kind of hash out the different pieces because civil procedure again is not the most fascinating thing in the world but i do think that we can make it pretty clear and hopefully get to the bottom of this generally this case deals with two cases there is a case i'm going to refer to as the old six case that was between the same parties that ended in two thousand and eleven the two primary orders in that particular case are august eleventh of two thousand and eleven two thousand and eleven order from the zero six case which terminated the case in its entirety the problem with this particular case is that a lot of the things that moyers take in civil procedure as just this i understand you've read the pleadings so i won't go through it forbade them but just to give you an overarching outline i see the august twenty ninth order as not being the basis for rescue t preface i want to bring up what my opponent has has brought up too in that my predecessor at the trial court level didn't raise this argument and therefore in most cases on an appeal you can't really bring arguments that weren't raised the oh well of your own church or what he my point was simply saying that i couldn't raise the argument as i did the reason i raised it is that i don't think that the court at the trial level were either of the attorneys really took a good look at what the aug twenty ninth order was and i think that none of them really made the mark it's my opinion that is actually this missile for want to prosecution and the reason i say that is to terminate a case there's really only three ways that i've been able to find there's an involuntary dismiss the court exercise its inherent power just get rid of it ok well i don't believe that it can be a whole interior dismissal or an involuntary dismissal that terminated the case because both of those two statutory elements require notice and motion if you look at the plain language of one zero zero nine for voluntary dismissal it has to be raised on notice a motion to the other side and then payment of costs and some other ancillary matters have to be done to the problem is that in this record i don't see any up their attorney did at the trial level in the six case what i understand from the transcript being that i wasn't there was that they wanted it to be dismissal for want to prosecution my opponent wanted it to be a voluntary dismiss l the court was confused because they had never seen anything because of the record there wasn't anything pending before the court at that time the aug eleventh order had dismissed and given leave to replete the counter claim that was currently before the court my clients had eleven days to do that they didn't reply anything and they showed up at trial unprepared essentially so is it is my own argument that without that notice and motion and really anything before the order from our perspective because there was leave to repeat the trial judge in the transcript that is a part of the record did note that she believed that well you can do it right this time we have trial coming up in a few weeks i'm going to give you a chance if you want to try it go ahead you got eleven days go ahead and file forth amended counter claim and then we'll try the fourth month of our claim on august twenty ninth from what i can understand you know gather from the record it looks like there were there was no fourth minute counter claim filed so when my client's trial attorney  there's prejudice that results to the other side then that would be an appropriate time for dismissal for want to prosecution the point is that my client showed up there was nothing before the court they weren't ready to proceed forward on anything at that point so i do believe that well unfortunately i wasn't that bad attorney and i don't really know what i can't pleading good faith is i assume you know if we're going to sit here and speculate it could be one of two things one they just couldn't believe the facts and that way of you know they couldn't proceed forward so the case is dead or too if the client wasn't being my client now wasn't being quick in responding to phone calls wasn't that you know i don't know why he couldn't leave in good faith that he couldn't do the research that would be another reason unfortunately the records the void of why specifically he couldn't do that mean that is what happened that's correct the problem is that i don't really know from the record what my client's intent was i can't really afford that but it would seem that if there was no malicious intent there or if there was no reason that they would have one over the other it's either b p really should in jurisprudence going forward separate from the claims splitting doctrine now of course my client does going to the second point my client does forward that if it is a voluntary dismissal with for whatever reason the plaintiff in a personal injury case it sue the police department under both an intentional and a negligence theory of recovery one of the claims was found to be barred after motion practice for can of paint exploded and canada and injured somebody and the court found in that case that canadian law would apply and they don't have strict liability type claims up there for products liability so they couldn't  because even though there was a replevy there was no factual situation they could be pled for the strict liability claim to be redone so it's a little bit i guess my point is that here know they did change their theory after i believe the second counter claim but unfortunately the record is devoid as to whether the court found that there was any possibility for them to plead negligence claim or they just chose to plead something else it's all based on the same factual the same facts within the relationship between the two landowners in the case there's a number of cases that are in my brief discuss single count claims if a it's a single cow they didn't have to reply they didn't go to trial it was terminated in some way he claims he doesn't apply because there were two counts and and that's where we're  at the only other thing i do want to mention just briefly is my point i have brought up the idea that the trial court could look at her notes or perhaps look at her memory as to what her intentions were in the other case this is an unusual case because the same case there's no transparency there whatsoever i can't go in and examine a judge as to what he or she may have thought or believed in a prior case if they want to take out their rationale it's not written down on paper it's a very very important thing that will fall in the common law in general that we have transparency so i would request that in that aspect you discount anything it's not in the immediate record either  issue in this case is whether there was an adjudication on the merits in the august eleventh two thousand and eleven or the way that we got here was that in the third amended counterclaim the pla significant because in essence they outmaneuvered themselves they asserted a breach of two contracts what is known as the agreed order and what is known as the grant of these two separate contracts and they attempted to  conflate these two contracts into a single count because they knew that the facts that they had alleged if true only stated a breach of the requirements under the agreed order not any of the