Legal Case Summary

All the next matters, which are the Addy and could you matters I won't go through all the names. You know who you are, we'll call call council forward at this time. The person of Mr. Sriroko. Thank you, Your Honor. May I please the court, John Sriroko, for the repellents, Taylor, Addy and Perez. And I would respectfully ask to reserve three minutes of my argument time for a bottle. Thank you. Your Honor is that specific order in this case? May I interrupt with a point of order? Are you you representing all three? Yes, Judge Hardman

. So because there seems to be some conflict in the sense that Addy and Perez got hammered, a trial, Taylor did not. I mean, does that, that doesn't impact in any way your, your argument? No, I don't believe it does your honor because as we'll get into the facts, Judge Gomez in his post trial, adjudications, whatever the jury did that was adverse to Mr. Perez, Mr. Addy, that was wiped off by Judge Gomez's rule 50 adjudication. All right, I'm sorry to interrupt. No, no, thank you, Your Honor. Okay. Your Honor, is that order in this case, which was the effect that the sellers were entitled to retain the $1

.5 million deposit from the buyer, Jason Taylor, must be reversed. And the reason for that is because it's inconsistent and it's inconsistent with both the jury's original verdict in favor of Taylor. And because it is also equally inconsistent with the district court's own post trial adjudications, which acknowledge that there have been a failure of concurrent conditions under the real estate contracted issue here. Additionally, it's also inconsistent with the court's initial post trial ruling, which initially reduced the amount of the verdict in Taylor's favor, and this is significant, from $1.546 million to $1.5 million even with Judge Gomez finding specifically that that amount of $1.5 million was the amount necessary to provide appropriate restitution to Taylor. Actually, the district court's order remitting the verdict to $1

.5 million from $1.546 million got the applicable law that she'd governed this case exactly right. Because the district court found that that was, quote, the amount of restitution damages necessary and payable to restore buyers to their original position. The Virgin Islands has adopted the restatement second of contracts. And under the restatement second, and it's reflected in the treatise writers like Corbin, when a contract has concurrent conditions. And that means where performance is required of each side to the contract and required on a simultaneous basis. And those concurrent conditions are not met. That's what the court has in front of it here

. The law provides that a, neither party can put the other party in breach, b, the contractual obligations are discharged and see restitution is required for any benefit that has been conferred by one party to the other party here. So, doesn't that mean neither parties entitled to a breach of contract remedy? Yes. Really dealing with a quasi-contract remedy. Neither party in this case based on Judge Gomez's rule 50 adjudication was entitled to a breach of contract remedy. But what Judge Gomez got very wrong about this decision was his implication at the tail end of his decision. And it was a lengthy one that because both sides were in breach and because he had originally indicated tailor should get restitution, in his mind apparently that meant tailor couldn't get the restitution in fact he had originally ordered and that got us to an exactly wrong result whether both parties were, with both parties being in breach, neither party could pursue a breach of contract remedy against the other but a breach of contract remedy on the part of tailor against the sellers was not necessary for the court to give back to tailor as restitution the $1.5 million deposit. And what we were left with under Judge Gomez's rule 50 adjudication was the anomalous situation where both sides were in breach but the sellers kept their own property and Mr

