facts of their law and litigation are in fact complex yet the two narrow legal issues before this court are relatively straightforward in the district courts and back for a whole bunch of factual determination just some simple mathematical calculation yes there were many many things sent back on reason and however you need to question whether any of these things should have been sent back on remained at all whether anything should been overturned given the standard of review that the district court applied to its analysis then you're saying we should decide the merits if we decide the merits in your favor then we would decide the believe this court has jurisdiction because the pure legal issues here would obviate the need for further fact fighting on the low or in the alternative would aid the trial court on appeal piecemeal litigation i don't i don't believe so your honor respectfully i will ask a question i think the question is on remained what is the trial court supposed to do the trial court is supposed to adopt factual finding it didn't make do further fact finding to support conclusions it didn't come to the opposite ruling it didn't come to well i mean you're basically said what you want to say so on the one let's just take one of the ruling one of the issues at the bank i think that the district court addressed which was whether or not there was a material breach for failure to turn over the or produce the plans act right the bankruptcy court as i understand it said yeah that was a material breach right correct and the bankruptcy and the district court said no not under the standard under california law is that a material breach might and then he said because it's not a material breach there may be still damages available but they did those damages can only relate to the the lead and so on that issue the bankruptcy court didn't decide those facts and so it has to go back for that so you want  you want us to decide whether the district court err in its determination that there was a material breach correct and and again i i think the court at least in its comments are focused on the end result versus the means that gets you to the ends and i think it's the means that are important here the district court came to the conclusion that this did not know what we are not through yet i wasn't through so i mean that's one and there's another issue that you raise ok there were a host of other rulings that the district court made that are not going to be impacted by whatever we do on those two issues i agree to a certain extent well i mean there are other issues  are still going to have to go back to the bankruptcy court and be resolved that you carefully avoided not including in your notice of appeal because you wanted to make it look like all we had were these two very narrow limited legal issues why when in fact that's not the case at all with i read the district court's order there's much work to be done now and as judge nelson said it we don't want to in piecemeal decision making we want to get the whole thing all wrapped up in one you know one neat package that we can decide you know and i understand that concern and i understand that desire i think the issue here though going let's assume the entire thing is is free man did as it was by the district court to the trial court for further fact findings the further fact findings at least as the two issues on appeal are two issues that the court the district court overstepped  its permissive standard of review upon and i think that's the issue is the district court says this is going to be reminded on the issue of the to reality it was not material because time wasn't of the essence and this was a mere delay in delivering the plans versus a total failure to deliver that whole line factually correct i mean the plans were delivered c but that's the issue factually correct based on the weighting of the district court analysis of those facts and i'd like to read to this court what the bankruptcy court the trial court after eight days of trial concluded on this very issue and this is at it's volume one tab one i don't have the experts a record number i apologize but deliver city approved plans to remodel the construction project project transaction was predicated on public courts delivery of the plans to build the custom home without accurate plans the construction project would fail transacts purpose in purchasing the pebble property was to develop it and sell it without complete construction plans this expectation was impossible as a result as a result transactions expectations expectation interests under the purchase and sale agreement were defeated by the courts failure to deliver the city approved plans that is the factual overview that the bankruptcy court puts on the end of its analysis on the material the breach of the p s a that analysis that wing of facts is diametrically opposed to the district court's weighing of the very same facts they had a clear error review of these facts yet the district court went above and beyond that clear   much was that and what difference did it end up making the play and did go see but it but i think if you look at the timeline of the plan going ahead it highlights the problem itself it was contemplated from the get go that when transact was going to purchase the pebble property its sole purpose for purchasing it was to to develop the property evident by that fact the p s a includes a requirement that the pebble corp was required to provide the city approved plan within ninety days so in the p s c itself it's made abundantly clear that the only purpose for purchasing it was to develop the property but it said there was some issue about what if those plans were done in ninety days and that one of the things that the district court was concerned about and there was also and i think the district court also raised the issue of what were they if they were done it was a matter of paying thirty thousand dollars and work it out later who was supposed to pay see but and then they went ahead with their escrow and they got their plans and they don't even know for sure when they get them on the day that's going to get him two weeks later and i don't know i just lots i don't disagree that's the district court's findings but again the district court not