have please the court and counsel i'd like to reserve three minutes i would like to address four issues with respect to this matter and this is a case which deals with the non discharge ability of a debt and a judgment matter one of the real complaints that existed in this case was the complaint that stand mr had in the year of two thousand and eight the year that joe fisher could be in the company had all these different parties persons were employed at g m state staffing to sign contracts employment contracts they did not have noncom because as and they did not have confidentiality clauses they were done in nampa boise twin falls  them was done by joe visser and it was a complaint about that they also complained with respect to the fact that the business when it when job mr left within a matter few days went black what happened is visser give his letter of resignation to the person who should have received it namely his father because he was the chief operating officer and on a wednesday the company continued for thursday and friday other employees then found out about it and saw joe this route to see if he if he decided to start up his own business whether in fact they could go full with work for him and stand to serve then decided to quit and that's what made the company dark they also made several allegations with respect to bad things that happen the company but once again it's important to recognize that they have to be separate and apart from job history and that there was a huge argument going on the evidence at trial is pretty clear that the father and son were in this together this was a property of endeavor between the two of them have trouble saying that the evidence doesn't support a conclusion the stand was was in on the deal with joe and they were very much aware of what each other was doing and the issue arises when stand visser draft contracts which he has all these people sign which have a non compete and cut and do do not have a non compete clause and also confidentiality wasn't just  it was many others beside the same contract and a big to do was made about that that was in cahoots with joe visser but isn't that just a cheery argument mr robinson come on i'm here on a of discretion at best clear air otherwise about whether the bankruptcy court could come to the conclusion it did about whether your client was involved in doing what he had to do here and all you're trying to do is pars evidence i'm trying you're just parsing the evidence that you would have given to the jury or you would have given a judge pappas and making your argument he saw through it he said no and as judge fletcher suggests he says johannes stand what we have but the broader mind is he listened to the evidence he listened to what the evidence was as it relates to what stan would have said or what joe would have said the way he listened to what would be in involved he listened to the employees who thereafter ran and in the same way and he said no this is malicious i understand i will get to militia i mean the bottom line is when we're talking about non just charge ability and we're talking about an abuse of discretion we're talking about a guy who's the judge is listening to the evidence and determining after listening to the witnesses in front of them whether it's n or whether it is and he has a right or as i understand it to use discretion gives him the opportunity to then make decisions as to who lies and who doesn't lose telling the truth and who isn't and therefore on appeal even if i don't agree i cannot do it and all you're doing is arguing the facts that would have been presented for your side i understand that if it's a question of fact it has to be a demonstration clearer my position is in the argument i'm making is that he did not look at the law which indicated that there needed to be a separation that you could not take the acts of stand mr and have to look the second argument i do want to get to the willful malicious i think that is significant obviously there are separate distinct we know that with respect to the will for that we have to look at the subjective intent history and that's important because joe besser indicates that he never signed a contract now i recognize that the court found that there was a contract signed in the first instance even though he was doing so it  as a sales manager the interesting is also that that then there's a second contract signed not just by joe but others which obviously would be even if there was a first contract be controlling because it's later  to when you say second contract i'm referring to the contracts which were executed tom will said instructs send mr to go out and get contracts signed and he's to do so at all these different locations these contracts which are started  and boise and then the twenty dollars and i don't fault g s of the contracts in october a two thousand and eight two thousand and nine they are the ones that were signed in two thousand and eight in the spring the one but after the contract they did originally entered into had been changed we won't even say altered changed yes but but what is the contract that don't contain the non compete clause no that's correct ok it doesn't want to get there but that's what i wanted to know yes and those contracts but the controlling because it's just not stan vester acting and changing a contract with joe but sure he's doing so across the board with all those employees court determines the purpose of all of that was an attempt to release the sons of employees from the agreement well but the facts are after listening to the evidence making this crash an eerie decision the court said hala that is just didn't have to release the sun and  employees from the agreement and not an anon enforceable agreement having said what the court said i understand but the court then did not take into consideration the contracts that were entered into with the whole of the other parties is he somehow formulating this concept that he's doing it for all these others i think i think we do get once again it's robinson we're talking about abuse of discretion review here is there enough evidence in this record to sustain what judge pappas said that the only reason for these altered agreements without informing well stand was to release the sun and the employees from the agreement and that's what judge pappas said after listening to all the evidence that's what it was about it's son and employees that's feeding employees the went with him that's what judge pappas is talking about but there were but but there were not all these other employees other those as your good argument but i'm saying now we're on abuse of discretion and i read their facts staining what judge pappas ruled that's what we have to look at not are there other facts that are contrary to it i don't think that he really analyzed objective in tennis what i'm saying which is the element with respect to willful and with respect the fact that in the mind of your history he clearly believed that he would have no on prepare non competing confidentiality agreement which was different from the regular employment agreement not