lambert to do some work on building a house out in pacific palisades for them parties agreed to binding arbitration we had the former presiding judge of san diego county as not been performed that matter was then confirmed by the los angeles superior court mr lambert went into bankruptcy which is what you've given is sort of the twenty second sound bite description that's right o  we have the legal issue of issue preclusion and we also have the issue that this was a bankruptcy court motion for summary judgment so as matter a lot of bankruptcy court did find that the that it was an hon two elements missing i believe although part of the problem that we have with that is that the award that they did make kind of at the end has a throwaway that says all issues that are not preclude it should be retried and that's also part of our problem the two issues defraud nor the supplemental declarations in the motion for summary judgment there wasn't any kind of specific finding as to that as well as did my clients rely on the representations now the molina case if if the arbitration to compare it to the facts that we have in this case i don't see how the crux of the matter with the whether there was an intent by mr lambert to see my clients by presenting invoices saying this is the work that's been done on this project i don't i'm hard pressed to find any other reason the arbitrator said an argument could be made that he was merely negligent but then the arbitrator said that's not the case so somebody  sents an invoice under the terms of the contract it's only for work performed is all that can be the contract also has some language talking about how the contractors honest and has integrity and all these various things my clients are p presented this invoice i don't know how there could be any other intent to deceive than someone presenting a document making the representation this is owed to me because this is the work that has been done with the invoice having and a dollar impulse to divide the dates if one side was looking for a hundred thousand and the other side said it was zero inevitably come in with fifty this sounds like an arbitrator who was saying well you know what you could argue that this was fraud that's what he said the first time right that's right one could you could make a good argument just this was fraud however i think that you know whatever the merits of that argument are the penalties here are enough that that's sufficient then you asked for clarification in the team back and said i i'm not sure any more clarification is necessary i found he acted fraudulent and therefore they recover the no punitive damages but the of all of the never comes out and says the magic language like common law fr going so and the third cause of action was for fraud so we do have that finding to get back to my point of what is it that one is is intending to do by presenting an invoice saying you all me for three five hundred said this was presented to me i accepted it as being for the work that was performed and there therefore i paid it and i think that's enough to satisfy the two elements that we have in the record but certainly i think that court to look at the very specifics of the facts and i think when the court does look at those facts the finding is that indeed my clients were unsophisticated they were taken advantage by a contractor who they relied on think a courtroom one and the issues that switched around a little bit by the time we got here i'd like to go directly to some of the statements that were just made mr morris was saying how could there not be an intent to see when you give someone a bill that's wrong well it could just be sloppy billing practices that doesn't equate with intent to deceive that's one of the things that hold up the bankruptcy appellate panel that there wasn't a finding of intent to deceive and it could be a sloppy billing practice let's look at the second thing that was pointed to you from the record which linked back to the third cause of action of the complaint where after post a warrant prompting the arbitrator said i found that he acted fraudulent lee and they can recover under the third cause of action well there's the other problem because if you look at the original complaint which is what the arbitrator is linking to and we go to page sixty three of the excerpts of record paragraph eighteen of the complaint where it's listing that the elements of a fraud claim states the plaintiffs were by bringing it back to the complaint that the complaint doesn't do it because reasonable ice is not justifiable reliance on the circumstances if you go back and read the award to find out why just a father realizes an issue here because the stand back never said anything about the bills when they got it there was no support attached to them and they didn't ask for the support was that justifiable maybe maybe not the issue wasn't litigated or it certainly was not found backing up there are three steps i think to this appeal first there is a subject matter jurisdiction issue here because there was a remained from the bankruptcy appellate panel we are here on a mixed question of fact the law yes review was the no but it's a mixed question of fact and laws to whether the elements for collateral stop lead been met and because there's a factual question involved we should send this back to the trial court to do what the bankruptcy appellate panel asked it to do which is to analyze the elements and that is why under the four factors for determining an exception to the review of agreement and order i was trying to prompt the bankruptcy appellate panel to get to that issue and it didn't stop short because it stopped on the factual issue but if the court were to find differently the bankruptcy and reach that issue that legal issue i'd like to br your honor's and attention i did give it to you in a letter i should have a bankruptcy of whole panel can you that's come out since the briefing closed and it goes to these issues exactly and that's because the kaleka decision which is a three thirty eight bankruptcy reporter age seventeen decided for a second two thousand and six you know when you're done with your argument see the clerk for there's a little form you fill out makes the copy give it to your clothes and yes i well even more yes thank you your honor just briefly as far as the just file a justifiable reliance the counsel's brought up i think that's something if you wind reading the arbitrator's word that goes into all the relationship that these folks had talked about my clients the being wealthy and sophisticated in certain things or certainly not in the construction sense i think that's probably self evident by anybody who builds a house on a cost plus basis it just doesn't make a whole lot of sense but that's what happened in this case and the arbitrator did find there was this ongoing relationship and my clients in doing what they did were justified and and there is a lot of this language in the arbitration award talking about the relationship that the two of them had or that th parties had in this case as far as the issue of whether arbitration award can be entered for purposes and or bankruptcy court order i think the vanderburgh case talks about that as a california court case and frankly it seems that the laws are pretty well settled in california with that with a policy that we want to encourage arbitration thank you don hanson bennett thank you case just argued would be will be submitted