absolutely that the key issue here is race judicata and the stakes are pretty high since what we're asking is did the plaintiff forfeit a three point eight million dollar contract claim against these two individual defendants  where according to the district court at least all of the defenses have apparently been over cop so it comes down to the race judicata and we can break it down in two respects first was the issue of the defendant's personal liability actually litigated in the prior vermont proceeding and the second question would be assuming it wasn't shouted of back so the first part of that i think is pretty straightforward the key pleading as you know is the supplemental complaint that was filed  part of this foreclosure case in vermont the foreclosure proceeding itself was not against these two individuals was gets the entity they control snow dance i'll say so we the this comes down to count one of the supplemental complaint the breach  contract cleaner named as defendants the right partner they were named as defending the supplemental complaint they were added in and count one which is the breach of contract claim we think makes pretty straightforward distinction there's a paragraph after twenty four says snow dance is in breach of the and it always the underlying debt then paragraph twenty five says guarantors which includes these two defendants are him preach of their pledge agreements which say simply that you pledge your membership interest in the company as security for the underlying debt so paragraph twenty five doesn't say they are in breach of the forbearance agreed it doesn't say all the underlying debt it says they're in breach of their pledge agreements and fact the very first paragraph of  supplemental complaint paragraph one says this is an action of foreclose upon the membership interests so our construction is count one for breach of contract says that mr or mrs pla steiner have breached the pledge agreements they need to turn over their favor there jointly and severally live and count one the breach of contract claim did not seek to sue them under that joint several liability it's solely it's a question of vermont law as to whether or when you have that essentially have to bring every claim you can against now on doors well i think there's a question of vermont law as to whether you have to bring your deficiency judgment claim the same action which is what we look at if we get into count three of the supplemental complaint i think that there is no suggestion that's been made here that under vermont rules of you know compulsory joined or that there's a rule that says you have to bring it and i think the important fact is this supplemental complaint is not a standalone action where we look at well you sued these people now are you going to bring every related claim you've got should you do it here on good conscience it's part of a much larger foreclosure proceeding and so if we say you have to bring all claims you've got against these two people whose membership interest you're trying to foreclose on you have to bring everything including the breach of contract claim it's going to have implications beyond this case because a foreclosure plaintiff can i just ask you  you say the pledge agreement is limited doesn't provide for the guarantees of the underlying debt that seems to be your argument right so that this was limited in the count one to just that part of their responsibility but in paragraph nineteen says anything each guarantor guaranteed the underlying debt of snow dance so how does that not to include their own personal liability for the debt not just the the other provisions of the pledge agreement well it does recites the terms are correct but in the actual charging allegations count one the breach of contract claim it doesn't say we're seeking to enforce that joint and several liability against the individuals the guarantors are in breach of their pledge agreements how how could that not be construed that their personal liability the plotly pledge agreements lying dead right the pledge agreement say they pledge their membership interest to security for breach of their pledge agreements right there that's not to be clear that's not a quote in paragraph nineteen that's that's a characterization and what it's intended to convey is that it's a quote the words right it's describing what the pledge agreements do and the pledge agreements guarantee the underlying debt to the extent of the membership interest if we didn't have an amended forbearance agreement of all we had was the pledge agreements which say here i pledge my membership interest and we tried to hold up that agreement and say you  the underlying deafer so into that agreement you won't find anything in that agreement that says so and we don't contend there were so there's no claim in count one we suggest with regard to the underlying debt owed by them so when we talk about whether the fall claim should have been brought against the individuals as part of count one we're talking about whether a foreclosure plaintiff who necessarily needs the ability to bring in new parties for specific limited purposes like foreclosing on one particular asset an interest in one particular piece of property we would take away that option from from foreclosure plaintiffs everywhere if we say well to bring in a party to foreclose on one piece of property you've got to bring every related claim you have against that party or lose  forever we're talking about a case here that was originally filed in two thousand and seven it was taken over by enough w two thousand and nine to two thousand and ten it didn't result the foreclosure judgment two thousand and thirteen frankly this was not a case that needed to be made more complicated by anyone to to have a separate trial on this issue of personal liability which is an issue at took us you know a whole case to litigate here i think with was not required and to impose that requirement on every foreclosure plaintiff i think would make a mess of foreclosure proceedings that are already complex and there isn't a relatively simple answer to this under vermont law you want to foreclose you want to bring a foreclosure action in order to  get rid of the interest or word to have confirmed since it's a title state your title in the in the subject property do it and stop there don't do that don't look for a deficiency judgment don't add in guarantors just get your foreclosure judgment confirm that and then do whatever else you want in a separate action well i when you're not going to be a stop not stop you're not going to have raised  you that your foreclosure action against the company the owner of the property whose title you now want bars you from doing anything else you want to do against the guarantor and well i would agree but also under vermont law we have the little far decision from the vermont supreme court which says that the foreclosure action and deficiency judgment action are distinct for res judicata purposes and the deficiency judgment claim doesn't become ripe sale happens what happened with the stipulation is has it was a judicial sale that you saw and it was a single piece of property was sold for one hundred dollars