and while it does support his position they stated in that case quote we liberally treated an attempt to raise the defense as if it were a motion for leave to file a supplemental answer that offends  gist of the requirement is of course that we don't ambush or you know it's to give notice to the appellate well i think in this case that's been the whole ballgame so to speak the complaint where i was in the lower the time of the complaint that's it's based completely on as creditors often do well the lower court the found this and please rubber stamp it and it's completely right and they can say race to the cot of course because it's discharge abilities not an issue in state court so it's collateral it's always comes up as collateral saw over creditors always say well that's that's the whole ball game we win and that's what seemed to be well the standards are different there's a higher standard i think in this court's order was sent back at that time i tried to bring it up in front of a judge bauer and i mentioned it and that court both the judge at the last one we're now in front of your honors about is both the trial court and apparently he used a race still kept using the lower court judgement judge fowler said well i'm not going to revisit the amount about the amount that's been decided by the trial court and i don't think the appellee they just went with that i don't think they put in actually put in evidence of damages safe they had the number and i don't think they put in billions or even set it so hopefully this court will consider my collateral estoppel argument and i have another sort of back of argument where find out i know we did the trial judge really they you say explicitly found that this was a jury trial not a bench trial korat to read and so the trial judge is dealing with a forum that is populated  findings and had the findings by the jury in the judge explicitly said he didn't say well because the jury didn't election for contract and we can't give you the under contract the judge in saying that judge said there's the evidence for port and although of course this is the judge talking about a ruling on a few native right of the judge say it's quote plate of must prove compensatory tort damages to support there's another place and i remember sort of where they actually said there was no evidence that was a judge i'm afraid could find it the others hopefully this court doesn't believe hopefully they'll say i waive that argument because i did try and bring it up in the underlying court but there's another way this argument i think and it's not an affirmative defense it's a failure of proof by pelly in that in front of judge  on invoices things like that i don't think he even said in amman he was going with that ruling well if he's using it for one of his essential elements he was still doing a fine of the state court and that you import the number elements of which item four on the conversion was was samuel farrow for harm to which they answer yes a conversion so there is harm which seems to be the element which you might put as for damages but that's later addressed to questions down what are samuel fair as damages total damages zero so you  saying you must take zero damages and therefore you win because it is zero damages but how do you reconcile that they were harmed and there is no damages well every time a plaintiff wins in a civil case they get somebody guy preaches contract you're harmed maybe that's their thinking but that we're getting in but no they answered the question of harm as to conversion specifically was there can harm on conversion and the answer was yes that well they were yes and that and secondly the judge while he did find conversion were if you get to what you're going to talk about people are thinking what he explicitly found was you didn't he says if you didn't prove tort damages issues where collateral is stopped coded from being raised again because they were decided by the jury and many of those are all the elements of conversion which might be  which would be a tort and could be a nonstarter will toward were proven except the issue of damages and on the issue of damages we didn't have a decision we had a zero which is sort of ambiguous because a counsel indicated or as my colleagues have indicated the judge found the party who was asserting conversion was the prevailing party there it there is a very good argument that work that the damages that was just an election remedies something that the jury done as opposed to as opposed that signing it was a zero damage thing but it wouldn't be appropriate thing for the jerk judge to do under those circumstances to say as to that issue that one issue that i want to show damages we're not going to do issue preclusion we're going to have to prove those damages at trial because it's invoices to prove it so i wouldn't say it was inferred you know we had testimony from the witness and even how much money was taken and that was the only evidence on damages that was presented and if you're just relied on that know and as we've already discussed mr farrell was identified as revealing party in the amended judging on the conversion claims as well as the jury instructions identified the harm that he did suffer as a result of the conduct  then of course i like the issue that judge curds brought up in the st question and i thought you might and i mean isn't that your better argument that you need to be a better argument is not to teach the judge issue book losing it might be a failure of proof and that if you're going to rely for your one of your elements some of the state court and you import the judges finding about the number maybe you've imported the judges finding about  that it was not a tort damages was no evidence i don't think you can divide and sell keep the part i like and just to respond to counsel i think failure proof is always in front of the court and we did mention it as an issue i did do some argument on the facts but i mean we're not saying that if we had no other issue we win and substantial evidence i think with the facts show it could have been a contract or or a tort in that everything my client did he was he was allowed to write cash checks he was allowed to move things downtown it wasn't like he took the whole stuff and put it in his warehouse and sold it on e bay so but the point is fact the court always has to we did mention is an issue the court always has to determine whether they've made all their elements in the underlying case i think the fact of the playing field we always argued about is this whole  politically and you how you will use the secord judgment because that's we've done that i think there's some judicial stoppel that they really relied on the state court at st and now they're kind of consequent not to trying to repeal you got forty eight seconds give me your best argument that that contract damages were not the same as a tort damages is there any reason to believe that yes because well kind of what i said there's while substantial evidence supports the really except if they come back contract there is substantial evidence that in the jury could have heard that the client my client was allowed when he was in the other partner was in syria he was allowed to get cashews he was allowed to sign checks you love to use bank accounts he was allowed to move the stuff too from the warehouse wholesale to the downtown retail one and even the deal about opening a business or you opened your own business they advertise that business jointly owned their own  website and lastly they did they were so not going to care about damage they never said the amount he said oh i just saw him i know what my stuff is i thought he said half of it's there well half was another store so it doesn't even sound like the stuff went out of the purview let's say of the business is they were running so good tree could very well of thought this guy's breached promises he didn't do it he said but he didn't outright steal it there's at least enough of an argument there that yours could think that they were given the choice and they picked contract i don't know of one last thing they the maybe it doesn't help or harm but appellee was also given somehow given a choice i thought they were given a choice and they picked contract to it of course and maybe my client wouldn't