so yours morning your honour's court i'd like to reserve two minutes of my time for sure my name is tom byrd i'm from the law firm of callahan mcleod in albuquerque new mexico here representing the the version of the reach of the concerning requirement imposed by the district court in this case appears to be unprecedented that version requires the plaintiff to demonstrate that the recipient of defamatory communication understood that the speaker knew the identity of the person defamed and intended the statement to apply to that person significantly the district court version appears to enjoy no support in the opinion cited or the opinion written by the district court in any of the briefs written by the op police in this appeal or in the district court thank you to question the actual question is it clear from the record where the night that painting is there is not a frank johnson that is a disputed issue your honor we had expert testimony confirming the authenticity of the painting attributing it to frank teddy johnson but the district didn't address that issue that would be an issue that would have to be resolved at trial through the submission of conflicting expert testimony presumably counsel would you agree that there is no nevada case that resolve i think that's exactly right your honor as a matter of fact my two points this morning that i want to emphasize in my limited time are the district court's reasoning is inconsistent with section five hundred and sixty four and perhaps more importantly for your purposes  her interpretation is a bad bet as in here and yes there's there's nothing in nevada law that suggests that the not a supreme court would adopt this interpretation of section five hundred and sixty four dollars principally because there is no law supporting it as the source of controlling substantive tort law so i think that that's a sensible yes that's a good place to start we've also cited some other cases from outside the th circuit where we're district courts have looked to the recei as the source of controlling substantive law when there is no controlling opinion from the highest court so so we think that the judge do correctly looked at section five hundred and sixty four we have no problem with her looking to that provision of the restatement as the source of the applicable substantive law we think she misapprehended it and the reason we believe she misapprehended it is because the case law   cited in the comments illustrations notes to section five hundred and sixty four dollars repeatedly and consistently emphasize that a defendant's intent to refer to the person defamed the defendant's awareness of the existence or identity of that person is not required element in a defamation claim says and so i think that what the case is tell us is that it isn't necessary excuse me  for for the defendant to know or intend to refer to the person defamed what matters is the perspective of the recipient and that perspective can be informed by extrinsic facts not he said that he is certain as a matter of fact that it is not a frank teddy johnson so i don't think that that's practically distinguishable from saying that this painting is not what it purports to be and therefore is a fake he didn't use the word fate he said it is not a frank tinney johnson that imputation concerns general peters gallery in general peters profession or trade it imputes to them either dishonesty or in that that scaling back has judge do refer to it follows after the accusation that the painting is not what it purports to be that mr stone mr overby have concluded definitely as a matter of fact that it is not a frank tinney johnson so an accusation that the painting that mr hubbard bought from a person whose identity mr overby in this or sherman didn't know the accusation that that painting is a fake could be the basis for the conclusion that the statement is defamatory in relationship to the people who sold the painting not withstanding the fact were there any other emails relating to this subject i'm sorry on or were there any other emails relating to know your honor there were a couple phone remotes the e mails for the documentary evidence relating to the claim but i think the three that that you have before you are that's those are the that's the written it's necessary to refer to the nevada supreme court although we would have no objection to you doing so we're confident they would come to the same conclusion that the law underlying section five sixty four dollars dictates which is that it's immaterial whether the defendant knew the identity of the person to the same were intended to refer to that person it would take a lot longer to get your answer yes your honor that that is true that's a that's important practical consideration in for that reason i don't i don't think it's necessary i think the law is clear i think a good sensible reliable eery guess can be made on the basis of the law that cited in section five hundred and sixty four dollars that we have labored and we don't like to make again we don't like to gas we want to make a reasonable nevada supreme court this is what the nevada supreme court would do if that if the issue were in front of them and i think that guess is sensible here i guess in our favor sensible here because there's no law going the other way i've been struck by the absence of wrong was in interposing the requirements the chief found our clients couldn't satisfy because the recipients of the statement knew that the speakers didn't know the seller of the painting so we don't think subjective perspective the focus and more of a focus on the perspective of the recipient of the communication and a trend away from considerations relating to intent or an understanding of the identity  correct as a matter of law and granting summary judgment because the issues are more sustained and straightforward than appellants when he made his applies the law which is the appe argument is that a major problem she doesn't miss apply the law because you need to read her opinion from front to back in context what judge do said was the