the row five three article three standing in the form of the loss of attorneys fees as well that's a loss of the ability to push through a contingent fee interest in the rico as well as the state cases has a right to bring those claims you mentioned election time it is an election too and wasn't complained of really in the position of your client and not in the position of the lawyer isn't defined standing in lexington seems to me would be comparable to finding standing in this case for your client to bring these claims well i i believe that the lexington case it addressed the attorney's fees rival being brought in by the current who's need for representation me what you know that i'm standing about and you're not you see me we have found a case that is dealing with somebody in your shoes almost literally do that does that person have standing to recover your own attorney's fees that were interest in the previous case you have a security interest in whatever they recover but you didn't get assigned to their claim sometimes lawyers are people that finance cases or things will get these assignments there is no you're interest in the causes of action that we were pursuing not in the cause of action only in the proceeds of property received the tax does not say in the cause of action itself it says in any proceeds received it says cash checks monies proceeds or other property received and or received is not correct yes that ike that's not the same thing as an assignment or an interest in the claim itself is it i believe it is it  we cite on page forty six to forty seven but you're not trying to recover in this lawsuit recovered thieves that were not paid to you by your client are you we're really trying to recover the damages that we sustained as a result recover the the the attorney's fees that remain on paid as damages you know we're not we're not going after our clients damages and that i think the district court concurred with god so so our position is that as again there was a particular lies the injury in fact sufficient as the provider article three standing traceable to the conduct of the appellate that was the foreseeable and the direct consequence of the damages sustained and a judgment will redress she injured the injury so i think we have sufficient article three standing in addition even if there was no standing the district court should not have dismissed the pleadings with prejudice as it didn't have stand that that we believe is a is a monumental legal error they should have just dismissed the case without prejudice defying in the state court or undertaken the case if not on  essentially we filed an action against the former client when they filed for when they converted to chapter seven we filed a five twenty three seven twenty seven action to the contesting the discharge  also filed the proof of claim all of that got contested we filed a motion for leave to file a lawsuit against the clients all of that got the smiths and in fact is now currently before this court so that still pending in the in the new mexico district court we are i should say bankruptcy court now under i should i should address in terms of stand there on page sixty seven our brief we address the issue of the thoroughbred a pelleas they benefited by living eight years on the property without any compensation to our former clients  from the conduct of the a pelleas in living in the property for eight years without any compensation to the monkeys so i think all of that provides sufficient standing as as far as the dismissal of the case i should mention that on page seventy one we start we cite an example of another periods or in any case flow in texas texas supreme court case law that has actually adopted that theory on the restatement not not from the texas supreme court we do have  you can go versus national development i didn't see that side and no i'm not familiar with the i won't ask you about it and how that might address your theory but i just want to be clear that to your knowledge there is no texas  seen fit to address that i'm confused even if you have standing you know the district court alternatively ruled on the that the rico claim wasn't pled  concerned about the sandwich case and whether you fall into the exception whether your claim falls into the exception in the sandwich case do you know what i'm talking about by that normally you have to show that there's been a direct reliance on the defendant's fraudulent predicate act under that case but there is an exception if there is an injury as a direct and contemporaneous result of fraud committed against a third party but i don't see how in this case you're the injury is the directive could tempor a fraud on a third party because you wouldn't have your claim am not talking about not trying to personalize this here but the claim would not exist if if if you had been if they had been paid and they could you could have been pay so it's not a direct result of the of the third parties act it's just it's another way of analyzing this under framework as opposed to just straight up standing and so can you help me with well i think we bootstrap ourselves by the tort of another theory that allows us to recover our attorney's fees or damages as a result of direct and foreseeable misconduct by the appellant in this case the d's these transactions that occurred had the direct them for sheeple result of incurring litigation because the matter would have closed in addition there wasn't even enough money to pay all the liens i am interested in this is a very unfortunate scenario but the alleged fraud would have happened in two thousand and five or six but your injury be in two thousand and fifteen when it so it's not even tintin perini as that is part of the requirement of the fraud being the result direct result of the third party well the yeah actual rico complaint was filed timely within the ten year statute i'm not saying that it's statute barred but what i'm saying is it's not the injury was it a different time so it's not the injury that injured your client is not the same injury that injured your major claim i don't think they interview well i'm not sure that's entirely accurate because the my clients were awarded two hundred  forty thousand dollars worth of damages in the turn instance as part of the bankruptcy court decision which was which was sustained by the a district court though those amounts of money were a direct result briefly address a few things that counsel for the appellant just said this forest people have and duties to point out the underlying problems that council is concerned with in the real estate transaction there are no such duties as it pertains to my clients the bank defendants and i would also hold that there is no duties on behalf of the title company does and it's either that they have a contract that deals with that but there's certainly no fiduciary duty with the bank descendants of the only thing that has to do was a motion to supplement the record which was denied and i don't believe that's actually part of the record of this case the contingent the second contingent the contract it was not certainly was not in in the case down at the tr the the main problem with this entire case is that the plain of doesn't have standing his clients would have standing to bring these claims and there is he is asserting trying to assert damages from a potential lawsuit that was never filed and then claim the attorney's fees as recovery from that lawsuit that was never filed so that just can not stand and that's what the district court properly found on that there was no article three standing as it relates to this and i would also point out we see we cited in the briefs the steel companies case and in portland there is an interest in attorney's fees is insufficient to create a case where none exists outside of the underlying claims and i think that's exactly what the appellant is attempting to do here on the court asked a few questions about the tort of another theory and the two important things in my mind in the tour of another theory are that it requires a plaintiff in this case a law firm to be forced to litigate protect itself from a third party a lawsuit and we just don't have that in this case so the tort of