thank you your honor and may please the court my name is james kilroy and i represent the appellant san diego steel holding groups holdings group inc only referring to my client is san diego steel were here as you know he consolidated oral argument there are two appeals the st i will be calling the san diego state appeal the parties to that are my clients and he goes feel as appellant and mr laney individual capacity and in his capacity as a trustee of his individual trust as the wholly separate appeal of filed by a company called century eighteen is i will call  appeal in this argument reserving time i have it and addressing my response to mr wall on my reserve time the issue of the issue on the san diego spill appeal is actually fairly simple from our standpoint the jury heard a single claim there were there were two claims that we think should have gone to the jury trial one for fraud one for breach  his favor we are not challenging the jury verdict in his favor on the fraud claim our position is and remember the frog claim was decided by the journey on an elevated clear and convincing evidence basis the progression of this case is important and i think explains maybe a reluctance on the district court's part too to see the outcome as the outcome that we envision is equitable and the reason for that is in this case it was completely turned mr laney brought the lawsuit in the st place claiming that he was entitled to a commission for work he did on a real estate transaction on behalf of my client san diego steel it was cold and you finders fee in the original complaint the tables turned because during discovery we we discovered san diego still discovered facts which we believe supported additional counter claims and rd party claims based on an undisclosed claim claims from my perspective it appears that the court was concerned the complete turnaround where we think the court properly dismissed the original claim for commissions both  performing services as a real estate broker effective but he was asking for a commission and that is just no you say that you say that it was a claim for a commission was it a claim for a commission or was it a claim appealed whether or not your honor mr laney used the word commission is not beside the point but it's not the turning point meaning what really matters it is what did he say he was entitled to and the nevada statutory scheme we believe the district court properly found that that we have a situation where the work performed was as a real estate broker now our own little what what services did could put together a good deal that would benefit both about him because it would get their money there in title too and also it would take down an obligation he had another under a secure no so the answer is they asked him to both san diego still and and for himself a from san diego still point of view we own property or we own the rights to the proceeds we want as much money as possible yes we are relying on him to do just that so wh broker sunni the district or probably found that he was and he acted as a real estate broker that the court from our standpoint took that finding simply found that because he was not licensed he therefore is not entitled to a commission then to look at that conclusion and determine that because there was not a registered real estate broker relationship with s t s h g there was no fiduciary duty argument is the fact that he was not registered may impact his ability to be paid and we think the district court properly determine that he's not entitle to mr lay hold himself out to be a a broker i don't think there is any evidence your honor that he that anyone used or those magic word labels he held himself out to san diego son at the same time mr perkins was relying on other people to give him valuations of the property rights he hired independent appraisers there were no other brokers retained in this transaction your honor  i'm trying to figure out how this works because these people don't appear to be aligned in any way they seem to be adversaries historically and until today and i know that's really hasn't position which is what i understand it to be i want to know what you're relying on to conclude that there was a relationship of trust between mr perkins and mr lane your honor that these parties were absolutely  him and then again at trial and it's in our briefs mr perkins told him in no uncertain terms that's not fair you cannot do that because that belongs to us so yes he he he learned of mr desire but that was put to bed  but what what was the there's a record disclose why mr perkins elected to pay eighty thousand dollars rather than the agreed upon sum of five hundred and twenty thousand no your honor i thought the question may come up and i'm not sure the only reference in the record you have is a footnote in our either motion for summary judgment or reply the answer is and is referenced in that so there is a reference to it but it may not be as fulsome as what i'm getting ready to tell you there was a dispute post closing about prepayment penalty on the record i just want to know what's in the record that's what's in the record and it's in a footnote and it refers to a dispute about an interest default interest rate that's what's in the record could have been better developed it was a trial but not in mister suggested here today is simply incorrect it's a factual scenario that san diego has relied upon since the beginning of this action that was the testimony of mr perkins a trial and that testimony was contradicted by mr a hern and it was contradicted by mr rayney and the jury did not have one claim for fraud and had four claims three of which were fraud can spit civil conspiracy and failure of disclosure there was a specific findings in the interim to torah jury verdict on each of those story that san diego still wants to tell here today was rejected by the jury and the jury's verdict is supported by substantial evidence well you did not appealing so challenging the jury's verdict is challenging the district court fifty eight i guess it was a anyone still didn't have a fiduciary duty claim as a matter of long that's correct your honor net that the question that is raised is the determine the the rule fifty of ruling but the fact that san diego still lives on are not the facts that the district court judge relied on after a trial and they're not the facts found by the jury and those facts are relevant to the legal question is presented  fiduciary duty it is not true that laney volunteered and it's not true then when he said he would try to put together until it's not true that when he said he would try to get the best deal that he could for the parties all of that is not true what happened was no had walked away from the deal which meant laney had the right to film the property or do anything he wanted with the property he made a that deal is the deal that perkins said you can't have that deal we own all of the property and we want all of it but then san diego steel changed their mind and said we don't want the property any more we want to sell it san diego still did their own investigation they determined that the property was worth approximately ten million dollars and they approached mr cheney and said can you really buy the deal with mr a or they deal with mr a turn he didn't go out and find mr rader and that was already there san diego still set the amount they said we want from out upwards of ten million dollars there was never a discussion ever in the record