honor the supreme court teaches that there are some principles of federalism that are more important than federal jurisdiction including bankruptcy jurisdiction and this case illustrates why in this case what we've had is a district court jurisdiction then an appeal can be taken to this court regardless of what it did your honor i think one of the problems that we have and why i can't answer that question yes or no exactly except to say that this marshall has not demonstrated that there will in fact the any tangible effect on her bankruptcy state in this case from the outcome of this case but the claims made were in the nature of issues that could be dealt with in court and she was in a bankruptcy status at least at some point in time subsequent to the death of the tester that's correct your honor but our submission is that the probate exception precludes bankruptcy jurisdiction as the court should have done was to recognize it did not have jurisdiction and wait until the probate court who did have jurisdiction completely resolved all the issues such as the litany of the living trust the entitlements of all the various parties and if in fact she was entitle to something out of the concluded that the bankruptcy court did not have jurisdiction to issue a final order resolving her probate issue climes so rather from your point of view if we were to accept your argument it's magic which say no jurisdiction in to worry about the federal court we're going to decide is to correct that if we decide that you are correct that the probate exception to bankruptcy court jurisdiction precludes bankruptcy court your stiction longstanding canon of federal doctrine that preserves federalism the sensually and that is a when congress enacts legislation any statutory legislation and presumably an accident with a domestic relations exception in the background and the supreme court and i can grant a relatively recent decision reaffirm the validity of the domestic relations exception and the supreme court has repeatedly reaffirmed for over a century the existence of the probate exception and apply to specifically in bankruptcy in the harris case trying to nonsmoking sign is something of a smorgasbord approach but in this case you don't i think it's fully warranted now there's a point i think that's very important why the probate courts determination of its exclusive jurisdiction is relevant to the probate exception because under the dirty versus supreme court think your honor that in this case what we need to focus on is the type of claim in the issues that are at stake here and and that is that is why the probate exception applies a probate exception applies to protect three different kinds of things one the probate courts exclusive which of the five elements in pete the probate process in order to prove her claim she must demonstrate one or two key critical elements one supposedly that j howard intended to give her a gift claim against the deceit and once the probate court determined that j howard intended validly to leave all of his property to one person it precluded by operation of law under texas law was like the cases in our brief were brought but also any cause of action that could have been brought regarding the deceased intentions and the texas supreme court has held for example that at the tax liability is subject to the exclusive jurisdiction of the probate court even though it has court why because all of those are causes of action which could be brought in the probate court tell me if i have this logic right money then although there might be a tort claim against the son there would also be a claim against the state for underwent fluence that would invalidate the  answer is because in probate we need to finally resolve all claims regarding the dissidents intent we can't have a situation in which twelve people are challenging the students attend in terms in a probate court and then have assessed centralized situation where that's all going to be resolved but one person can opt out and in the guise of a tort claim raise exactly the same issues in federal court only by the i think you could because the money comes from a different p expressly held the j howard did not intend and did not give to vicky a gift or bequest either prior to or upon his death a specific finding by the probate court but there was no intent t probate court also found in section paragraph three point three point one that vicki was required was expressly required to bring any claim of unfulfilled gift in the probate court hit paragraph three point one and expressed we concluded its jurisdiction saying it had exclusive jurisdiction over any such claim now the reason why again court has exclusive jurisdiction with or an appeal taken from that room there is an appeal taken and that is exactly the same situation in the underwriters national case the supreme court said there's still an opportunity to appeal that but the challenge to exclusive jurisdiction lies in the state appellate courts not in the federal courts in the meantime under the texas supreme court decision square lock the probate courts judgement is final because it's final under harper under underwriters national   is binding fully on federal courts because the probate court had exclusive jurisdiction the probate exception applies and this case must be dismissed i'm curious as to any analogy in the appropriate exception to admiralty law where what's critical is that the location of the race no your honor it's broader than that because in order to maintain the integrity of the probate system the certainty and the finality of the outcome and the in ram affects of quieting jurisdiction to resolve them and does so finally even under texas law questions of divorce because the texas proceeding is comprehensive we have the special texas rule that once the probate court use the word expectancy which you give me your definition of that word as used in the briefs my view of it is a simply a claim unfulfilled gift that the deceit allegedly not a contractual promise is that right your honor the argument your honor is that no texas court has ever recognized this cause of action tortious interference with expectancy of a gift and that before again any federal court should even entertain such a cause of action that should be a question is properly certified to the texas supreme court w texas probate judgment in effect just decided the issue was presented before the bankruptcy court of law for the district court in view of the fact that the bankruptcy court was told repeatedly that that was not what was being tried in the probate court what do i care what they were called when i read the texas judgment i mean i'm looking at these paragraphs here and it looks like texas just decided that the trusts did not with the courts by representing and one court such and such getting an advantage from it receiving in a caning the advantage and