you want to see if there's something ticking in that bag now that was a joke ok time's up no no no and this is not deja vu all over again and i can tell you why it is because eighty eight point eight seven of the wisconsin legislature clearly recognized that they wanted to limit the remedies from properly constructed or grades and trusts the legislature specifically uses the language in eighty eight point eight seven want to say that it is necessary to control and regulate construction and drainage so as to prevent unreasonable damage quote due to highway or railroad grade construction so it's not the failure to maintain the area around the structure that of course is ongoing duty so therefore as the court has said in wisconsin the purpose of the statues to prevent repeated lawsuits because of the failure to construct or maintain the trestle bridge it self ok which is covered by the statute that is why it is obvious in the statute when they see due to the mean ha's by ok only property damage caused by faulty or improper construction and or maintenance of that property of the trussell falls under the statute and if you go to eighty eight point eight hundred seventy subsidy the court will note that to get the remedy there must be a sworn statement of the alleged faulty construction if judges were in a situation where we don't have a claim of faulty construction that what are these people to say relative to a client well let me ask you this if the intent of the statute is to prevent repeated damages actions received argued why is the failure to properly maintain to such actions in claims for failure to properly construct because the issue is not made for us is not maintenance of the trussell itself the physical trus ok and this is really important to understand because if you look at our complaint judges what you see is our claim in the complaint is not about that that this is caused by some failure of the trus it's caused by debris coming into it if we look at record twenty one our complaint which the court as i've heard from the previous argument must recognize as being correct factually correct the burlington preventing the flow of rainfall from freely flowing through the trussell meeting underneath just like any other bridge and finally this caused a catastrophic manmade preventable flooding and water invasions on planes property by failing to prevent debris and other basically blocking the underside so the issue is not maintenance of the trussell the bridge the bridge never failed it was the maintenance of the area the upstream area which is not part of an improvement property which is specifically covered by the statute so when you look at that and then we go as well to the section eighty eight point eight seven one and then you read to see which is once again you got to what was the faulty part of this construction there there isn't one in this house there isn't a fault in this bridge the issue comes down to this that it's clear that damage resulting from the for purposes of the statute whether the negligent maintenance of the trestle created a one time hazard versus a continually nooses and how do you know this was a one time occurrence with climate change you know there could be multiple similar rain events going forward judge rovner great question and the issue but that is really not the issue before us all that we think it is i don't think that sure here's the thing i think we think it is well you may for now but looking at the statute as they look at each part of it if you go to the other section it all has to be caused by every other case be cold back or pruitt in every time there's a failure of the device there's a failure of the road or there's a failure of the shoulder meaning the thing that is created that change the normal drainage in this case nearly the same is if they had parked equipment just just upstream suppose that to be a part equipment in the line and just left it there water comes through its forces that equipment underneath the blockage of of my rebuttal because that's their claim but i'm i'm happy to to move to that if you want to right now but the reason why is that this is a property damage type of claim in under wisconsin law the husband and wife i may may have community property but if you get your property or you inherit it they have no rights in your property ok they have no no individual rights or in your personal anything that you you happen don't personally also most of the people i think who are involved here were actually not even wisconsin residents so what needs to happen relative to the spouses is at least some  decided by a jury some factual inquiry ok now when when we were that isn't just the introductory part of the statute judge that deals with that deals with what the cause ation aspect is you keep going and if it's replete with it it has to be caused the harm has to be caused by a failure of the the improvement to property itself or for that the great in what we even when we get into into section right here into section two to way it says whenever that any county or railroad i'm going to be read just the railroad part but whenever the railroad company has heretofore constructed and now maintains or again or you know does afterwards any highway or real road grade across a marsh water course natural or otherwise it will not impede the general flow surface water so as to cause either an unnecessary accumulation of waters or water soaking to the end of maintaining the natural thing well here's the problem in this case it wasn't the failure of the truss it wasn't the maintenance of the trestle sorry trestle itself it was a failure to do things that were upstream which allowed it to get blocked it's just like in your bathroom you know you can have a perfectly operating tub but if somebody doesn't you know a lot is here to accumulate you'll have a blockage that doesn't mean it's broken and it doesn't make a smooth well sure sure i have i have  your right but look at this statue every time the statute is dealing with this it is doing this in three separate places it's saying it has to be caused by the construction or the maintenance of the thing well court has not spoken to this and you are not bound under the erie doctrine to a court of appeals decision which is quite distinguishable because remember croom what happened in pru m there was actual failure of the highway and a failure of the shoulder it is exactly it's in the sweet spot of the statute and that failure caused it in fact that was the allegation that was the failure of these of of the construction in the new the new sorry improvements to land