reconsideration of that decision with respect to two issues principally that he could consider as a jurisdictional fact in the context of a reconsideration the formation of the joint venture between bots and the several other jurisdictional issues personal jurisdiction and excusable neglect but the only issue that was raised in that original people was lack of subject matter stiction under dale because the foreign state had to include  the courts rule the district court's words were he was going to consider the formation of the joint venture and because he found there was no formation of the joint venture there could never be authority for that's what he considered and the question then would be is that something they should have presented earlier well i would say as they noted in their briefing in the first appeal they mr suarez continued to work for the government as they noted in the corporate representative deposition their repor representative had talked to both mr suarez and in bassett or hubbard and so saying that they never had the ability to actually challenge the formation of the joint venture just doesn't make any sense that's an issue that was available to them and they might have raised they never raised it in their original sixty before motion they didn't raise it on appeal to this court and that's really the point of all those rules is judicial autonomy and frankly box didn't know that we would be trying this originally filed before the first appeal he said no you can't add additional grounds and this ground was never alleged and it doesn't fully come out until the supplemental briefing of the sixty four motion and the district court says no no that's outside grounds raised and that's exactly right your honor and in fact i went back and listened to my own oral argument and one of my arguments was this is a jurisdictional fact all we're talking about or do these consular officials have sufficient authority to  find authority for the service of the real estate services under whether to double standard or an arguable basis standard i find it that there's i guess we called supplemental jurisdiction because i've already found that authority for  the leasing services then he says in a footnote and if i had to i would find also an alternative holding that the joint venture was also a basis there was actual forty four whether to novo or arguable basis and  home what i was going to say before my first three points is what's before this court is a lot different than we might have expected that you originally set us back down on remand in quite different what are different than what i expected at the beginning of the briefing the con which they dismissed now the cross appeal could have challenge all of those factual findings in the original authority opinion but they don't do that they could i mean they would have a clear error standard but they don't do that and in the joint venture opinion  l i can't say the procedures is straightforward with the district court did the district court was very clear about what he was doing in the joint venture opinion he hearkens back to the factual findings in the forty pinion he does not dictate that opinion he reinforces it with respect to the real estate services and he says what i'm doing is two things you raise all these issues one reconsideration one of them being a minute test error you should reconsider finding actually the word for the joint venture and the real estate services he doesn't address that o'connor says i'm only doing these two issues this is all i'm reconsidering he says it again all i'm looking at is the formation of the joint venture we highlighted those things but on page ten of the joint venture opinion footnote four i didn't really how in their class but i think is particularly appropriate because in a citation to a sentence about the mexico kept saying mexican authority doesn't allow for a joint venture and he says in footnote number four they never prove this the only mexican wall they put forward in the stablished with the procedures which didn't deal with this issue but in particular reference to this point the court says the court need not reach this issue however as it resolves the question of whether the consulate gave actual authority for the joint venture on the issue of formation  in a particular year and so if it's many factor it's in the stream of commerce if that then personal jurisdiction under that stream of commerce there is a personal personal and specific jurisdiction if there is if they didn't manufacture in that year then no personal jurisdiction has no evidence of the stream of commerce you had that same analysis they say the other case they cite for the jurisdictional fact is miranda in that case if your baby caused the accident on the military base  the saudi arabian soldier hit someone and there the analysis was we get to look at this the whether he was acting in the scope of his employment that is language pull out of the foreign sort of muzak statute that is a a consideration whether how to count the ultimate purchase the property is long as it wasn't with mr box what difference does it make your honor i don't think it makes a difference with respect to authority i mean that's really it's whether or not they when they dealt with him did they have the authority to deal with him and to commit themselves and how they ultimately proceeded doesn't have to do with how they dealt with him so that we agree one hundred percent make it turn it into a jurisdictional fact but we don't even reach this point if we agree to your previous point about the law of the case fault we've gotten into these attorney fees that you look for and what it fit the law is that you're not entitled to attorney's fees because there are therefore in government and that's not provided so you get your attorney's fees we're going to we would say you we get our attorneys fees for the reason it's not just twice that they didn't challenge it so they didn't challenge even that isn't listed as a merits defense for the excusable neglect argument but to be clear what happened below i mean you have the sixty four motion pending you get the authority opinion and now you have a final judgment he they can he says i'm not going to deny the motion to set aside you return to the default judgment which had attorneys fees explicitly in it they don't even move to reconsider  attorneys fees in that issue they did not present the award to love attorneys fees i do think it would have been appropriate but they did not do to say you know what the calculation of the amount we