keep track of time i will do that i just think you were here on an appeal of an award by the bankruptcy court on a creditor is proof of claim and as a relates to trespass and discouragement of profits i'd like to focus st if i may on the damages issue the bankruptcy courts order on discords when it relies entirely on restatements yes but we've had this court enderson cases suggested that this gorge mn is an appropriate remedy under these circumstances and the restatement seem to suggest that so trying to predict what the arizona supreme court would say why wouldn't it just the appropriateness of the remedy not the amount for the woman why would the arizona supreme court conclude that restitution is an appropriate remedy under the circumstances  think that's the major distinction between anderson and the facts of this case are you so you can distinguish anderson my question is what what authority can you give us that might lead me to think the arizona supreme court would reject disgorgement as there are cases out of new mexico there are cases out of texas and i think that arizona courts can look beyond just the restatements they can look at other courts in other jurisdictions and they frequently do that when there is not reason to the contrary we lean towards their statements you agree with that i didn't say i didn't i do but i don't think that there's no cases analyzing the restatements throughout the country that i was able to find that provide for discouragement profits in a case like this the restatements that the apple he relies on go towards breach of fiduciary duty they go towards copyright infringement  there is a case that the bankruptcy of power panel cited gordon where was a violation of the consumer fraud protection bureau regulations but there are no restitution restatement cases dealing with restitution that approve or allow for discord in the profits so when i'm looking at what it is if i would try to predict what it there is on the supreme court might decide to do with that with a case like this it goes back to what what's the damage that would make the property owner whole and this court in a profits in a case like this is way out of line it's not a double recovery it's a trip or cover it's thirty five times what the right was and the new mexico case but i'm on the other hand if the a property owner wanted to do what your clients did they would have made that profit they have if they had come in here and had the farm and known all of the things that were known they would have made that profit so as a property owner they would have been entitled to do not in this case and the the reason why is this particular property owner was unable to run a dairy farm and to not have the license to do that the damages  lost profits were totally eliminated and rejected by the bankruptcy court they had no ability to do that and in fact what the facts of this case your honor are that they when they after they acquired the property of the trustee sale even before they're part of the property the trustee sale they were discussing a sale of this particular property they wanted to ask rowe our early on right after they found a couple months later and they closed after after my client left the property so i don't think that in this case the way that you phrased the question it works they could not have on their property versus  indian tribe in anderson where the circuit said the indian tribe had the ability to feed to grow crops so i think that's a totally different situation although it is and it wasn't required if they prove actual damages now they were john anderson the court said you get a restitution remedy i'm not going to require you to come in and show that you would have grown crops and what they would have paid and how much you would have they just they just took as a measure of damages the profits made by the trespass i believe yes but i believe that the underlying analysis by the circuit was that the andersons in that case deprive the tribe of farming the land of growing crops and we don't have that in this  unlawfully and thinking that they can pay the damage or didn't come out ahead of the animal and if it really is economically efficient for them to stay there they can always negotiate with the owner but one of the rights that the owner hands is the right not to negotiate if they don't want to and so why should we think that the arizona courts there's a remedy that was insufficiently robust to using the land and the cases that have been cited by by us suggest that it's a fair right and that's what was awarded in this offense would i'm not sure that answers judge miller's question so why would anybody ever leave if all they had to do was pay their fair rent if they stayed as conscious trespassers well in this case they were will they were prepared to leave and were allowed to but put that i'm not asking that question i'm asking if arizona is going to develop a scheme and the murdoch cases that disgorgement is not limited to any particular set of facts or circumstances why wouldn't come up with a restitution remedy in order to prevent people from saying i don't care whether you want to rent the property to me or not i'll just stay at the end of the day all have to do is pay the rent yeah and i think that that's more of a punitive award and in this case  you about the amount of the pew of the discordant award yes as i understand it the bankruptcy court essentially said well your clients could have found a property that was two thirds as big and run their operations on it and therefore they should only have to give up one rd of their profits is that essentially