. Taylor's $1.5 million. What about the seller? The seller's loss of the opportunity to sell someone else or to get other income from the property during the period before this is a final termination of the contract. That might have been a hypothetical remedy the sellers might have been titled to if they had proved a breach of contract claim against Mr. Taylor but the jury found that Mr. Taylor was not in breach of the contract. Judge Gomez overrode the jury we're not appealing that part of it because frankly we don't need to to get to the result that we need to do justice here but that doesn't pertain to this case Judge Roth because in this case what Judge Gomez found was that each side was in breach he simply then in effect scotch taped on to his long opinion the wrong remedy he then said well because both sides were in breach even though I originally ordered that Taylor should get restitution she get as the deposit back I'll now conclude that because both sides were in breach Taylor can't get it back that's exactly 180 degrees the wrong approach under both the restatement what Corbin would say you mercilly had what Professor Kingsfield might say and what the cases we cited the start of our briefs say you know this happens quite a bit Mr. Shroko do you agree with the notion that this deal never took yes I don't know what buyers you didn't have the money and sellers you didn't have marketable title I don't think the end of the matter is it is it really there's a lot going on here a lot of parties a lot of claims but is the case in your view that simple that certainly Judge Hardman not an unfair way to look at it and under those circumstances the laws very clear the legal principles are very clear the contract law principles are very clear everyone in the position they were in before they met and absolutely one of the parties to that transaction can't wind up at the end of the day with an advantage just because someone paid a deposit has to be refunded and Judge Gomez what's ironic about this case is Judge Gomez had zero problem understanding that originally but we went off into a kind of a rabbit hole when he overruled the jury whether he should have or not on his role 50 motion and again just to be clear we're not appealing that because the cases far too simple for us to have to do that when he went off on his role 50 adjudication he decided in fact everyone had reached he reached 180 degrees the wrong implication from that he said well then that must mean that what I originally ordered the restitution of the deposit to Taylor that now can't happen and when he Professor Corbin was once arguing an issue of contract law before the Massachusetts Supreme Judicial Court and he made a statement of his client's position and he said I support that and the court said well doesn't Corbin on contracts they differently and he said yes but I've changed my mind well I haven't changed my mind on this one although we're here because I don't want to put too fine a point on it judge Gomez changed his mind he went from having originally decided the case the right way which was kind of in a both the blame case or a deal judge hard I'm going to deal that never congealed everyone should go back to their status quo pre contractual positions at one point this case was rightly decided but it got tinkered with if you'll allow me to put it that way on these rule 50 and 59 motions and at the end of the tinkering we have a totally incorrect result we have a result that can't stand it's a result that unjustly enriches you're talking about the 1

.5 million as a monolith let's break that down a little because there would seem in the record to be quite a factual distinction I find no evidence based on my own review of the record that any of the buyers authorized the disbursement of the 500,000 which helps your cause yes obviously unfortunately there's a pretty clear statement from one of your clients to go ahead and cash the million well and that was you know part of the deal was here's some hand money and that's why people are willing to lock up their property because they get some protection through the hand money so why why don't the sellers keep the million and lose the half I don't think I don't think that's quite accurate I don't I don't think the term go ahead and cash the million dollars or any other amount is quite that equivalent I mean that is the import of that earlier set of communications isn't it there was approval of release of the one million it was it was an approval on the part of one of the buyers not Mr. Taylor and here's where I think the jury for his partner I mean well that is part of his agent the partner is an agent and the lawyer there was there was a statement the lawyer said go ahead so why isn't Mr. Taylor's recourse to his partner and or lawyer a couple points on this a partnership theory a theory of agency was actually argued in the trial and rejected by the jury the real estate contract was not with an entity the XYZ partnership of which these three individual gentlemen were partners this was a real estate contract perhaps a little unusual with three individual people who I don't agree that they had actual and I think the parent at least well this is why we had a jury trial in this case one guy was on vacation Mr. Taylor's unavailable somebody spoke I think it was peresive from a my career he spoke for the three I hear you and all I think the quick but I also think the accurate answer to say is that was the summons substance in part of the jury trial and the jury we've had references early this morning to what deference should be awarded or courted a jury trial in a case that's like this one little different than the unusual circumstances this panel has had in front of a this morning but in a what I'll just use the phrase a more garden variety civil case like this one that jury and its determinations get an awful lot of deference and this jury at the end of the day determined that Taylor was not in breach and also theories like one of these gentlemen spoke for the other one was the agent for the other we're all rejected this has to be given deference interestingly judge Gomez in his rule 50 and 59 adjudications he confirmed this is a case in which both sides breached he originally ruled on his remitted that the amount of 1.546 million should be reduced to 1.5 because Taylor should get restitution the restitution is the form of the return of the deposit it had been released whether it was in escrow or released out of escrow and that's all we're talking about that's why judge harryman I reacted little when your honor said cash cash means this is your money go have a good time that's not what was happening here was simply released out of escrow in connection with a real estate transaction that failed let me ask you a question the deposit does which has to be returned does it matter whether it's been released out of escrow or not no I mean it's returnable wherever it's sitting in exactly and some was pocket judge raw if I could buy a piece of property from you and I could say here is my check it is a deposit against white acre that you are about to sell to me you can be walking around with that check in your purse you can be walking around with the cash in your pocket but when our real estate transaction never takes hold and the concurrent conditions are not met with both the jury and judge Gomez characterized correctly was the operative principle in this case then professor korban would say the restatement would say the cases we have cited would say I get my money back not because I get contract damages but because I get the relief to put me back in the status quo pre-contractual position the status quo pre-contract where that money is correct judge it does not not at all thank you very much miss roger we'll have you back on the bottle thank you miss tolton may it please the court good morning my name is sherry talton and I represent the sellers in this case given our limited time today I'd like to focus my remarks on the contract issues and in that regard I have three key points I'd like to make to you today first buyers argue that a court must return the parties to their pre-contract positions when there's a failure of concurrent conditions but there was no such failure in this case because sellers offered and were able to so restitution is not an available remedy to the buyers second even if restitution were an appropriate remedy in this case mr. Taylor would not be entitled to the 1.5 million dollars that he paid because section 374 of the restatement would limit his recovery to the portion of money that he paid in excess to the damages that his breach caused to sellers and finally contrary to the buyer's repeated statements the correct standard of review for the district courts ruling under rule 59 is generally abuse of discretion giving plenary review of legal conclusions and clear error review of factual determinations it's important to keep in mind judge gomez's march first 2011 opinion vacating the jury award of damages to mr

