the morning is dave versus white number seventeen dash two five one s good morning your honour's anderson so on behalf of robert white i would like to reserve three minutes for rebuttal be granted you know one thing that we're concerned about and maybe both council can deal with it is the sort of the related case that's  pending and what does that mean for this case certainly it does not moot this case there's two possible outcomes in the other case mr mr white is suing to enforce a settlement agreement he reached with the million dollars goes away he's protected from this judgment we where do you base the attorney's fees recover because he would have prevailed and this court this would have water valve here well this court court can reverse that judgment which judgment the the first the only judgment in existence there's an existence in the judge there's a judgment in the underlying case here the three million dollars judge yes this court is that get your attorney fees just because there's a fee shifting provision in the settlement agreement now because a virgin islands law allows recovery of attorneys fees to the prevailing party every case in every every contract case yes and all but all but personal injury cases this so why shouldn't we let's assume you're correct for a minute why should we just stay this case and wait to see what happens in the in the state case because i think this case is right before the court and what's definitely right but often for prudential reasons we will hold right cases because of supervening or you know related cases that that drive the bus so to speak but yes but i think that no matter what this court will be called upon to decide this case before we will in your favor in this case hypothetically it would happen of the state case if well then just for clarity it's not a state case it is a second district court case so  you rule in my client's favor in this case this case will be remanded perhaps for entry of judge in my client's favor or perhaps for further proceedings the other case can still in that situation the other case can still a lemonade that's case because if he if my client prevails in that case in this case the underlying case would become moot could this case eliminate the second enforce the settlement in that case but it becomes moot the other case because the relief he seeking is to have no obligation on any of these loans or nose and if generous hypothesized if we grant you that relief here you don't need that relief in case number two it well it depends upon what kind of relief is granted by i think his question presupposes he said if we reverse if the case number two becomes moot but this case was not being that but just so i understand case number two is based upon something that happened after the facts in this case where you claim there was a subsequent settlement agreement maybe after all the hurricane damage or something  were it wouldn't be moot but it would be sharply reduced because all that would be an issue is are you entitled to attorney's fees as a prevailing part that has passed the potential that's that's the potential yes but but that's not insubstantial why let's just let's just get your advice and i'll ask opposing counsel for the same advice let's get your advice about what to do prudentially because this case i don't know if my colleagues would agree with me but to me this is a very complicated convoluted  factual pattern and fairly complex set of legal questions the case number two appears to be a fairly smaller cleaner case so why is it if  premises are wrong please tell me why they're wrong if my premises are correct then tell me why we shouldn't stay our hand in this case and see what happens in case number two i think you're i think the facts are complex i don't think the legal issues are complex and in fact i don't think there's a lot of disagreement about the legal issues that make a standard interview i think you know it's really a matter of misapplication of the law to the facts with respect to why assuming that even the the you feel that the legal issues are also quite complex i think credentialing just because of the backlog in the district court it makes sense to resolve this because we have a tremendous backlog in our district court and that other case might not be resolved for three to four years at a course right correct but i'm sorry the no the relief wasn't holder in due course that the complaint was seeking relief as a holder in due course but the relief granted was for breach of contract the actually the summary judgement opinion of the court is based upon their status as holders in due course if the district court opinion specifically says that then when the court gets to damages it slips and says this is based upon breach of contract but that's not what the summary judgment decision set so the nose that dissatisfied it satisfied if i'm doing that what are they holding there it's it's the debt has been discharged exactly in the district court so held and the police don't even disagree with that on a l so and then not really we have to consider whether there was a breach of contract here and your argument as i understand it is well you don't think there is but even if there were they didn't even plead it so as a matter of legal practice it's impossible that there was a breach of contract because the cause of action was never even pleaded bess correct and there is the doctrine of election of remedies and i think that's what they did you asked for his complaint all that's good or are we or we ba loan and not and that they didn't amend to add the bank of st croix loan as part of that so i think they truly elected remedies i think that would be a case of question perhaps for the district judge on remand i don't think the court at this level should be making that determination if that's how you claim to rule but i really think here where the very clearly they sought only relief only under one theory even their damages are only under one theory they have more damages under richard contract three because they paid the note for five years that ten thousand dollars a month and never made any complaint to mr whyte that you owe us all this money and when they sue for it they don't claim he owes them all that money so i think you know this is not an insignificant error and this is not a and it insignificant amount that they just wrote off reduced to its essence is it your position the note was satisfied by wong day the deal was turned over by white everybody walks away yes that's