however when i applied the various criteria it it's difficult for me to say that this isn't the counterclaim related to which takes which is  seems to push me over to the core side of my flow chart that i grew how do you get there from here how do you get to the non poor side on account despite the counterclaim three key point constitutional right to have its state law claim a duty catered by in article three judge no problem so far correct now in response to a marathon congress did not intend to confront the supreme court congress intended to accommodate the supreme court filing claims against the estate yes or that is the key section here and i'm still confused about why it doesn't apply yes just like hell if you look at the state law counterclaim now those were all situations or at least in two of those cases where the creditors filed proof of claims also this course decision in los angeles trust where this court considered a claim getters creditors together to file their claims and then you allow them whatever claims to reliable to the extent they are and divvy up what's in the pot among creditors so everybody gets their fair share and the claims  los angeles trust if the two are not the subject of the same subject matter are not sufficiently related then in fact they cannot possibly be arising in they cannot possibly something which is a which i recognized to interpret the statute to avoid constitutional questions the canon of constitutional avoidance the supreme court has applied that can in the bankruptcy context in the security industrial case under section five twenty two and that canon applies here said you had a situation you had actual slices of the love you had a written representation agreement and an oral commission agreement and the texas supreme court said sorry you don't have a written commission agreement even though we rights and interests basically to get a declaration that she had no claim and in fact the probate court in its judgment said granted pierce a declaratory judgment released and made all of its findings she doesn't have a claim there was no agreement hundred hundreds and hundreds of items of evidence that were presented over forty witnesses testified every single one of g howard's transactions every single one of his estate planning documents every single one of the statements everything was poured over his nurses testifie reserve the balance of my time for a bottle if i may thank you thank you very much marshall let me begin with one of the issues that the council ended with and that has to do with this issue of the statute of frauds this was an issue that frankly is was not raised that we would then say that the statute of frauds was waived because it was included is an affirmative defense correct he still didn't get to the basis for the bankruptcy courts decision which is what amounts to case dispositive sanctions on the case dispositive sanctions issue we have several decisions out as you know on when they are appropriate the formula that we've laid out for when case this positive sanctions are appropriate is that discovery violations have reached a point where no reliable factual determination can be made in the case in this case when i look at the sort of discovery violations that are asserted and it looks to me as though they don't reach that level in correct  of attorney client privilege and work product that sort of thing they're pretty much routine you have the documents that are produced you have a fight over whether they're as shielded or whether they need to be produced and if the side that doesn't want to produce the moose was the produces them it's the kind of cases where we've said the discovery violations prevent any reliable determination of the facts are different there where documents have been destroyed or altered and there's just so much lying and s of pages and that sort of thing in the discovery not in the merits case about which discovery is being done yesterday that we'll never know what the what the facts for  i don't really see why this case even if you go with your argument every step down to that point that would justify that of sanctions well several reasons a judge myself first of all of course that issue has not been fully briefed on this appeal goes everything else seems to have been that issue was not fully briefed because we have been talking about the appeal from the district court opinion and i i'm not representing pierce it was a shell game and what happened was eventually many of these documents were produced in the district court about four hundred boxes of documents were produced in the district court but the important point is that the critical doc foreclosed from making a claim on pierce's estate but the point is that the critical document which the billing records showed was produced was the trust the trust was produced by the lawyers country in particular who was the confederate of pierce and that document that key document was never produced other documents that were all being produced at the same time those all came in and it was admitted that those three other documents that the is treating the findings of fact and conclusions of law of the bankruptcy court as mere findings of faction conclusion and the additional mature i'm going to look at is includes these four hundred boxes of documents that were never produced below and then included contrary to what counsel for the other side says critical evidence there was never before the bankruptcy court and then of this was the going to look at all the material that was before before the bankruptcy court i'm going to look at what it decided and by the way he did find that there were very substantial discovery violations and he did say that if it were to be determined that there was parties to present the critical path witnesses and they were each permitted to identify critical fact witnesses who said i don't want to hold a whole new trial here because we've already had an enormous lengthy trial i will look at everything that was present including everything responsive to requests from discovery that there were critical documents that were never produced because it was claimed that they were kept by the lawyer and the lawyer then said well i i'm not going to produce them so that there was there was sketchy evidence before him but nevertheless more than sufficient evidence for him to conclude that in fact there was a tortious interference with the gifted if it's core why wouldn't he have to just and remain and if he thought more evidence should have been taken or more evidence needed to be taken why wouldn't he just vacate and remain and if it's