challenge that and while the award of the attorneys fees established the amounts that we submitted they could have challenge below as you know that was too much or for whatever reason you don't have a billing statement for that particular item although it's sort of back and forth you get into an attorney's these cases i just don't think that they can come back and having never challenge and preserve that issue even in the reconsideration and say and say you get to challenge the legal right to the award of a turns in did they first raise that that you are not entitled to attorney's fees at all it was the very first time that was raised in response to our motion to increase the amount of attorneys fees post the joint venture opinion so the authority opinion included attorney speak only week went back to the original default judgment they filed within the time period the motion for reconsideration which delayed the consideration and then without a motion to increase the amount of attorney's fees due to the well i guess what i would have to say is whether it's jackson or any of the cases that talk about the merits having been determined when you only get to go back and challenge all the legal conclusions in the merits i mean all they  passed is this a jurisdictional fact which we said no to each the burden of proof is the same problem we had in the first appeal on the one hand literally on the same page that he finds that the consulate bears the ultimate burden of proof on page seventeen of his a joint venture opinion at thirteen ninety nine just above that he concludes because a joint venture of but nevertheless box bears the burden of proving that a joint venture existed and he has failed to do so and in the previous two pages he says box didn't offer any evidence or producer writing or failed to present evidence as to the remaining factors we didn't even know this was going on in point of fact the reconsideration motion filed didn't even mention texas joint venture of all or the elements mean this was essentially a trial on the quintessential merits argument under the guise of it being part of authority and a jurisdictional issue we weren't even informed we never briefed it we never went through discovery on it but they never sought to change the court's mandate or did that mean and it's something we struggled with in this case because in its worst sense mr denniss argument would swallow up all sixty before and you would never be able to challenge it because in this case what he consulate to enter into a joint venture with mr abbas and his investors for the purchase of twelve ten riverbend so it is a real estate a real estate relation a joint venture for the purchase of real estate when we went back down the question is when you start looking fact intensively at exactly what the consulate approved or what they were authorized to approve in what the mexican government approved you can't divorce what the underlying transaction was supposedly to be so as you dig deeper into that issue you find it's helpful if you look i actually think the district court went further than he had to i don't think he had to go so far as to find that there was no joint venture the find there was no first motion to satisfy the people judgment before we came up on appeal the first time i'm reading from that and it says while with no documentation to support his bald assertions box filed a lawsuit against the consulate on june sixteenth two now he's right this was not an issue on appeal because we had won we weren't the opponent it was mr box and the issue that became the issue on appeal was whether he needed more discovery for support to to go forward and you just i'm sorry can you say that again i i'm sorry does it later in the next paragraph of the document talk about the joint venture which you just read to us doesn't have to do doesn't say the joint venture is somehow flawed and or texas law or something like that that's right it was that all you have it is you think about it was hard and parcel and i'm going to say you're right we never went and said as a matter of law on the merits we lose they lose on the joint venture what we said is you can't separate the joint venture analysis from what we approved and when we get back to what the facts are that he found a joint venture in that document the words joint venture yes i mean we were it's just that i don't have steered me judgment i don't have that highlighted in here but i know it was on the motion and we laid out in our brief places where we challenge i will i will admit that what we said is there is no authority for m boxes transaction and that transaction was a joint venture to purchase property but it wasn't there was no authority because under texas law the joint venture is somehow not legally called noise of will it was there does no authority because the person didn't have the authority to contract isn't that what you really argued there's no with forty for the transaction that mr box alleged and that i think is what we've continued to argue and i actually think because the person you argue to us last time because the person didn't have the mexican government's authority was that idea was that he was acting alter a virus or something which just turned out not to be the case at all right now we we argued there was no transaction with box at all which is completely true and i think the district court found out on remand as well but we also argued and have continued to argue that there's no authority for the transaction that box alleged that transaction cannot means you can't separate the real estate services from the joint venture piece of that you didn't argue that to us before that you did not argue that your prior appeal even though you argued numerous numerous reasons why there were problems to find that are relevant to the ultimate conclusion that the judge made that there is no joint venture are also relevant to what was or was not approved or authorized and specifically the district court armine and in the second the situation found there was no  for any transaction with fox i think that's been established this point or his investors he also found in looking at the elements of whether or not there was a partnership or joint venture that there was no intent by the mexican government to enter into a joint venture with boss or what did the first panel say in regard to whether there was a joint venture they didn't reach it we had even with our meritorious defenses which was not i mean the existence of  none of that decision was on the merits that was it the decision that it was