establish a pattern and so the two thousand four if if that were the only fraudulent statement and that were it yeah it probably would be subject to limitations but because because the  period of time element of the continuity element of the pattern element the i would also note that even if this satisfies also the elements of a of an open period you know in a state in which set forth the open close period analysis court used an example of you know a few assaults or robberies taking the place over the course of a few weeks but here you have an established business imports case in affirming a summary judgment it characterized mr disaster owes claim as a breach of contract claim dressed in civil rico garb we suggest here that the shannon's claim is merely a negligence claim dressed in civil rico gar the trial court properly dismissed the shannon's claim and should be affirmed on foreground first of all the stands did not plead sufficiently factual matter to sta plausible claim for relief secondly they didn't plead fraud with particularity third there was no pattern of racketeering activity pleaded specifically with respect to the continuity element and finally there was no pleading that showed that the predicate acts any type of violation of rico approximately cause the damages claim to the contrary the pleadings showed that the damages that they claim were caused by negligent act now we have a little bit of a different situation than the ordinary twelve b six dismissal here because the dismissal did not come until after there had been more than six months of discovery in fact the case statement that was filed some six or seven months after the suit was filed actually included the plaintiff's expert or the shannon's expert report that was based upon the discovery done in the case and we can so we have that benefit of a very very factual background in the rico case statement that shows that this is a negligence case because their own expert specifically referred to negligent acts breaches of standards of care and did mr ham have a license to sell insurance yes he did your honor at all times you have a license to sell crop insurance there is according to my research there is no such thing as a crop insurance license first of all the texas department of insurance regulates the sale of insurance in texas and it regulates who can sell insurance there are things such as general lines license and limited lines license now mr ham at all times has and still has a general lines license crop insurance is purely a federally regulated type of insurance there is nothing with the texas department of insurance that say is that someone is licensed to sell crop insurance mr kirk and i would point out there has never been a suggestion that mr kirk was not properly licensed to sell crop insurance or that he was not properly appointed and agent of a crop insurance company  this was which we're going to go on the pleadings here allege that he did wasn't authorized to sell crop insurance now whether he was or he wasn't there alec requirements are assume with me if we assume for just a second that he made the statement i am licensed to sell crop insurance and he was then under those circumstances that is a mis representation but the damages that they claim arise not from that misrepresentation but by their their own pleadings by the negligence in the administration abets primarily claims expertise that he stated he had and that the best representation that they were allowed on and that college the damages i think primarily there are saying that he was not licensed but if you go to the qualifications that is probably not a misrepresentation of a fact they admit they had been doing insurance business with them since two thousand and four at least mr and mrs billy w shannon so the misrepresentation of the facts would have to be that i am authorized or crop insurance when i'm not but it's undisputed that they had the parents had crop insurance through this agency for a long period of time and yet no damages are claimed in the complaint  two thousand and eleven in two thousand and twelve three am did have an insurance life yes he did a general lines license that's the whole basis of their complaint well they and i'm trying to stay on what they played but they pleaded that he was not licensed it seems to me yeah but if that i mean if they're if ok if it's not true that would have been ground for a very quick summary judgment right because that's the whole basis of their complaint i think that would be that would be an accurate joan all right let me address just for a moment there has never been an allegation that kirk in him was not authorized by a crop insurance company to sell crop insurance and in fact it's implicit in their pleadings that they did kirk and ham obtain crop insurance for the shannons because their damage claims  that they didn't obtain insurance coverage for us rather it is we didn't get paid what we think we should be getting paid under the crop insurance policies so that i think kind of goes to the issue about well what was the misrepresentation if someone had been a tyrolese different situation if someone said i am authorized by let's say rain and hail crop insurance company to write insurance coverage for me if you give me the premium or get you that coverage when in fact there is no such falls insurance there there were two aspects that would be one of them that he didn't advise or tried on the coverage and secondly there were some claims handling practices that they said were the crux of the cause of their damages  is far is the single transaction i don't think there is a clear cut definition in the cases as to what is a single transaction rather i think we have to take a look at what the the opinion say about continuity and the key issue i believe it is the continuity of the criminal conduct that allows that continuity factor it what we know in some respects what a single transaction now the words that a series the ends can still be a single transaction even though there are multiple events we see that in the word of faith case a single transaction included not only preparing a t v program and producing actually airing that t v program but then several months later there were some