as a result of a sanction rebellion to comply with discovery constitutes finality for purposes of the issue preclusion while this court while this matter may not have been directly decided by this circuit it  a sanctioned default can never be applied to collect our collateral estoppel was never involved with such an order but it's that there was no judgement final judgment entered on the default there was the final there was a judgement interest on the issue of liability there was a judgement entered by the state court that said that the a pelleas or the queens in this matter the judgment against the queens on the complaint filed by my clients in the state court so there is a judgment on the mayor it's it has not been reduced to a number of dollars certain because missouri by protects that process the st part of the process is the interest of the into law kotori order of default the issues of damages is raised and reserved for a letter a later date will answer me this and if but for the bankruptcy would anyone have been able to appeal matter can be final for purposes of issue preclusion without being final for purposes of appeal right and now i think you've gotten to the nub of what we're what we're going to be called upon to decide don't we guided by missouri law not by the circuit law our federal law you know matter pertaining to the collateral estoppel effect of a state court judgment yes your honor and hasn't has a record have them as a record to address that issue i do not believe so it would be disingenuous for me to say yes there have been situations where a deep fault judgment or an interlocutory order of default has been entered but not reduced to judgment and that there's been an appeal that would be disingenuous no your honor there are no cases on point in the state of missouri with exactly th ok so we're going to be deciding a matter st impression based upon our best estimate of what the missouri supreme court would decide if confronted with this issue correct your honour's no however i think there's some good guidance because if you it's final for purposes of determination of liability whether or not they did what we said they did how much how much my the plaintiff was wronged by that damage would be reserved for the the rd sanction motion that a session with actually entered striking their pleadings and binding if they were of the plaintiffs ok so so let's let's get to that point so we're he tenants converting company funds for their own personal use were diverting company funds to pay their personal built by failing to pay the bills of the company by refusing plaintiff's access to the company books and records and by failing to account to the point but let me rephrase what i guess what i'm trying to ask so are you saying that the bankruptcy judge felt that issue preclusion simply does not apply and therefore never dressed the a stablished in the state court judgement that could give rise to so to be clear yes so what you're saying is that this needs to go back to the bankruptcy court judge to decide what facts were actually established correct your mistake or level yes because at this point that the bankruptcy court discounted that that was it something separate then judge rule and decision or how i think he referred to it as an order for summary judgment was or a subsequent document that was actually a judgment entered after that order i'm going to sample the so you're out of these when you well you don't have the benefit of looking at the docket right now so if it's not in fact on the docket we're not going to hold the fact that you honestly believe that it's there and i was i was prepared for several questions but not this one fair enough i  guess the issue is the court in this case most of the time when the course is horse or have beat they hear horses or they believe it's horses but sometimes it's the brother in this case i knowledge that the general the ball rule merits according to the body of case law when the statements are not withstanding whether or not it was reduced to a number dollars certain because the bankruptcy court had the power to liquidate those damages that's the issue that was before the bankruptcy court not whether or by counsel are eight an issue raised by opposing counsel was that you did not raise issue preclusion in the underlying perceiving i don't believe that's true there was a partial motion for summary judgment that talked about the judgment motion you're out of that that that is you had already been determined or denied by judge rendell and so the only thing left at this point was and it's your position that that's part of this appeal correct or ours and i believe it was also part of the  addition is of the judgments not final that well let's let's unpack that just a little bit of stress i think there's a difference in finality maybe there's two different arguments to be made with respect to the default judgment are you disputing that missouri law if let's say take it back outside bankruptcy sure and there's the sanction judgment and a determination of the damages and then a judgment entered that incorporates all of that are you disputing that that would have collateral estoppel effect in a subsequent litigation under missouri law it could have collateral stoppel affected by position is they didn't get to the hearing those damages there's a final judgment rightly that's what i'm trying that point right don't think it has by effect but for this bankruptcy filing they would have proceeded to the hearing on damages exhaust the appeals whatever the process is going to be to get a final judgment they never quite got to that point because in the bankruptcy case we have the queen's ok and we understand that i want to make sure that we're not having to get to that you know i'm not having to decide a dispute regarding the st matter in the abstract if there had been a judgment incorporating a determination of damages under those circumstances you're not disputing that missouri law says it would have collateral estoppel effect ok so we're only talking about front right we're only talking about the finality because there was no cited that was one of the