. Taylor was not on the basis of 0.50 it was under the basis of rule 59 which certainly has a different standard including whether there was a manifest error of justice which there wasn't this case well why do you claim or how did your clients not fail one of the concurrent or more of the concurrent conditions when it appears to me anyway that they were just not able to deliver clear and marketable title particularly as defined by the agreement in fact if I could follow up on that did you maybe I missed something did you even respond to the Taylor argument about the exception for the right away materially breaching the requirement of clear marketable title we did respond to that argument your honor and I can happily address that now why isn't that why wouldn't that be enough to overturn the district courts they case here there's really it's the same reason for all the objections and and there's several if if if I may section 238 of the restatement instructs us that in order for a party to satisfy its concurrent conditions under a contract it need only offer performance with a manifested present ability to do so but some of the things that were needed still even at the time of trial hadn't been delivered if I remember the doc permits I mean your argument essentially was well don't worry about it's a material they were going to build a new doc anyway am I mischaracterizing that you're not mischaracterizing the specific reason on the dot permits but but maybe I should just jump ahead to the specific issue of seller's ability to perform I really think the case hinges on that question anyway the sellers were able to reform all of their requirements under these contracts for several reasons number one the seller's obligations under the contracts were modified by virtue of the buyer's waiver of their right to raise any objections regardless of whether it was the exceptions that Judge Smith asked me about or the doc permits that you you've asked me about Judge Smith where was that intentional relinquishment of a known right founded in record it was clearly found in mr. Perez's August 3rd 2004 email which clearly and unequivocally represented that buyers counsel had approved the documents that we submitted in July 2004 the contract would have required the buyers to raise a timely objection to any of these defects and then give sellers a chance to cure those defects otherwise under both the contract the contract statement on waiver of conditions and the common law of waiver mr. Perez's email was a clear and unequivocal waiver on behalf of all the buyers you say you say that a response that the documents look good is is tantamount to saying I waive any objection to any failure to comply with the documents that statement combined with the failure to timely raise the objection and give sellers the opportunity to cure as the contracts specified combine those two factors and there was a clear waiver of all of those obligations under the contract which means sellers never had to do it that's the first reason we were able to perform add two other reasons we were able to perform okay if I may the second reason is none of these pretextual defects that were untimely raised ever constituted a material breach of these contracts the district court itself found that neither the expiration of the dot permits were a material breach under the relevant factors and restate met 241 he also found that the exception relating to the Open Shorelines Act which I refer to as the OSA here that the OSA was a a material breach in addition the exceptions regarding the right of Judge Smith asked me about the 1953 right of way which I believe is Red Hook Road here that exception couldn't be a material breach because it's undisputable in the record that it was cure. Where was the critical deficiency in the evidence relative to the doc permits though? I'm sorry I don't understand your question but why why are the doc permits not material here? There's several reasons why the doc permits weren't material some of them the district court enunciated and some of them it didn't the first reason would be that there was undisputed testimony that the doc permits could be renewed and in fact the that they weren't. No they weren't but the question is could they have been because remember under the contract sellers were entitled to a 10 day cure period of any time any time we objection including the objection to raising the doc permits will never know whether they could have been cure except for the undisputed testimony of Mr. Dormour and the undisputed statements in his correspondence from September 2004 saying hey sellers are really ready willing and able to perform we can do it just let us know if you're ready and in response to that request for assurance we got a repudiation which would be another topic I'd like to talk about. But before you go there though what about the right of way on a state Nazareth that? Sure