modifications to the program and it was rebroadcast under the shannons argument that would that would be a series of transactions and yet the court properly held no that was a single transaction that is that it was clear i mean there's another way to look at it especially on a motion to dismiss and that is that there were many transactions in your transaction the definition that this court has given for the purpose of rico claims it's that focus on continuity of criminal activity that would be you know i think they allege that every time they bought insurance for two thousand and four and two thousand and eleven excuse me that's when the misrepresentation from the way they affirmatively leds those two times he misrepresented that he was a licensed and qualified crop insurance age to x rockier inactive one of those were two acts of misrepresentation but both of those were in meetings they were not use of a wire fraud or mail fraud article criminal acts as a person or mail fraud so an additional reason that i would say is that they have not pleaded that those were used to execute the fraud to the contrary there he had some policies the e mails that they talk about there they're  limited basically to period of two thousand and twelve to two thousand and fourteen but they never show how those e mails or or letters executed this plan of fraud that is the key issue i think one of the key issues was missing and why the it would be appropriate to affirm on that graph and finally the fraud is not alays with particularity as it relates to the predicate acts again we have a series of dates of truly the obligations that are specific to the bank entities and those allegations relate to financial institution fraud and compared to the mail fraud allegations and i think there are three important points there one is the allegation that the financial institutions fraud is limited to a single act and that single act is in october of  shannon and two days later that deposit was put into one of their accounts the claim is of course that there was some de lay in making that deposit and that the lie according to the pleadings amounts  some kind of financial institution fraud taking at is true which we must under the standards here the allegations still do not establish a pattern of financial institution fraud there is only one instance there is no certainly no cost new ity there is no pattern secondly there's just no relatedness to the mail fraud allegations at all this this financial fraud allegation if true does not do anything to advance the mail fraud that has been alleged does nothing to advance the insurance agency issues upon which the pla as offices for the insurance agency but that still does not connect to the bank to the mail fraud issues that have anything to do with the insurance agency or representations of mr ham is a licensed crop insurance agent certainly mr have is the president of the bug but he's also a partner in the insurance agency and although the allegations are somewhat vague in that respect they do not actually objectives of this rico scam correct and i think the i think that's the crux of the matter right there is how does the buying benefit from this fraud how does it  any money but correct and everything to gain and i would agree you don't necessarily have to benefit from the got to be but here there's just no nexus between being a bi or being the president of the bike or using bank that certainly the financial institution fraud issues don't know get you there and i don't think any of the other allegations rise to the level that would get past your and co case no other question  well when you stood up here originally you told us that the reason they were using the partnership is a the bank is the only one in the county or one of the only agency you weren't saying it was because the bank you let me ask you what did mr ham have an insurance license he did not he had he did have he will he had a general lives insurance license but to sell crop insurance you need an additional certification and that may be my fault i don't think i was clear on that and no you weren't at it before and so my head cleared when i sat down but it is true that you need an additional insurance you believe yeah in there this is there is rule eleven i mean these are very stern allegations and you and i and i and i have looked it up i've consulted other insurance sells persons other insurance agents and they and they on and on based on their statements on information and belief we pledge that yes yes you were counsel option he said his search shows that there's no such certification required of such a large interest special pleadings to me said he didn't have a license then you had your rico statement and now you're telling us that it wasn't a license it was a separate certification so and but but you do need that additional certification i do you know what i  not prepared to disagree with you but you're you're going on and on in a very vague way and i'm sure there must be regulation about it somewhere i'm sure there must be as well i don't know that regulation if he says i'm licensed to drive you drive ten of your friends to a football game twenty miles away and he doesn't have a commercial vehicle license you can look that up in the d m v and all we're saying is you ought to be able to look up in some kind of texas registry or federal regulations governing the crop insurance program what every third implication might be required for crop insurance and that's a one nine hundred eighty case this court held that reliance alone in some instances can be proximate cause the fact that plaintiffs did rely as pleaded in the complaint on the fraudulent statements they wouldn't have gotten crop insurance from them were it not for those  there and i would i would just pose one quick hypothetical say for if it were a person practicing medicine claiming to be a licensed doctor when they were not and then they you know they didn't operate correctly well that would be more than just a negligence claim it would be a fraud claim and while the stakes with health care may be higher than the stakes here i think those stakes bring the issue of the show up a relief for us rather than than being distinguishable thank you if you m