happily good morning mr nation will hear from you good morning your honor thank you may it please the court the amended complaint your honour's in this matter satisfies the pleading standards of the federal rules of civil procedure the trial court in dismissing the complaint essentially ignored eighteen pages and a one hundred paragraphs of detailed allegations in this matter rather than taking the the facts as planned in the light most favorable to the plaintiff of hollands the court glossed over these well pled allegations and the dismissing almost every count suggested that the plaintiff appellant did not provide facts which were in fact clearly laid out in the complaint the corporate structure of the brain and the project is certainly complicated but that bank to the plaintiffs but in fact the duties are spelled out in the documents that cover the transaction i don't believe there's any dispute in this matter that usa through f b i see is responsible for the obligations of course then the seed bank and tax partners once they became the receiver and seized the bank what we know in this matter is that like past experience mr burt who was a developer who rehabbed old properties in historic buildings had worked with st n b c when st n b c was interested in acquiring tax credits this project was no different than any other time that mr berger and the bank could work together everybody knew their responsibilities that were laid out in the operating agreement the master lease agreement and all the other documents that issue tax partner st n b c and us f b i seize responsibility was to not interfere and not unreasonably withhold consent to refinance the project when the time came in fact when that time came the f d i c try to use their obligate or their responsibility and their right to sign off on financing as leverage to extort a better deal for itself so we have a contract refinancing is reserved exclusively for tax partners in the bank in the usa so the duty in question is how do you handle the obligation refinancing when requested we brought several claims six claims or in tort it breach of contract i guess there's been tort intentional interference with contractual relations as a trial court ruled that  obligation is reserved or a member of the l l c that ella that member has the same obligations as a managing member under the south carolina act i think twenty five arteries and this is from the south carolina uniform l l c act it says a member who pursuant to the operating agreement exercises some or all of the rights of a manager in the management and conduct of the company's business is help to the standards of conduct in subsection b throughout to the extent that the member exercises the managerial authority vested in a manager by this chapter so in other words if in fact you a non manager member do somehow exert management control over a particular area then you are helped to do these loyalty and duties of care and that's right out of the south carolina code that's the section that the trial court did not address in dismissing those two claims we know that in this case the only party that could consent to refinancing was tax partners so they fall into this category of h three where they have a specific management duty that did not otherwise apply that leads us to again our burden is just stablish a plausible theory of liability and certainly it is plausible in the way we played it that f b i the breached their duty of loyalty in duty of care i'm reasonably withholding and the district court did not even discuss it that whole theory that whole management theory assuming assuming the something to it wasn't right is below and the dish record we get the district court did not address it we you offer to support them the h h three theory was not raised below so much worse than you're looking at this issue for if there's something there you forfeit and you never raise that theory whether or not it's te that's another issue well i believe i do believe that we cited to this the uniform l l c act no that is not was outside that's not my question you are now focusing on a very specific provision in that statute and saying this is how i come up with my manager theory because the theory is questionable and i don't know where the authority comes from so so one wonders and then when i look i don't see any reference to that below you know of a play that  you never played that theory out below you can't now raise it with us for the st time well your honor i imagine i think you're accurate in suggesting that we do not reach the read but i do believe that the code section in general the uniform claim the court found that held that the negligence claim could not survive because there was a contract claim at the same time that the trial court found that there was no contract so it seems to me that that either if there is no contract as a matter of law then in fact the negligence claims including negligence breach of fiduciary duty and intentional interference with contractual relations those claims would survive if in fact there's no contract which we don't necessarily concede but if there is no contract then the negligence claims should move forward if there are no questions i would like to reserve some time for what i did just have one question which is how do you think a ruling in this case what effect i case that's now pending before the district court that involves branding the mail manager suing the united states so i don't know because the parties are those other entities if any of these claims obviously mr burr has individual claims this corporate entity would have been to that your claims i would think that if this matter was remanded to me forward on any of the claims the matters could be consolidated and litigated that way they are different entities to the subject matter your honor is absolutely your