. There's a pair is the title. Well number one for sake of argument I would deny that it impairs the title it's a it's the right of way that allows the public access road to the property without that right of way you can't get to the court. It's in derogation of the the contract. Well it certainly would be I thought you were going to argue waver on that. Well I mean it is a problem but your argument is well they've waived it. That's my number one argument you're on are they've waived the right to objection to that to that exception. Number two though is that it wouldn't be a material breach because the undisputed evidence was we could take any of those exceptions off and remove and cure that problem but they never gave us our opportunity to do that. Okay so I'm sorry did I completely answer your question? Yes

. So moving on I'd like to go back to the dog permits issue though because I didn't complete my statement on that. The the final reason and and I think perhaps the most important reason that the expiration of the dog permits didn't constitute a material breach of this contract is that it was it was a pretext. There's undisputed testimony from a number of witnesses including Mr. DeMour Mr. Car who was the architect Mr. Snap from the previous deal and Mr. Oriol who was the director of the CZM that the buyers never had any need for these permits. They had to build new docs and they had to get new permits

. In fact they did file new permits. But how do you square that argument and your argument with respect to the right of way on a state Nazareth with the jury verdict? The jury can't come out the way it did if it supported what you just argued. Well I wouldn't pretend to say that I agreed with how the jury verdict came down on these issues but clearly it's consistent to argue that all of these exceptions were waived through through the buyers clear and unequivocal way through through Mr. D. But the jury could not have found that though and still ruled for Taylor. Well I think that again one of the arguments no I think that you're certainly right but there was another element here which we're not we're not saying the pink elephant in the room is that there was inconsistency in the jury's verdicts as to Mr. Taylor and the other buyers and whether that was a matter of his celebrity or some other reason I can't I can't pretend to know. Well we can't write an opinion based on speculation of that sort either we have to do our best to harmonize the the meal that's been served up to this appellate court right? I agree but I'm sorry. So how again what we join or do you have to my challenge that your arguments about your client being able to deliver clear and marketable title cannot be squared with the jury verdict? My rebut that would be the district court ruled under rule 59 his ruling was a correction of the clear manifest error and that error was allowing Mr. Taylor to get his deposit back after he admittedly breached the contract to Sellers Determine. That's an that's an injustice and the court correctly under rule 59 corrected that injustice. But again I think the most important part as for the specific reasons why Sellers were able to perform despite all of the buyers objections is that they weren't required to under the contract anymore after the buyers waived. Further if I can quickly say they weren't required to do that performance because their performance was excused through repudiation. So if there's no other questions I have one final quick remark about fairness that I'd like to make to the court. Buyers say it's just unfair to let us keep to let the sellers keep both the deposit money and the property but in fact the opposite is true. Non-refundable deposits are common in the real estate market to protect Sellers against the risk of market losses and lost our opportunities for sales and that's exactly what happened in this case

