first issue before the court and the fundamental issue in this case is whether the jurisdiction of the u s district court is precluded by the previous determination of this court as to the aggravated felony issue in the previous petition for from the fifth circuit santos and the reno which is page five ninety seven so even probably even a little more extreme as stringent in its standards where if the grounds could have been raised issues violations detention in violation of a treaty why are statute or constitution that issue which survive previous review second issue that comes out the exception would come the the enhanced man element in a sentence under the laws of the state of california cannot be used to determine the sentence for the aggravated felony not that's the narrow holding but i think previous dismissal for jurisdictional grounds before this court what's the matter with that it appears to be that the aggravated felony issue necessarily has to be decided before and that's the end of the case of the game you're trying to bring up something that's already been adjudicated to the district court to the term and if this is a sentence and the specific language under the definitional statute you know are used i just don't follow it at all i mean this was decided and that's what the district court concluded one for work credits and one for what with so called good time credits those apply to two instances it applies to time served or sentencing and they also apply the time served after sentencing vested at the time of the sentence and under eleven a one a forty eight b the language used the sentence ordered by the court the sentence ordered by the court includes those credits at that point in time it's not something in the future it's not something he can be stripped of it's something he already possesses and it's not just simply accounting of days it's an issue that good time and work credits in addition to that he gets credits under the two nine  point the second point i'd like to make your honor in closing there is an error in the record that i discussed with counsel as far as the transcript attached to one of the exhibits we would like to correct that likes to flourish and submit it to the court and we were doing that within the week insurers by finding as a matter of law that there is no potential for advertising injury under a comprehensive general i believe policy or commercial umbrella policy and advertising injury coverage as defined in the policy really three elements that we have to be concerned with here the first element would be is it a covered offense the second element would be doesn't involve the insurance advertising activities and the third would be did it occur in the course of  insurance advertising activities in this case what jeje she found was as a matter of law because the judgment rendered against one of we've the insured was based on an implied in contract theory that it could not involve a first simply because the jury found on an implied in fact contract is not necessarily preclude a finding that the taking or use because the boss said both constitute misappropriation was not wron basically what each she has done is he's disregarded kind of the theory and holding of the california supreme court in the vandenberg case the vandenberg case over ruled probably twenty five to thirty years of a practice back you basically take the parties when you look at them and say what is the objective evidence established and if objective leave we can say that both parties have a contract we guard most of the undisclosed intention of one party never to perform never to honor that we can stand here and say that's a contract whether you intended to do it or not because your actions spotless shit so the wrongful arrest is if there is evidence that shows th undisclosed intention of one of the parties was never to perform a contract why isn't that wrongful and in this case we submitted evidence to establish that in fact that was the evidence that was presented at trial was that the tort damages is irrelevant for purposes of what is required a meeting sharing agreement of the policy it does not say that it's got to be a mr appropriation by something other than an implied in contract theory and in fact it does just the opposite because there's an exclusion in the policy where the insurers have there's no coverage if it's a misappropriation based on a breach of contract excel and imply impact now i don't think that no coverage for breach of contract unless it's an implied contract so a reasonable interpretation of that is that it doesn't matter whether the damages are tort or contract that's not the issue the issue is what is th protect somebody for failing to comply with their contract to perform and vandenberg makes clear the notion because and i can understand the court's perspective because the notion for twenty five to thirty years based on  authority in california was breach of contract not covered under general i believe policy and vandenberg came out instead that's not the law it said that's not a reason one target cation of a general i believe policy and so what  insurers is unless you've got clear and unambiguous language that expressly excludes coverage for breach of contract you cover it and what the insurers did here was they did have an exclusion which they had no coverage for mr appropriation for breach of contract but then very very clearly said except for a contract that some ply so even though someone might say well gee it's just you know it kind of rubs wrong the idea of what  the other types of benefits that are covered when you think of property damage bodily injury the notion you expressed generally recognized but when you look at the other types of coverages under personal injury and advertising injury the insurance company makes advertising idea to fight fraud that that would be precluded in this case because wonder we've as a south carolina company bought this policy in south carolina the policy has numerous south carolina specific indorsements you have to determine which law applies and under california law the way that works is you apply the governmental interest test in the first analysis based is there a conflict here or there is no dispute in south carolina they allow for insurance for intentional acts for punitive damages willful conduct it can be covered absent a specific clear exclusion it's covered whereas in california insurance for five thirty three would prohibit that so we have a clear conflict now we have to evaluate it whether and when you recognize that why don't we entered into this contract with the insurers in south carolina who should know the south carolina allows for indemnity coverage for both labs and have for over thirty years that they should know that this party testing activities for a porsche that was california law would apply because there is no conflict but one issue that's been argued is even if the court were to find this because of fraud five thirty three would motion the court did reference that five thirty three would apply that's the issue where there's a conflict and the parties didn't stipulate and so that issue that california law would apply in fact amoco never even raised that issue in this motion for summary judgment so we filed our opposition to the motion for summary judgment and judge e c says this kind of threw another argument that in addition i find five thirty three applies so we were never given the opportunity to for summary judgment and when we filed our summary judgment we anticipated this argument and grief that is you saying with the exception of as twin cities with the exception of everything but the intentional act issue california but when you get to adjudication in the underlying case when in fact it wasn't but the parties didn't litigate whether the liability that was found against wonder we've covered under the policy that was not an issue addressed in the underlying case because unlike the use of the trademark and look past the jury concluded that one that we've used for taking was pursuant to an implied a fact agreement which means wonder we have the contractual right to use the marketing plan coupled with an obligation to pay the fact