pellets cases that laid out the procedural things spielman in northern illinois that the right way to do it they didn't follow all the right stuff they did not get relief from the state the state court case got this mr fay to prosecute during the pendency of the ba never kept it going i think if they kept going to this point there might have been a political argument about going back now and getting that by analogy that hasn't happened judge you also brought up a point about the summary judgment motion that partial summary judgment i was involved in the out was five years before we went to the final briefs to determine liability both sides argued the motion the judge from the bench said i don't believe that that is appropriate here and it was denied there was no order in or the docket interest think it just says tonight is withdraw there was never a formal order in or i'm not really sure that was preserved for appeal for  to have to look at that was allegations those facts that were decided in the default well because of the that order does not carry over into this proceeding and judge rendell looked at it let's go to the issues of liability of both sides briefed on depositions documents we submitted it and gave the judge opportunity to review all the materials and breeders decision but i'm certainly one i'm just going to say i think the point is and again this is a big if we have to go if if we get past the finality issue ok so let's assume that we disagree with you that it's not final it's a hypothetical i promise you if we get past that point and we say that the facts involved in the state court action should have been considered by the bankruptcy court we can't consider those facts and determine that five hundred and twenty four a why so we would have to remain for him to take a look at those facts now he may very well reach the conclusion that you're arguing that those facts don't support a finding under fifty two thousand four hundred and twenty three a four because that's a pretty the court should have looked at the the findings i don't think we get to the nd issue because i think at that point we have to remain and i think the nd issue though relates to the issues that were brought before the court for them to issue that order right but but i think we're all in agreement the bankruptcy court did not take into account any of the findings from the state well whatever you want to call them did not take into account those financially so someone needs to look at that and see whether or not asked up on the record as supplemented by those additional when we argued that motion for partial sorry judgment i think that was previously he looked at that he said i don't think that it's discretion that is appropriate in this proceed i want to go forward with so was it done as a ben truly because i mean i saw the rubber and the judge sat the bench and he made a ruling we have that i don't remember what transpired that out of they have recorder so we don't have a transcript of that i don't know if they recorded it or not to be honest i don't rebuy i don't remember seeing one of the the docket that all right so while we're on finality tell us whether same question the judge will post the opposing counsel was very judgment entered by the bankruptcy court with their judgment ever a judgment or not we should be we have been nice if someone had told us it wasn't i want to know about this withdrawn i will be honest with your honor i do not represent the appellant's in the lower court so all i have to work with is the record my understanding is and i'm basing my argument on the fact that there's the holding in the judge's ruling an order that says the state court default judgment because that's the basis in my opinion of his ruling in the summary judgment if the state were to paul judgment the motion that was filed on that basis and it wasn't raised in the summary judgment motion has the argument been waived i don't believe so your are because i know whether or not my client whether or prior my predecessor made that argument in the motion for summary judgment judge that was the ruling of the court i believe the court brought the issue into whether or not that judgment w final by virtue of the ruling ok i'm confused on which which ruling in terms of finale are we talking about a motion for partial summary judgment are you talking about the motion that's at issue here today the motion issue here today the summary judgment order here today your honour's says there were no facts established by that state court into law kotori order alt i believe that that was the basis of the court's ruling based on the plain language in the in the order and that brings the issue up by now at the into play for purposes of this appeal because it had the judge the issues i think that we're talking about is whether or not the argument was we because because of the withdrawn language well there's no withdrawal by my predecessor in the record it's merely stamped by the court is denied is withdrawn and so we have to withdraw something we have to file a formal motion withdrawing the matter i have to say that i'm going out early withdrawn all the time well normally orderly well the prompt the process here is what i would draw something i have to file a separate motion or memorandum withdrawing that matter i generally that's what i'm directed to do by the judge i've never been there withdrawn something on the record had that be it but whether or not he w my predecessor withdrew i don't think it's a relevant issue because the basis of the judge judge's ruling is that judgment the state court judgment establishes no facts for purposes of determined discharge bankruptcy court the holdings of that prior court notwithstanding whether or not they've been reduced to a number dollars certain are final for purposes of that issue in the bankruptcy court ringback all the time or at least can have had the ability to liquidate the damages which is what the court ought to have done in this case is liquidate the damages it had the authority to have the control upon the filing of this case the jurisdiction was removed from the state court invested in the