ok good morning members of the court richard postal representing one williams and with me counsel table is robert kitzmiller  contrasts so the question i ask is under the rocker feldman doctrine federal courts are not in a position to review the judgments of state it seems to me that until the court decides whether it's going to grant cert we don't really know whether we have a final judgment of a state appellate court yet and that's what raised my question as to whether rooker feldman applies and if it does whether the state court decision we have to await a final decision i don't think so  reason i don't is that the fraud judgment is reversed it was no across petition for certain was filed so that's fine the only thing it's remaining is the judgment on a that's not correct is that the claims on the carious liability were not presented to the jury in the state court action number one number two the one claim we had were we s impose a duty on the underwriter ok to provide a reasonable title examination was a negligence per se claim that was dismissed prior to trial and that claim didn't go to the jury so what we have here is the primary claims a three party contract between be limited agent the title agent the seller in the buyer that imposes the contraction duty of conduct in reasonable title examination on the title agent that was not at issue in the state court action it's at issue here so we have the only issue here on the dismissal is the determination that the underwriter and the limited agent were in privity in the state court action and frankly that is a very factually intensive determination that was never analyzed by the trial court what the trial court did was to look get parties are not allowed the liberty of trying segments of a case in world court not like in that situation and then try the rest of the the case in another court results between the states and the federal courts were the states rule one way on a case and we rule another on a case right and so for that reason  the court disfavor litigants playing these kinds of games and i don't mean to suggest to my question that you're playing games but the effect is not good you that's what we were discovering in the state court case that was during the time that the proceedings were still pending in state court at the trial level and you could have raised late stage of the proceedings quite d a bit negligent title search of the agent which was a central issue we only learned very late in the case that we were not going to be able to present that issue the jury or maybe a week before sexually to review the colorado court you know and you're asking us to trump the colorado supreme court by deciding this case while you've got cert still pending over one of that colfax and  except for finding a property this is the law the law is is well hinges on pretty if there is no proof we have a right to pursue the agent in a subsequent lawsuit and that's exactly what we're doing to find privity the  st point of analysis is the scope of the agency very limited the issue of the title search which judge berman pointed out in his order was the issue in the state court was not within the scope of the limited suggestion that they did everything possible to to last i didn't see any support for your suggestion that they did everything possible to disassociate you pointed to a few statements in your brief and that to me goes to the  under colorado law whether there was a working or functional relationship in which the interests of the nonparty are presented and protected by the party in the litigation can you explain for me why you think you've met that corporation specifically disavowed a young parent subsidiary relationship that's not what happened here yeah but but the parent subsidiary lation ship doesn't answer the question and perhaps i didn't say it did i'm just saying i don't think that can ok stands for the proposition you wanted to this case really makes that point because of the extremely limited agency the fact that your parents subsidiary but the fact they have different if not the underwrite that was mantra in a state court action that is not presenting and protecting the interests of the agent in the state court as is throwing me ancient under the bus which is exactly what the underwriters yet absent of finding the privy and i understand the concern about federal court state or all of this but we have a right she green and action against an agent was never brought in state court action wasn't a party in there's no privity issue with privity because it's so factually intensive on every level scope of agency your alter ego and virtual good morning your owners and i certainly appreciate your time on the very obviously long morning in our view you're on there there's a back to the three things the trial court could have done it could have dismissed the case for failing to bring these exact same claims counterclaims in the state court action they could have dismissed the exact same conduct by the exact same people into venues that runs afoul of a host of reasons and i'm reminded of words i once read somewhere that reason is the soul of all l that's the problem here you very well cannot have the exact same issues the exact same facts into the news at the same time while you get the last part is the question isn't it the exactly said the exact same people on and they're saying that these parties were not improve any no i appreciate that so that's colorado supreme court not a they could still grant cert they could still rule against you they certainly could it's certainly a possibility it's open litigation that's continuing in the colorado state courts that's absolutely true that's absolutely true but the point is it's were exactly the same factual allegations there was a missed title search the title search did not uncover a judgment that ms williams knew about that she was working with counsel to disclose and clean that up that she didn't disclose as part of this so that the issue that was did we miss the title search did we have a legal obligation to disclose the titles or the question meant became did we commit a an affirmative act of misrepresentation by selling title insurance policy to the purchase of the home without telling the purchaser that there was this loan those were the exact issues in the case i've been presented to a title guarantee company issues it was always my understanding in real estate practice one whole want to say that the reason you got title insurance commitments before you closed the deal was to determine the status of title and satisfy the parties satisfy themselves as to the status of title and if the title insurance company fouled up in their title insurance commitment and policy if there were other work so you're exactly more or less right and i would say that that's the only role that stewart title guarantee company played in this case the only fact that we did anything about was to write a check for five hundred thousand dollars to protect the interest of the purchase that's the only things that the title got until you paid or we paid up five hundred thousand dollars now we thought that was fraught we thought that was a breach of contract and we paid it and then we were involuntary plaintiffs into the case which isn't the thing but it became a thing and we should say that we recovered from that and we've successfully defended that on appeal but again the actions that happened happened there were also a title company the agent that committed th did the title search that did the closing all of those actions are the same actions we're trying now in federal court those actions were performed by the agent the only action performed by that the title insurer the underwriter was to write a check no suing us for writing a check they were suing us for the title search the closing performance and the issues of fact that happened