when you reference the record this one is a big one so my colleagues i'm sure memorized it i have not so please give us a record cite when you refer to the record and please recall that were talking you representing the highland defendants i take it it's i'm just trying to keep track of who's representation here are the two parties and we're talking about race judicata here so it seems to me that everybody agrees of the texas law not the federal law one thing that's required is that there that the previous lawsuit arise out of the same transaction isn't that right the same transaction or series of transactions ok so maybe that's your answer but that it seems to me that the terran county lawsuit is about a specific number of loans not all of the loans but only some of the loans that built were to loans which is four hundred dollars something was and  so that's question one doesn't doesn't that defeat the application of res judicata that we're not really talking about all of their own tournaments some of them in question two is do we have to do we have to be concerned about how s e d intervened in it really required under texas law that it bring every claim it could have brought against three star given the posture in which it intervened so that's question two what do you make of all that sure if they actually are st question county under texas law you have to break all of your claims that you have to do stuff party including those claims that you could have asserted or you might have asserted or could have a certain reasonable diligence even to just cross claims against a party that you're aligned with in other words if i come in on the line with three star i have to bring cross claims against them you know the words all the claims that are that are the subject of this federal lawsuit is that texas on well  let me turn to something else because you're starting to get a little bit low on time i want to ask you about the sort of excessive amount of the judgment bar thing that lets just a sail argue and that we reject your arguments on the can you walk me back to what the judge actually granted in terms of the principle amount because i understand your argument about the lost profits and that minus but i thought there was a two million in there that you were also lost profits and then of the four six you're saying on the merits of the four six you should take out the two because they already knew all the problems by the time they got there correct stars well if you afford us full an early for and we're all here today because there's about two half three million dollars in the bankruptcy trustees bank account that we're fighting over so if the judge has reversed the s to us reverse  and i'll jump right to those matters that the court focused on the st of which being race judicata and the context in the timing of this intervention is important to the court's consideration in december of tw in harris county and then in april of two thousand and fifteen more funding to a nonparty in the proceedings below at least in the district court filed its declaratory judgment claim against three and i want to focus the court's attention on september of two thousand and sixteen september of two thousand and sixteen is when biltmore and that would be bill more funding one mr hylands company and t m property filed their intervention in the harris county case and there they filed an intervention in a motion to substitute a sensibly asserting that they could step into the shoes of three star and pursue the breach of contract claims against s t d and the hearing on complete opposite position on this issue of race you to caught up in on the issue of the import of the terran county action and the judgment in that action and ses role in that action the important part is to consider also that when that hearing was set to reconvene on september th of two thousand and sixteen that is the date on which the involuntary bankruptcy was commenced against three star it doesn't seem logical to me the problem is y'all are the ones who say they are i mean i think they would've thought so but given where we are today i mean the fraud of the underlying fraud that brings us here today was three star and so unless pilot is responsible for that they shouldn't be here right so isn't that hasn't that been your position and so they're now saying we need it out of thought so but you thought so and so here we are has certainly taken that position your honor admittedly in him the race you to caught argument was kind of fighting both ways throughout and it's complicated by the fact that you had two pending cases already that you had an intervention against the one nonparty involved in the underlying to support proceedings and then likewise you have a default judgment and once the involuntary is commenced three star is never really in a position to take any positions on the issue so it doesn't fit cleanly into any of the race you have caught a precedent that i've seen before this court but i would say that privity is determined by the corporatism is a matter of law it's not a matter of soundbite because the sound bite argument and i think go either way and the one in the one case that is relied on for this notion that a party can admit privity is the translation case out of the federal circuit which was a different situation that was a  said this and you took the biggest position and that's all very interesting but unless we're talking about judicial and stoppel then i'm not all that interested in what the party said i mean i know there's usually start west one issue but i don't think it's this issue so what i would appreciate is if you just walk through i assume you agree that the texas law agrees to corner wise here i do your honor so if you would just walk through i was asking your opposing counsel was this or was it not the same transaction or series of transactions in the terrine county lawsuit as in the is in the present federal lawsuit when she wanted to speak to that i mean i assume you disagree with your you're calling them i the did a minor standing of the question is did the section nd action involve the same claims that were raised or could have been raised in terre county and and so in talking about the terra county action there is nothing