the rule sixty b motion to vacate the judgment was properly made in the district court that tried this case and that entered the judgment that because the district court's original jurisdiction was provided for by statute and the supreme court in this case held that the district court was the only case that could enter final judgment it was both red herrings let me turn first to the issue of recall of the mandate in the standard oil case the united states supreme court expression held  rule sixty of emotion that is based on events that occur after the appeal and after the remained of the case back to the trial court it in such a case it is not necessary to from the judgment of the texas judgment specific findings of fact and those findings of fact as the court explained were what was important about them was that they all had a similar effect that is the court made it clear that the only issue that was being being tried by the probate court was issues concerning the estate and living trust that being true it certainly would have an impact on the question of whether there was issue preclusion in our case where the ninth circuit felt that the texas probate court had effectively ruled on the question as to whether there could be a third party tort liability and that of course was the issue in our case thank you thank you going back to the issue of the recall of the mandate contrary to pelleas argument that it doesn't matter whether the appellate remand was open or specific that has nothing to do with whether a recall of the mandate is required in a sixty b situation the supreme court's rationale in in the case was put the appellate mandate relates to the record and issues then before the court and does not purport to deal with possible later a very set reading from court its view of the interaction between the facts and the law i think would be would be of enormous assistance to this court in reviewing any further appeals but if we decide do so but the question is is it appropriate to do so and particularly in a case of this magnitude i mean i don't have to tell this court i'm sure this case has been pending their time that's right this has been pending for more than twenty years it has gone through more iterations than i have ever seen my understanding is that from the district court was that this is the largest record of any case  has ever been tried in the southern district of california this is an enormous case that is a very good reason why it would be important to get the input from the district court before this court rules on any of the other issues mr virtue and i want to come to the rescue of the district court because why as judge nelson see just aren't there enough number of reasons that we can address the merits tell me why the analysis of the ninth circuit the last time isn't the correct result today that the reason i don't see how the texas appellate court changed the earlier texas judgment marshall's potential liability by player find that point it changes really the context in which the this court looked at that case the findings of fact that changed in this case for example had to do with the question as to whether there what it was appropriate for the for there to be a finding that the that there had been any misconduct by pier marshall that is was the original a state and a living trust disturbed by pierce marshall and that fact i think doesn't consider other factors that are prepared for the benefit of vickie lynn marshall and that factor is very critical to liability in this case when that factor is considered in light of the fact that the texas appellate court decided that there that the texas probate court did not adjudicate anything with respect to those issues it becomes really important for the that those issues to be considered a new  what the texas probate court found was that there was no interference that pierce marshall and did not intend i'm sorry j howard marshall did not intend to give a gift from the living trust or from his a state that's really critical because in this case in our case the evidence was that the living trust itself provided for the fact that monies could be expended by j howard marshall separate from the living trusts he was permitted under the living trust to borrow money against the estate and that was one of the findings that the that the district court made in this case and that in of itself could be a basis for finding of wrongdoing and and for finding that there was an intent beyond just what was the intent with respect to the living trust and the estate  instructed those lawyers not to do that there was some evidence that there was time actually spent by those lawyers in preparing for a living trust but no one was ever to find again the living trust they were they were billing records that together for the benefit of vickie lynn marshall the living trust was another state document with that that pierce marshall was the beneficiary of so here you have a five minutes the judgment has been is based on an earlier judgment that has been reversed or vacated of course as we know in this case the earlier judgment the judgment the texas probate court on which this court in this two thousand and ten decision ruled there was copy of the decision if you go to the very first page which is excerpts of the record page three sixty the court said we additionally modify the trial court's judgment and affirm the judgment as modified now there were three modifications all of which are completely non material if the court looks to the right use his phrase effectively vacated is is wrong you say it's modified it's not just wrong your honor to miss the key findings that were