. So how again what we join or do you have to my challenge that your arguments about your client being able to deliver clear and marketable title cannot be squared with the jury verdict? My rebut that would be the district court ruled under rule 59 his ruling was a correction of the clear manifest error and that error was allowing Mr. Taylor to get his deposit back after he admittedly breached the contract to Sellers Determine. That's an that's an injustice and the court correctly under rule 59 corrected that injustice. But again I think the most important part as for the specific reasons why Sellers were able to perform despite all of the buyers objections is that they weren't required to under the contract anymore after the buyers waived. Further if I can quickly say they weren't required to do that performance because their performance was excused through repudiation. So if there's no other questions I have one final quick remark about fairness that I'd like to make to the court. Buyers say it's just unfair to let us keep to let the sellers keep both the deposit money and the property but in fact the opposite is true. Non-refundable deposits are common in the real estate market to protect Sellers against the risk of market losses and lost our opportunities for sales and that's exactly what happened in this case. In that regard let me ask you follow up question relating to what I believe was the remedial argument that you made. I mean should if we found Eric if we proceeded as you suggest do we need to remand which I think you have suggested or can we just reinstate. Well if you if I may I believe that restitution is not appropriate so reversal is the appropriate order here however if the court is inclined to grant Mr. Taylor any restitution it's only option would be to remand to do the balancing test that's required by section 374 of the restatement. Does that answer your question yes it does thank you thank you I see that I'm out of time so if there's no other questions I'll thank the court thank you very much thank you thank you thank you is Hodge. Good morning your honor Maria Tankenzen Hodge I represent Kevin DeMourne this matter as you know from the record Mr. DeMourne was the attorney for the Sellers in this transaction and also a principle of the Espoe company premiere title which is a party below but settled during the course of the proceedings. The district court committed error in the award of summary judgment for conversion and also in its post trial ruling upholding the fraud verdict against attorney DeMourne because the gist of the action doctrine properly applied should have barred both of those tort claims against him

. In that regard let me ask you follow up question relating to what I believe was the remedial argument that you made. I mean should if we found Eric if we proceeded as you suggest do we need to remand which I think you have suggested or can we just reinstate. Well if you if I may I believe that restitution is not appropriate so reversal is the appropriate order here however if the court is inclined to grant Mr. Taylor any restitution it's only option would be to remand to do the balancing test that's required by section 374 of the restatement. Does that answer your question yes it does thank you thank you I see that I'm out of time so if there's no other questions I'll thank the court thank you very much thank you thank you thank you is Hodge. Good morning your honor Maria Tankenzen Hodge I represent Kevin DeMourne this matter as you know from the record Mr. DeMourne was the attorney for the Sellers in this transaction and also a principle of the Espoe company premiere title which is a party below but settled during the course of the proceedings. The district court committed error in the award of summary judgment for conversion and also in its post trial ruling upholding the fraud verdict against attorney DeMourne because the gist of the action doctrine properly applied should have barred both of those tort claims against him. The court ruled that the gist of the action doctrine did apply. The gist of the action doctrine been adopted as a matter of the common law of the Virgin Islands. It has Judge Gomez himself adopted it but not by the Supreme Court of the Virgin Islands. I don't know we were required to predict here. I think it is probably an element of prediction that I don't think the Supreme Court has ruled we didn't find any cases by the Supreme Court in the last time. Because gist of the action doctrine is not universally recognized among the various states. But it certainly has been adopted by the district court here and to the extent that the district court has chosen to adopt it we submit that it must do so it certainly should do so in a fashion that recognizes the doctrine appropriately as it has been explained. Do I remember correctly that the Superior Court has adopted the gist of the action? The Superior Court has applied it as well

. The court ruled that the gist of the action doctrine did apply. The gist of the action doctrine been adopted as a matter of the common law of the Virgin Islands. It has Judge Gomez himself adopted it but not by the Supreme Court of the Virgin Islands. I don't know we were required to predict here. I think it is probably an element of prediction that I don't think the Supreme Court has ruled we didn't find any cases by the Supreme Court in the last time. Because gist of the action doctrine is not universally recognized among the various states. But it certainly has been adopted by the district court here and to the extent that the district court has chosen to adopt it we submit that it must do so it certainly should do so in a fashion that recognizes the doctrine appropriately as it has been explained. Do I remember correctly that the Superior Court has adopted the gist of the action? The Superior Court has applied it as well. All right thank you. So the concern that we're expressing your honor is that the district court applied the doctrine here, extensive opinion on the doctrine in its application to the sellers, the buyers and the escrow agent and the only party in the entire proceeding that he singled out not to apply the doctrine to was the sellers attorney and the principle of the escrow agent. And we submit that was an arbitrary and legally unjustified distinction. The third circuit has ruled that the gist of the action doctrine bars tort claims against individual defendants where the contract between the plaintiff and the individual officers company created the duties that the individual allegedly breach. That's the holding in Williams versus Hilton Group. It's the same conclusion the court reached in Billa versus mutual fire decided several years later which we've said it in our briefs. Do you have any objection to us reversing the judgment against your client and instead ordering that that 500,000 be part of the restitutionary award? I don't even know how to answer that you know and I wouldn't want to concede something that would be detrimental to another party but I certainly do not object to the court reversing the judgments against Mr. DeMour as a standalone part of any ultimate decision you reach

