after the greeks were submitted to the court and i hope that as a result i can be helpful because i see things from the record as you see them there are as you said before your honor and a lot of stuff issues here so can i start it would i hope it would be helpful by laying out argument is decided in favor of mr neighborly there is no need for the court to proceed for it which was raised to the cop these essence of this case is really who gets to decide which also then goes to the second big argument which is core proceedings and then the finally there's a group of claims that can be bunched together as a under the court heading and those all stand together some of them can be knocked out individual but the king county superior court for a ruling i hope you've read it it is an outstanding document in the sense of it contradicts the bankruptcy court findings on every issue exactly the other way the court found the state court found specifically on the same facts that as a matter of state law she had not reached her duties i can if you if it's helpful i have a list of the page numbers at which the state court found these these decisions and we in titles respect now mr miller argues it's not entitled to expect because the state court issued that ruling and then mr miller filed for bankruptcy and then the state court was not able to get it a findings of fact and conclusions of law into the record until after that i think we're all in agreement that the bankruptcy court and both sides in this case that that turns on an issue of state law five forty wants section five forty one  bankruptcy code says that if this trust which had a valid spencer provision had not terminated then mr miller's interest had not attached and the bankruptcy courts i mean the state court could enter its judgment and what mr miller had was at the end of the bankruptcy court a right to receive about two hundred thousand dollars not a right to one third now i think this is important is this is the court the bankruptcy courts june seventh order militia death by its own terms the state court has found on five separate occasions that that was not true and specifically rejected that claim over and over and over again and then at sixth time rejected court gives its or ruling which if you've read this it's very detailed and says the only thing that i'm reserving the only reason i don't have a written ruling today is i need you to fill in the details judgement says that two points and what i mean by the details i mean the mundine details of dates and she says she says that then two days later mr miller files for bankruptcy and then on the twenty first two weeks later the trial court this king county court in or this post findings of fact occlusion of law and is that a judgment you know under what is the judgment that is a judgment some as a violation of the automatics then it's only in violation of automatic stay if under five forty one and the bankruptcy court agreed in its june seventh order if under five forty one see this is says does does this order of the king county superior court standard not it turns on five forty one c five forty one c says if a trust is a valid spendthrift trust in existence at the time of the filing of bankruptcy matter for two reasons the first is when the federal courts whatever federal court you are is making and ruling on state law if the ruling is in the nature of prediction but what would based on the preceden what would the state courts say that the how these issues would be resolved these specific facts and you have to predict based on the closest analysis case law if a state court has said whether or not in it's enti of the trust are not subject to the automatic stay because they are not property of the debtor they are protected by the spendthrift clause so the question in this case was to find that the trust said it will terminate five years from the death of reed miller and so the question was five more than five years had passed and the king county superior court was wrapping things up and so mr miller said in five separate instances to the king county superior court trust no longer exists it is no longer valid spendthrift trust and i'm entitle to one third you are not entitled to an accounting the trust is over i get my third and the name in the yes i believe it was in a number of rather alleged failure to given enough notice of the trust accounting over the years to mr miller but the state court again has said as a matter of state law she gave more than enough and any more would have been and productive ever go to the bankruptcy  sure which says trust generally and at their date and i'm going to apply these to washington appellate court precedents which are not exactly on point but from which i can reason to say this trust ended as a matter of state law therefore moving on to court proceedings restrain a cottonwood would answer everything and everything would that would go back to court proceedings that really applies to primarily to the  fact that occurred before one thousand nine hundred five is therefore out it could have been raised in the one nine hundred ninety five with the asian between the two so but and the bankruptcy court relied on facts going back far beyond and did not parse them i'm saying the tort claims that mr miller raised in his one nine hundred ninety nine litigation which then became counter claims was the bankruptcy court forced his snavely to file her proof claim those existed prior to the bankruptcy which is one of the points under yoakum in castle rock they exist independent of bankruptcy law so that fact their issues of state law and those are two points where did they just before with a raise before and where the issues of state law so there's really i think no argument no point to sustain the idea that the tort claims were not court proceedings and so therefore they must go back because that the bankruptcy court and the district court treated them in the wrong procedural fashion now if if i can move on if it's court has no further questions of court proceedings just make sure you save three minutes for thank you as to damages i want to hit that briefly because when i read the bankruptcy courts judgment i i was left with the wrong with the wrong impression the bankruptcy courts judgment seems to say on a first read and i realize i'm losing my time but that the damages to mr miller or to mr miller tort claim on the tortious interference flow from the lost opportunity in arizona and that perhaps that has to do with the property in arizona being a diminished value and later on up