specialist sales and leasing in luxury group please the court as a a g has agreed in their response brief the dispositive issue question in the result of this appeal is whether the law you can't take the property of another but contract law is fundamentally premised on the notion of alter that exact route and so just a conceptual level that duty  inherently intertwined with contract to ease especially in cases such as this where the property that's an issue that was being taken is the property that's at issue under contract so your role is that is it right  and they were willing to give them the titles would you agree it least with this much then did they say that they did it mister violated a a is is the person who it violated some sort of duty the only evidence in the record that describes that is that an employee of a g sent the titles and when chairman your in your opening rea to me read more like conclusory legal conclusions about stealing you know that's not a factual assertion that that's a legal conclusion about the effect of what those facts were and we haven't challenge under the clear or standard the facts themselves we didn't challenge the facts that were presented to the district court and we still don't challenge them and i'm not going to mince words you know the sympathies i understand that against our client in this case there's no question and trial counsel at page forty four dollars of the record has conceded that we certainly are would be liable i collaboration and the word is more appropriate probably for conspiracy to get the the titles and so wouldn't even have to from the lead to anything beyond agree that the employee will send in the titles and as i understand it you're not contesting agreed with the employee to get the titles and the facts would be for you but titles in the mail mr kasama didn't even doesn't change the fact that they conspired to do that together well then the question becomes and this goes back to property you know you i mean that's a crime i mean you don't need to be you don't need a contract to do that so i am struggling to understand why a contractual way relationship would have to preclude what went on here and  it didn't have to preclude what went on year why doesn't that suggest that what went on here as you have accepted for purposes of this proceeding is an extract contractual obligation it isn't under th contract and the reason why they the legal test require that result is because the utah supreme court has considered you know weighing the policy decisions or the policy considerations about the risk of blurring the line between contract remedies and tort and the u s marine corps has spent twenty years flushing out this task and drawing a rigid and very rigid line in utah as compared to colorado and south dakota as you point out in our regions utah has a very robust economic loss where they have instructed courts to be wary of blurring the line between contracts and tort law and that where there are even overlapping duties much less coextensive dut overlapping duties between a tort claim and a contract claim the contract claim boxes outwardly and utah has made the decision under utah law the decision has been made that there's a preference for shuffling part  parties to a contract into contract remedies and the utah court can help even recently consider that there may be a possibility for questions about whether there would be adequate remedies depending upon you know what has decided that the that distinction between contract and tort is so important that they want to make sure that there's complete separation between what why would there have to be a contract relationship to not conspire to take my not i'm i'm not trying to i don't i don't i'm not in the business of judging your client i what i'm getting at is what's contract and what's not and so i'm trying to understand you know i don't care about its motives i e if his motives trashed the contract that's one thing if he didn't pay because he was a bad man then i could see the economic law school swallowing this up but that's not what we're talking about here we're not talking about it not pain that he is likely there should be a judgment against him for contract damages there was a breach you know i'm not sure how how much more forcefully i can feel not to say there is or there is no redress for basically you would not have a conversion claim in the absence of damages and the damages would be cured because you would comply with the contract and pay it right precisely because that fleshed it out a little bit so it just gives you maybe a hypothetical situation let's say that we're acquaintances and you have a ring that i would like to buy for one hundred dollars and we enter into a written contract that  eventually when you get caught you pay well it's certainly characterize it in a sense i guess i would say that the distinction that i think is critical in this case also is that i understand the that th is case may be invites those exact type of at the tickles but the critical distinction here is under your but let me tweak your hypothetical and say let's say that over the last two years you and i had done that eight million dollars times and i had purchased eight million dollars worth of i guess i can do the math on the fly maturity but i'll not do it one million times with a one million rings or prior to two years we had an understanding about how these contracts work this wasn't some you know harebrained main robbery where we truck right trying to come up with some way of stealing your property this is a commercial enterprise or even given this pattern of practice and we have an understanding and that is critical context for understanding that this case then separate