your honor this is kim dorothy on behalf of jake owen this is an interesting case has been going on for quite a while it started in a state court in houston and when it was the bankruptcy court in houston it end seemed like it was a bit confusing there it was there it was very confusing what happened literally was after the bankruptcy was filed shortly before don't remember fourteen in early fifteen regions bank one of the defendants removed the case and as part of the removal to bring people were there record they put it on a cd and delivered it to the bankruptcy clerk and it literally got lost and we went back knows if we put a ground lease on the property basically a t v is going to build their their store and have a thirty year gram lease of the property he can take that assets and go to some people that issued bonds called quad capital and borrow a lot of money based on that one he learns that he can secure about eighteen million dollars loan on the property he's got thirteen and a half and debt he can get eighteen million dollars out of this then do the deal the long hard do the money don't do the deal with a t b do the loan and then divide up the money and that's what happens and so the the facts we think are very clear facts one of the things that don't st had to do was to put off the foreclosure so he goes to another hard money lender adam net was ition to borrow thirteen dollars and a half one million dollars  recourse no personal liability note when secured in it just to make everything clear it has a senate if they didn't have the know it says notwithstanding anything here in to the contrary no personal liability its stead of leaving it with alabama done living limited he put he puts it into this thing called petty and splits up the proceeds with mr abercrombie and if you look through the evidence we think it's very aiding in a break you produce your a duty the elements are existence of a producer very duty knowledge of the producer relationship in awareness of participation in delegate was the manager of the general partner that's number one he e all reasonable inferences from the status of evidence on this crazy scheme where the money into split between abercrombie and bill it clearly supports a jury finding that he we've discussed in our brave that there's not any there's no texas case and says what that means we believe it's most analogous to a temporary injunction type standard in which case the standard we believe to be we dismissed because they know that if the case is still active it's expunged who knows what's going to happen it could come back to haunt the buyer in that it's and this is the only mechanism under texas law to and you can't do it the way we've done it and that is once you have a final judgment all those jump all those preliminary rulings in the court are now within the judgment become final it can be appealed and if you if you're a buyer and you buy a making final then the buyer takes with notice that something like this could happen and this is really the only way that mr cohen is ever going to get any relief is to get is to be able to  word were quote out of the case because there was a take nothing judgment had been entered earlier and i understand that but it just seems weird that this is really you know once a federal cases are moved on bankruptcy grounds and the bankruptcy connection goes been raised by have at least two of you already which is what happens in the event that this summary judgment is overturned and set back down and in judging a hard hit went right to the the heart of the of the issue is this property was sold it was sold to years ago to a rd party a paid good value for the for the property that they purchased they purchased it at a time when there was not in place and i suppose i'll go ahead and and go directly to my section on the expansion of the lisbon's because i think that that's most important and it's particularly important here where the property has been sold to a if the claimant fails to establish by preponderance of the evidence the probable the lead at the ever real property client that was the issue that was before the truck or judge state trial court judge when the motion for expansion getting back up i took a look at the see what the appellant's had produced or point of the court or directed the court in response to its burden to buse of discretion in the use of discretion in this instance requires the appellate court to view the evidence in the light most favorable to the problem or its actions area the list then this is not restored then there's really no practical relief for miss the cup i would say well i don't know your another thing i should mention i don't know that it's legally significant but mr cowen had a list pendens own this property that he voluntarily with drew in order to allow  to lease to be executed and a permanent financing to be placed on the property so it's not a surprise it's not a surprise i think and i hate to  motives to anything that anyone does but by voluntarily with withdrawing the earlier lisbon's allowing the property to be sold to be sold in the lease signed and then following another liz pendens looks to me to be somewhat suspicious on the part of mr cohen what his motives for the but we can't deal with that motives are not here but we have to look at  evidence the other point that i wanted to address was also something raised by judging your heart which was the status of the record which i didn't make mildly point but  been up part of this matter in the trial court level be a disadvantage to me but actually when i started thinking about i realize it was truly an advantage because i'm looking at the papers at the paper so what i that what i did the at the end looking at this case when it came to me was look at the evidence it was presented the primary evidence is relied on by the appellant and assigned it time and time again as support for its position of proof of certain elements of his claims or the documents that are based labeled numbers nine full and complete record to the appellate court in fact this court the th circuit and has said that our review is limited to the examination of materials before the that order was signed i believe on november th two thousand and thirteen those at war there actually were two or three or as it were signed on that day the exhibits two hundred and fifty five pages of them were not and i looked at those two cases and there they're setting cases because i thought i didn't know that