what it said yes i'm trying and then the baps said no that's not the correct analysis it's all the profits under the bankruptcy courts theory if your clients could have found another property that was exactly as big then there would be no disco all if you follow the bankruptcy going that's why i'm having trouble with the bankruptcy courts here you're trying to defend it on appeal and on it you're saying i know what your nd point your st point is no discouragement your nd point is if disgorgement we should follow the bankruptcy claimant is entitle to with the apple is entitle to is the read is that fair i understand you're arguing that and let's assume you don't win on that i as i read your briefs you're also saying well if we don't win on that you are not affirm of entire discourse mbit or rather the bankruptcy courts order of one rd disgorgement are you are you not arguing that you know i am ok i am and in order to affirm the bankruptcy courts order of one rd disgorgement i'd have to buy their theory that the way i arrived at one rd was because there was evidence there was another property on which the dogs might have run their operation that was two thirds as big it's now i'm asking you and i understand i'm asking you to assume that this gorgeous and an appropriate remedy under that theory then there would be no discord in that it all if there were a property exactly as big out there that the dish yonks could have rented if you adopt that theory and that's why that theory doesn't seem to make any sense to me can you defend i think that what  what the bankruptcy court was trying to say was what was the what was the underlying benefit to young to operate at that property my argument is that it was it was the use of that land for that period of time and that the that benefit is determined by my variant by fair right now i understand that argument not problem is if we don't if we think disgorgement isn't a proper is an appropriate remedy i'm having a difficult time figuring out how the bankruptcy court both thought it was an appropriate remedy and also only ordered one rd of the profits yeah i think that that that part is it was difficult to accept and the the bankruptcy of power panel in that situation i think still was was wrong on that point and if i may i would just like to touch real quickly on the trespass issue the bankruptcy of polyp panel in the st decision said that found no place in the record where the bankruptcy court specifically directed or allowed my client to remain on the property and i cited cases i cited to the record repeatedly the february twenty four team hearing which is a vine twelve were the bankruptcy court the st bankruptcy judge don't want the state court to enter an order that the debtor is no longer entitled to possession the trouble that i always had that i had with the nd bankruptcy judge's ruling on trespass was the bankruptcy court specifically directed my client to remain on the problem i don't think he directed your client to remain in the property as i read the st bankruptcy court order i think it's consistent with the way the nd bankruptcy judge read it he said look we're not going to order you off the property until june st i'm not going to let the state court order take effect until june st but you've heard the other side saying they want you gone right away and they want to hold you liable for damages in the meantime and you make your decision about when you leave between now and then but i'm not going to but there won't be a court order telling you you need to leave between now and june one why isn't that's the way the nd bankruptcy judge interpreted the order why is that wrong i agree that's the way the  interpret it i think it's wrong because i took what the st bankruptcy judge said say you will stay there and then and they cannot be removed or were there to protect bankruptcy estate property so i think that the what the nd bankruptcy court judge said was inconsistent with what the st bankruptcy court judge ordered if i'm mad like to reserve the balance of my time you may do that talking about something that may be lost in the pages that are before you in the hundreds of pages that are before you and that is the wantonness with which the appellant's disregarded the state law and private property r s as the bankruptcy court found in multiple factual findings after hearing trial for several days and hearing witness testimony and exhibits he had no problem concluding that these doctors were conscious tres passers they knew in may of two thousand and thirteen that their tenancy on the property with the previous landlord and who was that in bankruptcy was going to terminate in november of two thousand and thirteen they knew that there was going to be a they attended the trustee so they knew that because they participated in bankruptcy proceedings in two thousand and thirteen related to the previous landowner and their landlord that their interest in the property would terminate immediately upon the trustee and when that occurred they knew from the new land owner jail ie that they had no right to remain in possession of that property and that daily wanted them gone they knew from their own lawyer who advised them that if you don't  leave and jail is permitted to go forward in and take this to a forcible entry in detain or action you will likely lose and a writ of restitution will be entered against you rather than deal with the consequences of the state law and their inevitable invention action they filed for bankruptcy and in doing so the automatic stay protected them for a period of time from jail exercising its statutory