another theory it is not something that we have here on the other place where would you say the standing of that theory is in texas you did a knowledge do you read that believe that texas has fully adopted that i can't tell you that they have or have it because the supreme court is not waiting but you are you mean your brief to the theory is not properly recognized it would not be appropriate for us to recognize a theory or do saying the theory would not apply does not apply and should not it should not apply in this case because there was not this force that the plaintiff in this case the law firm was not forced to defend itself or protect itself against against some other contracts that was one of my first duties was signing up the client so when they came in so that that was in our contracts it was as it pertains to the rico case it fails on multiple levels again his never any leave sought throughout the throughout the process when the when the order was issued to try to seek leave to file an additional petition to correct some of the problems so we would present sanctions meaning not not not my clients and not co counsels clients in the underlying case but rule levon attaches the minute that lawsuit is filed the court has an inherent power under rule eleven to dismiss cases with prejudice on and whether or not that comes to the order doesn't say why but that is certainly a reason in light of the subsequent sanctions action that went on where we had these children that were not even born at the time of this real estate transaction to affirm that modify the judgment for it to be a dismissal without prejudice is there anything legally wrong with that determination just to clarify i would hope the court would be and  i do believe the dismissal with prejudice as to the rico claim does is appropriate as to whether there are other claims i would argue it and i think we point this out in our brief that there are there's maybe a breach of contract claim against the bank clients there's maybe this you should have lent me the money claim that we've all dealt with several times but they're not really any other definable claims against my client clients the bank  thought my position would be reluctantly that the rico be affirmed as is with prejudice and if the court is not of a mind to to like my rule eleven argument or anything co counsel has to say then  of these questions or eventually the history of this particular property apparently were unknown to the buyers and power company was involved was in no title certificate or rather january sixth of two thousand and six the transaction closed less than a month later february third the tulloch company issued title policy there were a closing word documents were signed i think the allegation policy in those kinds of things so the contract that was signed was before the title company ever got involved the mind is contracted to buy this property based on whatever non disclosure given to them by mr jaime and mrs reed real real so so of non disclosure by them they have let him into the transaction but what they're claiming is you didn't point out what was in your title policy about this really what they're claiming is you didn't tell us about this deed problem about this foreclosure that actually was in foreclosure and it's in new mexico which is a little bit unusual because even when there's been a foreclosure in mexico has a thirty day right statutory right to redeem and sell what the title company under it same church is required to do is to make sure they get good title which the title company did did whatever had to be done to get that prior lien was released aof was done closing happen a few months later i quit claim deed was file they got title and that's that's what title companies do so so it's a one it's a complaint about a single real estate transaction is is the basis for this that happened in two thousand and six and he let a gated that in got a judgment for unpaid rent and attorney's fees and his clients paving out of six hundred eight thousand dollars billed to him approximately three hundred thousand dollars and apparently didn't pay a three hundred eleven thousand balance and that's what's led to this it but he simply has no standing to assert their claims which they chose not to assert against your client say about that about their decision deferred the retiring or to pay for a maximum of five thousand dollars and i assume they got tired of payment and or ran out of money they'd already paid significant sums and decided they were going to pursue the thing for that's myself i will disagree a little bit on the contingency fee aspect of whether that would stably standing we don't have that here so i don't know that we need to get into that but the dow chemical case that texas supreme court case talks about that time and really the only exception that would have because they pose that very question can attorney to sue on a cause of action or has an assignment neckpiece had in the sign where the where the plaintiff is it was dismissed from the suit in the court said no these aren't divisible we're not going to allow we don't think in the only exception to that under texas law that i'm aware of is where there's a collusion between the plaintiffs and the defendant to cut the lawyer out of the sea and settle a case around them  l if it has to be without prejudice it refers to a u s supreme court case like the lily case which which does allow under a rule levon scenario for it when there's been a subject matter jurisdictions to still allow relenting sanctions to apply the district court did not tell us what the basis for that blanket with prejudice dismissal was that would be the only thing that i'm aware of that would allow it to be with prejudice on everything i also joined in that the court has the power to dismiss the rico claims with prejudice no amount of additional paper in an amended another mindy claim is going to give him you would only get get to it on the top be six that's correct so that's those are those are our positions i would like to you know we talked about the dow chemical casey also cited the law offices of wendell turley enough think it's important because it's right on point on this particular contingency fee it basically distinguishes between a attorney contract allows for and assignment and uses the language assignment of a client versus a right to collect a percentage of  admit recovery and this is as he alleges repeatedly he's seeking a percentage of the net recovery which there are at least at this point is conjecture because his clients never get the mondas have never sued so they're got going to get  recovery without pursuing the claim of his claim is wholly derivative of their claim as the dow chemical case the supreme court's that's really all i have to present a list of court has any further any way under the kids in a low voice for me what did you just say were you dressing where this part of the record or not i could understand what you know i was saying that the district court as well as a police briefs confirm that there was a present appellant would have received a just a sayable interest in them and the cause of action and that's again regardless of whether there was an assignment or or just a granting of an chemical release the way it was described to us just now that you clearly direct case law to the contrary of what you're saying so what about dow chemical well we don't think that that overrides texas state law that  on his client's claim and that's what you have done here so what is it about dow chemical that can be ignored well it takes as law that that is cited you know in mcallen texas supreme court opinion cited on page forty four where where in title to that the sue on a tort of another theory that's been that's been sustained by by the fifth circuit twice in these in those two cases as well as the the texas one was where we were retained and provided a contingent fee interest to pursue specifically the rico matter as well as the other state law actions that were we had previously referred had gone without any problems and in fact there are liens outstanding to this day is as i understand it because there was an insufficient amount of money to pay off of the means and and