there was any way that you good that a trial court going to allow a month after its ruling to allow evidence to come in the cimarron attorney failed the calendar the hearing on the motion for summary judgment and subsequently two days before the hearing he doesn't have a response on file so he calls the attorney for the movement filed two days before the hearing rather than more than seven days before the hearing it was deemed a late fall pleading when we look at late fall pleadings i think that's what the courts are considering then it went up to the texas supreme court the supreme court applied a different rule or different definition of the cause but held then the move it did not show good cause for the late filing responded timely in the move and in connection with replying to the response to the most for summary judgment submitted some additional proof you know on appeal the issue was whether or not filings and particularly in this instance where it is in response in reply to a response but if that case does not rule what happened here where we're talking about thirty days after the hearing that evidence is coming into the record the last thing it in which we've pointed that out and the bell it said well then you and you know if it was it you didn't object at the time and they cited a case height versus coley jesson and this was a case where the court did find that there had been for was important what they said in their opinion they found that the argument had been waived because at the hearing on the motion for summary judgment the party waived the objections object to the materials or the manner in which they were filed that was a waiver because at that hearing there was no objection could be the evidence that we're contending should be considered was filed thirty days after the hearing we didn't have an opportunity or a need to to the never obligation to respond at that point or fall objection because our summary judgment is already been granted the court was not  going to reopen and that was in a motion to reopen to reconsider the summary judgment after these one thousand two hundred and fifty five dollars pages were filed so it's our contention that that evidence was not properly before the court and i know the balance of said that well that's a procedural issue and it it could be deemed a procedural issue but procedure is important in these types of cases particularly when you're reviewing a decision a motion for summary judgment where the record is what is the only thing that you can look at now mr gore thirty there's a that's quite a handle on the of what happened but he's got it in his interpretation of those but he has to have documents to support all of those elements and when you take a look has to point to the evidence that supports those allegations like intent he points to the documents that were filed after the hear almost exclusively but there are part of that there are the record augie they are part of the record on appeal but they were not part of the record at the time the trial judge ruled on the motion just but there were thousands of pages that were they became part of the record of the case after these orders were signed the order for signed in two thousand and thirteen this case continue known for another six years there were many many matters that were that went into the the appellate record that had nothing to do with the orders was entered by the trial judge back in tw the record they raised it had all these documents i was like i said i was not a part of the trial court team i didn't realize until after i got into it and looked at mr gore these pleadings i didn't know what he was going to rely on i didn't know that there was it would have been any reason to object to him at the time because they were part of the entirety of the record of the case which went up on appeal it would've been until i got mr gore these brief that i knew he was relying on documents that weren't before the trial court sent out that makes  there are there is an issue of damages to that act that i was going to address but actually the damages issues damages issues are there and they're there i think they're pretty straightforward in order for there to be any claim that all the blame has proved damages right so in this instance there was an objection are based as a as a basis for most for summary judgment there was appointed an e and there was no evidence much for summary judgment a reference to a lack of damages proven by the plaintiffs and there's evidence in the of an appraisal some time before the relevant date there is evidence in the record of having mr gore the references and in his opening of the financing of the property after the eighty lease was in place but there was no evidence in the record of the fair market value as of the date of the tortoise act and now there wouldn't be the is as up that day that is a fatal flaw and without that information it would be impossible for the plaintiffs to prove damages in this is where the granted summary judgment without going into specifics i think it's incumbent on this court to not overturn the the decisions of the trial court unless there is some evidence to support it and raise material issue of fact own each particular element four million dollars the sellers walk away four million bucks cash that's that's easy preventives is right there in terms of fair market value taffy them after the parties had a chance to to to say whether or not they objected to the confidential information no objections having been made the court in order order saying everything as it is deemed time leap on the record that we withdrew this is not in a record if you but you look at that and i'm acquisition as part of their  the thing close because we could yes hydel back from tempe easier than we could get title back from adam acquisition who was not a party to the case we let alone close they paid off the acquisition we put the list in his back  put forth enough evidence to carry our burden on the motion to expunge to set forth the probable the lydy of our real property  very st point that that council made it look at the mandamus unfortunately probably what the texas legislature needs to do but they didn't do is include under chapter fifty one there's a list of things  theoretically you could have a notice of lisp in it expunged you file that order and the next day you sell the property to somebody else you know under there or commit the owner of the property is cut off you cannot have