courts have held many times over that if a litigant fails to prove his case at trial he can't simply go back for a second bite at the apple by trying to create what he views as new or better evidence for the second go around the issue in front of the nevada courts was whether or not there had been a failure of proof with regard to actually establishing ownership of the claim and as i understand the record a subsequent assignment was entered issued  prior failure of proof has been cured on the basis of a new assignment so i'm having a hard time trying to understand why the issue is collateral y limitations you don't have a statue imitations claims we do have a statute of limitations defense still buyable and your honor is correct as to the second state court action was dismissed nominally without prejudice that was judge vegas case there was one the one before judge gonzalez the first state court action and then the second one before judge baker the second one before judge vega was not based on ownership of the loan documents it was based on the guarantee the exact same claim there were here in federal court on and  the reason why issue preclusion applies and we believe applies perforce is that if you creation of the new evidence the two thousand and eleven assignment and the launch does not create a new issue under issue preclusion just new evidence is not a new history underlying suit was brought for breach of the loan agreement the first state court on breach of the guarantees the guarantees are for separate contracts are written i respectfully it is a separate contract i respectfully your honor the second state court action the one before  judge vega was for breach of the guarantee was the exact image of this federal action for judge chandler innes without prejudice it was dismissed without prejudice however that first of all for issue preclusion purposes under nevada law that is not  as strictly as one might ordinarily envision and the only reason it was deemed dismissed without prejudice as judge vega made clear in her ruling was that there was still the first state court action which was pending in the nevada supreme court the rights to appeal to the nevada supreme court were still pending and she said because this guarantor this guarantee essentially is inextricably linked to the question of whether the underlying loan documents were owned by b in t b b and c b b and t needs to avail themselves of their appellate rights in the first state court action and indeed they did in the nevada supreme court the nevada supreme court affirmed the judgment of judge can solace from the first action saying there is no ownership b b and he dropped the ball they did not prove ownership a trial and they lost as a matter of law in our view that is unquestionably either the first state court action or the state second state court action which is directly what was happening in this federal case same plaintiff same defendants same document same cause of action everything's the same that operates as preclusion and it's not just my saying this i mean this court has held the same in the our do we need case in which it referenced the earlier nevada supreme court case where you had the same back with a new theory and said oh instead of negligence we're going to plead a federal case for non delegate pool duty and the supreme court said that's just another way of proving the same issue you were trying before judy is just a means to prove negligence you are bark that is what has happened here they are just trying to prove in other way of proving ownership of the guarantee which was ruled against him in both instances in the nevada state courts i think maybe the most factually on point case is a case from autopsy and the new autopsy shows that there was a special doses and so now we want to go back and prove our case and the california court said no this is barred you had your opportunity you get your one chance a trial this isn't like sunday court had a similar issue in our day we were there were new allegations about the demand futility on the board of directors and this court said that just because you've come up with new allegations or a new theory or new proof that doesn't mean there's a new issue and that's what issue preclusion is all about you don't get to raise this the first time but if if if branch being dismissed from the first action essentially for a lack of standing but wasn't standing up well but the conclusion is that you don't own the claim right therefore you don't have a right to be in this chord then i'm not sure that we can say that liability end of the guarantee was ever litigated judge gonzales and the nevada supreme court disagreed with that view judge gonzales was very counsel whom they've since sued for malpractise said well your honor we can just come up with a new document and try a new case pre stage and exactly what they would do and judge gonzales said no you can't i'm ruling on the merits i'm not saying this is a matter of standing you keep trying to catch it mr gerard as a matter of standing this is a failure to prove an essential element of your case you can't come back you would have a preclusion problem let me give you an example they illustrate a judge column and i know in your previous life you were a former federal prosecutor imagine you had to prosecute a case for destruction of federal property and you went to trial and you neglected to prove up that the object destroyed was actually owned by the federal government and there's a motion for judgment of acquittal presumably under rule twenty nine granted the defendant is acquitted you wouldn't have no way of knowing this but you have just opened a door into a disagreement the judge told him years ago and i can tell you conclusively i don't remember the name of the in fact it is federally owned land but in those principles that animate issue preclusion apply with full force in civil cases to which is the issue of the desire for finality the risk of inconsistent judgments  and these are the terms that this court has used about let me ask you a question i think i know the answer but i want to go check the property alone at issue is about forty five million and change and the property was eventually sold through bankruptcy for about thirteen and i think that's right so your clients basically guaranteed the forty five million dollar loan and if we rule in your favor they walk away i guess the taxpayers get stuck for well i can't speak authoritatively on that i do know that that when attempted to acquire this on they paid eleven million honor that this underscores the need for trial counsel to bring his best case on day one it's not like you know my guys have been getting off scot scot free they've been living with this for over ten years and frankly eight years ago they thought they had prevailed because the nevada state court all the way up to the nevada supreme court said you win only to be held back across the street to the federal court and told no you're on the hook personally for forty five million dollars so this is been a as i recall part of the council negligence was the failure to court trial said you didn't disclose these documents we're not going to have trial by ambush here you're trying to do it on the night of and in fact when judge gonzales said