and apart from that exactly those types of you know parade of horribles hypotheticals that i think i understand really i can see how the court could be concerned about reading and i was there for the question i'd like to reserve a little bit of time for so i know that's fines counsel please p facts related to the theft of the police titles that gave rise to his conversion d claim and were the basis of this d district court's orders the reason for that is obvious those facts establish intentional tortious and even criminal conduct orchestrating a theft of another's property and present violations of duties not present they don't come from the contracts and therefore take this case outside the application of the economic law school now mr sort of minimized the evidence in the trial court on that front and i want to start played by just talking about that for a nd because it is undisputed it's not as minimal as he has it want to suggest the undisputed facts giving rise of the conversion claim th title show that these parties entered into very basic purchase agreements were by helen was to pay for vehicles one dollar option and it is only duty under those contracts was d in fact to pay for the vehicles and he was allowed to take the vehicles d prior to payment but not to own or receive the titles until the payment was actually made and cleared in title been processed and reassigned and in late two thousand and nineteen he agreed to pay for nearly two million dollars in vehicles which is what's at issue here but then he failed and breached that duty to pay and then while he was in breach and on notice of that breach he then worked with a low level employee of the police to surreptitiously steal the evidence in the district court also shows that she was paid for this and then with these stolen titles in here and mr corsan to then try to sell all of the vehicles i don't know of the proceeds and leave my client with no damages to collect breach of the payment duty and because he had been dissipating all of these assets in violation of the very order that they now try to have dissolved i'm going fact with the shell energy to pursue despite the fact that my client prior to the theft of titles held status as a legal owner of these vehicles by virtue of those title facts no those facts your honor you're correct about on judge holmes these were undisputed below they're not challenges on appeal they were central to the orders being challenge from our perspective is pretty straightforward because it's only calling really you for this analysis that the point is the standard economic loss rule comparing the claims and asking whether the duty of this alleged to have been breached in the tort d claim arises from the contract itself or from an independent source i'm it's not a complicated analysis here but i agree with you that's that's what legal analysis the question here really used is did the district court d commit a legal facts may appear to be i don't think they're i don't think i don't think that mr baldwin is contesting the circumstances he's just saying that the rigorous economic loss rule in utah would say that that that's not good enough and i want to make sure i understand your response to what i understood to be his suggestion that it is the distinction with the difference if there was a course of commercial dealing here between the parties and that somehow or other that colors the notion that there should this should just be a essentially a failing of of a contractual duty by virtue of what is the stark facts of a conspiracy  that entire course of dealing in both d the circumstances that i described internal this conspiracy to steal these titles in other words the entire history of that course of dealing was that the parties at very basic purchase agreements that included only policies ready and have these titles since he can which of course allowed him to then pass himself off as the legal owner or property belonging to another still it downstream of it dissipate those proceeds before my client could catch him doing so if i understand you correctly but it i guess the argument would be and i don't want to put words in mr mouth out follow up with him when he gets back on but i think the argument would be that this course of dealing sort of within the context of an ongoing commercial relationship they become failings of the relationship as opposed to the one off example the judge backtracking you need to of somebody just coming up you know if the st time they had dealt with each other this transaction had taken place i think the argument would be that's a much stronger case to say it's not part of the conference than what took place here so i guess i'm trying to understand do you think it matters at all how long their relationship went if there had not been prior that it's going to i don't think it does under the undisputed facts here your honor because d i mean if you if you look at each of these transactions that are that are at issue this course of dealing each of them and of all the same sort of very basic contractual concept that mr cosigner enters into a purchase agreement whereby he agrees to buy a vehicle that he's won the right to buy auction and then the sole duty that he undertakes that arises d from  very simple purchase agreement is the duty to pay you know so at the point that he didn't hear he was in certainly in breach of contract those purchase agreements are exceedingly simple they were not talking about the kind  of you know complicated fully fleshed out real estate contracts that have been it is she with other utah supreme court cases where the economic loss rule has been a part and we're d also talking about you know a real distinction of the type of x or contractual