trespass back in two thousand and six and subsequently in two thousand and nine and the fallout from those false accusations included my client having to go into hiding to protect himself his family was physically removed from the property and accosted his ranch was bulldozed immediately after something else and what is your strongest authority or on record citation supporting your contention that it was a malicious report the fact that senator had in its possession at the time the criminal complaint was filed it knew that mr ritchie had been in possession of that property notary i don't know that i don't think that's part of the record i don't remember because of the i'm sorry and in two thousand and one he called my client and asked him to appear in a meeting in san ct and i think one of the things in this case that continues to be debated is the difference between possession and title and in mexico the concept of just blow it and possession is something one tenth of the law possession is a right and one that cannot be interfered with regardless of the title situation and so in two thousand and one my client presented to  documents that he believed proved his entitle me to possession mr rob as as the agent of some pro was was charged with that knowledge thereafter there was no further contact according to testimony with my client until such time as in this late mid mid to two thousand and six period of time i'm his property that you know but let's back up and have a blessed prosecution claim you have to have a claim that was court that there was probable cause and innocent a national proceeding and that your client had an opportunity to have six days of hearings and present whatever you want to present to the court finding i understand was that they didn't know what the person was dead in two thousand and seven and i don't that's not what the court found there was no there was no evidence presented in two thousand and six to the court to my knowledge we're going to be clear which court you're talking  court of mexico the criminal court of mexico in the january two thousand and seven my understanding is that you're not contesting that the probable cause finding was made that you think it was made as a result of fraud or perjury it was wrongfully secured correct what's the strongest argument that it was the result of fraud or perjury or if you do then what are the material tribal issues the fact that remain did some pro withhold material information to the from the prosecutors when it was charging my client with trespass did they have facts in their possession at the time that would have led prosecutors to a different conclusion and one thing we have i think  what's the competing evidence that when the record shows that there's a factual dispute over what they knew they they deny the knowledge and we we have evidence that they did have the knowledge and that's the knowledge that this woman died or the knowledge that w what a couple of different things that they did that they had evidence in there in their body of knowledge that my client had presented them with evidence that they were that he was in possession legally through the agrarian reform act that was the first thing that they lied to the prosecutor saying that they had no evidence that of his possession of that property in any way shape or form that's inconsistent with the facts or just it's been testified to secondly we have offered evidence to an expert your allegation is that that is that the probable cause finding was secured by fraud but it sounds like that mexico important knew about the two thousand and one meeting that's been struggling with to that extent that's true the court did was presented with information that had information about my client's legal possession so what was withheld from the mexican court when it made the probable cause finding well we can move on to the the others issue which was we believe that the evidence shows that they had through their due diligence investigation reason to believe that this cas in your own had passed away in two thousand and four and that becomes an old t from the transaction you cannot transfer property through a power of attorney when the know what's the basis for that for that evidence for the markets from our expert's report that your expert says well if somebody is in a transaction of this nature they would conduct a more diligent search course of their due diligence they found out that fact if they did that what's the evidence that they get from the expert testimony the experts just money is just something that they should that but what's the evidence that they did well i think that evidence is not that in the course of the due diligence they would have found that information what would separate has attempted here is that they've refused to produce their due diligence files in the course of this litigation claiming that they were attorney client privilege documents we in response to the appeal that they did not find this out through the due diligence process their using the attorney client privilege assertion as a sword and shield they refused to give the documents up as to what in fact the due diligence did reveal but from so many declarations from witnesses claiming they didn't find this out drained due diligence investigation so that was not added adequately discovered and we would suggest that the only evidence on this record that's admissible evidence is from the experts saying that in ordinary course these public records would have been that they should have known in the ordinary in the ordinary course they would have known that's your position and they did not disclose to the mexican court for  to one another he was on both properties and therefore he was i was and there was at least one piece of this one part of this property which sheen was trying to access and which as to which the person who conveyed it wasn't death grip therefore it even if all this other stuff had come out at one have affected the probable cause in mexico except to the extent that they knew that he was legally in possession of this other then having gone to the meeting in two thousand and one that they were told that mr sanchez ritchie possessed the property both a and b that would be the gist of seven's but i also there's another compelling piece of evidence that thousand and six understanding that my client had possessory interest because the a grand reform act went to the courts in mexico to the agrarian department and sought an order and declaration that the interest in the property was superior to mr rich's property that documents dated two thousand and one now we presented to the district court evidence that that document from the appearing reform department that showed that cass in your own opinion were not granted title and were ordered that their property interests were not secured to my client those documents were found in sampras business files and fourteen correct but when you know when when when did they hire them well that's a question of fact for the jury to determine i would respectfully submit the only evidence on this record was and is that those  documents came from sampras files that we know that they conducted a due diligence investigation according their own testimony that these are public records they testified that they they reviewed the agrarian reform department files these were in those files and we know that there this document appeared in their files when they produced them in two thousand and fourteen what we don't know is when specifically that document came to existence there's been no denial by sempra so you want you want you