. All right thank you. So the concern that we're expressing your honor is that the district court applied the doctrine here, extensive opinion on the doctrine in its application to the sellers, the buyers and the escrow agent and the only party in the entire proceeding that he singled out not to apply the doctrine to was the sellers attorney and the principle of the escrow agent. And we submit that was an arbitrary and legally unjustified distinction. The third circuit has ruled that the gist of the action doctrine bars tort claims against individual defendants where the contract between the plaintiff and the individual officers company created the duties that the individual allegedly breach. That's the holding in Williams versus Hilton Group. It's the same conclusion the court reached in Billa versus mutual fire decided several years later which we've said it in our briefs. Do you have any objection to us reversing the judgment against your client and instead ordering that that 500,000 be part of the restitutionary award? I don't even know how to answer that you know and I wouldn't want to concede something that would be detrimental to another party but I certainly do not object to the court reversing the judgments against Mr. DeMour as a standalone part of any ultimate decision you reach. I'm not sure you answered my question. I'm not sure that I've understood it then, Judge. My point is and this is a big assumption I'm not suggesting I'm going to come out this way in case but it occurs to me looking at the fact that your client is on the hook for 500,000 dollars. It's not a coincidence that that's the same amount as the second deposit. Would you agree with that? Exactly. It is the second deposit. Right. So let's assume that some of your adversaries, one or more of them are entitled to get that second deposit back

. I'm not sure you answered my question. I'm not sure that I've understood it then, Judge. My point is and this is a big assumption I'm not suggesting I'm going to come out this way in case but it occurs to me looking at the fact that your client is on the hook for 500,000 dollars. It's not a coincidence that that's the same amount as the second deposit. Would you agree with that? Exactly. It is the second deposit. Right. So let's assume that some of your adversaries, one or more of them are entitled to get that second deposit back. Do you care? As long as your client is exonerated and they get that money back, you're okay with that. Well, I'm sure that my client cares because this is his client but I would say that the court ought to take the step that is correct as Mr. DeMour and reverse this and if you also conclude in this case that there is some amount of restitution due to the buyers which I obviously don't predict that that would be a standalone issue and if there is such restitution due that the court would hopefully make a determination that allows for the amount if any to be restored to be determined on the basis of the record corrected in part for what we believe is this legal error as to Mr. DeMour's part of the case. And what about the fraud part? The fraud part should be treated in the same fashion as the conversion of our judge because they're both torts and they both should have been barred by the gist of the action doctrine under the correct application. Because with those in misrepresentation made it was a misrepresentation within the the and bit of the contractional documents. Exactly. Judge, in fact the specific allegations that the buyers are lying against Mr

