and the fundamental issue in this case is whether this exception to nonrecourse liability should be confined to its traditional parameters or  joint venture apparently contends as you probably contends expanded to impose greater liability on all mortgage ores in the tort in this case was expanded beyond its traditional parameters in three ways first liability was imposed court reversed the initial grant of summary judgment so why should we feel with this issue on appeal only is that as i recall the events when you got back there was a little more work on the case i guess for discovery and complete all the work of the trial preparation the  that the pretrial conference order and you know the process in the district court for a pretrial conference where you get to list the issues that need to be tried defenses whatever it might be not just of the judges  trial on the facts you know have a pretty complex trial then there's motions for judgment notwithstanding the verdict on various grounds motions for any trial this is a race that either point would have been formed our approach to if this court finds that the presentation of the issue in the district court was not sufficient reserved for appeal this court still has the discretion to consider the issue and it's an issue of law and it's based on undisputed facts the note in the of trust on which this issue was based are in the evidence the issue was briefed in the district court and the just district court did not rule on the mission but it was jury center and withdrew a total of nine point nine million dollars this withdrawal includes the amount of the second deed of trust which was approximately four million of that amount and yes you evidence goes to the issue of the defense of economic necessity however the trial court excluded the evidence that they lost the six million dollar investment in the other building although the been a farce off of that evidence for the purpose security for this no for the pain and or for the performance of any of the agreements element language in the deed of trust and then skipping down about four lines nor shall any deficiency judgment  by any casualty or become damaged w nineteen b n nineteen and further the court construed section twenty nine twenty nine of the civil code providing quote waste no question whose interest is subject to the meaning of a mortgage may do any act which one which will substantially impair the mortgage believe they do a runner  meet financially and consequently the farts saw present evidence that they were unable to maintain the jewish center because they lost for six million dollar investment in another property this was evidence that was so important because it was is the jury going to be allowed to determine whether there was bad faith from the case if the benefits can present evidence that they reasonably thought that they could maintain both investments but then the but they failed to anticipate that the real state market building and losing that money so the question is whether the jury can consider six million dollars was lost on another investment and the total withdrawal was actually not the nine point nine million dollars because that fails to take into account the initial investment that been a farce made in building what was actually five point two million and the jury could have considered in are a couple of reasons for that whenever you're going to look at this concept as we heard there are some exceptions like fraud breach of trust which are included in the exception to the non recourse provision so then we would have to look at the intent of the parties when this contract was first entered into for example is raised and the reply brief there is the choice of law issue which has been argued factual or at least partly a functional determination which therefore should have been decided in the in the district court and this court is supposed contention that this court should decline hearing it and deciding it in this case  if the court wishes to hear that there was some questioning about that the language of the agreements themselves are very telling in that the provisions are in the know in the deed of trust the non that's very different than the city and the and this court actually found that to be a significant factor in this case the owners of the property had held it for over eight years and and as a result  e all this time in fact in our brief is is a chart on page of believe it's twenty four   and the japanese case where there was long term holding with regard to the evidence regarding the loss of the other building this case is about what happened at this building the jewelry center aerated and there was the money there to have fixed the building or maintain the building but instead they took it out what they did with the money aside from the what they did with the building is really irrelevant which is what the court