in value but when you read the bankruptcy courts of pinioned closely and then you actually go to the record site that he cites that is not with me saying and i i don't want you to have the same impression that i have what the testimony was was that mr miller had a lost business opportunity that if he had been given six hundred ninety five thousand dollars at that point he would have bought a person parcel property with it that part of property would have returned him ten point five percent over the years and that that those were the damages the ten point five percent over the years the testimony from mr miller's own witnesses is that as a result of the tortious interference least the court my name is john binney appearing again in this matter on behalf of mr miller and i do not want to complicate this matter any further as it is a fairly complicated matter but in response to the argument made by miss neves counsel in this case regarding rescue dakota being a potential resolution of all of this i have to say that two points on that first of all what they refer to is the prior orders of the bankruptcy court may second estoppel accorded satisfaction precluded that were rejected by another panel of this court and i believe this court is aware that there is generally under of the doctrine of law of the case and  wasn't cited in the brief but i have to tell you that those proceedings were requested there was a request for hearing which was denied in approximately april then in fact mr jorgensen's firm in d c filed a request for an extension of time to file a writ of certain those matched that time has just passed about a month ago or six weeks ago i was never received anything on it i did contact another attorney there so they're now just final and so that's why i'm making this argument today it's our position that the issues that have already been rejected and i would refer this course to those cases there final so i don't think we even get to that issue of rescue to carter because they raised that before as this court pointed out they didn't specifically raise those issues in this appeal what they're doing is trying to backdoor issues they raised the nose of the old saying the bankruptcy court essentially second guessed the this washington superior court they can't do that that you know essentially if there was a property they also in those in those cases maybe are you under a rock or feldman that essentially the bankruptcy court was doing an impermissible review of a state court decision which only the us supreme court can do and under the grounds decision mcgann and its  indicated that that doesn't apply in the bankruptcy context so counsel in this matter hasn't made that argument but it's our position that those things were very specifically in detail brief those three appeals went up were argued are now final they should be able to raise them i'm not referring to the state courts in those comments your honor i would say that it is our position that you know even if you get to register to kata based on this think superior court matters that those weren't at the time the bankruptcy was filed those were not final argument those were not final and again the cases that we cited in those prior three appeals specifically indicated that once the bankruptcy is filed then it's the bankruptcy court that makes that determination and how this court you know in reviewing the bankruptcy court could determine the bankruptcy h the other point and again i'm fragmenting this i apologize but it's important to note that really the washington court was doing two things one is it was determining an accounting issue of the trust and second it was allowing snavely to sell the property including mr miller's interest to herself those are the two things basically anecdotally her price to buy mr miller's interest for herself was more than a half a million less and he sold it through his bankruptcy court but the point is that  bankruptcy court has now approved the sale by mr miller including these easements that was the issue raised in one of the prior appeals that this court firm approved the sale essentially so that whole part of that is gone is going to be a real problem i believe to refer the trust accounting issue separately back to the superior court i don't believe one that is warranted by the law and two it's going to be a problem of you know our judicial nightmare if it is sent back with only part of the issue i would respectfully indicate that  second issue i wanted to raise was one that the court had asked for supplemental briefing on and that essentially was the issue of and i didn't actually hear an argument but that was the issue of whether snavely is usually a stop by her admission that her proof of specifically admit that the proofs of claim are a court proceeding but her argument on non chord is the same as it was today by counsel in front of this panel that was not on core essentially the tort claims and there was no mention no argument that is a core issue that the bankruptcy court had the right to make based on judicial stoffel she'd taken an inconsistent position that there are i don't believe there's been one specific test test adopted by the ninth circuit my review that cases would rather brief based on the fact that that was requested about two weeks ago but it appears to me that there are a number of different test what appears to be most likely is whether the court accepted her prior position and if you look at the district court order of march ten of zero three which essentially affirm this decision the bankruptcy court decision in january twenty fifth two of the it doesn't even talk about the proof of claim so it's accepting her position that that's core and it doesn't even deal of that and so it's my belief that judicial stoppel applies factual findings and i would say my review of the roughly four hundred page transcript of that trial is that there that the the transcript was replete with the findings that supported judge peterson's reproductions of the claims of the actions of the mouse so on that basis on you know in terms of the judicial establishing now i have to admit that the weakness perhaps of mr miller's case from a procedural standpoint is the core issue as to whether the court claims or a court core issue are not cool or are not core it's our position that it that they are but i would i would acknowledge that that's probably our weakest issue and i would request the court make the determination but if for whatever reason the court determines that the to claims were not core proceedings what