be difficult with the attorney client privilege but that didn't correct the statement that i had made to mr carlson the previous friday which was that i had my belief at that time that the drumline and shipped and it was moot mr carlson didn't believe me and he told the court anyway that he didn't believe me he wrote a letter to me the next day saying he didn't believe me and the court issued that and frankly i made that statement to mr carlson not thinking it was going to go to the court i didn't think i had a duty to go to the court to correct it and nor if mr carlson didn't believe me that i think i had a duty to call him up after i found out what was really happening over the weekend in fact i think i did what my ethical duty was which is withdraw it was a situation where it was clear that this was going to be one in which was going to get a lot more complex than i wanted to get involved in as a favor so that the real question is whether there's a should a requirement that i have appeared in court and tell judge bardwell the difficulty of that as a lawyer when you're appearing in court is that it can get a whole lot bigger than that once you appear in  there was evidence in the record that the district court looked at that indicated that you haven't investigated and confirmed that the drive i had shipped at the time you told at to mr carlson and you didn't correct the information that mr carlson and transmitted to the court which you knew about because you got he received a copy of his affidavit so so the courts seem like the just of the court's view  that you had baffled their efforts to keep the drum line in california was that you hadn't corrected the information you gave or at least on the transport prong of o you had corrected the information the misinformation you gave to carl's mr carlson well if you know the other person doesn't believe you then the question is do you need to call them up and say oh by the way you're right you didn't need to believe me i'm a little troubled by that requirement especially when i and the you're right i did get a copy of his declaration to the court that repeated what i had said on the voicemail message but i thought the best the best thing i could do was not go into court and argue the same thing well you didn't correct i mean i don't think it's a question whether you went to court or not i mean that was at a time when you could have corrected the epis information but the court seemed concerned that you had corrected the mess information well and had you done so something else would have happened that that seemed to be the gist of it to me well i don't know what the something else that would have happened would have been because i had no more information other than that if i had gone to court and said oh by the way the information that i told mr carlson was  error and actually what i understood at the time you have to keep it in context was that i was told that the shipment had already started and couldn't be stopped whether i believe that or not is a different issue but that's what i was and that's what my information was that's i'm having trouble understanding exactly what the point is that you're making with regard to it you know i'm going to start are you arguing no the merits of your case and are you arguing that it's not supported by the facts in the circumstances are you bringing a charge against either one of the two judges involved with respect to how they conducted their summary judgment hearings i just don't know are you asking us to take this on the merits flat out and say tell there's not enough there to support support is that we are doing i think that would be the same thing as the second point which is that sense is a motion for summary judgment it should have been granted that wasn't very clear in your brief but let me what do you want us to do  as far as i understand it and correct me if i'm wrong you're not entitled to a right to a jury trial on something like this correct so what do you want to still do tell us exactly if we were to agree with you on the second point that there was something defective about the summary judgment credibility fight what do you want us to do well actually what i'd like you to do is set the record straight if there is in fact a duty in this situation that requires an attorney to appear in court intelligence that that what isn't already believed anyway is i'm not sure what i would have said under the facts that i have the real question is does the law say that i can withdraw from a factual situation before ever becoming but what are you asking us to do with this case i'm asking that we agree with you reverse the decision and do what with and and actually i want you to reverse it and not send it back and so you want to decide as a matter of law i don't know circumstances under which this record would support you having been held in contempt i actually believe that to be true let me i neglected to ask you one to introduce yourself for the record but also are you planning to share any time with please the court i am gerard rose i'm the appellant in this matter along with mr looked a nigger although we have very very different positions in this case i'd like to begin by citing some history for the court you may recall back in the late seventy's hundreds it was a terrible crime committed on the east coast some british soldiers opened fire on a mob in boston and ended up killing a number of them a distinguished lawyer by the name of john adams decided to take on their the defense of the soldiers and there was a great national debate over whether it was appropriate to tar a lawyer with the misdeeds of the client and the what came from all of that was that no we don't we don't t lawyers with the misdeeds of their client unfortunately that's precisely what happened in this case i have been tarred with the misty aides of someone who was accused and convicted of some terrible things against the public scot because i represented scott sell your children as a trustee and as a lawyer i have been tarred with those misdeeds of mr seller for example as a trustee or more than just a lawyer by your own legal owner of those those properties of the rays yeah and because of that you would have thought that before these items were shipped out of the country i would have been consulted i was