there never not once and this is contrary to the representations by my opposing counsel in his briefing but not  guarantee company argue to the trial court in any form or fashion we are not liable for the actions of the title issuing agent not once was that argument raised not once did we say we should be off the hook because we are not vicariously liable for the actions of morning about in response and summary judgment where he said that it in that you were negligent and you did not perform the title search in question the search was performed by a s t c right so that that was pointed out but if you read the paragraph from which that sentence it makes it very plain that the defense that we asserted was that the search itself was not a negligent surgeon and i was on that basis so that that claim wasn't dismissed as counsel represented summary judgment was granted and summary judgment was granted by the district court on the merits of the district court found that stewart title as a whole did not owe a duty to miss williams rightly so that negligence issue never really got resolved whether there was negligence or not was not itself didn't wear out itself the base and you said your i were not negligent are you said we're not negligent that our by our modern sub might have been right there was clarity all along from our side of it on who did what x knew was never an themselves right so that's exactly the point is part of this case there were allegations that the title of the closing agent made some representations made some statements at the time of closing that were beyond the scope of her representation so there was fraud allegations against  so what we made very plain is they are absolutely our title issuing agent for with respect to issuing the title insurance with respect to conducting the title search with respect to writing the closing documents having those closing documents signed one hundred percent absolutely our agent if they'd said or did anything other than intentional torts beyond that that's beyond the scope of what they are allowed to do but all of that is completely beside the point your honor is because these claims on these facts were litigated to a in issues being whether or not this pretty in the law on this gets really complex and heavy because it's always factually intensive but this case is so much simpler than that because every single action that's being alleged is the same action itself you don't have to get to a parent has been sued lost and then the subsidiary was sued for the exact same conduct i have never found a court one way or the other or anyone has ever tried that so for that reason i don't have case law to present to you other than common sense those factual issues were presented that it's not like was saying stupid title got into you had one rule so a title company played a different role and we litigate the liability of the actions of a guarantee but not company that's exactly the opposite of what litigated the jury decided the court of appeals is in the process of finalizing the very actions that miss williams tries to sort here that was the basis of the trial court's decision to dismiss the case the trial court said the factual allegations same case twice and i want to make just a very quick point so we're all clear on this and herein lies part of the absurdity of this position if my client were to lose this position here if this court would rule there's clearly no privity between the two that would be extremely detrimental for mr williams we would then proceed in trial or in the federal case no privity between guarantee and company and all of a sudden when the supreme court if it does deny the petition for certiorari we're going to issue preclude williams from she's going to be found to have breached the contract she can have been found to obtain intentionally unknowingly withheld information she was found to have committed fraud and she was held to punitive damages now some of that was reversed but if there's no pretty then this williams is go wind up subject to liability for the same actions against the same people for the same time only if there's no privity we get to collect the judgment twice as much as i would like that result it's simply not what the law allows you to litigate it it wants the same unfortunately the pellet process is a long one and so until that is fully exhausted we don't have that option should we remain to the district court once that happens if we haven't ruled yet so that i was frankly hoping we would get a ruling from the supreme court to just say there's an abstention that apply and we need to figure out in the worst case scenario if we're ruling there is no privity which i just don't understand how you get to when you're basing both actions on most claims on the same acts but regardless i mean again  why was i in trial for weeks if if i commit suicide again empty couldn't have been held liable for the access to a title company those are the only acts in question to the jury in boulder while i will be there if we couldn't have been held liable for that it's just it's it's hard to understand but regardless if the court does not affirm on the rule thirteen basis i believe the the best course of action for a court would be an instruction to remount with instruction to the trial court to abstaining and so we get final determination from the supreme court before the appeal until the appeals are fully exhausted and then revisit the issue of whether or not these claims should be somehow dismissed or issue because the client recorded whatever i don't think you need to get there because counterclaim will thirteen is so clear i've got a couple of minutes left and i know you want to hear more about it so i'll tell you that very quickly i think that very important doctrine as well as the wrong continue to argue under the doctor and the wrong of the the physical doctor that the rule that nature abhors a vacuum i'm sorry nature abhors a vacuum yes that is to say it's kind of a person because of the peter principle of this three minutes to go you've got to talk i'm on a billable clock  quickly wrong of another deals with the sonority of such as if a perpetrator steals the identity of a victim that victim ends up in litigation to defend actions from judgment creditors and so on the expenses of defending that is recoupable that is an actual damage that you can recover and cool that's the wrong of the not that the wrong of another is forced you into the gauge in this case williams has alleged that she was damaged in two ways one she had to pay her own legal fees for defending the boulder county action and two she had to pay my fees for litigating the boulder county action so the only damages that williams alleges that she suffered is the fact that a jury held her to have committed species that's why miss williams was liable for the judgement because she committed the wrong it could be reversed and if it is she won't be liable for in a damages go away to zero but if that's not reversed miss williams only alleged damages in this case or that she has to pay a judgment for the fraud that she committed that is not actionable and it certainly doesn't rise to the level of establishing federal jurisdiction so the fact that we're here to talk troubles me greatly and i don't know the trial court really fully wrestled with the issue enough with the wrong of another doctrine is one that was in quite a lot of and it would be helpful for the this court to announce those principles that look when somebody is a defendant in an action found liable for breach of contract material fraud and ordered to pay attorney's fees or the result of the she cannot then say i get to recoup those damages and an action against a subsidiary of the parent that i have wronged breached the contract with in defrauded that's simply not the principle with that i have an amazing amount of time left