that the original purchase and sale agreement was insufficiently proved b b and he went home and quote unquote found a new document created a new document that night and then started waving it around saying well we've got this new assignment and judgment al says we're not we're not going to play that way here you have to do these things under the rules which is again affirmed by the nevada supreme court saying she had not abuse discretion in excluding that and what we have here frankly is another episode of that we prevailed twice on these issues in nevada court and then all of a sudden we get a new sign that the two thousand and eleven assign when does this end in theory if your hono were to reverse and enter judgment for my clients they could come up with a two thousand and eighteen assignment and find a new federal court a new form to run to and start a new adventure but it would have a structural limitation problem with not even with the benefit of the fiery wreck they sure would we think they have a statue of limitations problem here anyway but frankly your honour's don't have to get to it if you decide it on the record it's a four minute you're down three i will thank you on appreciate all right let's hear from the other side excerpts pages one through three there's been no challenge these crucial facts alone fun unlike the guarantors wanted they just failed to pay like they agreed what this appeal was doing is seeking to apply these legal theories to avoid that repayment obligation and during the opening here what's your response to the argument that the lawsuit in front of judge gonzales involved not only the breach of the underlying won't contract but also the obligation to pay on the  guarantee was not a not a component of the first state court case what that statement the first a court case was about was a lien priority there's a point reason why the guarantee would not have been a component of the first a court case and that's the one action rule under nevada would have prevented it the deeds of trust real property security were still in play at that time so an action on the guarantee would have been prevented by nevada's one action will so that set forth in the record of paid sixty six where the state court out identifies what precisely was where the claims that were at issue in that first case and it was about lien priority and the primary issue for the state court was whether b b and t had satisfied its evidence or burden demonstrating that it received an assignment the two thousand seven colonial bank deed of trust as evidenced by aspirin court concluded that the state court decision that the incomplete purchase an assumption agreement by itself without a schedules did not prove that the b n c received an assignment of the construction loan was not clearly erroneous that's again in the record at page sixty and it's ordered if your client had prevailed in the first state court proceeding what relief would it have the relief that would have been attained is the two thousand semi colon l bank deal the trust would have been first position on the subject real property the way the record reflected at the time it was in junior position behind they are you saying that if you had prevailed and you had a final judgment that would not have authorized you to collect on the guarantee we would have had to foreclose first on the property and once that had concluded we would have a deficiency balance that the man could and then pursued but until the deed of trust that you ation had been resolved the priority dispute that was in play which is what that state court case was about until that was finalize seven contrast that's what judge gordon had at the district court he had the two thousand and eleven assignment and he had a large the promissory note again side of the record page thirty there's different evidence so if a soused be in a breach of contract and the result of the proceeding is that the court determines that a hasn't proved the existence of a  us i think the answer that question is no but that's a difficult tell me how that's what the question that was presented in the state court was whether b b and t proved ownership of the two thousand seven colonial bank the trust not that no d trust existed that's the difference and i think that's a fundamental mistake that the guarantors have been making here is that they thought that the state court decided that they don't owe anybody anything and that's not at all what the state court decided what the state court decided was that the b n c at that juncture and not sufficiently demonstrated that it owned the underlying loan documents that's the difference there was no decision that no loan documents exist and there was no decision that they'd never breached their guarantee it was just that the b n c had not sufficiently proved ownership of the subject loan documents was the second case it was the second case that was brought before judge vega was dismissed based on standing and what she says in the record is very enlightening at page thirty eight of the record what she says is that if the f d i c wants to bring this case they can and that's essentially what we have here is the two thousand and eleven assignment identifies it with great specificity the transfer of this underlying loan documents from the f d i c to be d n c i would your client's position is  conduct of the guarantors the injured b b and t when they failed to pay what was owed at maturity and that was in january two thousand and nine guarantors portrayed this district court case as an inappropriate collateral attack on what the state court decided such that be applied narrowly and it should be confined the kinds of cases from which a guy's name specifically state court losers complaining of injuries from state court decisions and inviting district court review and rejection of those decisions this course case no well established a two part test the court must find that the district court case constitutes a defacto appeal and secondly that the district court case is to litigate an issue that's inextricably intertwined with the state court decision so a crucial issue for this corps to determine whether the district court case indeed a maturity that's a page ninety four the record this district court case is not an attempt to complain of an erroneous decision by the state court there was no allegation made of this as a court no request to judge gordon to decide that something the state court did was wrong state court decision that whoever on the construction was not in first priority in the lien on the property not that there had been an adjudication as to who it was for breach of with respect t state court correct state court was concerned with when priority not with the ownership not with ownership of the of the underlying loan documents well she found that fundamentally that failed to prove that and on the loan documents so she couldn't proceed any further with the underlying claims about lien priority and so that's what was presented to her though what the note she went one step further she basically said because of the failure proof to show ownership then that competing lien holder is first at page thirty two that the transfer the guarantee and what was owed under the terms of the guarantee was never