i'd like to begin just by noting from the court that courts of uniform it found that discharge of a debt or a chapter seven is extremely important and it's the scene a crane on of the system it's the debtors  right to receive a discharge absent compelling circumstances to the contrary and in my brief i cited the case of alderaan versus new four but also the th circuit has held that these exceptions discharge must be narrowly construed and that's the decision of the chording in re cycle reason for that is clear and it's most clear in this case this debtor filed bankruptcy virtually the entirety of the debtors debt is the arizona judgment for which discharges shot that is this debtors fresh start and the court is has been i just charge ability of that judge  discharge by guessing as to what had actually transpired and the and the determinations that were made by the court in arizona however the court went on to say that this is extremely difficult territory and noted that the anticipate in an appeal and several times on the record it it direct and gets its determinations  scratching as to what's willful injury what's malicious and your injury you know fraud viruses and anything so i appreciate that judge acknowledged the difficulty of a six but what exactly did he do for the facts here on edge it's not clear in the we have both an oral of terminations in the oral decision the court relied entirely on the doctrine of collateral estoppel and found that the jury's determination of the  operated as collateral estoppel on the five hundred and twenty three a six after having specifically found that the constructive fraud determination again because of the jury instructions so for the purposes of a two a and constructive fraud on the court found that there was not an intent to deceive that it lacked that essential element which runs through all of section five  jury finds it intent to defraud then you may consider awarding q tip damages isn't that kind of an accurate summary of the jury instruction and wouldn't that get over the intent hurdle determination by the jury it could award punitive damages under and i'm and under if the jury finds an intent to cause injury or wrongful conduct motivated by spite or ill will or partially acted to serve her own interest having reason to know and consciously disregarding a substantial risk his condo may significantly in and twenty two from the trial instruction number nine a court then went on and sent instruction number nine payment of damages if you decide that mrs garcia intended to defraud mr  in regards to the bank with your all you must decide whether that conduct justifies an award of punitive damages that is specifically referring to intended to fraud and it's carried forward and the verdict form verdict form number four which requires do you find by clear and convincing evidence that an award of punitive damages appropriate against mrs garcia because she acted with an evil mind and committed fraud methods two of them don't require and he will find that is that is spite or ill will doesn't necessarily demonstrating count maybe the last one was with reckless you know disregard for the withdrawals you must decide whether that conduct justifies the war of punitive damages that raises the issue of intent for the st time outside of all the other instruction but the jury did a war punitive damage and that's what the be an actual intent deliberate or intentional injury not merely deliberate act that leads to an injury and further that recklessness or negligence result in the infliction of the injury is insufficient so we know that from the supreme court we know from this jury instruction that the court could impose and this is an award of punitive damages this is very instruction with in connection with an award of pun damages that all they have to show with regards to that intent was one of those three things yes so it's really correct though because it seems like this instruction verdict form is traced back and based on and i haven't seen anything in the transcript which indicates the degree of asian of that jugular jury and what you saw of the requirement for intent to defraud or commit fraud because there is a supreme court wrote punitive damages a recoverable and in the case before at best feet action when defendants conduct is quote aggravated outreaches malicious or fraudulent combined with an evil mind as evidenced by so at least  think it sounds like you needed evil mind which are the three factors or you're discussing and something else aggravated outrageous malicious or fraudulent conduct and this trial judge without objection focused upon fraud tensional fraud if i'm going to go if you go and answer that question i just want to remind you you're within the five minutes but please go ahead respond to that question yes your honor that then i think with the court looking at is that they were contrary jury instructions i don't i believe that they can be reconciled because i think that the jury instruction with the three part goes to the subject of intent how you define subjective intent the  other that you that you focused on for purposes of actual fraud what follows from a finding of that specific intent but the specific intent jury instruction allows for an inten wherein the debtor disregarded the substantial risk that the condo mikes might provide specific injury which is specifically the type of negligent or reckless conduct that the geiger court in the th circuit in the damages for conversion of ten thousand dollars and then they awarded damages in the amount of zero under that we don't at all because it was a that's because it was an capsulated and the larger component of the seventy thousand dollars that appears to be fairly clear that they did not want to double or double now that ten thousand dollars but we don't know whether the punitive damages was awarded pursuant to their findings on the conversion which they did find that there was conversion we don't know whether the punitive damages follow the conversion of the ten thousand dollars or whether it followed a finding on the constructed trust issue  let me ask your position on this that the judge decided this case based on collateral estoppel he did not make independent findings sufficient to support the judgment he entered correct in the or were in the order ruling that is absolutely  clear i believe your honor and the written memoranda