that they ever signed it judge pappas listened to everything looked at the details said no use discretion i'm even agree with you mr robinson but i can't go against that well but what you can do is analyze for example if you in fact did in a proper analysis as to subject the content of because that's what it is we're not talking about merely a breach of a contract  doesn't exist now what about malicious in the malicious we have four parts wrongful act i suppose we can argue that that there are wrongful act was he breached the contract and on compete with steel as i've mentioned before that what about the second contract note no and no doubt that you intentionally went out to compete the third item is cause injury then i'll get to that in just a minute as to how you better get there pretty fast because we're running down on time ok and i will get took quickly and so the fourth one is did he have just because they promised him that he would he would get something more because he did he the twenty dollars staffing business did twice as better being the rest and that never occurred so we decided to leave the business i think that was with us cause that he had the opportunity to do so at least his argument or his testimony which judge pappas did not believe now this part i think clearly and i recognize that it's probably also a factual determination but i think there's clarinets about damages there is not sufficient damages evidence with which back to this matter that took this out of the realm of speculation why do i say that well you know the damages that were asked for were substantially reduced on the grounds that maybe the high amount was asked for was speculative it seems to me that the amount of warne and was that was a pretty substantial reduction and it seems to me that there's enough evidence to support the amount of judge right at first stop with extra for snow removal in other words it was an unusual year made that argument we did it was very much so and the judge cut the assignment and how he did so because here was the issue tom job mr could have versus walt disney says it is within the sound discretion of the courier a fact to select the formula most appropriate to compensate the injured party the law requires only that some reasonable basis of co damages be used and the damages may be computed even if the result reaches it reached is no approximation the fact that the amount of damage may be subset doubled may not be susceptible to  proof or may be uncertain contingent or difficult if ascertainment does not bar recovery i dealt with that throughout my practice doesn't say you've got to be very exact but i think there's not sufficient facts well that's a good argument but again when we're talking about damages we're talking about abuse of discretion again and with that wide open idea of how the trial court can determine that hundred thirty that's what the bankruptcy court said and going through the figures you could come up with that were just the average i worry where's the plane error in light of what because you're trying to you can see you lose i with respect to attorney's fees so it will give you a chance to respond to that argument and respect attorney's fees with respect to attorney's fees as well as rebuttal and if we need to know if need be you can have a very short period for a bottle on that ok thank you you morning runners my name is ryan dustin along with james holmes and who's not present in the courtroom today represent twenty four staffing who is the plaintiff appellee and cross appellant were here today to ask the court to affirm the district courts and the bankruptcy court's decision that joe visitors death to twin falls daffing is not dischargeable under five twenty three a six and that joe visser was awfully or by his willful conduct caused damages in the amount of two hundred thirty thousand dollars in addition to the other damages were also here to ask the court to overturn the district court's decision concerning attorney's  i'd like to address some of the arguments that council made both in briefing as well as in argument this morning beginning with this this argument imputed liability twin falls staffing the bankruptcy court the district court none of those parties is imputing any of stand visitors sins for lack of a better term to giove this or joe visser did just fine all by himself the bankruptcy court found that he solicited twin fals temporary employees the bankruptcy court found that he solicited to info staffing clients and that he hired twin falls staffing these internal staff contrary to their their contract away from them all three of those pardon me all three of those things constitute willful and malicious conduct satisfying not only a breach of contract claim but also various torts under idaho law so i think the the imputation of liability isn't isn't really at issue here the second point is is the matter of joe's subjective intent mr visser subjective intent  the bankruptcy court and i'll refer the your honour's to twelve seventy two to twelve seventy four of mr visitors excerpts of record wherein the bankruptcy court found that joe visser knew he used repeatedly use words like knew he appreciated he realized i don't think there's there's any doubt as a matter of fact there was no doubt in judge pappas is mind that joe visser knew what he was doing and knew the effects of what he was doing and took those actions of three actions that i just mentioned with the intent to cause damage to twin falls staffing the third point i'd like to make is the the defendant has argued in briefing that that this was simply a matter of mr visser outgrowing his job wanting to go into business for himself wanting to establish his own his own identity as as a professional if you will if that truly were his intent he he could have done that what would that have looked like well that would have looked like mr going down the street and hanging a shingle and calling it magic valley staffing and and beginning his business how long was the duration of the non compete clause it was one year you know so he'd have to go out and flip burgers for a year but then it could set up well even if go set up an independent business now we've got not compete clause and he's going to be in violation of that clause for a year he would be if he sets up immediately so he's got to do something else for here he would be and certainly but but if this were just a matter of of him wanting to start his own staffing business he could have done that but he didn't just start his own staffing business he took all these additional steps to ruin the business of his former employer to install staffing cars when people leave a business where they've been the influence in the workplace as he was it's not uncommon for people to follow  happens all the time in law firms these days you know partner goes out and takes a few associates or fellow partners and all of that and so that's not uncommon the only barrier to doing that would be if there's a non compete agreement which is subject to lots of regulatory laws a certain way in california  you can stifle potential competition like