say that just a quick should have drawn an inference that that document they knew about that document when they went to the when they went to the prosecutor yes i would say that that the facts  reasonable inference as that it was in in their file they knew about it that document they had possession of that document from the kind they went to the prosecutor and in from having admitted to performing a due diligence geisha and the other evidence is that they presented many documents from the court filings to the prosecutor's office during the lead up to the january two thousand and seven filing that what the prosecutor we had a unique opportunity to get the a g the attorney general from under oath to testify that had he been presented with this document along with the other documents that separate give them in furtherance of their prosecution papers this issue was not raised by separate in its motion for summary judgment and the most telling thing to support that statement is the judge's own statement to mr to separate when they approached the podium  said mr hill is right you didn't raise as i can't believe you didn't raise this issue in your motion and proceeded in of course in separate jumps the podium says of course we did which is not the case and i think fairly stated the court the district court drops into a footnote that gosh you know i gave mr hewitt two days notice because of his tentative ruling that this was going to be an issue and during those two days surely all the evidence supporting the claim that sempra controlled the entities down in mexico would have been presented and given that i asked for a short continuance of the hearing in order that we could supplement the record and respond to this what we believe to be a newly created dock or  argument and again i think consistent with what the court said she agreed that this was a newly raised issue on her part and the court just declined and frankly didn't address the issue of whether  extension of time we did present one piece of evidence that i thought was sufficient to get past a motion for summary judgment and that was the answer that sempra gave to us to our complaint and in paragraph eight of that answer in paragraph eight of the of the complaint with the charging allegations that separate controlled the entities and related projects done in mexico and in response to that allegation is deemed it mission for that reason alone without any further evidence we believe that we overcame the court's concern about the proper party haven't been named but i would like to return briefly to what i think is the most critical again just a point one more minute for this and then and then you've got to sit down ok i apologize but i do want to get to the what i think to be really the most important factor here in rebutting the presumption of probable cause and that is the compelling testimony from mr luna who was the attorney general midst of r o who was his assistant prosecutor in the in the testimony that he delivered he was first called into the lieutenant governor's office and representative sempra was also there and in that meeting the prosecutor felt that he was so heavily pressured that he felt compelled to these are the words that he was compelled to follow tenet's gov's order and he testified  he believed it was an order to file charges against sempra anybody else who testified or she testified that in the end they believe that there was a basis for the well i think that most people would perhaps testify accordingly but the question is whether there are any facts from which a jury could conclude that the investigation was in fact not independent that it was coerced that there was political pressure applied by sempron others to encourage the prosecutor to come to district court correctly found after five years of litigation that there were no genuine issues of material fact this to any of the elements but your honour's i believe correctly focused on the second element that there is a plaintiff appellant has to first i understand but but the point is that in fact they didn't have you can raise it they didn't really have an opportunity i think it was a no you get to it when i get but it is only of course one issue of the three elements but the point i would just like to make is it is an issue inherently when you sue the counsel counsel the question your time is ticking the question is it's and it was a new issue right i don't think it was a new issue because what's your strongest shot at that counts well there's two points quickly one is we moved for summary judgment on a malicious prosecution claim against energy if what appellant wants to do is say look at these acts by those should be attributed to the record site where you raised this issue the distinction between the two in your brief yeah i think we move i mean as the report pointed out the heading of our entire evidence and everything else that's ridiculous after five years of litigation oneness of it's a ridiculous argument but you know that argument of on i want to on a ridiculous art back to the probable cause element which i really do think is the heart of the claim i just want to quickly go through the undisputed facts that existed prior to the filing of that complaint that aca had purchased the property from the register titleholders that they done so in a notarized purchase agreement with the notarial reciting the chain of title from the federal government all the way to the registered title holders from whom they bought it that echo paid four and a half million dollars for that property and then after it was acquired they didn't know at that time that he had lived on the property that he had a property  nobody went out there and saw the house on the property no your honor in fact that the house is again it's in the in the record i believe we have cites in our in our brief the testimony was that nobody was even aware of the structure which was not designed to take on not going to  possession in favor of some right but let me just quickly go through the there is no dispute never disputed that he to pas did motorhome campers on the property after it was purchased that he came armed with a gun threaten the employees but not the whole time he talks about this two thousand and one meeting where he says he was he was asked why they want to sell it what about the rights let me let me turn to those given my time is limited once the complaint was filed that would be enough right if there was probable cause for the filing a complaint at that time you don't necessarily have to have an interim order it happens in this case we have one there was not just one but actually multiple but the one we focused on that appellant has never addressed the court below is the february two thousand and seven evidentiary hearing that your honor if we're asking about a six day evidentiary hearing i think your honour's correctly noted that any of these claims that i've lived there that i had a house there could have been presented and in fact were presented that's the record he presented all of this to the court the court found ok you've got a sale by the register titleholders and the court concluded as we point out the brief that's not enough you're essentially claiming right he did have an opportunity to produce evidence about it but he says and i guess this is what i wanted to find out about that he ca's position was essentially that it didn't happen  or they don't know anything about this as with a number of things i'm not sure what the record site is for that i don't know that represented that they did know what i was talking about certainly the meeting i