being the trier of fact wasn't there to hear eight days of testimony on that point and what if you did a purty thorough review of the record though he may have the contradictory statements and there were it appears that he didn't review it as thoroughly as it would seem but notwithstanding the the district court as we noted in our brief seems to over simplify the transaction itself and well yes it was two weeks post closing  escrow is a mere six weeks of delay what occurred in that timeframe what occurred in that timeframe was a construction budget that was to be agreed upon contemporaneous with transacting provided a copy of plans called not for construction at the same time robert hall provided a completely different set of plans for the city of chronic m r he didn't tell remark by the way these plans i'm giving you don't amount to anything quite to the contrary what he said is you can rely on these plans for the purpose of creating a construction budget going forward in time no one ever stood up and said oh by the way we the plans we put forth with the city are not sufficient to create your budget now they let him march all the way forward all the way through closing he had no clue that the foundation had doubled he had no clue that three hundred thousand dollars was added to the foundation itself so going forward in time yes they did operate under it  withstanding there being the delight why the six weeks of delay that would have been a breach he was assured that there was nothing that you need to see because you could rely on these for the purpose of creating a construction budget it wasn't  it's going to add three hundred thousand dollars so what was the budget that the budget the budget was three three point two million and again we're going to bury thousand over three hundred thousand however and yes that sure seems to be a small amount but that allowed transacting room on to operate under the misguided belief that the plans he was provided were sufficient however that wasn't true going forward in time jericho said i'll be flexible with the draws we can move some things around so they move forward draw to repay to the tune of approximately one hundred ninety thousand dollars i believe when draw three came mr de rico refused to do the draw why because he was over budget on the foundation he knew they were going to be over budget in the foundation six weeks before the close does grow he knew they were going to be over budget before he'd even given the plants because they were going to submit different plans to the city and i think that's the issue those are the facts that the bankruptcy court relied raise the arguments in your merits brief we need your merits brief there is no sort of abandon any argument there's a lack of jurisdiction as i understand it it would give you an advantage at least that's your position because you might by doing that and if we do word it as sir if we were to decide the merits of these two issues then the future appeal he may not be able to argue in these other issues because he didn't raise he would be that's correct your honor is that the advantage you want to trying and get here i didn't look at it as trying to take advantage what we did was we looked at our motion to dismiss was based on the twenty one issues of appeal that were presented to us initial filing with this court then when they filed their motion opposition to the motion dismissed they still had five very vague issues that they were contending they were going to raise when they finally file their opening brief here your honor it was two issues whether or not the district court erred in finding that this intentional breach was an error and whether or not there was a mistake with regard to the construction loan agreement with those two legal issues being what they have now limited themselves to we had no problem addressing those on the merits but to the extent that they're now going to claim that they still reserve all these other rulings as you yourself said the trial the district court made several important rulings below that should stick they have not been challenge and those are legal rulings very important rulings and when we do whatever we never we do hear those issues still have to be resolved in line with the district court the issues that have been remanded for a factual determination based on the district court's instructions those obviously need to be decided by the trial court level however the legal rulings that have not been challenged and the poets opening brief or reply brief frankly here cannot be brought up again we shouldn't have to keep dealing with these issues that have been decided by the district court legal rulings that are supposed to guide the trial court and it's remained we should have to be fighting about  honor when we saw what the issues they're presenting on appeal were limited to these distinct legal issues the two issues raised on appeal according to their briefs we wanted to address those my client has been litigating this case for ten years he's an elderly man he's here in court we don't want to keep going up and down and up and down three levels of court he's right there your honor mr dury go that is not acceptable and when we saw the reason we saw the motion to dismiss was we felt like this is that's to happen we're going to come up here some issues may or may not be decided we're going to go back down to bankruptcy court back to district court and back up here again mr de rico is not going to make it i'm sorry that happened anyway well your honor we as we asked in our respondents brief we ask that the court affirm the legal rulings of the district court so that at least that issue is removed for example the fact that the  purchase and sale agreement it is far too simple to do what appellant is suggesting and say that this was a factual determination about materiality the district court laid out an extensive and analysis of what was wrong and there was clear error and there was both and there was also legal air and when you talk about the clear air standard judge fitzgerald nailed it he looked at it and said how can you have a real estate contract that is breached supposedly and the buyer ends up with everything the property the notes are canceled no deeds of trust he gets to keep all the