caused the problem it is just like saying that clearly the bridge is there ok but the fact of the bridges there doesn't mean that it's a cause any more than if i took or somebody took a car and ran into a bridge because they were weren't paying attention to what happened it doesn't mean the bridge caused the collision because they are inattentive in the same way b s f was completely inattentive to the be there there watership essentially that was up  did what connection did arkansas have to this litigation the connection that arkansas had to this litigation your honor is that it was an appropriate venue for new claims involving the n s f because they did substantial we wouldn't have we would have made exactly the same claims and we didn't our claims now have to do with maintenance and even though it talks about maintenance of the trussell it's very clear from our allegations it has to do with maintenance of what led into the trussell and blocked i'm talking about the last case this court examined the question of maintenance in some detail as a matter of fact the first sentence that you wrote judge ruled in or was this is a lawsuit in search of a viable theory of recovery i and  the it was a bit on kind but in the irish case they tried a number of machinations a number of efforts to save the case from dismissal it was finally dismissed by judge crabbe and they admit on page nine of their brief that one of the grounds of judge crabs dismissal was faulty means they judge crabbe then i asked them to address the employees and they asked first opportunity to amend in to amend again then they went down to arkansas and as the court pointed out arkansas had nothing to do with this case they talked about looking for a fresh pair of judicial eyes they talked about that this court had made an error and then in arkansas on that that air might be not my feeling it made again we then transferred the case or first we move the case to federal court then we transferred the case back to wisconsin and they feel twice to the a circuit t your fees and expenses were for the detour through arkansas and the healey it's not off the top of my head your honor but i know that we've spent a substantial amount of money on this case for  sensually the same reasons that we spent at the first time and for example the affidavit that we had to do in response judge crabs request to verify that every one of these sixty some persons w del a war or texas resident bet itself was significant we're talking easily in the vicinity of one hundred thousand dollars that has been spent on this case so far and it's a case that this court resolved judge crabbe res and doesn't need to be brought up again this court rejected out of hand the argument that somehow or another that this case was was limited to construction but then it said that the court had not fully developed that matter are that matter had don't not been fully developed but will the judge crabb took a look at this statute and a plain reading of the statute found that maintenance was expressed we covered that this was the exclusive remedy and the common law claims preempted everything else and also that damages were not available that's exactly what sought in this case is damages the the show journey to arkansas was admitted effort to look for a fresh pair of judicial eyes or look for somebody who might be willing to overturn what this court ruled that isn't a directive faience of  for equitable leave or inverse combination the statute expressively says it excludes money damages and the statute expressively includes maintenance to the reading that plaintiffs give suggestion that the three or four references in the statute to maintenance somehow relate to ownership of the property and not and not and not repair or the property is ridiculous on its face and it really calls out for this court to to level sanctions the argument was dealt with at some length the judge revenue or in your opinion before and and you alternately said he was not necessary to go there because it hadn't been fully developed below well it was fully developed a low in judge crabb looked at it and looked at that on a big us language according to perm case of the statute and found that that was the exclusive remedy kohlberg case the then case and the hill if hillary case all are on point it's it's also important to remember that they have completely failed to follow the statute the statu requires a three year statute of limitations ninety days filing thereafter and a notice that lays out exactly what was wrong with their property and with legal description but they've completely ignored the provisions of the statute where is the vendor's has managed to walk crap its case says the provisions of the statute are mandatory and must be followed and if they're not followed that the case can can't go forward now in paragraph twenty five and twenty seven of their men to complain they mention section eighty eight eighty seven at least three times yet they ignore the statutory mandatory procedures that the van court case says have to be followed for eighty eight statutory limitations period and the case of colback versus a reliance construction company says it is says that that remedy is the exclusive remedy for flooding caused by real grades or i weighted apartments parties the court can contrast the past the decision cited by the wisconsin supreme court with the chicago police decision were in one case they were willing to say individuals advocating individual claims to the lawyer being the same the transaction that gives rise to this case being the same the panel deciding this case being the same despite counsel's best efforts the judge a lower court judge deciding this case is the same it brings to mind the bethesda lutheran home case where judge poster of this court said it was an error to not assessed sanctions below because because adding new plaintiffs doesn't arm bar barking claims even if claim protrusion didn't apply issue quote precludes and certainly applies this is the judges look for finality and if inefficiency and this is a direct contribution of the jetson versus walking mutual case is a case that found the it's their bus case exactly it was a husband and wife whereas in a car the husband got in an accident with the  mutuals ensures the husband brought an action the wife supported that action the the court found that the spouse was bound by the disposition of the anyways all of that golly factors except that whether the party can take a peal of data or order are satisfied and in the gali case they said that was sufficient to allow collateral stop issue