good morning on our christopher prince for a of a properties i think formerly amorello maddux properties and i'd like to reserve five minutes of my time for a bottle if i may go i'll help you with the clock go ahead thank you appreciate that your  honor technically my client is the appellant because we are appealing from a decision of the bankruptcy appellate panel but substantively it's actually a little bit more like where the respondent my client prevailed in the trial court the bankruptcy court sustaining our objection to mr mehlis claim for severance and so the question before the panel is is there any air of the bankruptcy court that would require overturning and it's not my  burden of course to show that everything is correct but the appellate the in this case epically mr mehlis burden to show that there was some error also continue from a little bit on the on the with the record it looked to me at the what he said basically anything mr maddox is going to say but whether there were unsecured claims or or administrative claims i appreciate that there is a different standard that's applied but these are all going to be paid a one hundred percent so there wasn't a concern about priorities right that's correct and i what i with the bankruptcy court let's say the bankruptcy court applied the wrong standard if so she said it didn't meet the lower standard that's that's correct traynor it she was well that there's two things there is a substantive issue a substance of state law right which you have to establish first you can't just walk into court and say i'm entitled to an unsecured claim i'm entitled to administrative claim you have to say i'm entitled to a claim based on breach of contract or a tort or some some sort of substantive right  think the question presented to the bath right yes was whether the bankruptcy court heard by denying mr marlowe claim for severance that's correct either because he was entitled to it under respond to it until briefing here for this court but the baptists went straight to the issue of perceiving that the bankruptcy court had not applied the administrative standard i've gone through in the briefing why there are so many problems with that but it it begs the question of is there any error on the subset of state law right she found there she made explicit findings there's no employment agreement that's not in place can you go back to the your answer to judge christians first question so the standard that the bankruptcy court did apply was an easier so you're saying it was an easier standard for the creditor mr moore rouleau to meet there and the administrative expense tendered would have been it would have been easier i don't believe that the there was never any claim established well that's that's that's goes to the other point but these are two different and we're going to have a third one too in a minute but but the first problem is you think there was a threshold question about whether you had a right to severance period or under state law and i don't think the bath ever answered that question but we could say that the bapi imply of lee did because it reached this issue that we that we're just talking about but that would be not an applied deferments it would be an implied reversal it would be it would not make anything it would be unusual it would be and i think impossible to imply a belief find that we've seen a lot of things oh yeah i don't want to i don't want to rule that out in any event it for this court it doesn't matter because  i looking at it carefully and i seems to me they didn't reach that question they did not resolve and i ask myself why did they think they didn't need to do you have a mind you that question best made i think is that because the court got hung up on the mike and i we all recognize that talking about administrative versus unsecured was pointless it's one hundred seven case why would you bother to go to the administrator of the higher more difficult actual necessary standard loop you back to the once argument seems to be going pretty well for you saw us far so so but you know the argument is young and there's time so you might want to save some time but before we do that could i just ask you what do you want us to do seen is incorrect there is no the steps that the bankruptcy court the bankruptcy court identified at the beginning of the argument exactly what she was going to do which is she was going to evaluate is there a contract if there's not a contract is it allowable under quantum arrow it and if if it's allowable under either of those is it reasonable under five o two and she found that she never had to reach the secondary step because they weren't entitled to employment agreement had obviously been allowed to expire so to avoid severance it was not reasonable under the circumstances did it just she very easily distinguish the quantum arrow in cases like the cat taxi cab company case there what she said he didn't introduce two million how about something i understand why you want us to affirm the bankruptcy court or the bankruptcy power panel but why should we just send this back and say that the bankruptcy court's ruling was correct based on what was the my issue with the bath really is i have no idea what would happen and remained if you were to uphold the baps because well i'm going to remain and i have in mind would give it would not be a for further proceedings not inconsistent with this opinion it would be with directions to reinstate the