not so you own the trust you were the trustee for the trust that i own the  nobody told me they were about to be shipped i had the only information i had at the time they were shipped it was i made a call to scott sell yours lawyer remember i was representing the children not and i was a trustee i wasn't representing i got seller so the drumline was stolen from the track ok so you presume to get that back is that correct what i tried to do was to find out who shipped them out of the country and once i found out and the first time i found out where they were they were out of the country so what i did was i found out where they were shipped they were shipped to a fellow in new zealand and i tried to contact him and he wouldn't talk to me because by that time i was radioactive frankly i couldn't get anybody to talk to me so just to put this in perspective i suppose that you too are asking us to remand with orders to to a grant to enter judgment on your behalf i would like without asking is to do well actually but i asked for in my brief was to send it back for evidentiary hearing i had requested an evidence or her hearing very early on but had no no place that i could find it to suggest what you might be able to demonstrate or prove an evidentiary hearing what i intended then that is that is in the record where you showed what you might prove made an offer the both judge bardwell and the district court judge judge not only both came to the conclusion that i was lying because my my testimony was so that's why that's why you offered no evidence that when you would bring forward an eviden judgment it is opposed by the other side on the other side sets out what he or she believes are the tribal issues affect and i did that somewhat if we accept the proposition that it was inappropriate for the court to rule on this in the in the context of a summary judgment motion because the court the court bankruptcy court as i understood it made factual findings and credibility determination so the procedural posture was inappropriate we sent it back for that reason the judge is going to decision your honor i've been practicing law for for forty four years now almost and i have seen judges change their mind and i believe i could change the mind of this judge unfortunately i never i was never even able to make oral argument for a judge nunley and judge bar well that's the debts the district court what about judge bardwell judge bardwell basically gave us a few minutes to argue our case after he had already written his opinion but we were never given an opportunity to to present the evidence that we had requested t allowed and did you attempt to pursue the equivalent of a sixty b motion or anything like that and now it's empty straight not what you now say were errors in the summary judgment process or why not because frankly we were up against it noticed that the appeal time for a notice of appeal if  bankruptcy court did not change its credibility determination because basically had indicated that it didn't credit your statements or mr elected statements is there anything in the record that would create a genuine issue material facts to contempt for starters there's no evidence that i miss or that with all due respect to counsel there is no evidence that i misrepresented any fact to anybody ever ever not once secondly there is no evidence that i actively participated in the shipment of the of the drumline out of the country none and in fact i did and i played no role in that you say he had already the bankruptcy judge already written his opinion yes did he give you a copy of that yes and did you point out at that point you can't make credibility determination as a motion for summary judgment what was his response he said i don't like making these kinds of rulings but i'm going to in this case examine the record yes could you tell me in the real i mean it was during the during that were all argument i so is there a transcript of the excerpt of that yes and where is it and i believe it's in the record i look at you can you point me to it not no not not this one i am sorry but the point the point is as a officer of the court i represent to you that basically judge bardwell just adopted his his previous ruling almost completely i mean for example i was accused of having tried to misled the court by producing redacted records but they weren't even redacted by me they were included that the fact that i had supposedly redacted these records anyway i mean so in the alternative you'd like to go back to the bankruptcy court for the equivalent of a bench trial absolutely i think that's what's appropriate and frankly i think again i've been practicing law for a long time i you good morning your honor stud russell mcguire woods on behalf of the appellee bank of montreal i've never seen a summary judgment motion where all of a sudden they start making credibility findings i mean that's sort of black letter law you cannot do that in a motion for summary judgment what am i missing that's what happened correct correct but judge not only actually accepted the affidavits and reviewed them on the appeal and found that there was court well i guess the question is is was judge bardwell's decision based solely on on that error i don't believe well no it's not solely but it's i mean it's jumps right out at you know i'm reading along and also the credibility of this and i don't believe it and so unless you disbelieve him it's pretty hard to see how he has any information or misinformation to the court had anything to do with mr rose so if you take the affidavits of the  s value which the court should do i presume on summary judgment then it's pretty hard to see why there is not a genuine issue material fact as to the factors the court determined merited a contempt rolling i believe when he in looking at all the facts the judge looked at the fact that rose initially already first he was not counsel for c v s i think we there it's a little bit like scott versus harris if you remember that case of the supreme court on summary judgment but that isn't what he said he said i'm making credibility determinations not that these affidavits for some reason fail to rise to the level that they create triable issue or a dispute of fact he didn't say it i guess the question is what do we do from here right because