that jury did not find that there was a meeting of them are just based on the assumption that there was in fact a meeting of the minds and we cited the disney case a california supreme court case makes clear that an implied in fact contract theory does not necessarily require a meeting of the minds and so back to the notion of if in fact one week is because of the objective evidence but in fact the undisclosed intention was at the time of the taking never to intend to honor it to to induce my clients to turn over their advertising idea on fraud your whole case rises or falls on a language in the instruction should have no if that language is not in there you wouldn't have a case no what i'm saying is that in one of the final had been there was a contract there was a meeting of the minds the parties agreed and therefore this was being used with the consent and that understanding of the then i would say even under lock box even under that you would think you'd have a misappropriation yes appropriation yes because they took it without the intention ever this by should've known and desnuda the way i hear you because you can always have more theories of liability you can be liable for fraud and breach of contract you can be like i mean what theory due to contract can be misappropriation doesn't necessarily preclude insists could it be under the circumstances where the party entered into it with never having intent to perform it you would you could you could sign a contract saying i'm going to pay for something and never have the intent to do it take whatever the product is and never pay for that used to be liable for breach of contract but you could also be liable for fraud there are multiple theories for liability under the same fact pattern and so just because you breach of contract doesn't necessarily mean you can be liable for fraud so if we agree with you what happens in this case in this case then well they're small to do one you could just reverse the summary judgment we go back down and the judge could evaluate what the evidence that we submitted which wasn't really considered because you focus just on the why billy or to you could look at the whole record and you can see that we did submit undisputed evidence of what the true intention of wonder we've was and then it's fact there are some our judgment should be denied an arson is granted and in fact the coverage and that is absolutely wrong this is a duty to indemnify question the question is is there is there not coverage under these insurance policies for the judgment in the underlying case the theory of breach of implied in fact contract and and there wasn't really one completely for what about that i'm not sure that that is wrong your honor but i don't think that has anything to do with whether there is or isn't coverage here we need to look at what this case procedurally was very interesting because to me that if that's true should have known and they were up to no good then it might it might have been a miss appropriation it clearly could not have been a misappropriation under the cases that talk about advertising injury coverage because for it for several months and then stopped in january of ninety four and what the argument is is that then the contract this agreement be it an oral agreement be implied in fact whatever it was somehow metamorphosed into i the misappropriation of advertising ideas under the advertising injury coverage if you look at the cases both from this circus from california would be making i think then berg again i don't disagree with said was that the language in the ensuring agreement legally obligated to pay as damages could be broad enough to include an underlying judgement for based on a bitch of contract theory and what the supreme court that is what you've got to do is look at the nature of the risk and the nature of the damages that were adjudicated and we say by doing that the nature of the risk here the underlying case i have to take a step back your honor the  contrary to most plaintiffs the ns knew at the very beginning of their case that their only hope of ever getting any money here would be that if they got a judgment if they could that would be covered by insurance so they set about doing that by filing an amended complaint with  en concerts of action including things such as misappropriation of advertising i d s misappropriation of trade secrets unfair competition trademark infringement all sorts of things that sort of have the buzz words of advertising injury coverage and what happen conversion of the judge instructed the jury that if they found a breach of implied contract they could not find conversion and if there was an error on the part of judges this is not to deal with that here that was the appeal from the underlying case which case which is the very case he's trying to collect on here he brings the judgment to this court for two million ninety seven thousand dollars and says please tell the insurance companies to pay it he has to be bound by what he what his client's proved or did not taste so their state of mind is not relevant i don't believe to the coverage issue but it's really no different and any time there is ever a breach of contract anybody can come into this court and say well let me try to prove even though i didn't prove it in the case i'm trying to collect on let me go back and try to prove it in a coverage case that they never meant to perform because that might confirm it would be  misappropriation of advertising ideas and the point i was trying to make is that is particularly true in this case where that there is misappropriation allegations were made and where proof was not made we have to look at what a legitimate contract but your honor that the case is that that interpret these policy talk about what can be a wrongful taking of an advertising idea case property damage record your honour's over a period of time so whether or not one that we've used that in advertising or not the damages to that occurred the moment one that we've did this quote unquote wrong taking because the record th  for this the value of the idea that is not caused by the advertising if one to we once they breach the contract or once they stop paying a gender ninety four if they had never used a symphony of color again the same damages would have been applicable because that idea was not spoilt and is could never use it again or likewise if one day we was using it even today if they were still in business and every day they were using the symphony of color that would not create additional damages to the repeatedly looked at is just totally absent here and the damages were not caused by the advertising as contrasted for example with us where you have a competitor who has no relationship whatsoever and uses your trade name well taking misappropriation i think it's important in the context of what a contract is as opposed to a tort to consider that parties in commerce have the right if they choose to a breach of contract the whole idea of a contract damages and it was a benefit of the bargain instruction this is not a wrongful act it is not a wrong it is not a misinterpretation it was simply a decision to stop paying and probably couldn't pay any more they did pay for a while they stopped paying in fact the engines encourage them to please stick with the program we want you to do this we want you to use the idea we want you to advertise they just couldn't do it they couldn't they couldn't afford it and eventually i think they kept giving them extensions to pay money all the hollin elegy to to the fraud that's promissory fraud and i think the most important point there is and then the coverage is not a free floating concept we have a judgment from an underlying action that was the the introductory language legally obligated to pay and that context the universe was not prepared to say you need to have a tort it could be something else but as you work your way through the policy and you get to a definition in this case of an believe a contractual relationship where the parties actually do have the right to breach satisfies that in any way shape or form go thank you i just one point on public policy five thirty three california public policy