code we believe that the bank you were refused to award treat under the purchase and sale agreement on the basis that up by twenty three to action was not an action on the contract but when you when you take a look at the record and you take a look at the transcript i think you can see that the backseat court didn't even pay any attention to the language the actual language in the purchase and sale agreement  that contract could not have been more broadly written couldn't have been more applicable to this type of proceeding that provision is a standard contract is the standard california residents will home sale agreement correct that it was it and if so it's used in hundreds of thousands of transactions every  on because it applies in any situation where there is a realtor right there they're authorized to use that contract right and the problem i'm having with with your argument when i when i think about it because it i don't see any evidence that this give the form i get can be customized it wasn't it so it's the generic form and so the question i keep asking myself is do people when they enter into these contracts really believe that the attorney's fees provisions survive a specific performance judgment because that's what we have here right yes your honor the specific  provision would have to apply let's say for example is specific form a judgment is issued as in this case and mr carroll was required and in fact i don't know if you recall that if you take a look at the record you'll see that he actually didn't even sign the grant the buy order for it they had to get the clerk to sign it and they had in their lives there exactly but what if it was the other way around what if the buyer was unable to perform and you had a specific performance judgement the buyers unable to perform you would still have to get your saying then well what about mr t to help can't come back to the court and say wait a minute here you order me to perform i deposit i did everything you told me to do and now the other party is not performing does that now mean i can't get legal fees for have him cause me damages by his refusal reform i mean let me ask you a question about the facts or maybe just me not remembering them but by the time the bankruptcy was filed had the contract been fully performed had the sale closed the sale had closed the sale i close the cut whether or not the contract had been her fully perform is really a question of interpretation because the the bankruptcy i mean that the state court reserved jurisdiction to implement the terms of the contract one of the terms of the contract with the payment of legal fees in acquired title for their ongoing warranties that survived the closing there there are warranties representations with respect to you would typically find in any transfer disclosure form associated with the property that would be tied into the the project the sale agreement those things do happen and if there is a misrepresentation or something that affects the buyer could within the timeframe allowed in student action for any sort of misrepresentation regarding the condition of the property and that would be based upon the contract while the specific form is judgement doesn't bar that it simply just requires a specific app to be performed so there was never in a very real sense there was no final monetary judgement that was substituted for the performance of the contract the end in the language with the language with respect to merger my judgement in those cases each of the cases you have in monetary judgement then there is no light in the whole theory regarding the substitution and the merger by judgment is that performance is no longer required no you don't have to produce the beans or or make that the furniture or whatever is that you have to do you just have to pay money for whatever it is i think ill to do so is in the election of remedies all about electing between those two options i mean i'm i'm having trouble with the notion that you could never have a merger with a specific performance contract that you could with a contract that because it doesn't there was in this case there was no final decree that was no finally we're back to the judge saying everything was written everything was performed at least that's not part of the state court docket and there's no evidence of that  and the st many complain the instructions by bat to the parties was you guys decide how do you want to go for the ride is the underlying basis of the federal cause action or not to start billing so yes there is a trial on pride in the sense that the we have to establish all the requirements necessary for a finding of pride in order to accept  apply we have a judgment here not only for the specific performance but for the attorneys fees once we went into the bankruptcy court the only issue that was before that or is what we're trying to determine w i was the attorney in the trial court and i'm the one that drafted that statement a decision in the judgment and the attorney's fees request and i did not ask for the a tracey's under seven hundred and seventy under the contract because i believe under the decision of archer versus warner that the election of remedy didn't experion wish the fraud i think i could come back and say well you know this whole thing started because of what mr general did he look at the statement of decisions the judge heard all the evidence at the trial or level made a decision that there was five major decision that yet the mood of everything that was required from friday so based on his statement a decision i didn't need to really to get this in the adversary proceeding all that we needed to know that wasn't quite what we said said was was it necessary for the decision that was actually made ok well i thought that's not that's why that's why i think judge taylor was a bit confused as to the nature of the trial the whole purpose was given the procedural posture of the fraud findings were not actually necessary or  for the specific performance therefore they didn't have because in fact it was just a denial of summary judgment didn't mean we didn't give instructions it was just a reversal on the on summary judgment so that the parties could then go back and try the case so i don't i have a confusion as to where in that tripped up that process i mean there is misunderstood a decision but nevertheless  here because what what we're saying