then making a claim inconsistent with the advantage its already obtained  those representations had not been made and of course the met representations were made repeatedly to the bankruptcy court and the bankruptcy court repeatedly was told we are withdrawing any question with respect to the debt or we are not going to proceed with anything with respect to the debtor in the probate court and that nevertheless we have this judgement the results now all of that aside and that the wife had no idea that the sun was going ahead in texas with attempting to establish that there was no one there were influence and she had no expectancy of a gift oh she knew but what she knew i was that the action that was proceeding in texas was an interim action against the marshall two did not intend to give to vickie lynn marshall a gift a request from the estate or from the woman crossed i am saying that that's that issue with respect to the question as to whether an intervi talking about in this case was intended to be a she did not believe that that was mean that that was being or should be sought be that the texas court did not have jurisdiction to decide that issue there once she withdrew it and voluntarily not answer to that issue to doubt it i don't ordinarily there i don't and i don't understand what you're saying about what it doesn't address because it says quote it is further ordered to judge from the creed by the court that j howard marshall two did around that is the question that is presented to a probate court it is not the question that was presented to the order to decide that they didn't decide only that she can't get anything from the estate at the tru but also that he had no intent to give a tour that he had no intent to give or anything from the estate or a living christ by its nature that means the deed and living trust do not their nature become significant to the probate court will still be in the bankruptcy he didn't tend to give her money from the living for i don't know now that is not correct the bankruptcy where the money was not necessarily this man was alive she was in fact that we know that there was money going in and out of the living have because there were thousands and thousands of shares of stock in coke that were transferred out of the living trust and sold for tens of millions of dollars at various points in time that that wasn't static inspect the reason he wanted to give the gift of the nature that he wanted to give to his wife was that he thought that he was bringing more value to his assets and it was that term gift you're including the element of to my question was there evidence that or was there merely a failure to comply with discovery orders the evidence was the failure to comply with discovery or just notwithstanding the numerous court found as a matter of fact that it either was or destroyed it was not produced either in the district court as well despite the fact that there was a four hundred boxes of documents that were produced somehow this one was missing as well gift or not to make a gift couldn't think it's fact and we don't know what happened in fact what we know is that the both the bankruptcy court and the district court found that there was an intent to give the gift property delivered as in the case of the six million dollars and the houses and the cars and the jewelry and all that stuff i have no problem with that that's not coming back into the estate nobody is claiming it is she has that it was hers and the guests were completed but i can't find  with the gift being prepared and being delivered that was the factual finding that was made here i keep having trouble pulling this out and and distinguishing it from what the probate court necessarily that the theory of the tort is basically you poisoned your father's mind so that he didn't give me his wife more money otherwise he would have given me more money while he was alive and the probate court but the probate court found was what the jury in the probate court found was that the living trust was valid and that the will were valid and that neither of those instruments were the result of improper influence there was the jury was overwhelming evidence and absolutely none of those documents were proffered to the jury nor did the jury make any finding with respect to those documents in fact let's get back to the property you're talking he took money out of the trust all the time and he could have intended to give the get out of this pocket money he withdrew from the trust but for the fact you poisoned his mind against me but when i read the way the texas finding is worded it's not just directed to the property that is that remains in it for us it's also property from the trust if i'm reading it right now if i'm not educated now that's correct it's property from the trust but changes it was alive he was an elderly man but he was a very very alive man he intended to and he did in fact  everything with pocket money in the in the living trust to make the estate planning simpler and then the living elderly person just takes it out as they want to and yes why that's why i directed your attention to what i thought was the word wrong because it seems like the money would come from the trust my husband intended to withdraw five hundred million dollars from the trust and give it to me and he would have if you hadn't poisoned his mind i thought that was the theory that is not necessarily the theory in fact all we know is that there was an intention to make this gift we do not know where it necessarily would have come from that's the flaw in their argument jane howard was alive member of the board of coke he in fact enhanced the value of coke by working on this pipeline deal which was in fact what motivated him to want to help her share in what he brought to the  community while he was alive and while she was alive that was the motivation behind this the problem with their theory is that when you are alive you do not have a final a state or a final living trust in fact posed for example that she was not dead but that all these assets had in fact been sold to piers as indeed they were sure before he died certainly he could have brought an action against pierce or interference with a guest in fact that would have been her are very bright people have from the beginning attempted to put together a scheme that will on later of examination appear to have some basis in reasonableness for that reason it is terribly terribly important that every single transaction that went on here every argument made in this case and bolo be fly specked beyond what normally would be done the fact of the matter is there was and this is in fact the basis for the arguments being made there was a man who intended and stated numerous times that he wanted his wife to be supported if you want you wanted her to be supported beyond his death and she certainly had support in terms of about six