too late was that it was too light so you don't get to raise it at all would now have been too late also if we had raised it just as a merits attack yes i think that's the distinction i'm trying to make  and you there may not go there with me but the distinction i'm trying to make is that why in jackson in your other cases there are elements that relate to the ultimate claims in a case that are also relevant to fictional at best is extremely relevant to what the mexican government was looking at and trying to authorize something or not in this case not authorized something this alleged joint venture just never went to mexico w have all been wonderful you have shown up and answered originally and then you could have raised these things and they would have been timely and you could have said this is fictional and it's fraudulent and that's why and here you have to say about the as sites position that they didn't have an opportunity to bring forth or to depose people injured on if the court was going to get into joint venture on deposition and we were digging deep to figure out what really happened so that we could figure out what was authorized and we went to the original sylar and subpoena those documents he opposed he complained about it but at that point he wasn't asking for his own discovery or digging deeper and this is actually different when used in his back last time one of the reasons was because all of the information on authority you found was within our control but what the joint venture was whether it was approved and i mean all of that was with a box of knowledge in history and you would argue that last time then perhaps you wouldn't feel now is that true if you were to said well it's really not all in your control in our control your honor because we think the whole agreement is jurisdictional and it's in his control would not have been something you would have certainly wanted to raise in the last appeal and we had one in the  i mean but the issue that he was claiming that he wanted more discovery on is all we were really focused on in the first appeal in there he was arguing that he wanted more discovery from the consulate on the process we got that discovery and we can't ignore that when we got that discovery and you get through that process the district court finds there was no intent to enter into a joint venture with mr box that is what we got a judgment against us on is going to read into a joint venture with mr box and you have a finding from this judge that there was no intent and that was not authorized that should be enough he also found i'm so sorry he also found that  agreement with the mexican government had to go through an approval process that was in writing and he found there were no writings to support th to talk requip about attorney's fees to you because you asked that question we found we found no with sorties that support his position that because we had wiped out a judgment we somehow should have also attacked the attorneys for your ward that would have not been in place last time we were up on appeal now the words we knocked out when you talk out the judgment we deal with attorneys fees on the wall fifty four after the judgment is in or when we knocked out the judgment in its entirety there was nothing you had three years ago on the original default and because of that we attack this at the moment it was right for us to attack that we attacked a new judgment when it was before us and i believe the statutes very clear that it doesn't apply contract claim to recover we certainly weren't going to claim the existence of a contract so there was no attorney fia war at issue then so by the time it comes up on appeal there's nothing argue why didn't you have to argue that you're fifty nine eastern age no because we want that when i think you might be right if that's the judgment we were up here on now appealing then we might have lost our chance to argue it but that judgement was vacated and a new new decision was entered that changed the rules again and in that way like i said you have a new contract so when i get back to him he at first essentially if i'm says original cision denies or motion to satisfy the default judgment then i will fifty nine he has said well you forgot to consider some things you apply the wrong standard and he looks at it again and he sets aside his first judgment his first decision on and when he does that there's no there's no contract claim under thirty eight point zero one commensurate with what was awarded in his first decision to award so now we are back to a new judge again attorneys fees are awarded only for successful party on the claims that you succeed on the bridge or contract so you raise that when we should this is really interesting little procedure finally i think this could be a law school with all the various  proceedings but if if you were not to prevail on your merits arguments today just assume argue window then don't we take you all the way back to the default and whether or not there's a peer in authority and then because the default exist and you can't challenge the merits of the default in its would a bill and not poit than you do you get the original they get the original amount of the attorney's fees not the increased requested amount of the attorney's fees why doesn't final decision it would be inappropriate to simply kings act take the decision he decided and has now been set aside mr mr dennis wants to argue that the judge simply tweaked a few things in that decision i don't think that's true and i'll go back i'm going to details but i don't want to miss your other question as well i think that you can't and maybe for the same reason even if you reinstated that first judgment  then all we're talking about a started four thousand dollars in attorney's fees at that point i think you're right then if we're stuck with that in that's where you go i think we're stuck with the thirty four thousand dollars but i think we then had a right to challenge anything beyond that which we did you're stuck with the original if we go the other way back because you can't challenge that it well even then it certainly wouldn't be a render because of that point i think you should remain on to the district court because there's still a challenge that we did raise timely at the fifty four stage as to whether or not any attorney's fees were tied to the successful claims so i would suggest you'd send that back to formal fifty four analysis by the district court let's go back to the issue before that as to what controls if you don't like what the court did