intent of the rather than the recipient which is would be what you would look at under the statement that fifty six floors of that's the problem i don't think that the restatement is the law i'm not sure that it would be the used you find some found some place where the the circuits that just in your was wrong what i'm saying is a slightly different approach to this what judge do said was these statements are not on their face in the estimation of the community excite derogatory opinions about the subject and hold the subject up to contempt the subject of these e mails are not peter's the subject of these emails is the authenticity of the painting the sun rain in the sun there is no statement that can be attributed to peter's with out implications subjective intent  i i i don't like the word fake this isn't an authentic painting mr hubbard purchased this painting in two thousand and twelve as a part of a commercial transaction the parties defined for themselves their relationship in new york trade agreement of november th of two thousand and twelve in that art trade agreement mr peters represented that he had title to the property the painting and the property was authentic those are two warranties that he made the best objectively evidence you have of how this was received by mr peters is his attorney's letter on december three of two thousand and fifteen where attorney koran's sends a letter to peters and said we have information this isn't an authentic painting it is a breach of the warranty mr peters you have two options one give us our money back which is the bargain for remedy or prove that this painting was indeed authentic mr peters chose to rescind the transaction and in fact traded a rd painting to mr peters but would you concede that in the context of this discussion the words were somebody is talking about the seller of paintings you know and reference to authenticity that in essence that is that person's stock  trade because if there is a question as to the authenticity of the paintings are sold by yeah larry that pretty much tanks the galleries reputation and oil doesn't know i don't care i do not agree authenticity yeah authenticity of any object whether it's a jam or an automobile or a luxury boat yeah authenticity comes into question you can speculate that just because this is an authentic that there's an afterthought you know they talk about that mercedes you know when we say the same as another but if you're talking about a painting and you know a lot of art it is something the value argument and i think this is where the argument fails you have to imply a derogatory subjective intent to convey a defamatory statement attributable to peters you can't do that because now you're in the world of speculation it is just as easily assumed that when mr peterson obtained this painting from mr codner in kansas city that he had speculation you're going to say to the jury this is a reasonable interpretation like this only this sounds to me like the classic jury close i don't believe that it is because i think judge do is absolutely correct you can't make a reasonable determination that these e mails which go to the subject of the e mails the paintings and then to take it to the next step without any collaborating or corroborating inferences to be drawn from the evidence if you look at mr gore answers letter of december of two thousand and fifteen there is not a single word in there about peter's or peter's new or anything else all he said was we nevada what's your basis for stating that i mean there's no i recognize there's no there's no know about a supreme court opinion on the subject the only supreme but the never had a supreme court sure has looked to the three statement interpret you know what law they would apply and i think the starting point though is they would start with the definition of what defamation is and when you have the only subject in these e mails being the  don't think you're going to leap to some strange interpretation to find defamation because you're just prone to be in an area of asking juries to speculate on inferences that might occur in some circumstances this with throw the entire law of defamation open to katie bar the door and this is a case quite frankly of an expert opinion which is different than another's expert opinion that does not get you to the law defamation of mind and counsel are you saying being in that judge do erred in relying on the restatement i didn't say she relied on relying on the restatement i think she was correct when she read the restatement in the context of the nevada cases on what defines defamation i think she was correct so when i make the comment that judge do was correct i'm relying on the fact that we have a definition of what defamation is she finds it's not defamation it would be not reasonable under that definition because the subject is the painting last mr peters and don't speculate and in your view all she did was look at the statements and say these are not defamatory on their face she said and a story she said that it was not a it would not be reasonable or probable that those statements could be understood as defamatory on their face and the context of the context that i serious question is i don't believe so in that context and i think this is terribly important is this is a comedy in a commercial transaction the parties bargain for this is the bargain they had the bargain they receive arguing advocating the complicated version of the requirement concerning requirement the judge do apply it my nd point is that the law in the vatican says that whether a statement is subject to a defamatory communication is a knish really a determination of law because the judge can decide that there's no way a reasonable jury could understand it a communication as having in the family tori meaning but once the judge decides that it is susceptible to a defamatory interpretation the question of whether it is defamatory is a a matter to be resolved by the fact finder or in the case of the jury a jury question so i agree with the with the questions the matter is submitted