craft that they are the same issues but there are different corporate entities that do have different claims i because none of the proposed amended complaint i mean to claim stated clean relief that was plausible like to point out initially counsel talked about allege that it was not presuming no other words giving plaintiffs out of the benefit of the doubt presuming that the f t s he could be held liable for any wrongdoing by taxpayers first of all with respect to playing his preacher of contract claim i think it's one of the one of the best ways to follow all of the issues in this case and still is to look at the corporate structure that we have laid out on page six of our brief this is the structure that's alleged by the plaintiffs and in fact plaintiffs to allege that this that this structure is mr briggs creation this is how he structures these transactions where he seeks to renovate historical properties and generally tax credits contracts that were in fact attached to the response of the motion to dismiss mr least in what we call for short the tenon operating agreement which is the agreement between manager in terex partners to create a tenant and as we point out below the plaintiffs argue that that tax partners breached a duty that was owed under the mr lea tax partners is a party and neither of the plaintiffs in this case is a party mr burke is not a party and owner are short term or short in for brand new all seeing also is not a party so if you have tax partners does not have a contractual relationship with either the two plaintiffs it cannot be held liable for breach of contract and even then we set forth in our brief how none of the definitions laid out in the operating agreement are in for you by plaintiffs none of those definitions suggest that somehow owner has the right to sue to sue tax partners under the myster and absolute discretion so we believe that because the district court correctly found that the plaintiffs in this case have not alleged any contract that they can force against tax partners in there for the f b i see the breach of contract claims correctly distance the next addressed the two statutory claims under the south carolina hello see eric which which were addressed by my plaintiffs in their opening  addressed in the reply brief below and it wasn't addressed a few minutes ago in oral argument which is even if tex partners were a manager of ten even if it had every conceivable duty owed under the south negligence claim in raise the argument that that if in fact if in fact they don't have can if in fact expertise doesn't have contractual duties well therefore it must have a duty that supports negligence claim that text partners duties came from a contract doesn't mean that if in fact they have no contractual duties they have duties arising out of some other source it means don't text matters has no duties to these plaintiffs in that is the release and if there are no duties under those under those contracts there are new duties anywhere pled in the complaint we also know we also address in our brief the othe addressed in either of my interests briefs or in their argument there are no allegations giving rise to anything but speculation that either of these complaints were posed any trust in text partners to act in their interest in not said for the new south carolina law tax partners alleged exercise of its of its contractual right to withhold consent to the refinancing of the construction loan for the purpose of fulfilling the f t s these men did maximizing receivership assets in the dating receiver ships as expeditiously as possible that's not improper method and that's not an improper purpose under south carolina  family with respect to plaintiffs request to amend gave me their brief is suggesting that even if the dish record correctly denied leave too many because their claims were plausible ition to somehow get another c bank couldn't that there was a cap on their ability to withhold consent in fact at page eighty six of the appendix the definition of consent of the investor member read the such consent of the investor member means the prior written consent or proveable of the investor member which consent may not be unreasonably withheld that is in the definition section of the operating agreement so in fact there is a cap on st and b c tax partners ability to withhold consent it cannot be unreasonably withheld that is a factual issue which at this stage of the case the plaintiffs should be permitted to establish through discovery and through factual determination that this case with regard to the suggestion that negligence is improperly pled i'm not really sure how to plead it in in this case then there is a one hundred paragraph complaint that talks about the prior dealings the prior relationship that talks about the  gets the plaintiff because it came after the consent was offered but if you read the book acts in the light most favorable to the plane that what that does establish is a noted intention  reason that the that the consent was withheld for so long and without any communication from that the i c my time is up i do believe that we have properly asked for the right to a man as a trial court considered as a rule the trial court ruled that we did properly ask to amend and that was not cross appeal we would ask that case be remanded and reversed or at a minimum that non guilt not rip your vision that you does lay out again to the extent that we are outside of the country contract claims and looking at the dealings of these parties with each other it was very clear that the bank and us f d i c knew that they had an obligation to not unreasonably with hole and that there was a due to the unreasonable withholding of consent caused damage and again at this pleading stage of the case we think we've put a plausible claim  all right thank you the case is submitted