determinations to which i suggest as the reasons why the bankruptcy court and just record committed prejudicial where and granting summary judgment in this case exception no generated page twenty seven these are the jury instructions in the underline the park h you ask and judge my basic contention here is that the paragraph first lists these so called intentional representations there are several of them four or five of them but then paragraph two three four five and six which give the other elements of the frog in missouri are phrased in one or more in one or more terminology and that's the mischief of this instruction for purposes of the collateral estoppel bankruptcy wrote i have the substance of the instruction in front of me and it says that you made some statements with the intent that folks rely upon them that's paragraph one right yes and that element two is that one of those was false this is what the jury would have to find in order to return a verdict favorable to the other side yes but if you notice and let me go on that you drew the representation was false yes that the representation was material to these folks investment that they relied upon your representation and as a direct result they were damaged yes why doesn't that fit the rocker's ability it doesn't fit for this reason and representation but they could maybe they stayed no he didn't make b c or d or e in paragraph or now if you look second paragraph of this verdict record you'll see any one or more of the representations submitted in then i knew one or more that they were false well maybe i knew that my client's representation in the contract was  asked specifically to say this statement was false the statement was made and it was felt that he has to exactly right and that's the mistress of this instruction is that a high if the jury believes represented her the opening group you know the modified instruction would have been given i would not have an argument that collateral estoppel should not have been applied because the jury instruction was ambiguous or get necessarily decide one can firmly say that it certainly is ambiguous under the instruction as given whether or not i mean it's a false representation my argument on this point because i benefit that governor is responsible in this chargeable for the whole boatload in this case it's undisputed i didn't get a nickel benefit from my client our money from instructions allowed allowed the court to find that my letter to find that there was that you know that it was not unambiguously decided that maybe he made statement and then later on they were using statement b and later on they were using statement c and a certain court of appeals squarely rejected that and that's on the record at pages ten thirteen and ten twenty six he's already had an opportunity to make this argument it's already been decided against him the eighth circuit found that the jury instructions complied with missouri law the essential elements of fraud under missouri law are a representation it's falsity it's materiality the speaker's knowledge of the falsity is hers ignorance of the truth the speaker's intent that his representation should be acted upon by the here in the manner reasonably contemplated that here is ignorance of the falsity of the representation here is reliance on the truth of the representation that here is right to rely there on and here is consequent and proximately caused injury nowhere in those in that statement is there any ambiguity about a statement a statement be a statement see or anything like that and the court found that the jury instructions complied with with those standards furthermore the jury instructions track missouri improved instruction twenty three zero five missouri therefore he cannot just charge any debts that arise from that fraud he doesn't know then no that is incorrect he was paid some attorney's fees the district court did not that i don't have a cite for you i'm sorry and it's and it's  a opinion but he didn't receive all of his attorney's fees i think they might have stiffed him on some of them but he did receive attorneys for his representation of concepts communication and the third third case i would cite is the case of in replacements which may be found at two nineteen f thirty three seventy two and that's from the fourth circuit and the clip pleasants examines the receipt of benefits regular has argued that the court that the underlying judgement does not meet the standards for willful and malicious conduct as required by the geiger decision we state opponents or at police argue that you should look to by a deliberate act of death or undertaken with subjective motive to cause harm or under circumstances where there is an objective or substantial certainty of harm that comes from entering chokoloskee two forty six bankrupt bankruptcy reporter six thirty nine six forty five under missouri law again the elements of product representation its falsity its materiality and speaker's knowledge of the false your ignorance of the truth intent that it should be acted upon the hearers ignorance of the falsity of the heare reliance here is right for a lie and here is consequent and proximately cause injury in there you have a deliberate act of debtor as they have to make a representation with the knowledge of the falsity and the intent that it be relied upon you also have a subjective motive to cause harm or under circumstances where there can be an objective or substantial uncertainty of harm as the speaker in terms of this represent representation should be acted upon by the hearer jetter had argued in this brief that because missouri allow a laws on either actual or constructive knowledge on the part of someone in fraud cases there is no identity of issues in this case that that argument ignores the jury instructions and this case which explicitly required that defendant magloire knew that his representation were false the jury in this case decided as a matter of law that the debtor had actual knowledge of this fraud therefore the constructive knowledge element that i mr meckler attempts to bring in is is not is not well taken in the present case the p damages arise directly from the debtors conduct that form the basis of the jury is award for actual damages and and we found a case we couldn't find a nicer case on point so we found a circuit case on point on this it bar mr maguire argues that it was not a final education on the merits because it was similar to a default judgment because he was precluded from offering as evidence that he failed to disclose during the discovery process that point is  wrong under missouri supreme court rule seventy four point zero five a default judgment can be entered upon proof of damages or some other entitlement relief once an answer or some other response of pleading has been filed however the plaintiff must put on their evidence and meet the requisite burden of proof in order to prevail at trial as exactly what happened here mr magnier answered the answer of the complaint took part in the discovery process that we didn't actually produce any documents and were in iraq authorities or answer any deposition questions and took part in the trial cross examining witnesses and making arguments to the court the jury instructions were submitted to the jury and the plaintiffs had prevailed on each element of their claim there can be no doubt that this matter was actually adjudicated on the merits and finally magnier argues that he was not afforded a full and fair opportunity to litigate this issue in the court below and states of the procedural opportunities that he would have here are different than those we had below that is not well taken as well you need to focus the proper focus i himself of the opportunity i point to and read the jones to eighty seven bankruptcy one eighty eight and in re we are now one fifty five bankruptcy thirty three as well as in re daily forty seven f thirty three sixty five and supporting those points i see raise the instruction issue to us until your reply brief what you oh no that's him it's in my opening brief charge and now he's saying the first time it was raised was on appeal to this court and i'm saying if you look there are well he said that event was going to be my next shot gun point your honor he said that the these instructions have been reviewed and nowhere founded by the eight circuit court of appeal which is correct but been decided previously n e h circuit in this case that's just not true hughes the minute the extra minute that i gave you thank you very much a case just argued will be submitted for decision will proceed to the next case on the argument calendar