core because that's the bankruptcy judges jurisdiction i think the judge hard to determine that  was he looked at the entire record you limited entire record it's about fourteen feet on a shelf that's correct and he looked at every single document he states in his opinion i've looked i've reviewed everything that was before the bankruptcy court  conscientious and said we're going to go beyond that we want to actually put a witness right there and then testify we'd be in error we would be reversed the supreme court would wonder what planet we were well i think it may be that  might be but this is just record sitting in review of a bankruptcy court and it is sitting in the in the sense that it is permitted i believe under the under the authorities to take additional evidence to supple respect to any compulsory counterclaim that might be filed corage or restriction of the bankruptcy court now i know the council has argued that there's another requirement here that it's not enough for it to be a compulsory that party in fact is now making a claim against the estate that does arise under uniquely arise under bankruptcy law because a claim against in the state is an claim that can only be made in the context of a bankruptcy court yes it's true that he foundations for the claim may be in state law but as a claim against the estate or a counter claim by the estates against the creditor those are claims that are uniquely bankruptcy court claims and there is really a mountain of authority and that the most recent being the second circuit c b i case which council mentions and he now i think that if this was a compulsory counterclaim that indeed there out of out of work not the alleged the substance of the alleged defamation because i am not a serving as a defense truth you in fact did manipulate your father's assets to prevent me from getting the if he intended to give to me so truth was asserted as a as a defense and the counter claim was precisely precisely that that same nexus of facts so  correct correct tortious interference with a gift and but the theory behind it was that this had been accomplished by manipulating the father's assets essentially draining j howard's assets from him so that he was not capable of being able to complete the gift and the evidence is frankly overwhelming about that in fact that one of the thing that's the striking about this case is that the district court found the evidence is overwhelming on this and yet our opponents are arguing that there was no evidence whatsoever there was evidence not just circumstantial evidence although there was a lot of that that there was documentary evidence there was a course  he had arranged for a new community that is the increase in value of his assets during the time of their marriage he then went to his lawyer and said i want you to accomplish a personal goal of that's not true at all tragedies or what happened was that from the moment that he met her and fell in love with her and felt that he had she have saved his life because he was extremely despondent at that time and began to propose marriage to her he gave her gifts from that day until the point in which he was drained of his all his assets and by pearson not able to give her any further gifts but throughout that whole period of time but all of these none of these gifts were income producing yes and what he said was i need to give her a gift which will support her and she was developing your own career at that time she had become frankly by the time they married an international within this model but he said i know that her life the life span of her career is short he told his lawyers this he said she needs to have security she needs to have sort of what six million there was approximately five million dollars and yes all of it none of which were income generating some of which in fact required income there was testimony that the months putting who are curious no decided not through none of this was before the texas secure iraq or none of this was asked for the texture and this is terribly important and if i explain nothing else to this court today this is what i want to explain and that is  jury decided he wanted to give her what he gave her and never decided to give her more than what this issue was not presented to the texas jury it was not before that hour if the met was and it was not before the texas jury and we  know that now there are statements in the texas getting peace with about whether he intended to give her more and was for absolutely incorrect the whole case was based on howard the third is another side attempting to marshall and that was whether there was an agreement that the j howard would give her half of his property that was the only question asked and in fact i think it's terribly important the questions asked of the jury in texas marshall or from the j howard marshall to living trust either prior to or upon his yeah now what what what is that what what that means is that w times the point is that this was something that all of the questions asked of the jury every single one of them asked two questions we never do that i'm restricted to we never read the transcript to see what questions were asked but the burden is on the party who is claiming as literal on that e r forty seven eighteen which is part of the forty seven eighteen which is part of the probate court judgment at number three point two two the last sentence o are here because he is saying that he was a party and think he could have objected to the form of the church and there was a link to a discussion about this your honor and what the judge said and it's and that's part of the record the judge said i am not making any determination i stock was that was in the living trust however he made a great expenditures outside of that basically by borrowing borrowing money yes that's correct but the point is that that's not what the issue was before the and it's not difficult to determine that it was an issue before the probate court all you need to do is look at the questions that were asked to the jury when are we just flew around all those no no no it was important it was important for the court to say that she's not a beneficiary of the of the living hearing or anything to determine if they were credible so she was doing all kinds of things that you simply cannot do to support these findings i think it's important also to point the initial sanctions order why because there was no evidence to support any of the allegations of discovery abuse they were simply the allegations of the king's counsel when that order went back down to the bankruptcy court the bankruptcy judge simply