should be done is that portion of judge peterson's january twenty fifth two thousand and two order should be sent to a judge will lloyd's review from of the noble standard as it requires now again i don't think you have to go there but i mean in all ca the court i would have to concede to counsel that that is probably the strongest argument i would stand on our brief though that is that the statute does indicate on its face the counter claims to prove their claim which they have admitted are court are in judicial admission that the court proceedings and we believe she's bound by that as she did footnote in her brief to the district court she did footnote that she still maintains that bankruptcy court like jurisdiction if you look at that footnote closely i think it's but no four in a re district court she says and that been the basis of that is those prior three appeals which are now final and were decided against her so she has no fallback position to say well we were always showing that there was no jurisdiction so clearly it was a court and that's gone and proceeding the kind of claims to it may not be in that context i wanted to talk about one issue that was raised in their brief that was has been raised in argument and that essentially was the newly released argument that  probate exception and bear with me for just a minute that the probate exception precludes the jurisdiction of the court in this matter the next circuit basically has it well actually a court within the ninth circuit in a martial law which is referred to i guess is the anna nicole smith case discusses the seventh circuit test as to whether the claim rests on an assertion that it was a will is invalid if that's the case then the probate exception divestitures vision from the federal court that the litigation that we have here the court claims and even the determination of the proof of claims is not declaring that the will is invalid and there is no will and even if a trust is termed to be a kin to a will there's no handling this was a specially a general trial court not a special like probate court and that's the test it's been set out the centrally by the courts that have discussed the probate exception and i circuit i don't believe has ruled or adopted a specific test on that but it's our position that under any view of that the probate exception doesn't divest the court of jurisdiction to conclude my arguments i would like to go through some of the line items that snavely has in her challenges to the january twenty fifth two thousand to order clearly the findings that the court the bankruptcy court made to the extent they are court proceedings are the findings of fact are reviewed from the clearly erroneous standpoint and on all of the findings in the court if you look at the transcript look at the exhibits and i should have mr miller was granted an easement across the former trust property so those are those are the two easements that that have come up generally in this case and was there one of those two easement claims that was a courts and that there was an award given for that your honor and why is that an encore proceeding if your honor is sparking that that's a court proceeding because essentially that was an order of the court enforcing a prior order and it appears to me that the court always has jurisdiction and is able to enforce a prior order that the court has issued and that that would be a core matter by the bankruptcy court  and i've already discussed this briefly and again i know it's a bit fragmented but snavely makes an argument in her brief again that richard of kind of collateral stuff on a quarter satisfaction that miller's damage claims are precluded by that and i just want to indicate that that law of the case precludes that but in addition we responded in our brief and i want to make briefly the point that the actions that are alleged there that gave rise to that portion of the damage claim those were actions after the relevant time f applied and that was the basis for the hundred twenty seven thousand seven hundred sixty dollars they argue that there was no damages because the value of mr miller's property increased i would submit to the court that the evidence also was what mr miller could have bought alternatively a ranch essentially in nevada increased at a much rapid rate so that the bankruptcy court actually could have found although mislabeled there was arguing there was speculation was that his damages were substantially more because the increase in value in the other property he could have purchased at that time was greater than the increase in his value in the property montana and we believe that at a minimum one hundred twenty seven thousand seven hundred sixty dollars value is supported and if there's evidence to support that in the court should affirm what was is that the evidence that went in was you could have taken that six hundred ninety five thousand and especially and invested it what he would have gotten on a return on that investment generally and i would have close was he to actually make any of that i could go to las vegas and i think i could win a lot of that would have appreciated at a much rougher more rapid rate than what was in montana but then you know both of you know that he she was speculative from both standpoints really felt that it was a conservative a conservative number of allowing the ten and a half percent cap rate and that's how the judge a at his number and we think that that was a conservative number and wished my client actually thinks it should have been more on the court ok i see my time i'm over my time thank you thank you five forty one c issue it has been briefed before but it is not over and the reason it's not as the previous panels in those orders all that was being dealt with in the orders was the it was this one third parse part of the parcel of property that had been carved out of the trust and given to mr miller by the bankruptcy court and this court said in both of those principles despite the high forty once the argument all this being dealt with here is the return of this land the land has been sold to a good faith perched purchaser for value we honor let me refer you to footnote two which refers to the breeze from both sides in those cases and specifically raises the page seventeen the first half i know i'm going quickly here but i hope i'll be on the record page twenty two at the them although then it is again raised again fits the seventeen twenty two and forty two and and the reason just just to say we were i don't want to leave you with feeling we