money that was loaned to him and he gets a judgment for more money that was promised to be loaned to him and he gets a judgment for his deposit that can't be that is the exact type of clear mistake that the supreme court in the andersen case i believe it is that cited by the district court in our brief that's that is a clear error but we don't even need that clear error because what appellant refuses to acknowledge is what judge buffalo mentioned there was an affirmative this contract this record deal that to you can't say hey wait a minute you breach you haven't given me these plans and that's a big deal to me and i'll just keep going and i'll keep taking i'll continue to keep the property a work on the property make two payments we've cited several cases in our briefs the district court cited several cases in california if you affirm the contract you cannot rescind it otherwise you just keep them in your back pocket you wait until it suits you just like what we have here the trial court the district court also pointed out that as a matter of law the damage analysis was completely flawed you can't have res damages when the the trial court specifically said it's not giving rescission and that's what we have but he didn't do a full recession because he thinks of the property back to the seller he let the buyer keep it it just it's  confounding but the fact is that we have more than just the materiality issue so we don't have to decide did judge fitzgerald dive into the facts the fact is these facts were undisputed we believe the plants were delivered on the day of as but even if you take what the trial court found and you go to august seventh the two weeks the court found that that delay there was no evidence in the record not to suggest that there was any damage from that and if there was that would be the limitation of damages whatever it would cost to go get the plant yourself because the trial court found as a matter of its factual findings that the appellant mr amano always had access to these plans as early as june twenty eighth that's a finding of fact he also found the trial court also found as a finding of fact that there was no reasonable reliance by mr amano on these on the the two different plans so the first issue here that you're talking about right now in the when you just rest i mean theoretically i mean that that is presented to us as a legal issue because you can look at the facts and ask whether those facts is altered in a material breach as material breach is defined in a california law and then if it is well there might be a possibility of other damages or it isn't the district said but the second issue that's raised here about whether or not i guess it's the rico improperly fail to make the third progress payment yes that seems as i look at that that seems to be purely factual and the district court said you really can't decide that issue until those facts are fully developed and they're not so when you add that to everything else that the district court reminded back i don't see you know i'm really uncomfy i don't know about my colleagues and i don't speak for anybody but i'm uncomfortable saying the we should assert jurors diction when there's so much more work that has to be done at the bankruptcy court level i appreciate that your honor is and all i ask is there is a very specific legal novo ruling made by the district court with regard to the construction loan agreement and it's important that this court  look at that and if possible in declining jurisdiction on some of these things it affirms these legal rulings and that ruling was as a matter of law judge clarkson at the trial level failed to interpret this contract properly he looked at the the four corners of the contract and he failed to interpret it properly and judge fitzgerald at the district court said that is wrong it is clearly a percentage completion agreement as it's terms it's pacifically has a term in there that there's going to be inspector to check the progress of the the job for  purposes of disbursement he said judge clarkson failed to give in to that any intent of the parties consideration when he just regarded that just clerks and also said he could look at judge fitzgerald at the district court said he could also look at the the facts as judge clarkson decided them and based on those facts there's the extremes of evidence that was just not considered but if you just look at that to know of a review and a firm that removes an issue that we have to talk about what i don't want for my client your  is to have all these issues up in the air i guess potentially twenty one issues of appeal which is what the appellants listed on their mediation sheet when they first followed this case we spent two years to get to this point actually from the district court three lawyer i try and settle cases every day i don't get to come here that often but the fact of the matter is if you look at that like this is the kind of case that should be so well i could address that if the court wants the problem is i'm just observing you know the real problem is that this got pulled into bankruptcy and if you think about it you have a four million dollar piece of property that was liquidated at a fire sale in the bankruptcy court for about one point five million and then all of that money went to mr shulman's firm as attorneys fees that they got after trial so if you're wondering why it's not settling i think the answer is kind of in that procedural posture with money and it's really you know all of this probably would have been done if it's just gone back to the different facts that similar postures if there are legal issues that were determined by the district court that could become a lot of the case and not be challenge further in this case that will remove opaque areas for the t well i believe that judge to jail gave very very specific rulings as well as factual instructions for a man already asking is that those be affirmed so that when judge clarkson is looking at that there's no challenge to that and there are certain things that were never challenged at all here in this appeal for example my client's affirmative claims for breach of contract for two of them those are not even addressed in any of the briefs by the appellant and those were reversed so