please the court counsel my name is charles holt strand and i represent the estate of ella parker in this matter as porton ella parker have long since passed away as you can see from the record this case began fourteen years ago in large development if the counties condemning it it's for what purpose that's a request to sit on a golf resort for the purpose of a road to the sedona golf resort to turn it into a private road i don't understand it into a public turn it into public access to the resort yes thank you they have other access to the resort and the area this is the one that was privately owned the for me three point turn with the rest of your argument let me ask you a couple more questions and one that's that will be obvious to you but not to me because we don't have the entire bankruptcy record and sole why does a bankruptcy court have jurisdiction over this case because it obviously does not involve any property of the estate the quiet title action doesn't appear to involve the debtor i don't see a basis for a certain like or jurisdiction and i don't see much of a basis for self my own jurisdiction so how did that happen it was an  your your clients or the predecessor interest had acquired the property prior to the bankruptcy right yest so at the time the bankruptcy was filed ten of parker the debtor had no interest at all in the property right that's correct ok why did the bankruptcy court acquire jurisdiction and property over an action about property which should not form property of the estate nasty answer that question specifically but i believe it was as part of the quiet title a claim which included ken parker as a defendant and there were other defendants that were included in so all that remains here fourteen years later is count six of that quiet title complaint and the only defendants that remained were porton ella parker now substitute in the state in that count the only remaining claim what the sedona gulf is or asked the court to do was to set aside the rodriguez deed of trust that's what they asked him to do that thirty minute complaint has never been amended since one thousand nine hundred eight the court said that they would not allow any new theories and we end up proceeding after multiple motions for summary judgment and a trial now since i've become involved since one thousand nine hundred five or eleven years ago so the gulf resort has claimed that they acquired the property even though they never paid for it and they never purchased it from the original undisputed owner which is our side because the region sedona nc is the original undisputed owner because if they didn't own it nobody here had any claim to it everybody's claim arises out of the region s dedication i was half a dozen other theories in there that i want more the court with but we have patiently demonstrated each one of these theories to be false both rationally and legally we have that and at the end of the point to rely on that and determine the case as he did i believe it was clearly erroneous and in correct for the reason that as we pointed out in the yard his power to do you know i suppose when you talk about the difference between power and right of course the bankruptcy court has the power to enter any order they want to well not necessarily i believe it to be legally incorrect but you think it was improper and error to do that said there are only theory or claim was did biased aapl it was not until august of two thousand and two a scant five or six months before trial and ten years after the complaint they had filed asking the rodriguez speed of trust be overturned or set aside that for the first time they realized hey we're out of theories let's try this one i'm sure they had a lot of theories my question is was this very bad for accepted by a prior court decision no ari then your other basis for overcoming the presumption of ownership was that there there was a mutual mistake in the parker deed of trust to the rodriquez is my including the road correct but the basis of that and the bankruptcy court found that there was no evidence to show mutual mistake perhaps you know lateral mistake but not mutual mistake why is that clearly  well to answer that question your honor i have to go back to the first premise that we just talked about and that is judicial stoppel judicial astop hope lies not only to the presentation of the theory but also the presentation of facts and judicial admissions now not less the nine times in one nine hundred ninety five ninety six sedona golf resort told the courts tribunals that this was a mutual mistake ok let's let's try just the evidence first was the bankruptcy court why should we be convinced firmly the bankruptcy court got it wrong in saying that there was no evidence of mutual state because under the theory of judicial stoppel and let me as a theory ok i'm talking about the evidence that was actually  question the question is evidence the fact of you know it was in your own house garrett to answer that the evidence of mutual mistake is one exhibit thirty eight i believe which is the board resolution saying that this is the property we intend to encumber and secondly the president of r s i that said i never intended to encumber the inference wrote and there are cases which say and remember that testimony was an rebutted that the instruments may be derived from that of a mutual mistake there was no contrary evidence but let me ask you a different question judge case found that your clients did not acquire title to the property if he's right on that is in your case over ice i know you dispute that but if judge perry if that one finding is upheld don't you lose i think so so tell me why you think he's wrong he is wrong for three reasons number one i want to go back to judicial stoppel for just a second because i've spent hours and hours reading all the cases and i think the most important case of course is new hampshire versus maine which is the supreme court case on the topic and they very clearly shied away from making any inflexible formula as to the application of judicial stoppel they did not say equity is immutable it is the only way that you can arrive at a judicial stop on fact they said no it has to fit the circumstances well in this case we have ten years or eight years of going along under the presumption that it's a mutual mistake of fact not a presumption they said it was they have a summary judgment granted on that and i understand that there are cases that say you have to have a prior to terminations in favor of that party but as you can see from all the other cases judicial stuff has been appl circumstances where there are not necessarily the same case or in the same case or in different courts all different circumstances which is what judicial stop was intended to do to address the inequity of the situation sure but we've got a case it's a new action network so we recently decided that said you have to have a court decision so how do you distinguish that well i think that's in conflict with