the basis of the issue preclusion analysis of this court in two thousand and ten the texas appellate court affirmed the texas probate court's jurisdiction to decide the issues it decided including with respect give vickie a gift of course that is fatal as this court concluded in two thousand and ten to their theory their theory is that j howard intended to give the gift and pierce interfered but if there was no intent there can be no yes so there was a five and a half month jury trial that argument was made to the texas jury and rejected five and a half months or a trial all of those arguments about undue influence and j howard intended to give her money because judge carter said so in his order below and also the court looks at page five ten of the e r records a list of the docket sheets of the very first entry which shows the district court's jurisdiction is the notice of appeal that pierce filed from the but all of those had previously been determined against vickie lynn marshall in the texas probate court after a five and a half month jury trial all of those findings those key findings finding three point seven j howard never intended to give her anything finding three point four pearson gauged in no misconduct in his father's estate plan those were affirmed by the texas appellate court now to conclusively establish this if the court looks to its own decision marshall cannot establish your claim of tortious interference with an intent because because the probate court found after the jury verdict j howard marshall quote did not intend to give and did not give to vickie lynn marshall a gift or be twice a quest from the estate of j decision perhaps i'm overly sensitive as a district judge but it seems to me that the mandate rule only applies to the things that were decided post mandate page ten forty of this court's two thousand and ten decision this court didn't just simply reverse and remand it said quote we reversed the judgment of the district court and remand with instructions that judgment be entered in favor of the estate instruction to enter a judgment is not an open remained and i think the thrasher decision in two thousand and seven from this court establishes that when there isn't a mandate with an instruction the lower court is without jurisdiction it's a jurisdictional bar spray case from one nine hundred thirty nine stamper the fourth circuit decision that we cited below in judge carter quoted so those are the three main you have a ninth circuit case just the thrasher cases not quite as specific i think as your honor is looking for but there's a key point that i'd also like to make judge nelson i think you you hit the nail on the head when you said can we look at this from the merits and say you have no entitle me to relief you're under rule sixty b can't we affirm on that ground and indeed  the key findings of the texas probate court he cannot do that because the texas supreme court has now told us in two decisions there is no such cause of action as tortious interference now they are in the kinsell case and then most recently this year  archer versus anderson the texas supreme court has said we do not recognize this cause of action the cause of action stems from the decision in king versus acar from the texas appellate court decision in one thousand nine hundred seven which the texas supreme court is now express overruled they cannot cite to a single texas decision that has adopted their theory all of them have now been overruled by archer versus andersen and that's that's critical that the distinction  we're arguing tortious interference with a gift and that case was tortious interference with inheritance rights but they are branches of exactly the same tree if the court of looks at the texas supreme court's decision arthur vs andersen other court will see that the theory of the cause of action is quoted and star for it and if the cause of action for the the plaintiff has to show a defendant is subject to liability for interference with inheritance or gift it's either one if the plaintiff had a reasonable expectation of receiving an inheritance or gift this is now section eighteen of the wrist of their statement which was formally section seven seventy four b the texas appellate court  recognize this cause of action and it did so for reasons that apply equally in this case that it is up to the legislature to create a new possible that the this type of tort remedy conflicts with texas law that's exactly the case here saying that texas recognizes a cause of action for tortious interference with a gift is completely contrary to the texas law of gifts which requires not only an intent to gift to give a gift but also delivery an acceptance of the gift if you make that argument submit your honor must it goes to this court's jurisdiction because where there is no viable cause of action the cause of action has been abrogated there is no longer an article three case or controversy that deprives this court's of its appellate j we really know i mean the case isn't exactly on point we do really know your honor because the same it's simply branches of the same theory and all of the reasons for it we have are having to make a guess about texas we have a motion to we have a motion to dismiss the appeal is moot we cite for that proposition this court's decision in denby care the could this court's decision and then be carried by all the situation where pending appeal the california a cause of action that was at issue the church of scientology of california case where the supreme court said quote it is long and settled that a federal court has no authority to give opinions upon move questions or abstract