but we still had the entire ski resort to be liquidated to foreclosure sale which was another as it turns out a million and a half but you certainly could have taken a deficiency judgment back in two thousand and eleven based on the sale of the one hundred dollars of the membership interest you still had the entire resort as i see my time is up so i thank the court for its time tall and you have not reserved in finding that quote race judicata does bar this lawsuit because the supplemental complaint actually brought and in any event certainly could and should have contemporaneous contemporaneously been brought brought claims against the prostate enters for breach of the a the district court applied the correct legal standards to the facts the district court's decision should be deferment now my opponent makes a myriad of arguments as to why race you to kata shouldn't apply but none are i want to address the point he made just now and that is that the supplemental complaint only sued the plus sign as for breach of the pledge agreement and not for breach of the f a a let's first point out one very simple thing jurisdiction over them and as well it sought a deficiency action so far doesn't apply the castelo case and the son mark a supplies that when a foreclosure and a breach of contract action are brought in one action and that is no and please set me straight that he is trying to tease out a distinction between essentially a foreclosure or whatever interest they had supported the guarantee and when i see breach of amendment number one obviously pleading to hear that they weren't seeking money from them or deficiency from them when they could do that i would love to address that please do and that's why i sort of let's start with with the facts here count one brought in a claim for breach of the f a a and name the defendants the ploughs steiner's the remedy they saw was compensatory damages and in fact they did not distinguish between the defendants in the analysis of whether the defendants were in breach of their obligations that's in the relief section of the complaint number two let's look at what m believed it was doing following the supplemental complaint it brought a summary judgment motion and it sought to sue the ploughs centers as debtors which is what is that issue here as debtors because they were guarantors who were quote jointly and severally liable for the entire debt arising out of the f a and you'll find the set appendix for seventy four seventy one and says this is the summary judgment most summary judgment motion seeks the relief you just identify  your honor and this is exactly what what m f w seeking quote amendment number one makes clear that snow dance l l c the plough steiner's and the other entities are jointly and severally liable the first paragraph defines all of the individuals and entities together as quote the debtor by failing to make the eight hundred fifty thousand dollars payment by october first two thousand and nine as amendment one requires deaders became liable not only for that amount but for the entire outstanding debt see amendment number one section five and that's it for seventy four seventy one so to the point where my opponent says that they weren't brought based on the same transaction or currents under the vermont occurrence transaction test in the faulkner case m f to you is required to quote address in one lawsuit all injuries from all or any part of the transaction or series of connected transaction out of which the connection the complaint wrote arose now the supplemental complaint itself makes clear that the pledge agreements were part and parcel of the f a a and this is what it says at one eighteen of the appendix wote in connection with amendment number one to the forbearance agreement the guarantors defined as the plough steiner's each executed a pledge agreement in favor of m f w of their respective equity interests in snow dance l l c each in each pledge agreement each guarantor guaranteed the underlying debt so it is very clear that under the transaction occurrence test the pledge agreements and the and the f a a come were part and parcel of the same thing now could or should even if they didn't if we we assume his argument to be true that they didn't sue the plows and is under the f a a which is contradictory in the plain language of the document but even if they didn't could they or should they have sued the plough signers well of course they could have should have and how do we know because we're here today doing the very same thing so if they could have done it today they can do it today they could have done it back then but we have to take m s w at its own word when they say to judge cohen of  supreme superior court that we are seeking liability under the under the f a a for the past honors i think that we should take them at their word big problem with liquidating piecemeal the assets especially the most valuable asset of the ski area which was the chairlift it was over a million dollars and if you took away the main cheerless the quad you wouldn't have a denuded ski area so they objected to and there it is and they objected vociferously to it and at the end of the day they gave up their rights to object to this piecemeal equivocation of the ski area assets in return for which you dismissed the supplemental complaint in its entirety that was a big deal because at the end of the day there wasn't going to be a lot of value to that ski area and the unsecured creditors were going to be left escrow funds for the ski lift they ended up with that and as well the land under which the ski area was built so they ended up with basically all the real property and the escrow funds from the sale of the ski lift is that lived through in the joints yes but it was the the most valuable asset of ski area and they were on track to complete the foreclosure which gave them the underlying problem that's correct the foreclosure proceeding was a part and separate from the supplemental complaint and and i would like to just briefly to address that the fact that the foreclosure action was allowed to continue after the supplemental complaint was dismissed was simply because a floor foreclosure action was brought on the note and the mortgage being in default from back in two thousand and five that was when the those instruments were were drafted this is a little bit like a bankruptcy procedure a bankruptcy proceeding goes on despite the fact that the adversary proceedings might have been adjudicated or dismissed and that is why the foreclosure action was allowed to continue and proceed absent any reference to the supplemental complaint and in fact just so we're clear the plus owners weren't clear decision from the vermont court dated november one of two thousand and thirteen where the court clearly sets forth its view of what the consideration was in that joint stipulation and it characterize it as as snow dance realty dropped its objections to the sale of th ski lift in exchange for first priority to the sale proceeds which otherwise it wouldn't have gotten is a contractual matter that a first priority on the one point five million so that was in the court's view the bargain for exchange that happened thank you