that so you know the idea that he could have gone out and set up his own shop with new employees for a zoom way and then only be a breach of contract if he on the other hand thinks he doesn't have an on compete then why isn't he pretty much like the law for example that you can't infer motive evil motive malicious motive from the fact that loyal so of ordinance in the mother company would of their own volition follow but for the non compete agreements correct so why i mean y a fact that there is a non competing rayment that's where you said he could've done it but he would have been in breach and then malicious comes in because it took others decision so i'm not sure you proved malicious intent for the fact that other people follow facts are that it was the the policy and the strictly enforced policy of twin falls staffing by jove a search zone father standing assert that every employees sign a non compete agreement from the very ge we produced numerous documents at trial showing employment contracts with this non competing that judge pappas dealt with the fact that that stand visser altered the contract created the phony contract and then went about distributing it among the employees we don't know his purpose we can we can guess as to his purpose it might have been to provide camouflage for his contract that doesn't have an on complete clause which allows him to take them right away that's obvious what's going on that's correct you said you weren't imputing stand visitors conduct you say he's the well for purposes of establishing willful conduct on the part of jobs as well who just says stand to revise the contract that's correct it was ok and what did joe have to do with that joe signed the contract he signed a contract that he knew had been altered to remove the the non competing agreement was the also distributed that contract to the three employees amanda plaster kevin orie michael patterson the case before the bankruptcy court was joe knew that this was a little over change of response my response to that is it really matters very little why stan had all these other employees sign that the contract was it to provide cover for job this or perhaps was it to set the stage to ultimately take down the other stores in boise in nampa in pocatello and idaho falls and essentially replace the rocky mountain management jim stick staffing in twin falls staffing structure with dutchman services and magic valley staffing perhaps perhaps ok but why don't we move to the last issue which he did lose and now you're appealing and i guess i'm trying to figure out what there is and i don't law which would suggest to you that the bankruptcy court could put the attorneys fees and costs in the same action and as damages the short answer is i couldn't find any idaho law that allows judge pappas to put the attorney's fees in the award as damages alike and neither in fact it seems to me that if a were if it were another action long ago that was undertaken and not a part of the bankruptcy i might have a case but this is the same case and it isn't the same case it was in front of the twin falls judge our scuse me i guess is  even the sun valley judge instead of pappas but the only reason it didn't end there is because they went into bankruptcy and so as broad as napper adversary proceeding so i frankly i couldn't find why judge when mel was wrong well here's my here's my argument on on that matter and i'll agree this this attorney fee situation is an unusual to say the least the district court disagreed with that determination and the district court did so based on the american rule and the corollary rule that the court is familiar with which i don't hold operates under which idaho operates under the problem that i have with judge windmills analysis is that judge windmill was looking at that one hundred twenty eight thousand dollars in analyzing those as though they were post petition see all of the case law was was looking at at those it as as post petition fees these were prepared to sion fees what what's proper what's wrong here is not the award of the fees it's the procedure that the way we got there i understand th problem is all that post petitions and and create protections we've had in front of us and we have even that argument about on whether attorneys fees can be awarded and how they can be awarded but i can't find anything i looked at all jingles versus warrants cascade i looked at free burger i looked at every high dole law i could and i couldn't find out of find a way to suggest that just because you start your action in state court and then you go to your action in bankruptcy court because the bankrupt takes you there that you necessarily get the fees incurred in the state court action is damages in the bankruptcy court and i don't think i know a whole intends for it to be i think you could have filed a motion and maybe judge pappas could have said you know that's the same action i'll give it to you but i didn't find anything that says otherwise when we didn't feel it was necessary to file the most because he already entered the judgment it was already part of the judgment i agree with you i agree and what i'm saying is that the district court rather than taking the fees off the table see i should have remanded to the bankruptcy court let me ask you to walk through the proper procedural steps maybe you know how i didn't get damages now why didn't i i was i was all set to make a motion but he took it out of my hands what happened we didn't file a motion there was evidence of the of the attorney's fees and exhibit one eighty two in testimony by tom wells that but we did not file it we missed characterized it so what we would ask the court to do is remand for proper to step through proper procedural hoops file the affidavit filed a motion and go through all those things to comply with idaho law because i think under i took over twelve one twenty some paragraph three jenkins versus boise cascade that said smith cited two as well as freiburg vs g b engineers as the prevailing party on the breach of contract claim which is a stake or claim respond on the attorney's fees you may do so as part of that two judge pappas and merely took that format and he to be divided in one hand and and in addition to that he never really addressed the fact that it was gross profits namely no subtracted out only the expenses of the of the temporary people no evidence that he also that she had been considering i have it so i have any authority to do is counsel wants me to do which is great man this back to judge pappas to do it again yes ernie's fees no you do not have much point yes no you do not damages you think i do but on the thirty's because i don't know as an intern why we as a lawyer to lock an interesting tightrope especially when the decision is partly in our favor and are they not i mean i guess i'm trying to figure out what is your good reason that on no damages you think i should end on the attorney's fees i shouldn't it's because the attorney's fees were treated as compensatory damages and as was determined by judge wh sides twin falstaff and versus this are now submitted for decision