adjudicated as part of the state court case the guarantee was not presented to her so just in summing up again on the record feldman doctrines issue here we understand you're going to do so then let me go back to the issue preclusion contention of our identical issues what the state court was asked to do was interpret the terms of an incomplete purchase an assumption agreement in order to determine the assets and liabilities that were transferred to b of more than just additional allegations that the incomplete purchased an assumption agreement is somehow sufficient evidence to transfer the underlying loan documents the matter in dispute in the district court case is different from what the state court decided and concerns evidence that was not available to t have failed to establish standing the state court decision arose out of a motion made pursuant to nevada rule of civil procedure fifty two which focused on whether b b and t had proof standing this edition should not be limited to standing but then also be on the merits of the underlying claims fine that a party lacks standing should mean the court is not ruling on the merits the new line claim underlying claims and it was this lack of standing that the state court had found that prompted the dismissal of bebe and cece claims that set forth in the record at pages sixty seven and sixty nine their standing is curable new facts that post date the state court complaint were submitted to judge judge gordon i would also just note for the record here that the second state court case was dismissed without prejudice which should mean that it does not qualify as an adjudication on the merits that's accurately reflected in the record by the second state court judge where she said exactly that that the f d i c want to bring this case they can that's at page thirty eight of the record preclusion are invalid also requires the establishment of the element that the issue must have been was not raised to submitted to state court for determination the issue she had was whether the assumption agreement by itself was sufficient evidence the assignment of the two thousand and seven colonial bank the trust judge gordon correctly pointed out that this means that these items for two thousand and simon the launch were not actually litigated and they could not even actually litigated then the transfer of the guarantee was not a component of that state of that lien priority case for the two thousand and eleven simon now exist in two thousand and ten when the state court is ren correction of an error that occurred in the first litigation where the bank simply didn't produce the proof that the low notes are negotiable instruments right nothing assignment that in the state court decided state would have would have rendered b b and t unavailable to every purchase these loan documents in the future which is what this was and what the guarantors are asked are you say in the first case you do not know the evidence existed that suppose that the f d i c for whatever reason had issued a subsequent assignment after the nevada action to yet a third party and purported to assign these loan documents the third party would there have been any issue party be barred by nevada litigation from forcing the no know what one of the elements requires privity same parties and so in that instance i think there'd be a failure privity that the party against whom the judgment is being applied must have participated in the first case i think that would've been a problem there i think that's right over the the other problem just briefly that in the final seconds is is that issue of the guarantee was not what was placed before the state court a state court had was only a priority and based on made please the court let me begin by answering that question judge i agree with my brother at the bar that would not be a collateral stoppel issue preclusion problem assuming there is no privity between the parties and that illustrates the problem that my brother the bar t because they failed to prove their case to trial if it had been assigned to a third party not in privity we probably wouldn't have a leg to stand on with respect issue precluded that is the problem here is that they failed to prove their case and in the first whether you look at the first trial action which was about ownership if you look at the record of expert records judge gonzales is talking about ownership but even as to the second state court action and i understand your honour's asked me questions about whether there is without prejudice language i would direct honour's to page forty six and forty seven of our initial brief in which we cite the nevada supreme court which is adopted the second restatement view on that question that the requirement of finality with or without prejudice is it is not a rigid approach it's not formalistic it's you look at the context and in this context we know that they treated judge vaguer the second state court action as final how do we know today attempt to file an amended judgment would disagree with your honor because nevada law does not look at the formalism of the label of whether it's with pred dismissal with prejudice or without prejudice they look to the for the actual dealings is it a final ruling in the sense that it was fully considered  is widely recognized that the finality requirement is less stringent for issue preclusion and claim preclusion and they adopt the restatement view and we forded the restatement second of judgements i won't read it to your honor's be you'll see it on pages forty six and forty seven and this court in the cooper case said the exact same thing judge toler when you were actually on the panel of the cooper case judge mccune wrote the opinion but you are like it was yesterday but let's get to take a look and your honour's you talk to judge when you ask the question about nunc pro tunc isn't this essentially a non protein if that were applicable in this context then you wouldn't have the issue preclusion main justice would not have overruled you and what would have let you prosecute that case for a second time with the matter that there were three criminal there is there is have to be grudgingly admit that now i did not admit it to talk and there is indeed a difference but the principles while they don't necessarily achieve a constitutional dimension like to do the double jeopardy clause in the civil context the principles are the same avoiding simply what's your response so to his argument that the only thing that was decided for a round of litigation was who had priority over the lean otherwise attached to the property that there was no she said they failed to prove ownership judge of a guy said the same thing in order that this is all derivative of ownership so that second but a failure to preserve for prove ownership doesn't necessarily establish that there has been a bre consider persuade you otherwise then certainly you have the second state court action which was a suit on to guarantee the exact lawsuit we have here it if you if not overcome the hurdle about finality the with prejudice without prejudice then what you have  ok thank you both very last case and on the calendar for argument today is who we change versus the county of santa clara number sixteen dash one seven one six three