propositions or to declare principles or rules of law which cannot affect the matter issue in the case before thus the supreme court said for that reason if an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatsoever to the prevailing party the appeal must be dismissed close quote so this court apply that that principle and then be karen dismissed an appeal of an issue as moot and it has you want to submit because it article three jurisdiction it goes to the jurisdiction of this court no case or controversy and again the basis for that is the cause of action does not exist and if there is no cause of action then you can't have a rule sixty b motion to reinstate a cause of action that doesn't exist now again it's their burden under sixty to show that there is in fact a meritorious cause of action they haven't shown it and the i think that if it when you look through the texas oppose rescissions and where they can cite to not a single texas court that hasn't been overruled that accepts their theory they cannot show that the cause of action exists i'd also like to make the point that the district court in this case other jurisdictional point the district court in this case was clearly exercising howlett jurisdiction it was hearing an appeal from the bankruptcy court it was an intermediate appellate court in this case the statute govern standard of review that is applied just like this court exercise a standard of review when reviewing questions of law to know about that doesn't make this court's jurisdiction not appellate jurisdiction the jurisdictional statute is twenty eight u s c section one fifty eight which clearly said the district to hear appeals the rules that apply are very clearly the rule eight thousand and one through eight thousand and twenty six of the federal rules of bankruptcy procedure we know that because rule eighty one of the federal rules of civil procedure tell us that the federal rules of civil for seizure do not apply in bankruptcy proceedings unless they're specifically incorporated rule nine thousand and twenty four allows will sixty be motions in the bankruptcy court but not in the district court sitting on appeal  jurist so there was no jurisdiction to hear the motion and there was no authority for the relief in the district court so we have several jurisdictional problems one is the ruling and said leave hair in your brief and you've gone kind of your time some thank you very our judge nelson you are entirely correct when the bankruptcy courts what it purported to enter a final judgment but when that was determined by both the district court here by this court and by the united states supreme court to be only findings of fact and conclusions of law then the jurisdiction that the just record assumed was original jurisdiction to try the case to make findings of fact and to enter a final judgment it could only be original jurisdiction at that point because it would be the first case and the only case that constitutionally could enter a final judgment in the case so it is entirely correct and it is true that that that coursed research was triggered by the notice of appeal that was filed but the only reason that happened was because the bankruptcy court had held that it could enter a final judgment so it was appropriate to enter a notice of appeal that then became the original jurisdiction as it was tried from let me just briefly talk about the archer versus andersen case because that was a five to four decision of the texas supreme court it did not purport in any way shape or form to rule upon particular tort that was alleged here which was the interference with an interview of a skift archer versus andersen was entirely talking about the tort of interference with inheritance and the rationale of the case entirely is that because of probate procedures that operate fully to take care of any kind of problem with respect to an alleged interference it was unnecessary to recognize that to the court was it was a five to four decision and four justices of the texas supreme court said you know what there could be circumstances where even an interference with inheritance would be an appropriate remedy mr richling though aren't aren't you talking to us about the claim that finding is binding the district court the court of appeals and the supreme court have to apply what the what the jury found in the texas probate action was that there was no undue influence on j howard marshall what he did not determine was the issue that was determined by the district court in our case which was that pierce marshall had absolutely unduly influenced the preparation of the interview by vosa trust that was to be for the benefit of the keel in marshall and the other side as played on the the confusion with respect to those throughout this case but the fact of the matter is it was a completely different issue that was at the heart of the case here i would ask the court and refer the court to the stern versus marshall decision from the texas probate court appellate court at four seventy one southwest five twenty five there the court for several paragraphs goes on it says we agree with our side that the trial court's rendering judgment on any of the keys claims against marshall that there is a state of interest cannot purport to adjudicate or for clothes because tortious interference claims because the court explained the only thing that was being adjudicated in that case was impact upon the estate or living trust once it is recognized that the estate and living trust are separate from the funds the j howard could have used to fund the interview i boast trust that was to be for vickie lynn marshall's benefit then it