it yes and your client has no interest in the property because of the deed in lieu of foreclosure that's correct and if they got they got the property but they're remedy it was too i guess if they didn't elect bought i mean i think and i think that's a key distinction because all they had to do was pay it off they made a deliberate decision to proceed as holders in due course rather than simply paying off the loan and say hey you over the money for this you brace yourselves so if they bought the loan and it wasn't discharge why aren't they holders in due course well if they bought the loan and it wasn't discharged there i hope they are i think they are holders and due course but the settlement agreement and the  appendix then and there's other evidence to support the that this is the intent of the parties there's the fact that they may no collection effort for five years why would you do that if you claim mr white all this money for five years there's the fact that they paid monthly for five years at ten thousand dollars a pop there's the fact that they sued on the note not the settlement agreement and there's even an admission in their briefs in the district at the district court level because they don't say section five of the release agreement doesn't create an obligation they say we satisfy that obligation when we bought the bank a cent coin out so they never disputed that it well they did ultimately dispute but initially they did not dispute that section five of the settlement or the lease agreement created an obligation to discharge of no page claim we met it by buying so if we don't go your way the it the other result would be that your client is on the hook for the loan and he lost the property  any prior third party obligations except the bank of st croix moore and that's accept as a big deal yes i just want otherwise you haven't got what you bargained for in the release agreement if that's correct they didn't assume th profits mr white was intended to be the substantial beneficiary of this if you look at the how how the money was supposed to be distributed upon the sale all of the over the course paid two hundred fifty thousand dollars cash to mr white and then he gets ninety percent of the another three hundred thousand dollars into the pot when you put another three hundred thousand dollars in the pot he says listen if you if you prevail ok you are going very to do very well if you fail you going to lose it all and that's what happened here it was there was consideration for that consideration of three hundred thousand dollars for that additional requirement to pay off the b s e loam the end they and he was in fact obliged to pay off the b s e loan in fact there is seven reasons five pointed out by the  settlement agreement and he accepted it absolutely unequivocally ok that's the first item this is the second item is that section five point zero the release agreement which is referenced by brother council simply talks about third party obligations it talks about preexisting debt to third parties it talks about future debt the third parties and talks about nobody becoming a third party beneficiary the release agreement it doesn't say anything about voiding the obligation to clear obligation of mr whyte to pay the b s c loan into section two point one trying to avoid by implication ok that which they accepted absolutely unequivocally under section two point one point two of the settlement agreement under under that particular section which is incorporated by reference in its entirety into the release agreement they are absolutely obligated that is the way it is absolutely obligated to pay to be a c loan and now essentially he's saying that because of this language that concerns sol the third party the soup third party relationships between those three gentlemen as a room absolutely and we knew straight out of the agreement and this agreement was it no doubt about the fact that this agreement was intended to be strenuous it was intended to be strict and it was intended to benefit my client because my client had two million bucks cash that w delivered to mr whyte and he failed to deliver the the house for ten years the original the first payment was a sick was six hundred thousand dollars in two thousand and two there was an attempt there was a there was a sense of the restructuring of this deal in two thousand and six he failed in two thousand and eight to do the most of the liver and then my clients waited for additional years before they pulled it before they hired me and pull the string on mr white so essentially with a total of ten years no product to live and two million dollars in the pot any document a series of documents written for the benefit of mr de in this the day in this the one absolutely but imposed severe and strict requirements on mr white and mr white pushed his chips into the middle of the table and sometimes when james bond does it you know what happens he wins then mr white did ok what he did what happened was he lost it what he's trying to do now is to simply welsh on the deal there are additional reasons under section eight point zero with the release of remit it says that the terms of the settlement agreement cannot be waived altered or amended or terminated without an additional writing under section nine point zero with the release of minutes it says that whites obligations under this document cannot be converted into day in one's obligations under under this document under section four point one of the release agreement it prohibits white from suing day in one on one the b s c room why would section four point one of the four point zero of the release agreement say you can't sue me on the b a c loan if the be a sequel was already released by section five it simply doesn't make any sense and this is what this record determined in other words you cannot use an implication under section five point  to somehow void and express an unequivocal statement you owe that money or miss arias let me let me ask you about the election remedies issue guess i can't even find the word breach the phrase says in the settlement agreement it says if you if we pay an additional three hundred thousand dollars you are completely liable for all obligations of the b s u won't and then you look to paragraph eleven it says the three hundred thousand dollars was paid and then if you look to the oedema pause it says you give me the money into the note so essentially it says it has all of the criteria does not use the magic word breach nor does it