that required s e d to sue those additional energies or search those additional claims as he had already asserted those claims it was intervening to protect its ri claim of title to those loans as collateral for the transaction between biltmore two and three star and it at the time one thing that's important your honor is s e d had just file cause motion related the injunction in north carolina so at that time it had a decision to make regarding what it would do in relation to these loans that were part of the bigger transaction but they were he was not aware that these multiple transactions were going on behind the scenes as it was entering into its agreement so i don't think it was the same transaction is it related certainly but as it pertains to transactions between three star in a cd it was not the same transaction what so understand there was a there was a judgment in billboard's whose favor arising out of the terror county was correct director ok was there any judgment in favor of a cd in the lawsuit there were and to be fair to the highlands they make a an issue of to find out believe it's two findings that relate to fraud in the court suggests nip it but can you please respond a little more specifically to that you know what i'm talking about yellow green chart the page two to five where they go through this is what she said what it benefitted you are saying the opposite and he responded that and honor i think i think that cuts both ways i think that and that's why i didn't find that portion of the record because you have the howling parties saying the terror kind of judgement means nothing as he got no relief it can't be used so you have parties offering i think competing interpretations but i would tell the court is the question is do those admissions established for them because like the e e o c versus jefferson general case in that case the court talks about privity for a soup or purposes under texas law and it talks about the fact that there are essentially three things that can establish pretty for the purposes of race  a the st one is control and the question there was as applied to this case is did the highland group busy and openly participate in the prior proceeding to the extent that it was clear they have the right to direct them much like the e e o c was held to have done in the underlying case there is no evidence that the highland group had any involvement in that case such that they were directing the activities of three the next part of the test as representation representation of interest did the highland group share an identity of interest in the basic legal right that was the subject of the terror county litigation and the answer is no they had two other loans to sa divs does the highland group derive its claims three party to the prior auction and the answer there again is no so your honor that was a long way of trying to answer your question but my point was obviously it's always was the highland group exercising control over the conduct of three star and the way three star defended or chose to present itself in that litigation that's why i asked the question is your argument that they had to control the litigation or is it your argument they have to control a litigant because it seems like in this case if i was not controlling three star you see it that is separate i think from the question of controlling the litigation i understand that but i'm just trying to understand you were argument you're saying they have to control it occasion and not just the defendant does that matter to the res judicata you know your honor honestly i'm not i'm not certain because i don't know that s t d necessarily intervene three star simply didn't  t it was a general do not i don't think the ford motor company case that was cited by counsel it doesn't say that intervention is a plaintiff it talks about plaintiff status for the for under the wrongful death statute specifically and whether a forum non convenes argument is available it doesn't speak or lay out a blanket rule as to point of status i mean i think it's certainly if s c d would have intervened and directly asserted certain claims against three star over and above this limited isolated claim about title to only a portion of the loans it would certainly be a different discussion but that's not the reality the reality was there was a competing claim has it pertains you w it was contesting the title that built more funding to was asserting based on the fact that s c d essentially claimed disappear interest in those loans or thought it had one ownership of those loans based on its loan sale agreement with reste yes you know i let me ask you so that we haven't talked about which is the home servicing contract issue how do you get around th the loan sale agreement between three star and s e d said that the parties agreed the loans would be serviced under this existing agreement that was between own servicing and m property it didn't say that the parties were going to be parties to that agreement or that s p v was going to be a party the it's called the residential service of our s s a is how the parties are for  that everything now lest it disclaims rd party beneficiary status i don't think there's anything sufficient in the record to show that s c d agreed or could have agreed to the jury waiver such that it would be effective the testimony from both h servicing n s c d was that the parties had an oral agreement that there was a meeting of the minds as to their agreement and remember one time that i only knew contracts because it sounds like they just adopted all the terms and conditions and i realize you're arguing that the jury waiver wasn't one of them but even the jury verdict form questions to his three were referenced these servicing agreement with own service and the as though it's  i think the testimony both from home servicing and from s c t was that the parties had a meeting on the moms of the loans were to be serviced under the general terms as provided for in that predecessor agree but didn't the predecessor agreement say there's the there's to be no rd parties involved in that agreement was only home servicing into improper dissolutions it does say that your honor that's why i think the jury waiver was not effective as to a cd