requirements in the grant of easement they want to do avail themselves  the form and so apart from how it might be structured what are the substantive allegations what are the claims being a server was abundantly clear here from the third amanda conner claim that there was a breach of two separate contracts trial court had that in mind when the trial court commented you see this in the transcript in the record that the trial court thought maybe maybe the plaintiffs could could assert such a claim and i wonder if that wasn't a reference to the keifer all over again what happened in kiefer is that you had a negligence claim and a products liability claim now importantly those two claims were based on the same operative facts that were based on separate sets of facts the product liability claim the court found the plaintiff could not state a product liability law but granted lead didn't say in the order that the dismissal was with prejudice true of our august eleventh order and instead set in the order with  similarly that same discussion you'll find in our records here keep her controls here and the various other pieces cited by the plaintiffs are fundamentally distinguishable and they're fundamentally distinguishable because the the trial court in those other cases allow the plaintiff to replete the words i don't think it's dispositive either way because i think the record from the first action the original action is more than adequate to show that what the court did was dismiss act lame for breach of grant of these men with prejudice and i would point the court evidence because of the unique posture of the situation where we have the same presiding judge over both cases this court does have the benefit in the very border from which this is fuel is taken of the courts statements of its intent and some of the goal ordinarily would have in the refile case a different judge we now needs to look back to the judge judge's order in the original case and figure out what in that judge me we don't have that here and it's a little bit unique and i think this particular question is probably  impressions certainly i can find anything on and so the question is the court statement of its intent is in the record we're not going outside of the record and so one of the questions of the court even reaches this is is whether it's there was nothing they could have read pleaded the state to state a claim now there's been this is argument and it is an absolute fallacy absolute fallacy that whether there was a single count or more than one file dictates whether ra and i believe the source of this misunderstanding is the idea that claim spinning splitting is something different from bridge due to pattern or some subset of gracious god it's not it's another term that describes res judicata all claims that can that they arise in that context as a practical matter that's where you'd expect them to iraq's parties generally assert all viable claims that they have filing an adjudication on the merits either because of better education or for other reasons a party may decide  nwisely that that it's going to voluntarily dismiss and then refile well the attorney in the party need to know that under the rule of rain and its progeny you can't do it dicated on the merits that would in fact bar any later action for any other claims based on those same operative facts it doesn't matter if there's one claim or two claims and i think the words claim splitting have have led to this sort of misunderstanding about about what it is claimed splitting is nothing more than another term for race to the top now there are three possibilities for in my mind for what this is the later order of the aug twenty ninth order happens that our pieces arrives in the voluntary dismissal context for the practical reasons that i've stated and i haven't found a case where it was a d w p in a court then address the issue just because that factual situation hasn't hasn't come up in a report decision but the treatment is the same that set the last possibility a very distant third possibility would be a d w p but there is nothing in the record that supports a finding of that august twenty ninth orders that  its will there is no reason to doubt that the trial court would have even given them more time if they still wanted to try to plead there's nothing in this record to suggest a d w p that said i don't think the result would change i twenty ninth order that leaves no doubt the case is concluded doesn't contain lead to amend language and so that that warder could be just that that further were and these are cases cited by the plaintiffs relied on by the plaintiffs that for the sufficient that's number one number two the only evidence in the record shows that there had been no flooding that of this this kind of thing was about flooding there had been no flooding for some time before even the first action was dismissed let alone original action if there had been some additional flooding where those allegations of the additional damages this was all about what took place before the first action was even dismissed for all these reasons was more fully set forth in our brief we respectfully ask the court to affirm the lower court's decision you have to be a poet just a couple quick things here's the order of aug eleventh in its entirety said motion is granted and the counter claim for breach of the grant of easement and prayer for attorney fees are dismissed case just to give you a little bit of background on the jackson case it was a pro se plaintiff that was finally the mom practice suit against the hospital and the original complaint was dismissed because there were some allegations that were and unfortunately we're in this weird gray area where as whatever oh we're in this weird gray area that well you come to trial on august twenty ninth there's nothing before the court as far as a pleading  my counsel him magine that while there was no no prejudice well it seems like he probably prepared for trial and his clients probably came expecting to try something even if it wasn't before the court if that's not prejudice i would be prejudice i'd be mad if i i've never i've never actually seen i understand what you're saying your honor i've never seen it in the context of a voluntary dismissal order as probably because the issue isn't that important to go to the  up a slippery slope where a trial judge who's presided over the previous proceedings can you know look at anything besides the record itself i'm looking here at the actual order there's nothing in the august eleventh order that says what the trial judge's intention was now my my counsel did raise the idea of adjudicated facts it's the davis case it was a criminal case and in that case the trial judge had were there was no intention of why not order was entered it was just the fact and as evidence is you can enter evidence as long as there's some basis for its reliability treatises for example or publish newspapers or publish you can go and check that out same with an order or you can go down to the courthouse and look at the file to see if an order was enter when i thank you oh i confess my son's well i did this i can't go and examine the judge's head i guess that's that's my point it's not something it's transparent so thank you thank you we thank both of you for your argument that afternoon will take