fishman good morning you may proceed where in may please court my name is randy fishman i'm from memphis tennessee i'm here i represent larry ma who bought four guitars from  judicata as title to the guitar's had been decided in tennessee in the chancery corners three issues that i want to address the district court talked about the chan record order and indicated that the finding of the chancellor in tennessee where and he found that mosques was the equitable and legal owner of the guitars as of february eighth two thousand twelfth two thousand and eight dicta dicked of course or statements by a court that may not be necessary and were to reach the conclusion that it reached i respectfully disagree with the court in the reason being we're dealing with goods we're dealing with a guitar entitled transfers upon delivery or when you have a unique identifier good under the uniform commercial code is recognized in tennessee title can transfer  museum was not a party well i'm not talking about brevity as well ok the district court took the position that the national music museum was not a party to the litigation they did not have the opportunity to litigate their claim in this in the chance record and therefore the district court took the position they were not in pretty again respectfully disagree  the national media museum was well aware of the litigation in tennessee we in tennessee had no jurisdiction to bring them in they certainly had the opportunity to come and that is further supported by the motion to abstain that we filed in the district court and south dakota asking that court to befriend from ruling it does such time as the or they have an obligation to intervene well your honor perhaps they don't but they don't at their own peril can they sit on the sideline and let a ruling go down that could affect their interest as opposed to coming litigating it in tennessee and other for the seared me know if there's no bar that's created by that by the judgment well again i took issue i take issue with the concept that they didn't have the opportunity that's the word opportunity and i think they clearly had the opportunity as an opportunity to litigate presumes that your party though there is a second it's not us it's not an independent ground for imposing a bar or so that you know you have to be a party and you have to have had an opportunity to and i understand your question i hear you and i take the position that they had every opportunity made the choice not to come they couldn't be compelled to c but they certainly had the opportunity i look at the timing issue the a circuit court case of industrial credit which had the proposition that one in privity you can't be held in ashland he can't be held liable for an adjudication of a judgment against his aston or unless they obtained that assignment prior to the litigation the commencement of litigation or the judgment but that that case like was at the core police recognizes that there are and that brings me to what i call the laurel and hardy case which i think fits the i was case rather well the laurel and hardy case came out of a new york was a district court case and rice case that's the price versus world version of court please  the widows of law and hearty sued protect the like list an image of laurel and hardy and that court there was a subsequent lawsuit when that when there was an assignment of those rights to another entity in that court reason which i think is good logic in applies here or should apply here that when that assignment was made they had nothing to assign title to the guitar came out of a sales donation agreement in the elvis guitar the di martin the thirty five guitar was one that was donated to the museum so therefore they can be a buyer intercourse etc most arguments when you see say if there are no questions all reserve the balance of my time is an action for a specific performance is that a standalone cause of that the rock and soul museum in memphis mosque conceded to allow that guitarist are there those times those type of things when they're on one display somewhere add to the providence of the piece and it was it was good it was good for the for the provenance of the guitar so when the time ray and when that engagement was up it wasn't there johnson had converted  moved it to dallas texas and all when rand wound up with a national music museum in the sales donation document where they bought several guitars for one of a million dollars and this one was done at a so that's that's how that that the judges that the judgment he obtained in tennessee precluded any decision on the issue of title in the south dakota litigation but there are three reasons that the tennessee judgment doesn't control first of all the portion of the tennessee judgment addressing the title was object second it was issued two years after the museum had obtained the guitar and third there is no mandatory just joined rule has no proposed to the fact under tennessee law and in this case you don't have to decide title in order to conclude that specific performance is the remedy title is not a prerequisite for motion well iran where the dicta came in there is actually a section quoted in the district courts june twenty seventeen opinion when after the tennessee court issued its oral ruling in this matter counsel for mr moss said you know i believe the exact quote is this is going to be a little tricky for me because this order would be submitted to the court in south dakota so i want to make certain i get the order in a fashion that i need it to be if the court please so it was sort of an after after the fact or after the suit request to add that i i don't know if that's the specific performance was added but that particular shall we say aspect related to title was effectively an afterthought on the tennessee litigation as you know from the record was there any other  pleadings or argument on that particular issue or was it is all we have that what you just read a little bit about requesting it to be placed in the in the opinion i apologize judge my specific memory of the entire concert contents of the tennessee transcript is perhaps not as good as it should be but to my recollection there was no specific debate shall we say over the issue of title and when delivery occurred so however i do believe tennessee transcript has been submitted for the court's consideration as that statement that the district opinion makes clear this part of the judgment was nothing more than an attempt to preempt a decision in south dakota and the second reason that the south dakota court was freedom free to decide the issue of title was because there is a lack of privity here also sorts of the tennessee judgment has to control because it talks about title before the transfer to the museum that's circular reasoning basically his argument is that the judgment is binding because it's binding privity doesn't depend on the content of the judgment as the supreme court stated in postal telegraph pri takes