if i think they could agree on things such as what exactly home servicing would do the rate at which it would be done and certainly there was enough from the home servicing perspective to claim that s c d owed servicing the charges for having those loan service the jury was asked about that agreement i mean the question was this cd holdings alleges home servicing breached the existing agreements service as he gave holdings loans under the contract between homes servicing into am part of the solutions so whatever the pros and cons of that's what they answer so you're bound by pat and they're not saying that the jury charge was wrong they're saying having given the jury charge that way that's the contractor subject you are better or worse why in that true your honor the my recollection again of the l s a is is it basically says how the loans are to be serviced and it says under the existing agreement there the parties never went beyond that the loan sale agreement is only between s e d and three star there was never a signed contract between home servicing and s e d so they had a meeting of the minds of some sort and that's what the testimony bore out there was certainly never a document signed that says we agreed all the terms and conditions of the predecessor agreement at least not one signed between s c d is there anything in the record that suggests that this is a new agreement is it seems like they're talking about just or parading existing agreement quite honestly it sounds like you're cherry picking art to the liability go with you on all of that but we disagree on the issue of the judge talk to me through that so the lost profits until the closing arguments where in the pleadings in the joint pretrial motion order in any of the documents in the case where had you all taken the position that you were seeking lost counsel where he was asked four times over the course of two pages to confirm that as c d s expectation was to make four million dollars on this on this transaction that's how this came into the mean it's not like that so asking somebody their expectations for whatever reason you might ask that is not the same thing as finding lost opitz and don't you have to have asked for that in order to recover that the court's question of whether it was mentioned before it was not so i have eleven last question with regard to the damages why shouldn't the five hundred and fifty one thousand that was received discussed with the corps previously and before judgment was ultimately you know well i mean that's hopeful i also read a footnote in your brief as saying the two million dollars of the damages  reading here how do you respond to the we're now you're out of time but i'd like to know how you respond to the rest of this interactions that mr reagan advocated that there were various settlements that he was advocating i'm just trying to get to in a math number honor i think if you take the the alleged double count out you end up at seven million five thousand dollars but we still have in there the laws profit component right  but i'm asking about settlement numbers with we talked about the lost profits we talked about the two million what about his argument of this of settlements or k m s i think aside from the biltmore to settlement honor they were all accounted for except there's one which i don't believe you're to be disagreement on but if you took me two million dollars alleged double outs it would reduce the judgment to seven million five thousand dollars that would include all settlement trades it would not include the biltmore to amount which has not been previously applied if you took that as well you would reduce the judgment to around six and a half one million dollars and that's  all right thank you for your time has expired and now we will turn to mr johnson for your whole two minutes to talk about your client nations thank you i may please the coroner johnson on behalf of howard l nations professional corporation i make it very quick i think the easiest way to affirm the judgment is to look at the holding escrow agreement on page five thousand two hundred and thirty seven  plain on its face and is it official capacity doesn't mention the nation's law firm at all then they talk about the loan sell agreement that mentions the nation's law firm but the loan sell agreement is a contract between three star  d as we didn't write it we didn't even know about it the nation's law firm and for a parent authority you only look at what the principal apparently authorized if we didn't know anything about the l s a if we didn't draft it if we didn't approve it then it's irrelevant to us  i think the only thing left that they point to potentially is the website well like i just said even if the website apparently authorizes something to hold at the end of the day the holding  it's only on behalf of mark types but regardless as the judge found below in her order the website clearly shows that the nation's law firm is a litigation firm that mark dykes is a litigator doesn't say anything in there about transactional services so that on its face is not sufficient to show apparent authority you couple that with the fact that we didn't even know he was the nation's law firm didn't even know that mark dodge was involved in this transaction at agreement a get simply put they can't have it both ways i'm certain aspects is suing on the same agreement distance of what right there is crossed there's cross claims on that so what agreement is o judgement but there's an additional five hundred and fifty one thousand five hundred and seventy eight dollars s he got from the sale of the more funding to loans that the district court said least twice i'm not to let them have a double recovery will take care of think that their admissions are binding only if they meet the test of judicial stopp claims he says the position intervention and not across play they should have brought all the claims they had at that's on him they did it and they have to live with that i will say there is plenty of briefing in this case we appreciate that we have that we have your arguments present that as well and so this case is now under submission as tris fall that you let the lawyers go and we'll take just a minute between this case and the next