courts mistake of law now and not under that particular theory isn't this a problem for you yes however we contend that all the evidence that was presented under the repugnancy theory and the lower court people in or in into a fairly sophisticated business arrangement but i think what doesn't come across clearly in the written pleadings is the intimate involvement that north american title insurance parties mr wells well is relying on the assurances of north america and to say that they will do what's necessary to perfect that easement he has language included in the agenda that would further that belief that in fact his rights are for goes beyond mere offer and that she had twenty five thousand dollars in escrow this was not a stand this was a binding contract for sale with a contingen shows that it is that the district court did not use the evidence in the light most favorable to well sell and therefore should be remanded so that all of that evidence could come in and that a decision could be made on the diminution of value also that north american because they were intimate intimately involved thank you may please the court my name is michael volusia i'm here on behalf of the respondent north american title marjorie levy senior counsel for north american is also present in the courtroom first i would like to address an issue which just came up this morning in argument which was the concept that north american excuse me either consented to or advised or influence the decision it argued in the briefs so we simply don't have a response to it because there's nothing in the record to reflect any any support any such argument of the sort there are really two issues before the court  number one which is an issue of law fundamentally which is whether the addendum executed by mr wells will forever waive the subrogation rights in north america and the there is no contested evidence on this issue he fully intended to release the carlson trust from any claims arising from the easement north american was not a party to that  and the fact remains that rescind ability is not a a ground to obviate the effect of that waiver if it were many of us would be able to make arguments about the rescind the delivery of contracts it's merely a legal argument a legal position rescission in fact is impossible it was never any demand  w in fact there wasn't that's that's the problem in fact one of the facts which judge white relied upon is the fact that despite knowledge of the loss of the rights mr wells will proceed to close escrow for exactly the same amount of money that he agreed to back the year before which was relevant both which was relevant both on the waiver issue  he simply went through with it even though he knew at that time that his prospective purchaser mr always very was having problems with that purportedly having problems with the fact  which is neither several both from the entire purchase agreement and after the insured has not only voluntarily closed his own deal with the seller but he's gone on and he's told the race it's going on so the concept that one can now go back to carlson and say you know i'd really like to rescind that addendum but we'll just leave everything else intact is legally impossible and in fact there's no evidence in the record that mr carlson real briefly the key here is the facts which judge white relied upon to find the absence of loss was first of all there was a sale at a higher market sale at a higher purchase price a year and a half he noted the existence of other access to the property he noted the fact that mr wilson did not request any renegotiation of the purchase price before the close of the second escrow after learning of the loss of the easement in fact he  greed to buy at the very same price if he weighed against all of this is an unknown unconsummated contract by mr ali verity entered into before the close of the second astro under california law that is not competent evidence of the value now we're not saying there was an argument that we're arguing it's not in forcible we're not arguing on enforceability we're simply saying that it was not competent evidence to rise to the level to raise a triable issue of fact apple can go out and get all kinds of offers for their property in an attempt to set up damages the fact is under california law of it either qualified expert appraisal testimony you can given a a an owner is qualified to give an opinion of value course and you can rely upon market sale have you do have that issue and we presented appraisal of this so we have all of that judge white simply had no choice in this matter there simply wasn't substantial evidence to rise to the cell a text standard a summary judgment and we are now arguing marketability i suppose that are frustrated sale could under some circumstances be evidence of the lack of marketability of the property but that argument isn't being raised on appeal and so we don't need to reach it unless the court has any other questions i think those are the two issues we wanted to discuss