use the magic words holder in due course in my so so so essentially that's my argument with respect to section five point zero we don't think it gets in there there are other organs that he makes with respect to the definition of the term of the term loan documents he talks of the issue of whether it  case ok yeah the other cases centrally is this mr mr white and mr de and juan and this proves their friendship because i wasn't involved in that settlement agreement essentially they got together and they said listen if you six this stuff with about six about that six five six hundred thousand those if you fix this stuff with hurricane damage not not post hurricane damage pretty hurricane post but again litigation exactly you fix this stuff ok and the settlement so ultimately i don't think it has any impact at all and this is about the payment of the settlement is even paid by virtue of him coming out of his pocket with cash or is going to be paid by him doing work on the property that being acknowledged by this court as being satisfactory under the under the settlement agreement and it's yes us of all of the that case gets resolved it will have nothing to do with this case and fundamentally i don't think that it will it's about whether you pay or not the judge in the three plus million dollar that is on the table in this case whether you pay or not isn't it part of all of that in case number two i know you hope this doesn't happen but yes asa bowen case number two that the district court says there was a post litigation settlement and that settlement was satisfied by the actions the remedial work taken by white on the property and he's absolve any future obligations because it wasn't his fault that the inspection didn't happen before the hurricane in my opinion that's sort of your nightmare scenario in case number two in my opinion in my opinion that's equal to him handing me a check if the court says but then then no no no no this case stands alone that is about whether or not he pays or he does something which is the equivalent of paying the judgment in this case i see i see you're saying if things go really badly for you in case number two about the one day note which is a completely separate matter the v s e note is about one point four five million of this judgment to want a notice about two point four million dollars of this judgment ok now the one day note was was was he was he was absolved of his responsibility released from his responsibility under the one day no under the settlement of me under under the under the settlement agreement and release agreement however he was balanced by section four of the of the release agreement not to file a released from his obligations under the juan day no and that no oem becomes active what essentially that means is that whatever happens with the b s e no the one day no it stands alone the only defense that he has for the release which is essentially what happened here it's not a breach and so therefore no matter what happened with the b s e note the wanding note stands and the two point four million dollars stand so either in our assessment at all or the two point four million never there was never a motion based upon breach of the contract and specifically on the one they know so if we have defenses to that then we get into the whole argument as to what you know that the contract interpretation which we've touched on here we get into the whole issue about mr should we rule on that now or should that be remained it i don't like you're saying that issue was never teed up in the district court that's correct that this language in two point one point two is pretty explicit that look you know we're we day and longer giving you a new new money trying to keep this thing going here will give you three hundred thousand in once those proceeds have been exhausted bar were shall be soley responsible for paying any indebtedness to the bank of st croix that's pretty explicit language i think you have to go to the very next sentence which says failure to make those payments to the bank of st croix on or before due date shall be a material event of default and i think it's important to understand the structure of this deal there's a settlement agreement century last for two years where mr white has an opportunity to sell the house and then house so during those two years he's loan the money to make the payments he's made and he's making the payments if he stops making the payments or if you runs out of money to make the payments it's his job not theirs to make those payments if they're successful in selling the house he doesn't pay the bank a saint point out the terms of the settlement agreement specified as coming out of the proces the entire joint venture paying that it so i think section two point one two of the settlement agreement has to be read in con in the context of that settlement agreement or they're talking about in two point one two making the month making the payments on the due date so in other words the monthly payments are you're saying two point one point two is essentially a loan servicing provision correct he's responsible for that he didn't want to do with the three hundred thousand he's required to use the three hundred thousand for making the payment he also but there's also some other repairs that need to be made and so he's and he's allowed to use it for that but when that money runs out during the two years he's got to take over making the payments and if the property doesn't sell within those two years then you go to the release agreement or you're saying paying any indebtedness to the bank of st croix means the extant payment schedule obligation not the corpus of the loan that is due yes what is due at that time and i think that's consistent with the following sentence  and i won't acknowledge that it's not great language not there's a lot in this and these are two agreements it's not great language but i think that's what the parties were trying to accomplish and if nothing else is a question of fact there that can't be resolved in s didn't both sides agree there weren't any material issues of yes as to their version of the facts and i've seen that happen many a time where on appeal the court says it doesn't matter if the parties  thank you counsel thank you we'll take the case under advisement i'd like to ask this is a i don't know whether counsel actually agree with such hard this is a complicated case but if we do that but we'd like a copy of the transcript of this argument we'll take the case on