decision i think there may be some question as to that and i say that because in the memorandum the decision judge clarkson was i think very clear in deciding on the well on this and i believe he highlighted the word under feuded because during the bankruptcy trial there was an effort by him how it to try and exonerate that testimony and to refute it and it failed and so i do believe that there was some consideration to those was taken and applied then because there is some question as to its use in a mission you know there has been so now additions i think in the and it seems the bankruptcy court kind of cross those wires from the or ruling to the memo decision rather i think i don't think that's quite accurate i think that you know we made it clear i was involved in the trial stage as well your honor we made it clear at the pretrial conference that our intent was to present direct testimony not only through the trial or not only through the declaration but also by submission of the prior transcripts and then we believe the trial track that the prior transcripts not only counsel with regard to the transcript did you identify specific passages that you would rely upon and provide that to opposing counsel in the court before the oral argument or before the trial was conducted so they would know specifically what passages your record going to try to see to admit so they could make your honor yes before the trial each of the parties submitted pretrial release and in up in the multiple citations to that trial transcript record as to why that was the case and that was consistent with how we informed the parties and the judge that we were going to try the case which is we're going to try the case in part on the price on the declaration itself but also based on the that she should be that was malicious or willful conduct that wasn't statements made by by the debtor that they relied upon it was the straw fozzy statements that the product of the property was never returned and upon demand she refused to testimony was unconvincing so were the real problem for us and i think that we struggled with here is that intent just clearly important both the eighty six claim and the a to a client and you you won on the on the cause injury when she secretly took his money from his account his bank account in secret she secretly took it there is never any suggestion at the trial that punitive damages should be granted on the grounds of rafa's ness and if if  have thought you were trying it on and ten but all three grounds were evil mine were given we don't know what the jury did it i think it's reasonable to determine that a jury could only have made that decision the testimony was all about intent judges instruction focused on intent closing arguments on both sides focused on intense and even goes to trial in the arizona stage when there is a motion for a new trial the issue of intent was raised and believe that it was entirely based on preclusion grounds to judge clark's and his rulings i don't think there's any legitimate question that that was the vast majority of what drove that decision and it's possible to say that it was the only issue and that perhaps the only issue that i was not issue precludes of was you know to whatever extent that that the of how it had a nice weeks on or a herself on the nd try there at the bankruptcy trial stage she may have been able to convince the judge other know that this makes me wonder about another element preclusion that is that the decision was necessary in the fact that your side chose to focus its argument on the intentional parts that could support punitive damages the jury instructions at least part of them the jury instructions would have permitted the jury to award punitive damages on a lesser sure proof and i would all admit that the jury instructions sort of point in a couple different ways the same time here but what are we to make of that that there was the jury instruction that had the full three pronged definition of evil mind at least one of which wouldn't if the standard for willful and malicious injury if there was some indication on the record which didn't require it and since he couldn't overcome that issue with regard to the fraud claim he denied it now you want to say well that was there he should have ruled in my favor and he should have found that even though the jury was instructed through those factors quite clearly in this memorandum of decision and pointed to numerous parts of the record to reflect that so i don't believe there was any confusion but it was now what he ruled against you on a three way and he didn't even you made the same don't think that there is real confusion on the record that the jury had actually found that view of how in this very city it had intended to to see mr wozniak there may have been confusion by judge clarkson about exactly to what extent that intent disease expand it wasn't as if you let a complex focus you only get a few seconds here so let's focus on this because this is critically important that intent to deceive was part of which than necessary because the reason that they said there was constructive progress on it was because ms garcia was put in a position of trust because she had a power of attorney and that she did those transactions and that she violated that position of trust and that was one of the factors  in determining what the jury was instructed on concerning construct and trust and it in addition of the instruction regarding the difference between actual fraud constructed fraud and the intent that's required for action fraud the jury was also instructed and counsel and those instructions focus on constructive fraud in the context of a very or confidential relationship and if they found that there was a dish or confidential relationship this was not by any means tried as an actual fraud misrepresentation and an intent to defraud reliance all of those causes of all of those factors were completely absent from the jury instructions pled and not in this matter doesn't concern but instead in the context of a breach of a fiduciary relationship that your honor shifts the burden once that confidentiality relationship is established twenty three ok and that are matched you've exhausted your time and thank you very much thanks to both counsel for excellent arguments that you could tell we find this case challenging and we appreciate your help the matter submitted