my client has she a breach of contract which are worth millions and millions of dollars versus what is probably at best a couple hundred dollar offset for the cost of buying plants by the way your honor it's not thirty thousand dollars to get the plants that dispute was over a permit for thirty thousand the plants themselves the only evidence in the record which actually judge fitzgerald didn't mention there is evidence in the record that mr rico had a friend go down to the city and pay two hundred thirty five dollars to get a copy of those plants that's the only evidence of what the possible delay the cost of getting the plans yourself instead of getting from mr de rico would be my client as to contract claims for millions of dollars you know the three point two million that he actually lost on the purchase and sale another two hundred thousand dollars that was lent and never paid back with interest on the construction loan agreement so again your honour's i just implore the court to step back as judge that's cheryl did for a second and just kind of look i actually had a chart when i went to the appellate hearing  district court that showed how this this transaction what typical transaction one side has of a deed the other side has money and you think that they swap and you start to look at what happens on each side of the ledger and you could see it in the record everything ends there that were going back to the bankruptcy court will judge buffalo all what we pointed out in our appeal to the district court and actually the district court does mention it in its opinion although found that there was enough evidence to support the trial court the third draw notebook for some reason judge clarkson subtracted one hundred twenty thousand dollars for two invoices that were not signed but none one of those invoices actually shows that was paid and that was the reason that my client refused to do it this was supposed to be a progress paid construction agreement and of course that's getting to the facts of the underlying issue but to answer question why and again from a legal standpoint on  appeal that the decision the trial court just doesn't make sense with that factual finding you can't say ok you breached the loan agreement by failing to lend money have no damages of the fact that he can find other lenders in fact as judge that show points out this isn't thousand and six you could have thrown a rock in orange county and found someone willing to lend you money on newport beach property so with that your honor i do appreciate your time and consideration thank you thank you it is a couple minutes for and first like to address the initial legal finding that council would like this court to consider and affirm that is the very issue i want this court to consider as well so if this court is going to did niger's stiction it can also decide that that's the second half and that is the inappropriate standard that the district court applied to its analysis of the construction loan agreement counsel said what they what the district court found is there was nothing in the record that dish the bankruptcy court had considered extrinsic evidence however that's not true it's not true at all it was the district court's weighty of the extrinsic evidence that was in the record and i can cite you a quote right now so in the bankruptcy courts memorandum of decision at paragraph seventy four and this would be volume one tab one of the excerpt the record says during the meeting in this is a finding of fact during the meeting to recall insisted that he would pay based on the percentage of completion and it goes on to discuss percentage of completion next paragraph moreover room on entered into the construction loan agreement in part on d rico's representation that he would be flexible and reasonable in re allocating funds between line items both of those are extrinsic pieces of evidence that are not within the four corners of the c l a however the district court stands up and says i don't see anything in the record that the bankruptcy court considered extrinsic evidence right here are two things and it goes on and we put in the brief for the record contradicts itself two pages after when it discusses the agreement to be flexible i e something that is extrinsic to the c l a of four corners so the point here is that is not a factual finding that can be determined unless the court determines it has jurisdiction over this matter and i understand the court's concerns addressing the issue of jurisdiction and at least counsel's request his request is made of on clear in the tail end of his his brief and it says in all paraphrase that he requests this court rule on everything so that the only issue that goes back down to bankruptcy courts how much money rico however that is completely opposite to the position he took in the motion to dismiss the twenty one issues on appeal in the initial questionnaire are based on the things that were reversed and remanded so what he would have this court do is affirm all the reversed and remanded issues that they cannot be acted upon as requested by the district court and that's completely improper you can't have your cake and eat it too you can't stand up and say this court doesn't have jurisdiction you can't rule on it and then flip around and say well i want you to rule out all this because when you treat me but you know like here's one a just a thought he's raised to the other side's raised a legitimate point which is that if we do a search or stiction resolve these two legal issues goes back down to the bankruptcy court on all the other issues remanded by the by the district court and you lose the try to then come back up here and raise all these other issues and you might have a problem i think they might be barred for failure to have what they raise them with us at this time what i find it is maybe conceptually i'm not grasping at that how i can wave an issue on appeal that he says we didn't have jurisdiction to put forth and th says that he doesn't have jurisdiction we don't need to go there i'm just telling you he raises a good point i just don't know how in action on something he says i can't do would somehow waive something going forward that to be conceptually just makes no sense all right i appreciate your concern