in you i think that the court changed his time he did more than just tweak a few things in that first pinion on remand he sa i i ply the article base a standard but i would reach the same fusion under deniable and he found that the consulate was bad guys and he made some fine means and then in his second decision he really flipped not just on his standards he flipped on his findings and he found that mr box was not credible and he felt let's be clear he found it was not credible because what he said was the deal we were able to show wasn't possibly the deal so when he found that mr fox was not credible and he found there was nothing so many in a joint venture to the mexican government there was no intent of the mexican government to enter into a joint venture it had to be in writing there was nothing in writing so there couldn't have an authority he goes further he goes further of that decision he also finds that there was no joint venture as a matter of law submit to you that's relevant not because of the merits of terminations but it's relevant to what was authorised by the mexican government you also have evidence in here that the mexican government joint ventures don't exist under their analysis so when they're looking at the process here they're looking at under mexican law they're looking at what they think is approval of an agreement to purchase property on specific terms with the specific owner of the property from the mexican government standpoint there is not a single shred of information that tells you that mr fox wants to enter into a joint venture and submit the government of mexico to fiduciary duties in the united states for enter into a business transaction in the testimony of on this man as that would have never been approved now mr dennis wants to sank that there's one letter early on that says an investor is going to buy these properties and s back to us the judge specifically found that didn't say anything about a joint venture or submitting the government to a joint venture so in the judge who made those fine he's in the second decision so if you disagree you believe he went too far  findings on their face alone don't support the conclusion that there is no authorization at a minimum the solution is to remain on to the district court to allow the district court consideration of the facts based on whatever you decide the standard is to limit many years bottle home one with respect to the rule sixty four action stating that there be a faction attack it's just not there i have a copy here it's not there but i would point to one thing that we didn't cite in the briefing on this very point sort of poignant in retrospect was in the transcript really had one hearing in this case but in the transcript on page ten out of the box judge o'connor asked what does your investigation show happened in connection with the facts of the lawsuit where the other official according to the complaint worked with mr box mr box arrange this deal and then at the last minute the parfit cut mr box out of the deal and there's several pages of back and forth with counsel for the consulate which is after the questions and then the counsel for the consulate says on page sixteen moving on i would really like to start with the jurisdictional issues for obvious reasons because if we are right on the jurisdictional grounds we don't get to the nasty questions of the merits and having to deal with those issues and the rest retrospect that's very apt because after losing on authority they want to get into the nasty issues and sort of shove it through the pigeon holed authority while we haven't got much into what the discovery showed on the authority issues i would point out as they raise we only there's no writings or we didn't find any evidence of the joint venture that on page two thousand and seventy eight two thousand and seventy nine when we took the deposition of their corporate representative she an investor that's going to buy all three buildings and then we've agreed to buy one of the buildings from him when you talked to him bassett or hubbard did he tell you that that was mr box no i didn't ask him about it and i question therefore you don't know who that investor is i don't know the word in inverse and used in exhibit nine you don't know to whom that refers answer no and so you can't testify today that that doesn't refer to black box the witness this is true i mean they did not offer the testimony of even their corporate representatives to deny the factual existence much less they have a bass or hubbard they have mr soares they could have brought them in and said we're offering their testimony that we never had a joint venture and it's telling they don't do that you never hear from those people and if we had known this was an issue if they'd come back to this court and said we'd like to increase the scope of the mandate we'd like to raise this new issue which they could have done then we would have known that was an issue and that would have been with the discovery we were fought on the same grounds that it's not a jurisdictional fact but at least everyone would have known but from day one the joint status report of both parties we said you don't need a discovery for mr box because as we've briefed extensively on appeal authority is an issue between the principal and the agent between mexico and the consulate and that's why we needed the authority from them because those communications were all within their purview so when they asked the firm discovery for mr box we did oppose  irrelevant to the authority issue what they told the district court was well if mr box was told there was an authority that might be relevant and that's how it all trickled out we challenged every time they went down this road of merits we said no no that's not an issue and every time they tried to work it back into authority they don't come out in full blown make this challenge like a seven till the supplemental briefing after discovery is closed the only other point i would make well to point to additional small very explicitly because he would have to find a manifest error of law or fact and in his original pinion he said i find out shoe authority for both of the claims whether it's arguable basis or did never so the fact that he's now looking at bell helicopter that we don't have a case that deals with this precise issue i would point out one thing that we haven't discussed which is they had the opportunity for a direct appeal on direct appeal they could have challenge the attorney's fees they've made not disputed either in the first appeal