million dollars worth during the marriage they were they were gifts that were given to her during the marriage cost of living and he knew that but what he did not know is what was being done in terms of the assets that he had they were being transferred to him during the last months of his life and we suppose that i mean well here's what we know we know that parties but it seems to me that as for knowing that he intended to give the wife a whole lot more we don't know that and it's not consistent with these things that we do know he rejected me bring up children and he rejected it was and that's the trust that we can't find and that we don't see it certainly would be shocking fact that he ever signed that no we do not know that i thought that is correct though for all we know it's his lawyers signing it or not well there was plenty of evidence that in fact his eyesight was such that he couldn't see the fine print in that i imagine if you're that were if you can get somebody to read it out loud to well piers read everything to him that was the problem  t in fact an individual does not determine that a gift was interfered with until after the death of someone and after the probate of their estate are they foreclosed forever with respect to their estate upon their get that forecloses anyone from ever claiming that in fact there was interference with the gift if it isn't does not logically follow and that is the reason why there's interference with advantage of contract law relations but just don't get the same level of protection because of the freedom of the don't order to change its mind and then the difficulties improve i understand california is more liberal on this is there any reason to think that texas would be like california yes your honor there is the king vs acar case in which the court recognised the interference with support the district court's decision and we don't so we can go to only so we don't have to we can ignore that we were three s a panel to look at that texas law and to decide what we think the texas supreme court w the preclusion what you have to say is this has nothing to do with probate this is just like when mom's to those that she's going to give her daughter in law them her daughter talks her into not giving her daughter in law her diamond brooch everybody still alive the daughter in law can sue the daughter that that would be an analogy if in fact there was not all the other the daughter in law took all the assets of mine so that mom couldn't give the gift even if she wanted to if she took the brooch mom didn't have the brooch anymore that's this case that's what happened here one important point that i wish to make and that is the question was asked if you decide that there is no such court in texas is that the end of the case i should point out that there were causes of action here that were alleged that were before the bankruptcy court that the bankruptcy court in fact did not the key issues by virtue of the discovery abuse against the abuser and another court says although i can determine what happened here even if i didn't tell him what happened  i would look on the discovery of use here and might very well conclude that that alone was the basis for doing what was done you know it's the prizes mean a fact we haven't talked about this woman if she was right was wor five hundred million dollars and she declared bankruptcy how does that work that's the only way we can here's through bankruptcy a vehicle she had a small judgment against her relatively speaking and that that do you think you cited all the cases that are available in the ninth circuit with respect to this question i certainly hope we have your honor but i have a feeling you're going to tell me that we haven't and i think there's another one out there there's  thank you counsel a lot i am showing that in fact we did cite the single case on pages twenty four and thirty two of our apple is great thank you your hon briefly your honor john howard kept all of his assets in the living trust there was no other source for the funding of any alleged gift to vicki it had to come from somewhere it didn't come from there there was no other place distinguishable from this case and that situation there was a written signed prior will which the probate court considered and determine that that was the valid instrument here there's no evidence of a gift there is no signed document the only testimony in the record that a catch all is that a catch all trust was never prepared the only evidence in the record is that the catch all trust never existed the reference to a the only evidence in the record is that the word trust in the billing record related to a potential voting frost that was thought of to be had to protect vicki and to control the corporation there's no evidence  has anything to do with a catchall trust but apart from all of that there is absolutely no evidence no testimony no document no nothing that pierce ever saw a catchall trust ever suppressed a cultural trust ever tore up a cultural trust line of credit the living trust did not have any coke stock in it the living trust only had m p i stock in it and there were exchanges back and forth out of the living trust for state planning purposes but people were exchanged for other valuable assets at the time of j howard steph they were assets worth many millions of dollars in the living trust i also like to address the point jurisdiction period unless the former debtor can demonstrate that the outcome of the litigation will have some effect on her a state that's the in re fights case which we cite in our briefs we wrote in our briefs that vicki has not what diversity jurisdiction support this i believe that's a claim for more than seventy five thousand dollars correct your honor i believe though i believe though that at the time the litigation was commenced that both parties were residents of texas outstanding causes of action alleged that are possibly the subject of some sort of revision i don't like to point out that on the discharge of keel it's documented in the record it is on the record ok i'd also like to point out th afterwards and this court held that well you know the fact that there was a relationship that straddled the discharge and the fact that there were some of that's in the history or are there are some facts that were in before the discharge occurred there was a sufficient number of facts to support an independent claim after the discharge accordingly the discharge is not part and there's a very practical reason why that should apply here it can't be the case the debtor can get a discharge in bankruptcy and then do whatever i after the discharge behave in any way that it wants to you know could we are not give rise to sanctions or not in a court proceeding and then claim oh no even though all the conduct and all the evidence of the claim and the cause of action accrued after my discharge