the whole concept of equity number one perhaps it's when it finds our panel so well how do you distinguish it's in conflict with the way i read new hampshire versus maine and to the extent that it establishes a hard and fast rule in equity i believe the new hampshire rule is the better rule i don't think that when you're talking about equity well the whole concept of judicial stoplights i written one case that put it best there's always the tension between the doctrine of judicial stoppel and the liberal pleading standards there's always that tension the court is always trying to find the best way through that minefield so to speak and i think what we have here is that is the situation where the overriding principle is the judicial integrity of the court and to have individuals stand up and tell the court as a fact no less than nine times admitted no open court their expert admits that and then to say oh by the way no that wasn't a fact at all i think undermines of usual integrity the court and i think that is exactly what the concept of judicial stoppel as applied to admission of fact is designed to prevent we're not talking about alternate theories here we're talking about a fact that a mistake was made i just have one or two other comments i want to make about description of a lien the testimony was that the lien existed and it was foreclosed upon i think what kind of really kind of lean was it i can't tell from the record it was a loan well so as the mortgage security document didn't trust what was there no security documents and that's where the bankruptcy court has gone off on a tangent there is no case law that says that there has to be a piece of paper to effectively create a lien on property of any t disagree with this but often people get the advice of leaving the corporate shell and place let people sue the corporate shell that's a protection the corporations have only if they want to convey a property to take some extra  measure of interest to transfer trace for documents sometimes i don't see that in the record all we have is if i understand correctly dissolution of the corporation you have then a share we know that can parker was a seventy percent shareholder know they've never said they have never raised any issue that there are creditors out there that have to be paid that's a red herring the statute says that the assets of the corporation distribute to the shareholders subject to the claims of the creditor cerny credit it's been fourteen years special imitation is long since run so normally what would happen if you did it correctly in my view is that you would see something in the chain of title because you would see that the corporation has devolved the assets of devolved to the shareholders the shareholders filed something and u k the acquisition of property then you would see only on the property then you would see a foreclosure on property that that's what would show up as documents and the chain of title and i know we're all agreed that those documents don't exist in this case and the only question is whether the testimony of camp parker's enough and the operation of arizona laws enough to prove that your clients acquired the interest well i think a piece of paper a document and it's only proven that there's a document i can't imagine how many cases are decided on verbal testimony throughout the course of the year generally not quite title action so well this is an unusual case all the way around i think but i think that it is clear that the relief they sought to set aside that deed of trust that the factual admissions that they made that this was a mutual mistake were as admitted by their counsel in open court if it's a mutual mistake it's void and a story and and i only have a minute thirty left and i'd like to to sum up by saying that i read a case yesterday that i didn't cite because it's merely a dupl shifting characterizations of his claims are not only an persuasive but a clear example of a litigant who is that tempting to play fast and loose with the judicial system and they continued on to say the allegations continue to be re drives or mischaracterized under different rhetoric no matter how much plaintiff attempts to dress them up confuse the issues and knobs you skate with these evolving theories the bottom line is these are the same claims and they clerk you betcha thank you thank you your honor i mean please the court my name is charles thompson i'm here with steven berger for the athletes today on a golf resort this appeal comes to the court from a trial in the marriage that took place in february two thousand and three that was presided over by the same judge who has presided over this matter since one nine hundred ninety two is that judge now to me what i know this is judge case started in bankruptcy court certainly the result of that that the bankruptcy court arrived at in terms of the status a record title was something that was not pursued primarily by my client but i will say that is early as the order entered by the bankruptcy court in february one thousand nine hundred sixty judge keast noted when he granted judgment that was subsequently overruled on dedication by private platt and that my client's alternate theory was that if they certified the question and yes the arizona supreme court found that arizona common law did not adopt a dedication by private plan so at that point your client your firm or you resorted to this other theory i did not own ridge trail drive that was the basis of our stop all theory which at trial we did not prevail on that of course is judge case pointed out in effect telling both sides you've both got some primary theories and you can put on your evidence but here's what i'm going to do if neither of you prevail i'm going to consider the effect of the rodriguez deed of trust and in fact that's what happened complaint was filed in september one thousand nine hundred three it was filed in four different bankruptcy actions it was filed in the ken parker bankruptcy the r s i bankruptcy the rodriguez's bankruptcy and the well and as i had said just now in response to justice o'connor's question the parties didn't know going into trial what was fair game and they were entitled put on their evidence although ella parker the late ella parker listed a number of witnesses she chose to call only one ken parker and now based on the brief there seems to be the equivalent of buyer's remorse on the strategic decisions made at trial and the evidence put in but more importantly the evidence not put in the record and as i said again in response to justice o'connor's question as it turned out both parties did fail in their primary theories my client on it's a stop all theory ella parker by operation of law and a court judge case did what he said he was going to do he considered the effect of the rodriguez's deed of trust we know from the judgment that title was quieted in my client's favor based on that we did not appeal l upon so would you would you mind telling me it isn't relevant i