preclusion to apply it was the same case the same laws there was a full litigation by the same parties represented by the same lawyer and the irish certainly had a motivation to seek the necessary relief and irish aggressively pursued it this is a matter where judge crabb did err in failing to assess rule eleven and rule or statutory twenty eight u s c nine hundred twenty seven sanctions the this case defies a lot of it yet it is it is the classic example of a frivolous case that has repetitive of what this court already decided to take reasonable inquiry both of the statutory provisions and the clear language of the statute that only allows for damages and covers maintenance and also feel even though we cites the case at least three  statute at least three times in his complaint he ignores the procedural provision of the statute fails to give any kind of notice ignores a three year statute of limitations and fails to give the description of what was good require significantly three of the four irish plaintiffs are still in this case that can't that banner was brought to the council attention and he never less appealed on behalf of those parties to this case how many are dead for  had one died before the flood the three others died before the case it's rudimentary law in wisconsin dead people can't bring claims there remain any other state no other state how are they allowed to bring are dead people allowed to bring claims and very are going to do it anyway yet it's very hard for them to do it for their lawyer to consult with them unless they're somehow involved in a sansar something like that i don't know how they could possibly consult with these dead people and an reasonable investigation before bringing this claim you just compare the caption of the irish case with the boyer case and you see that three of the four are irish plaintiffs and four of the four are good people and how how those can be brought is is beyond comprehension and if even if the court were willing to give counsel a break on the matters of the other border plaintiffs as a relates to the irish plaintiffs as  relates to the ira spouses as a relates to the dead people when they had plenty of notice we gave them plenty of notice of that situation and they continue they list those people by name before this court and didn't drop those claims despite judge crab's unequivocal ruling that claim preclusion prevented the irish plant from participating in this matter this this certainly has been a case that has been multiplied an unreasonably by council and they make a big point about these are poor people living in the neighborhood and being a self is a rich a rich corporation but we're not seeking sanctions against the plaintiffs were seeking sanctions against counsel because counsel is the one who has perpetrated this on the court and on be a nest up as root rule or statute nine hundred twenty seven makes clear when one party causes another party to incur additional costs that party should bear those costs and it's not it's not subjective bad pay faith is not necessary a pure heart in that empty head is do excuse for what happened even if even if the it in deference to you on this time was judge easterbrook consider just posner adopted the deferential standard of reviewing with the court below does this court under rule thirty eight has the power to grant sanctions itself when the appeal is frivolous and when you think it's an appropriate case for sanctions to be issued to start this case in arkansas state court resist the removal to the federal court in arkansas when it's clearly  doubts about but said it wasn't necessary to decide and then when judge crabb engaged in a clear statutory interpretation of the plain language of the statute and then to take this appeal if if this isn't the stuff that is a frivolous appeal that is appropriate for sanctions under rule thirty eight by this court then in forty some years of practice i don't know which case would be but this certainly is they have brought a motion for sanction in the eighth circuit court of appeals the eighth circuit court of appeals denied it after reviewing their motions that was the eighth circuit  that i was surprised because i was in trial wisconsin in a two week trial when it got on ok i learned later but here's what judge crap did ok what judge crabbe did  dismissed the the plaintiffs we did not resist the dismissal in this case the review is for abuse of discretion the defense has made the same type of motions they've made the same and you don't have anything to do with the objection to moving it to federal court in arkansas we had i was named a counsel of record i was on on there i did not be ok judge crabb also denied these these sanctions this is you know described clearly is in the best position of having sat through the irish case as well as this you know wrote the defen the defense and it did not show claim preclusion should apply to the vast majority the plaintiffs and could not go for the claim to be frivolous this would have been in normal case your honor so this would have been dealt with as a housekeeping matter ok but from the very beginning we were fighting ok the dismissal of this case and their claim for sanctions and irish left this irish decision of this court left open for consideration the maintenance  issues of the adjacent row bad and the adequacy of inverse combination but i want to ask you a question he says we didn't file a notice we didn't do this and didn't do that leap your honor so i must stress was this caused by the trussell or the grave if it wasn't caused by the trussell or the grade then we don't have a claim to file the claim lee kuan it would have required us to say what the specific faulty construction was there wasn't any ok our claim is that it wasn't caused by this so so the idea of proven doesn't matter because croom is because of causation by the faulty roadway and by the faulty shoulder that's not the case here and it's not our claim and it's not what we allege in the in the original i'm sorry the the complaint what we allege in the complaint your honour's is simply that what we allege is is that it was caused by the debris field coming in and blocking the trussell that's not a failure thank s that were associated with the arkansas situation to the panel yes well yes yes and i'll give you ten days to respond to and the case will be taken under advisement yes the questions  sure they work and that is there was a claim dealing with the diversity and those issues by judge credit with respect to the wisconsin papers that had nothing to do with our i have no i mean i'm just