judgment of the bankruptcy court that's correct so that it's very clear to the about what it is that we're doing that's correct why shouldn't we send it back to the back up and ask about to get the parties a chance to litigate what you said you didn't have a chance to and that would include five o three i'm not trying to be difficult but why wouldn't we want the back to take a look at that and apply their expertise to i think you still if i may be so presumptuous to say what your job are but i believe that the role of this panel is to review the bankruptcy court's decision and do without regards and i know that's the standard that's the standard and i very much appreciate your saying they are experts but we are here for you now and if there is no error there is nothing further for you to do other than to uphold the bank it's a clear after all you do have four minutes left so when you say there's no air i don't think the bapi reached the threshold question at all no they did not so one thing we could do for example is to remain and have the back take a look at that question because after all the bankruptcy judge reached it and she said there's no contract here but you're a court of area i know and has discretion in situations such as this to exercise this jurisdiction this is the textbook case of the complicated if it went straight back wouldn't it if we didn't exercise distinction here be very complicated because the bab's directions pretty unequivocal it says this claim which presupposes there is one is an administrative claim and apply the standard and so it presupposes there's a claim and then it also doesn't reach the other question with a five o three b c to just thank you right so it is on both ends so there would be so he did a cult in there since the bab has directed the bankruptcy court to disregard the bankruptcy code which i don't think would be a proper amount i'm not sure i would phrase it that way money that's different is that if you're going to be separate from several well but it is under the same provision in the employment contract that did survive the terminations section thirteen has a survival provision in it that survival provision incorporates the bonus and the severance pay so the bat made a very important point well wait a second how could you talk about severance as if it's dead and yet the bankruptcy bonus him up and i quote one of the justices so there is a clean vote wasn't wasn't that a pre partition phone or no he received his pre partition bonuses for two thousand and nine and two thousand and ten right and the bankruptcy was filed in two thousand and eleven the bankruptcy was filed two thousand and nine nine ok so the bonuses that he received he received the two thousand and eleven and she denied so it would have been in the same context meaning the survival clause section thirteen which incorporated section seven of the employment executive employment agreement so if the baptists saying well wait a minute if he got a bonus then you should have considered the severance to it was not dead this argument i'm sorry i did ask your questions and i'll give my oh you're doing a great job and i appreciate your focusing on the question we obviously have a big problem with this threshold issue so what you're telling me is not what they are about articulated but what you think is the implied ruling or do i am i missing articulated ruling which would help me to the in oral argument one of the mr prince you know asserted clear you keep saying clear forgive me for interrupting but clear where where can you point me in the record where that where that was rejected the the ruling the court's ruling gave him a bonus in the bankruptcy court that's ok and that's what you're doing is reverse that contract was renewed there's no contract she she the bankruptcy court ruled on that so be quite unusual for the bath to imply of glee over rule it's one thing to imply a plea affirm and go on to the question of whether this is an administrative claim or it or or i guess it is implied because right oral argument when the argument for the fact that there is a plane left to be adjudicated is demonstrated by the bonus that is given part of what made this case so confusing that this really is about due process at the end of the day this was a very complicated bankruptcy involving fifty three very very high value real estate and if you see from all of the appeals that have arisen from this bankruptcy estate this bankruptcy court really did what she wanted to do when she wanted to do it and so part of what the back was trying to say here is to say look you must agreement or two because he was entitled to it under quantum erowid and as that's the question presented as i read the record the only question presented and i don't see the ruling will yes the issue that if the court looks at the trans look at the order of the bankruptcy court she made a finding that his services were actual unnecessary and that's why she awarded him the bonus i've read that she repeated that she then  yes and but then she said oh but the severance is just too much it's not reasonable and that is the the she also said she also addressed the contract issue the existence of the claim under state contract law which we believe is wrong because while the contract terminated the sir the provision section thirteen survived ok which is the basis for why she gave them a bonus to begin with otherwise why give them a bonus i'm just going to ask us one more time because