is issue for clues we did we couldn't apply issue preclusion because one of the requirements is that it be necessary to the specific performance judgment it all recognize all the dirty bits the the state court found you could have in front of judge russell had a fraud trial yes you would have had to approve an it again in front of him but you didn't and so we're and you didn't appeal from that on a procedural basis you didn't cross appeal from the denial of the of the determination that the whatever he decided on that so the only issue we have right now is the shifting of attorney's fees and let me let me ask you about that that you know he has a couple of bases i don't see on and on appeal that he's really feel like that but still the statutory language is a statutory language so why isn't this a consumer transaction where the automatic shifting ha because there was a sale or a property there was never any evidence as the reason why you entered into this agreement there was no evidence of what he was going to do with the proceeds the evidence that list there was supposed to enter this agreement a new lease dissolution proceeding as he knew if there were less this a restraining order not to sell a property from right the judge that the state court inferred that he was committing fraud if you're trying to commit fraud on your spouse that's hard to say that is a consumer transaction pepsi living in the house at the time of the sale contract he was the only person living in a house if his wife had moved out and she was living in an apartment idea that there was no merger because this was a specific performance judgement and there's all these contractual issues that remain and anything he said this is common i have to say in almost forty years i've never seen what you say is fairly common that doesn't mean it isn't it just means i haven't seen it why isn't the document we're talking about here the judgment as opposed to the contract breach of contract and the reason it has added because there's no nest is not necessary in california to include that language in a contract because there's a different statutory scheme when you have a judgment that include your attorney's fees is there any accounting veiling case law a concept that allows the judgment debtor to recover attorney's fees post judgment so if for example you're you know you lose a motion to compel win every time you try to let the judgment i think really would not make sense that every time the judgment debtor where for your attempts to collect that he's going to go and ask for attorneys if it i walk back a little bit to what you said you talked about free contract claims and tort claims and i get that but isn't there a gray area between the two we have this concept of tortious breach of contract which i think is recognized under california law and if you're judging from the state courts statement of decisions is certainly sounds like the state court thought this is a tortious breach of contract that so why would you be why do you have to go in one pigeon hole or the other why doesn't the sort of fallen balls giving the but why should that necessarily deprive you of every possible recourse under the other theory for other things that weren't necessary covered by the judgement you got you got your contract in force you got that the sale closed but that didn't terminate all the contract obligations that they're still warranties about condition and so forth that survived the closing yes but that's not what this case is about it's about well sure i understand that i'm just saying that the notion of merger is this contract is done there's nothing left in this contract all that there is left is a judgment and at least in theory that's not really true in this case nobody brought suit on these surviving warranties and so on but the  and i'm and i read that out of the federal practice and one circuit from the others practice book section one thousand point seven three states that in a cites a long list of cases all right thank you very much contest all in the complaint for attorney fees under the contract and then when when we go to trial they put a trial brief in there explaining all the legal grounds and basis the same thing that i was arguing when we were trying to make our case for it and saying how they're entitled to feel but when the tables are turned and we've argued the trial and judge russell said we know i was wrong the baffle is right you haven't shown me anything new where's your where's your proof we're here underlying proof because the that gave you an opportunity to present underlyin was you know he says well there isn't any oh well to be fair that's not exactly i mean i'm not sure what he thought and i'm not sure that and i'm not sure it's i'm pretty sure he didn't say your client pure is the driven snow and didn't do anything actually obtain the property at the price that the guy promised the bit that the let me let me ask you this you're not talking about what was decided what was litigated the state court right what what contractual issues were left for the bankruptcy court to decide whether any contractual issues at all that the bankruptcy court had to decide it contractual issues in the sense that there was an allegation of fraud in the did he had to determine whether or not there was a misrepresentation about his ability in legal authority to sell and if that was actually contained in the contract we  presented to you the actual testimony and the actual contract showing that that was the basis of their case the problem that they always had was a question  cause ation in damages as it relates to what actually did happen he actually was able to complete the sale so after they brought a legal action i mean it's an it's an election of remedies issue i don't think it's fair to say that if we look in straight at the contract we were sort of getting a feel from what we should be talking about you only have forty eight seconds but you know i'm not buying that let's just put it that way are to be by twenty three a d matter your honor  say that when the breach of what he owed the obligation before the breach you hold the obligation but that was interfered with because he was willing to sell he was totally willing to sell refused to sell the property after that after he changed his mind and reconciled with his wife right all right thank you very much for your good argument thank you for