its employee didn't breach a specific duty that arises from the contract my point well why wouldn't be there is a provision i think leads which spells out the notion that buyer agrees that the title and ownership of the vehicle several mean in the seller and i guess the flip side of that is well if i took it from the seller i'm breaching the stipulation that says the title will remain with the seller right the evidence before the district title then gets reflected in a fully fleshed out commercial contract you know there's there's a very limited basis for the title obligation of that title obligation that exists is solely on my client's behalf there is no duty that deprive my client of its ownership interests in the vehicles he used the example given by the district court which i think is was pretty spot on you know under under appellants theory where you lose a property right by virtue of something being surreptitiously stolen from you you go from being the actual owner which gives you rights as a matter of law that exceed those of a secured credit or their argument as well because you had a very basic contract here in which i only got an obligation to pay you if i go steal your property in addition to failing to pay to your rights because those d have an unsecured creditor and if i leave the shell entity for you to collect from basically you can go  my intentional action i have taken you from a property owner to somebody who has to get in line with other unsecured creditors and you're not even going to get back the recourse of the value that you should have gotten for the property that i s in each of the claims here and that is the tort claim due to this alleged does it come from the contractors or come from someplace else the simplest way to look at that is if we didn't have a contract would he still violated my client's rights be answer to that is obviously yes he goes and he steals the title to the vehicles well he's taken my client's property interest and my client ought to have the ability to gain recourse there and by virtue of the fact that you know really d the only mention of title  sorry i understand your point and you know intuitively another wise it logically makes sense that if there wasn't a contract with there'd be a duty in that that that plays into whether this is an extra contractual duty but but i guess i would ask if if you do to make something the subject of a contract and for example just playing it out and just tell me we're wrong in this under that provision we talked about how despite what the district court said about oh that's in there only  well i violated that provision because i took it so title was subject matter title possession was the subject matter of this contract and i violated that provision by takin the title from and so i and so why you breach the contract by by committing essentially a tortious d breach it's like why is not a case you know i like some of these cases involving real estate purchase contracts i'm sorry so much time is up your own way and if it is not one of these cases where you've got a detail real estate purchase contract where you have sort of extensive negotiation and a waiver of tort remedies the real question here is you know if you engage in that careful examination of the duties in the contract claim whether you have independent duties that arise from common law statue or d other means which include duties that arise from the independent nature of society in other words you know common law on the obligation of basic obligation that you earlier not to take another's property you know that's not a duty that arises from the contracted to do that arises from the common law and from the want of conversion and this is the same analysis undertaken in cases like  meaningless because that's not the issue the issue is if you apply the independent duty analysis to a contracting that's for d claim work conversion and something arising to the level of intentional th has occurred does the contract address the duty not to take some aspect of that property right that doesn't belong d to you here the answer is no your honor all right thank you i appreciate your argument mr ball you may proceed and if you requiring the court to examine the subject matter of a contract and i think the discussion that we've just had this race there is no disentangle and the torque claim and the contract claim from the subject matter of the contract this isn't just something that was a passing reference in the contract the titles and the car were the fundamental purpose of this contract and they defined the terms under which mr kasama could obtain those cars and he preached that and it is absolutely an overlapping do even though you know i think the key there is going to depend on exactly what happened because the conduct has to give rise to a truly independent duty and if the conduct that took place that led to the breach is coextensive with what would you know if you look at the case a little bit differently you can a tort instead of a contract that is precisely what the economic loss rule is for and i'd also like to focus on a couple of other points really quickly the notion that mr tapia was paid for this conduct that is absolutely not in this record or maybe in the you know commercial contexts where there were multiple contracts and you had contractors and subcontractors and the idea was we aren't going to allow parties to use tort law to supplement their contracts when you have engaged in a contract are limited  to the contract damages and the use of courts has not limited those principles in any way when applying it outside of the construction context and that is why it's so rigidly apply so critical that when there is a case where a claim