think in resolving this case but what is left now is that the anything it wouldn't be fair because i just really don't know a substantial amount of taken i think that between the parties there is at least on one side eight a potential substantial amount it's now learns the road division we were where people live on a full time basis so it's more than just a road to a resort  hasn't come up an argument and let me say it in case there are questions but there really isn't any any doubt in the way this case proceeded but that ella parker was seeking to have title quieted in her name is far back as one nine hundred ninety five when she moved for summary judgment she asked in fact for title to be quieted in her name and the the trial court judge judge judge case then correctly recognized that that ella parker wasn't just defending against my client's complaint but she was asking for affirmative relief in her name which she would have to do because she had no indicia of title nothing of record to support her claim of ownership as a consequence improperly under arizona law judge case imposed the burden on ella parker to prove her title so the case law she cites in her brief from arizona stands for that proposition and in fact we found cases although rather dated cases in arizona but we found cases where title was in fact quieted only on an answer to a complaint in that circumstance the supreme court of arizona instructed that the defendant like ella parker in this case at the burden of proving the title they saw the existence of the constructive process whereby the rodriguez's held ridge trail drive in trust for ella parker was the primary theory she pursued for having title in her name it appears that that that theory has now been abandoned because it's not just scott's in the brief but it is helpful to put the entire case in perspective to talk a little bit about a brief chronology of facts well before you launch into that on this  assets to control the title do we know what happened in that bankruptcy we do and we do in fact know what happened your honor we know first that the r s i bankruptcy was filed on may twelve hundred ninety two along with at the same date that they can parker bankruptcy which is one day after the trust deed in favor of the rodriguez's will be was recorded so in the bankruptcy signed under oath bankruptcy schedules for r s i in which the interest rich trail drive was not listed as an asset but in which he represented that it had been transferred i within one year previous to the fall in the bankruptcy and on cross examination he admitted that what he meant was it had been transferred when the rodriguez's foreclosed on it on may eight so it wasn't original drive was not an asset in the r s i bankrupt the state for that reason and in one thousand nine hundred four i believe that bankruptcy was dismissed be for failure to file i see their schedules are report rodriguez's or for that matter even her mother believed about this deed of trust i mean we do know a little bit from around the edges that there was supposedly some kind of conference call on may sev day before the trustee sale were in there was a secret so i deal supposedly of some kind but that was not established to the trial court satisfaction that is not clearly erroneous and as judge ca pointed out if that secret side gail deal really was an expressed or resulting trust it was barred by the statute of frauds nothing was in writing now part and parcel of the constructive trust theory was the argument by all of parker that r s i never really lost title to ridge trail dr because of the mutual mistake that you discuss with opposing counsel we have gone over this but they they rely on the allegedly judicial admissions by my client but they have failed to satisfy the test established in the supreme court in the new hampshire case and adopted in this circuit i mean sensually all of the soundbites  part of the evidence that they were not your honor the me just case in fact i believe carefully explains in his decision on the trial why they aren't judicial admissions and he is uniquely in a position to understand the context in which those statements and arguments were made and what they did in more importantly what they did not relate  to and i mean it and finally i guess i would say with respect to judicial missions it's a discretionary doctrine the fact that judge case chose not to apply it certainly wasn't an abuse discussion in this case the secondary theory pursued by parker at trial was the devolution by operation of law and again i won't go through the list but i i was set to take off all the things that she did not prove it trial which have already been pointed out in a previous question by the court two opposing counsel it is significant that me ask a question  why didn't she raise the our side bankruptcy it seems to me that that's almost the trump card here if it's not before us really now but if the corporations in existence and files bankruptcy and obviously it wasn't dissolved formally in the title fact according to the sworn schedule signed by mr parker it had been it had on ridgeville drive until the time of foreclosure therefore we argued it could not have devolved or done anything else to elmer and then to his parents you know in addition to all the leisure that was your argument and indeed can that make sense in the reason your honor to follow up on that point that i i that said the fact proved at trial was revocation of corporate existence not just solution is that the former does not equal the la parties are supposed to put the proof in the record and not stand up at the end of the case and say well in effect i didn't put it in the record here but they said something it or ten years ago that i think resolves that i mean it wasn't that proceeding on the bottom line both parties that we end it's important i think that they were the only two parties fighting over ridge trail dr after eleven years of litigation both parties failed to sustain their primary theories of trial  we know that a quite tight election is an equitable equitable action and a court sitting in equity has jurisdiction to give general incomplete relief to avoid multiplicity of suits and provide finality even if it has to go beyond the expressed claims of the parties it was therefore appropriate for judge case to in effect say well what do we have now i gave both parties a chance they put on their proved they didn't satisfy me what do we have left and what we have left here are the official records of you have a pike county which show record title in my client we know from a previous question that creates a rebuttable presumption and we know that presumption was not rebutted by a law parker she never had a deed she never had any other record indicia of title the court therefore correctly ruled on the status of record title and that ruling should not be overturned therefore i would ask this panel to affirm the district court of firming the judgment of the bankruptcy court thank you thank you