believe is disputed but whether or not there was a meeting in two thousand and one with a land expert who with working with sempra is irrelevant if the facts of that meeting were presented to the court and well when you presented the facts of the meeting but if  eco had said he's lying there was no such meeting and the court chose to believe eka then what that the fraud if they were lying and they knew it wasn't true well  those knowledge i don't think is the issue there the issue is who has the right obsession with the council and i don't understand this at all i don't understand your position this was irrelevant it seems really relevant but i'm sorry that what was it really if he takes the position that in two thousand and one he was offered aca which is of course the subsidiary presented at that hearing evidence regarding whether the meeting occurred ok but my understanding of the proceeding as reflected in the record is that what was being presented were evidence w evidence of possession lawful or not not whether or not aca had at some point been told about the claim but whether or not the appellant in fact had a legitimate claim to possession of the property the court reviewed that evidence and concluded what you've given me somebody brought something without probable cause the existence of an interim order that heard those facts and made the same determination would be determined which is why we're asking whether the court heard the facts which i believe it is and there were there was a fellow at the meeting facts were known to the court to the extent of facts of ownership facts of possession what he is saying that aca failed to disclose was disclosed so whether or not itself provided this information to the court and in fact possessed it at any time we just did it got to the court and so the question with then be with the ultimate probable cause or on top of the court was his position that in two thousand and one he includes thirty six witness other witnesses until at least two thousand and eight well after the sale well after the interim hearing he says well they should have that's obviously not the standard for malicious prosecution which is fraudulent activity the other point resolve that factual dispute right i mean that if that seems i mean it seems to be strikes me as reasonable that given in mexico given the size of this transaction is quite substantial that if you put do a very thorough careful due diligence  would you would think that would get you back to the the alleged titleholder owner of the property well that's the point there is a record here that the title owner it registered in the public records is the person sempra bought it from and what we're talking about reasonable inferences the entire frame of the case is a very unreasonable inference that sempra by a number of properties in this area is approached by someone who says i rightfully on this one i'm interested in selling and inexplicably says no thank you we're going to go buy it from someone we believe doesn't have lawful title we're going to spend four and a half million dollars and just invite presumably a lot of litigation that is not a reasonable inference the reasonable inference is that in buying the property from the register titleholder sempra thought it was buying from the right person there's no evidence in this record this is not the person who holds on to their house at the developer builds the site skyscraper and resists and there's some sort of ploy to sell it out from under them this is a what the conversion cause of action as to personal property has to do with either any local action notion or any litigation notion well let me take them and so first of all let me just quickly say as my time's running out there are of course multiple grounds we believe on which the court could reliance on that i e taking their property and knocking it over and and so on i don't see how they could possibly be a nor pennington problem it's not about speech and i also i'm somewhat  pursuant to a court order possession is not self help those are enforcement efforts so although there are allegations in the complaint of physical assault and so forth there by allegedly against people who aren't plaintiffs the daughter and his family her family they aren't the basis of any claim and he's not seeking damages they're just in there what is the basis of the claim is the removal of appellant and the taking of possession of the property pursuant to an order of possession that's the reza just a of the case here it begins with an order possession in favor of and it ends in two thousand and ten with an order of possession in favor of appellant the actions in between pursuant to that order which includes taking actions on one property like bulldozing a structure that's left behind just like the landlord involves selling the belongings we think are within the litigation probably just before he said you know just going back to malicious prosecution which response to the testimony of the attorney general in his  response is a it's only relevant to a point the district didn't even reach which is independent judgment although we raised at the independent judgment rule but the testimony taken there simply statements their one sided testimony was that apparently a politician allegedly according to the testimony pressured them but it didn't have any effect because both testified as i believe your honor pointed out that they made an independent determination and that determination that this evidence presented to them of his purported ownership didn't hold up it wasn't enough to support his claim and therefore his and free was a trespasser same conclusion the court then reached and so it to to the extent we're even considered it's supportive of our point which is that there were interim orders there were interim decisions by mexican authorities and there is no way in that context that the decision to file a criminal complaint on the undisputed facts falls below the very ok so we talked about the local action rule and it strands atory nature of the cause of action unrelated to the trespass and i think the court should focus its attention if it's necessary on the video and kingsborough cases  order allowing for the enforcement of anything what we had here was an allegation that my client should be arrested for criminal trespass that's the only order that we had we had an award or that  his property or that he should i'm sorry he should not have his property destroyed or that he should be you know kept off his property he just it was just an order saying that there was probable cause to you said there was no intention of possession and there never was one no there never was one there was never an order that said separate go forth and possess it was an order saying that mr sanchez richie should was that it was his property correct that the prosecution wasn't directly about the property it was about him coming in with a gun and all that stuff well the quibble was that he was not guilty of the crime of which is the action of violently i think is a phrase that's been used violently coming onto the property of another i mentioned it's no crime to violently come onto the property that you won't separate was was refused to give up possession voluntarily even though they continued to lose the rulings of the courts and finally in may of two thousand and ten there was an order saying get off the property will come in and take you off the property and my client has think is over the question of title is what is continues to you know that little thing it's not over  thank you interesting case counsel matter submitted