the property with the burden of the judgment again it's not about what the judgement says it's about when the judgement happens to go back to the old first your property analogy whether it's part of the bundle of rights at the time of the transfer from grand tour to grantee and you can't transfer a judgement that doesn't exist frankly this is this is the only conclusion that makes logical  the judgment concerns something that happens before the transfer the first owner wouldn't be the proper defendant in the judgment claims raised judicata appellant has brought up the price case and claim that they own the rights to the names and likenesses of laurel and hardy and they granted a license to the price defendants to use those names in license likenesses for a t v show granting someone the license to use your property is different than giving them the property for example if i had a patent i could give somebody a license to manufacture a product but i could still keep the patent in a fact the defendants in roach were saying here you can use our property or this aspect of our property for a limited purpose they weren't giving the price defendants everything they had in other words when the judgment proffered is raised  a came down they still held an interest in the property it would be more like if mr johnson had lent the guitar to the museum you know some sort of a loan agreement as opposed to actually transferring it to the museum but mr johnson didn't learn the guitar he gave the museum title he retained nothing and when the judgment came down in two thousand and fourteen in tennessee mr johnson had nothing based on that there can be no privity and therefore the tennessee judgment can have no effect as to whether the museum should have joined in the tennessee litigation well joined or is not mandatory here the cases cited by appellant in his brief concern regulatory interpretation they have you know a character character is much of precedent is pollution moreover if you look to the martin versus wilk decision that we cited in our brief the court stated joinder as a party rather the knowledge of a lawsuit and an opportunity to intervene is the method by which potential parties are subjected to the jurisdiction of the court and bound by a judgment or decree the mere fact that they knew is irrelevant because they did not make themselves party therefore they cannot be held to this judgment moreover even if once we get past this issue of whether or not that tennessee judgment is binding there is ample evidence showing that the decision the district court made on title was correct the contra the two thousand and eight contract between mr johnson and mr moss clearly contemplates future delivery it talks about delivery will happen it sets it out as a future event not something that happens at the time the contract is signed as poor as proof forty seven dash to dash for a one of the tennessee code title passes at the time of physical delivery because this never occurred title never passed in fact mr moss's tennessee pleadings state that johnson never delivered the guitar mr moss is asking us to disregard what the february two thousand and eight contract says in favor of an oral side agreement that doesn't match the evidence in tennessee as everywhere else you can't use parol evidence to vary the terms of contract moreover even assuming that ok let's let's assume that yes leaving in the museum was somehow delivery the problem is delivery under the terms of the contract triggered triggered a requirement to pay and it is clear that mr moss never paid the second payment on that contract and if we're looking to the there is a handwritten exhibit that actually indicates the fifty thousand dollars remaining payment correlates to the prices for the two remaining guitars including the elvis guitar at issue here mr johnson never delivered mr moss never paid and title never passed finally even even if the court were to reverse on the issue of title there are a number of remaining issues that should be remanded to the district court for decision the buyer in the ordinary course of business argument the good faith purchaser argument and then the issues of the stock will waver in assumption of the risk it is generally the rule that if the district court doesn't rule on all the issues following that title wouldn't be good if the if the museum paid was a bona fide pardners or paid value and so forth but why is not the equitable title slaves have been totally lost or the one that created by the contract itself says this was a special unique good and there was a right it was claimed for a specific performers not merely damages and creates an equitable title in the purchaser of equitable conversion would be i mean it's just as it didn't have to be a preexisting order a specific performance he has a specific performance right under the contract that is a kind of equitable title but the i don't have to have a doesn't have to have had an order a specific performance again any such right unfortunately for mr moss post dated the transfer to the museum and in any number one that's a fact issue you know very dependent as the district court said in its denial of the summary judgment motions i need to know more about this it concerns the credibility of the museum's witnesses and also the question of whether mr johnson would have just handed the guitar to the museum if the rest of the deal had fallen through on the issue of as we've previously discussed why this cannot be treated as a conversion so what remains is on the question of buyer buyer in the ordinary course of business i know he didn't bring it up in his direct argument but mr moss has argued that it doesn't count as an under the law because he didn't believe mr mr johnson could remove the guitar from the museum even if we take the argument the argument seriously that yes despite what it says in the contract he left the guitar in mr johnson's control by having it left in the rock and soul museum that's exactly what interests menace you are leaving somebody else in charge of the property mos could never retrieve that guitar if he wanted to the record demonstrates that the rock and soul museum had no idea he had an interest contractual otherwise in this guitar so under the contract and under the principle of entrustment mr mr johnson had every right to remove that guitar from the museum again these are fact intensive issues that if the court decides to reverse should be passed on to the district court which was closest to the fact and johnson were litigated in tennessee and i submit that the south dakota court has to take that finding as it is i don't think that that court can come in and under what the tennessee court did and that was they found that mosques had total so that's if you take mosque and say if you move mosque to south dakota with title it's a totally different outcome and that's where i believe the courts and their thank you very well the case is submitted and we were taken into consideration