right to an effect restitution the nature of the conduct involved yes and i think the several of the restatement sections discuss that there's a different there's a distinction you know between a conscious trespasser and an innocent right passer conscious does that consciousness make restitution more appropriate then it might in another case yes and i think that the court judge here with your citation to the murdoch case which is not on all fours actually with this one but which acknowledges the restitution is a flexible equitable remedy and under the circumstances would be an appropriate remedy here to effect justice and i think there are a couple of public policy reasons that the court has  in this argument itself that justify an award restitution area ward as opposed to a damages award whereas damages maybe is meant to make a victim whole here making the victim whole doesn't serve the interest of protecting those private property rights and serving the public policy interest at stake which is not to force a transaction on a private property landowner which is what essentially has occurred in this case and i'd like to respond briefly  o that daly could not operate a dairy on this property whether or not the record below is what it is in terms of daily made an alternative claim for lost profits or discord when it didn't seek  both the court accepted the discouragement remedy as opposed to lost profits but regardless of whether it could or could not operate a dairy on that property at that time is irrelevant because the focus of the inquiry is on the debtors conduct and the debtors consciousness and their state of mind to the bankruptcy court reject a lost profits measure already it is simply not adopt one i think it's probably fair to say they rejected lost profits as to jail doesn't the restitution remedy in effect give your client something when other which had had these folks left the property on time there's no evidence in this record that you would have made the amount of profit that they did over that time well in actuality there is it's a little bit more complicated than that your honor and it's not necessarily an argument that opponents have made but the record below show there are three separate berries the only dairy at issue  in this case was dairy number one we call it which is that area in which the trespassed there were two other dairies and jail he had business plans for use of those two dairies they were interconnected they couldn't do what they wanted  on derry's number two and three because they were precluded from using dairy number one it had to do with repairs to the dairies filling them getting them ready to operate their own dairies through their sister company so i don't think it's a windfall i  do believe that the record supports that daily did suffer substantial loss in not being permitted to use its property during a one in connection with its business plan and they put they were the entity that put together the money they scraped together you can see in the record it comes from a number of sources they went to the trustee sale they took the risk they bought the property and you know buying a six million nine hundred thousand dollars property isn't without risk and so in doing that they purchased and the benefit of of that private property ignored to them and what the debtors did was completely disregard that in a century attempt to vitiate their right as private property owners for at least six months can you proceed so is that permission to stay until june one or is it just i'm not going to bring the hammer down on you and told you well looking at two things looking at the context of what the court was doing but then to also the court authority also take the context st the st reference to not leaving or not allowing property to be taken from the estate was directed at jail levy and other creditors and said you can go back and you can get that st of all and entering detainer trial taking care of but you may not apply for a writ of restitution which would have allowed the sheriff to go out and we don't want you to take possession that you could establish your rights but i don't want you to take possession goes on manag proceedings at all times daily maintains that it had claims for damages filed a proof of claim the court set a schedule a bifurcated schedule on the reasonableness of debtor's proposed exit dates and also separately cited anything nor do i think they could to suggest that a bankruptcy court could grant a right of possession to debtors when that when the state court had determined that they had no right of possession beginning and and you know again as to their consciousness debtors knew that it was a gamble they said it was a gamble and that all they wanted was time and that's essentially what they were they achieved by filing for bankruptcy on the eve of the st one train detainer action in terms of the issue of trespass every court that's looked at this issue has determined and i think as a matter of law the trustees still conclusively established that on and after december  and thirteen debtors had no remaining right to possession of the property the issue of whether or not they were a tenant at sufferance versus a trespasser those two are not mutually exclusive the  statutes are summary cursory proceedings limited solely to the right of possession and the matter retain its sufferance it seems to me you never suffered them to stay correct there was never you never s do it to calculate what one hundred percent of the profits were and i take it that's not really contested here at least on appeal nobody is arguing