that's exactly what i'm addressing based on all of the testimony that was given to trial they did not establish a claim that would could go to the jury because based on all of that evidence that was there there was no evidence that relationship adversary parties in a land transaction try triangle and transaction where they were adversary parties based on the testimony of mr perkins himself for  standing they knew that todd laney would had no incentive to get to make a deal for them and they knew that he was not representing them they gave him an incentive they said we will give you a portion of the proceeds so that he would have an incentive to self deal that's the testimony of perkins there is no evidence that there was any kind of a relationship between these other relationships between these parties and and forty two the only substantive allegation they didn't concede there was a relationship argued that because there are false reading ladies st complained of his amended complaint he relationship right i don't like the word ship relationship could arrive there could be such an agreement but there has never been an allegation in this case that there was fandango still as our gates only that the relationship is because the judge found that mr rayney was a broker the judge didn't say that mr britling could not get a commission we think that was wrong that we didn't pursue that but just said mr rennie couldn't get a commission because he was a license any perform services of a broker judge didn't say on whose b house he performed those services that he never performed those services on behalf of san diego still he performed those services on behalf of himself and didn't address these other claims to produce hearing duty but there's no evidence to support them so the result was right even though the reason might have been wrong no i don't think there are any other claims  a partnership there could be fiduciary duties and the judge ruled there was no partnership so there can be a fiduciary duty there and the judge and that ruling is correct as a matter of law based on this record and the ruling that mr lady never acted as the broker of san diego still is the only route ruling that record in this case will admit because the adversary relationship here was simply that way from the beginning from long before this action if that property had been if that five acres san diego still knew they were buying the whole they were selling the whole property they knew the price they were selling the whole property for they had no claim to the five acres after that sell mr air and then decided later on that he wanted to buy the five read to find a property and to provide services to facilitate the sale of the property if mr laning worked as a broker for anybody  he did so for himself in century eighteen  the broker that if he is a broker that's not the end of the issue the question is who is he a broker for whom the statute talked about on whose behalf you perform services he performs services on  apple himself and on the african century a teeny didn't perform any services on the africa san diego still he didn't care in fact he testified but he also felt like he had obligations to mr aaron in this triangle transaction because he had entered into a deal with mr a or st he wasn't representing them and even if you call it a commission it would be a commission for the services buyers pay salaries commissions all that i mean the other way pay that money however you characterize that money we make him to san diego skills broker if you characterize it as a trend as a contract deal then he gets the proceeds if you characterize it as a commission he's doing that that commission is owed because of the services that he provided to century eighteen but the statute contains some missteps actions actions are taken in the process of selling property you function as a broker if he does it again we have not challenge the judge's conclusion that he was acting as a broker but he wasn't actually acting as san diego still broker  it regardless of who he was working for if he's acting as a broker and he's not licensed to do so then how did the district court saying he was not an idol in a commission services on behalf of themselves and his own company just so they can get a commission isn't that a commission by any other name the house is a scam if the judge didn't give him a commission and we have dropped our you know on that issue the only issue both of the contract they realize that there would be costs involved in doing it in that way so they combine the two dollars into one century eighteen was the original seller they were going to sell to san diego studio and then and then it was going to go into a or instead it just went directly century eighteen agreed to accept the responsibility to the seller under the contract and san diego's deal was room released of all responsibilities and we believe that means the seller we don't believe that means that san diego still was released of its obligations not to bring litigation and lose and then not have to pay attorneys fees i'm going to contract that into a contract as an attorney fees provision and it is and it's the purpose of this was simply to switch out the names of the seller was and the obligations of the seller that you could read that language  a part of the contract which sandiego still has a party to when good faith and fair dealing in every contract another one there's an attorney see provision that every one of those parties would have insisted upon because none of these parties would have entered into any agreement about it it would have been fairly easy to put it into clearly counsel have a disagreement about the record as it relates to who mr lane he was working for i would refer to this court to a reply brief and in particular pages six and s where we go through what mr laney said about this most specifically our four hundred and thirty seven dash forty six dollars where on the stand under oath he said that he was performing services including putting the deal together due diligence checking drawings and architectural peepers and generally still facilitating the henderson property transaction on behalf of san diego steel that's what he said now i think it's important to point out finding that he was acting as a broker absolutely in both orders she didn't she there was no evidentiary hearing was there  dispositive motions she rolled up the order on the motion to dismiss and based on evidence presented by both parties she ruled on a summary judgment that he was a that the services that he was seeking compensation for to nevada you want to respond to the attorney's visited just just very very briefly i think that the parties have briefed the issue i'm just basically repeating in short version our position which is very simple based on it we agree now that the operative contracts for purposes of analyzing the issue are a trial exhibit sixty nine and seventy there would have been real confusion if you sat through the trial but mr wall and i can tell agree on that if you look at seventy which is the amendment it in fact relieves my client from obligations what that means is a simple concept we it's not that there is a lack of of my client's obligation was to give up the opportunity to purchase the property instead we all committed to a three way transaction whereby mr contract the amendment and i have nothing further musters any other questions ok thank you so we prepared your arguments this morning the matter is