you were going to end up in the same place well the other side says no they really didn't have a entitle into an evidentiary hearing they they don't there's no entitlement correct there's no entitlement but that doesn't mean there's no prohibition against one either if you can show grounds that they're for foreign evidence they had not under local rules they had not requested amateur hearing as well well when you saw what you saw that went to the tentative opinion why didn't jump out and you all my goodness this is full of credibility determinations you know i'm going to win this here and it's going to go down in flames maybe you know on a al or in the district court i mean didn't that just fire right out at you well your honor i know and that is my error but what i will state is that i did come in and i did correct the statement regarding the redacted records i wanted to court to make that understanding our argument was that there was substantial evidence that there was no genuine issue of material fact that these that like i said that there was ample if they were both acting as counsel or c both had knowledge actual knowledge of the t r o as it was entered and they both did nothing to stop the drumline from being shipped but actually acted in concert with mr sawyer to have it shipped after the fact mr  the record that they violated that promise well the thing is they're supposed to take all actions that they took no actions at what and what did you present that they should if then that they didn't do well what we have is we have the statements that they had told port of oakland and at that point he was told it could no longer be stopped from being shipped out of the country is this a memory of yours or can you point us to a place in the record we can verify i have and i apologize your honor i don't remember specifically on that i know it came out we're he knew it was still in the state of california so this is contempt by omission is that what you're telling us after the t r was entered correct your honor they took no actions to stop it despite the knowledge that they had  we have the facts of the phone records where we know that rose and looked in your spoke at the right minutes but apparently say they couldn't hear each other for fifteen minutes and and under those circumstances appears obviously they had the opportunity to speak but the so they spoke so so they deny they spoke they said that he was walking around the block and they were trying to find a place where they could hear and they never were able to talk so that that's their representation they assumed but they didn't have any specific knowledge that there was nothing they had not received any of the shipping they had not received any direct knowledge that mr sawyer was behind the shipping of the drumline they assume because mr sawyer was ask a foods but they that the lawyers did the other i mean i just didn't see anything in the record really pinning it down right of any knowledge of whether it was in the port of oakland or not allegedly came from m i think it was the sunday the day before the tear entered that's when mr leggett the conductor had his discussion with mr sawyer so the assumption is that some communication took place that should have been reported to the court is that what you're saying  think the case and i don't remember the case but that would be then benefiting if we found that they are in contempt of the t r o and it's their actions that allowed for this to be moved and damaged and they should not get the benefit of of providing the ability to ship it out of the country and were that was a reasonable assessment of the value given the facts and the evidence of the valuable value at what time and what  point they had that was the agreement was entered into about seven or eight months before and there's the record show when it was damaged to reduce its value as they argued to to nothing no your honor there was not what we saw why isn't why isn't judge labor right that there's a dispute a fact about the value i don't know how we would otherwise prove when it was damaged or how  trial lawyers do is to prove things i understand your honor the burden is a burden as a proof and all that stuff sort of sorts that out i mean your stand your honor i believe under the facts and circumstances of this case given the value that we had shown and the ultimate award that was award in the case over a million dollars for the value of the drumline additionally we did not seek tourney's fees and costs that were incurred by the trustee in this case that the fact that their actions allowed or provided the ability of the shipping of the  country and therefore the drumline was no longer available for review that the three hundred fifty thousand was a reasonable and justified word in the circumstances of this is the supreme court just issued a opinion  the compensatory portion is that was the value of the drumline that was placed on and so that was the last collateral and so it's can it's point compensatory to the estate and ultimately you think montral my client because it was what was lost ultimately later in the case the ultimate value that was placed on the drumline was over a million dollars in the underlying adversary proceeding and so we had placed on evidence that the drum line was actually valued substantially more and this was based on information that was provided after the drumline had even been shipped to that with four hundred thousand dollars of repairs that it would be worth one point five million dollars  this is after it had already shipped and therefore we did not seek the higher amount we thought it was fair or reasonable and justified under the circumstances to rely on the three hundred fifty thousand dollar number that had been placed on the drumline by mr rose just shortly before the transfer of taken place so i think based upon the evidence there was ample evidence to show it was worth well more than the three hundred fifty thousand dollars and that the three hundred fifty thousand is truly compensatory for what was lost from the day  i didn't have anything further i believe the record is ample and it was supported by the evidence there was no genuine issue material fact that they represented c v s at all relevant times they had actual knowledge of the t r o and as the district