that the that the real that the one hundred percent of the profits was less than the number that the baptism up with that's correct they're arguing about whether you should get awarded that but nobody's nobody's contesting that the the that what did the number that's correct i believe that they're the math i think is correct about and based on the factual findings that the bankruptcy court made on a review of debtors reviewed financial statements the court well if i could i'll just give a little bit of context the backgrounds of the bankruptcy court awarded t buckets of damages one was the silent damages and the way that the court looked at that and it was a very sort of complicated analysis how we got to that point but the notion was the reason that debtors said they stayed on the property was because they wanted to retain the value of secondary to that he said then you also get some some of their net profits based on this one thousand four hundred and five dollars additional cow number he took thirty percent of their reported net profits during the operative period and the way the bankruptcy court calculated that was by saying essentially you could have found a property without fighting it was seventy percent is big so that having this would only increase your profits by thirty percent correct and the bankruptcy  acknowledged that there was a fatal logical flaw in their argument which is if they had had a bigger dairy available to them or dairy of the same size there would have been no net profit realized based on that delta but so then on appeal   i want to talk just briefly about the idea that this that discouraged me here would be punitive indeed it's not because as an anderson and as the restatement sections suggest the proper measure is revenues less expenses debtors were given every expense that they claimed on their own reviewed financial statements there's not a punitive aspect to this restitution award they are they were entitled to recover their expenses and they've kept those the only delta here is that profit and who should benefit by their intentional trespass not the debtors under any measure of the law and i think to the courts point about what an arizona court would do here i don't think it's there's any question that anderson although a night circuit case and all the factually distinguishable and murdoch which allows for restitution every measure of damages our cour cited to prove in approvingly the restatement section nine hundred and twenty nine dollars which also permits for restitution a measure of damages and have cited the rd restatement approvingly as well i don't think there's any question but that the court would follow the how st chance or judge were it's your a question about the dollar the profit them out the ten thousand two hundred dollars per day there is not that's not challenge on appeal there was a fact finding and i could not properly i think argue discordant there would be appropriate because you're taking from the land we don't have that case here we don't have cattle that were grazing on the property absolutely nothing was taken from the land the land was used  knowledge to operate the business but it was not the source of any revenue itself with respect to the argument that jail we had this master plan that was pretty much rejected and in fact it was rejected by the by the bankruptcy court they tried to assert a lost profits claim using financial information from a sister entity and that was just specifically rejected by the court jail we presented no evidence at all of any damages that it sustained no sought repairs they didn't present any evidence they filed a claim for rest restoration they presented no evidence so everything was rejected with with the exception of the rent claim the court determine what reasonable rent was we've never challenged that either there was a thirty three dollars tons of hay that was converted we don't challenge that on appeal that is the universe of the damages that  suffered and if we're looking at compensatory damages here that's where the analysis i believe should begin and that that was their damages with respect to this specific property they flipped it in a very simple sense they and my clients staying on the property had zero impact to the penny and what they wanted to solve it for zero  and it was sold within well within the timeframe that was originally contemplated my position with respect to the bankruptcy court order and june st is that it was more than just permission to state it was a directive it was a directive by the court to say those assets shall remain on the property and it was to protect the overall bankruptcy estate the bankruptcy judge the st bankruptcy judge did not want there to be harm generated there and the and the debtors were operating that business to pay creditors and i just that's where i think so i think that it's more than just permission i think that it was a direction in conclusion the profits that were derived from the wrongful use of the land my view is measured by any additional profits are a result from the labor and that's the comcast case it's pretty much right on point there are no cases cited or that i could find that reference the restatements and extend these restitution the re rejected discouragement of profits others corpsmen award here is only supported by restitution and i think that this is just an inappropriate extension novel extension of the restatements it's a major expansion of damages law in arizona that i don't think it's done without any analysis of what other courts in other jurisdictions have done so i think that with respect t