i really want to get your going to listen i'm sure if i'm not articulating it correctly but your view and i know you know this case very very well is that the baptists ruled on this threshold question and i just want if you could tell me where in the transcript what's the cite i will go to read it again threshold question of just make sure i understand the existence of the claim under state contract law either either contract or compliment to marilyn it was implied based on in my opinion based on the issue of the bonus ok cuz i had oral argument one that out do i have that that's my question the transcript of the baptists are you keep pointing to a transcript or referring to a transcript do you want to give me the cite so i can i don't have it with me your honor i mean the only transcript i have is the transcript of  court so we got in the bankruptcy court didn't say anything about my own aside the question presented to the bankruptcy court was do i have a surviving claim for severance on the basis of the contract and the court made an express factual determination that notice of termination non renewal had been given and as a matter of state contract law there was no contract therefore no claim for severance could be made under the contract that's how i read the transcript and i apologize i don't know why you don't have the transcript of the bat but the bottom line is if that's were the case then she wouldn't have given him the bonus because they were both linked to the same provision to me but to me that's not that's not the same thing because bonus meant something different severance included as a complement of computing a look at what the prior bonuses had been now maybe he got a gift that he wasn't entitled to but that does not undermine the bankruptcy courts express ruling that the contract did not survive and there's nothing in that transcript that i read that talks about claims that somehow survived determination or non rule of the contract you know that's a problem have and the ramp in the back pretty clearly didn't rule on it in its written order and i'm not sure that even if it got mentioned in oral arguments a lot of things get mentioned at oral argument that doesn't mean that if there if it's not included in the order it's implicitly ruled on in the the best basically started and stopped with you apply the wrong standard right and that you should go and apply due process and do it right which is exactly what we're after do you agree with  with opposing counsel that the standard that the bankruptcy court actually applied reasonable most is an easier standard for the claimant to meet then actual necessary we don't we don't believe that she claim standard or a harder standard to meet it depending on the judge your honor and i will come out of the room with thirty years no i mean technically speaking i'm just talking about the law ok i'm not talking about the women's resume thing here and i think that this judge used actual unnecessary she  if the bankruptcy court applied the wrong standard but you but it was an easier standard than the one that was the correct standard why isn't the legal error harmless because she did not  it is important i think if your honor has read the transcript of the bankruptcy courts transcript that to say that she had found his services to be actually necessary and that he had actually the reason why all the brief the read brief at fifteen sixteen quotes five o three c two and says a severance payment to an insider of a debtor may be disallowed isn't the law that it shall be disallowed page seventy six of the transcript it's excerpts of record fifteen ninety two what i find there this is the bankruptcy court discussing why she decided to award a bonus even though she found there was no agreement oh and it's a perfectly reasonable i didn't agree with it of course opposing it but it's a perfectly reasonable distinction she found that that was what they had been paid all along they were continuing and they were not doing anything different under the circumstances she found that they had a reasonable expectation they would get the bonus because they stayed on because they stayed on that's the quantum arrow at standard she was distinguishing between one set of reasonable expectations you'll continue to get your bonus and another set of not reasonable expectations you'll get a giant severance package if they had done so i don't i think as your owners have sussed out they were not intending to imply a plea you why you would back into overruling the bankruptcy court by going to the five o three standard i don't i don't think it's a reasonable reading of the ruling as far as there were some comments that she found that their services were actual necessary i think that is a stretch to to interpret court's comments that she made various comments that they did stay on and do their job and that it was helpful to the process but that's an entirely different what she spends a lot of time saying they didn't offer any evidence to meet their burden in essence a failure of a prime officiate case to show entitlement yes and she addresses the point specifically in the transcript whether i think her i don't have the words in front of me right this second but i think her words  something to the effect of whether you want to call this an estate of claim or an unsecured claim you have the burden of making a prime aphasia case and i have nothing before me i do not find it to be reasonable that you would expect s