. Do you care? As long as your client is exonerated and they get that money back, you're okay with that. Well, I'm sure that my client cares because this is his client but I would say that the court ought to take the step that is correct as Mr. DeMour and reverse this and if you also conclude in this case that there is some amount of restitution due to the buyers which I obviously don't predict that that would be a standalone issue and if there is such restitution due that the court would hopefully make a determination that allows for the amount if any to be restored to be determined on the basis of the record corrected in part for what we believe is this legal error as to Mr. DeMour's part of the case. And what about the fraud part? The fraud part should be treated in the same fashion as the conversion of our judge because they're both torts and they both should have been barred by the gist of the action doctrine under the correct application. Because with those in misrepresentation made it was a misrepresentation within the the and bit of the contractional documents. Exactly. Judge, in fact the specific allegations that the buyers are lying against Mr. DeMour when they contend that he sent documents that were in one manner or another not in conformity with the contracts that they weren't sufficient under the contracts that the applications for example to transfer the CZM permits that were sent to the buyers were not in the buyers estimation satisfactory in retrospect though they were at the time that those are those are the meat of their claim of fraud against Mr. DeMour. And so if they are relying on that as part of their claim of fraud against Mr. DeMour by definition in our view that's intertwined with the contract and that's what the gist of the action doctrine says shouldn't be allowed. Thank you Ms. Hodge your time is up unless you have some quick point that you want to close on. I just like to say judge and closing that for practical purposes for the practice of law for real estate lawyers the notion that a lawyer can be sued in tort either for conversion or fraud on the basis of saying things to another party about his client's ability to perform a real estate transaction to convert that to a tort against the lawyer is just fundamentally inconsistent with the way people practice law if the client can't be sued for those statements under the gist of the action doctrine then certainly the lawyer shouldn't be subject to suit in tort for the very same statements. Thank you very much

. DeMour when they contend that he sent documents that were in one manner or another not in conformity with the contracts that they weren't sufficient under the contracts that the applications for example to transfer the CZM permits that were sent to the buyers were not in the buyers estimation satisfactory in retrospect though they were at the time that those are those are the meat of their claim of fraud against Mr. DeMour. And so if they are relying on that as part of their claim of fraud against Mr. DeMour by definition in our view that's intertwined with the contract and that's what the gist of the action doctrine says shouldn't be allowed. Thank you Ms. Hodge your time is up unless you have some quick point that you want to close on. I just like to say judge and closing that for practical purposes for the practice of law for real estate lawyers the notion that a lawyer can be sued in tort either for conversion or fraud on the basis of saying things to another party about his client's ability to perform a real estate transaction to convert that to a tort against the lawyer is just fundamentally inconsistent with the way people practice law if the client can't be sued for those statements under the gist of the action doctrine then certainly the lawyer shouldn't be subject to suit in tort for the very same statements. Thank you very much. Thank you Judge. Mr. Sireko, a rebuttal? Yes Your Honor I will I will be brief I think the key statement from my opponent which really helps start on the process of untangling this ball of yarn was the comment when she said I wouldn't pretend to say I agreed with the way the jury ruled well sorry that ship is sailed the jury did rule the jury ruled that the sellers breached this jury ruled Taylor did not breach then judge Gomez started down a path of post trial rulings that sadly in my view didn't add a lot of clarity or accuracy to this because at the end of the day what he found was that instead of the jury concluding that Taylor had not breached he would conclude that Taylor in fact had breached and then he reached a ramification inconsistent with black letter law of what happens when both sides both sellers and buyers have breached that's a failure of concurrent conditions we know that the law calls out in the most clear terms possible what happens under those circumstances everyone has to be put back in their pre contractual position the only way to do that is to get back to how he had correctly viewed the case at one point in time which was that Taylor who had paid this money needed to get it back and that's how could how could you go as I've gotten it right I have great sympathy for the predicament he found himself in once he the verdict was opened right because the jury finds against Adian Perez for damages of $339,000 so if if Adian Perez are liable then that means that the sellers could not have been deemed by the jury to have failed a concurrent condition no the the the the jury found the sellers that excuse me the other buyers in breach Taylor not in breach but Taylor had been the one who had deposited the all of the $1.5 million and his judge Gomez initially correctly understood that meant Taylor needed to get restitution in the form of the return of the $1.5 million in fact when the jury's verdict was for Taylor in the amount of $1.546 million judge Gomez correctly said oh no that amount should be $1.5 that's the amount of the deposit and it's the return of the deposit which is the relief that needs to be accorded here what thereafter happened was we went down a little bit of a cul-de-sac now let me just cut you off because I you gave me the answer I wasn't expecting so I thought you were going to tell me it can be harmonized because Adian Perez were found guilty of fraud well that's true too which is and on the breach of contract claim the sellers were deemed liable and no and no damages were awarded on the breach of contract so all we're talking about here is a contract performances due from each side the presumption in the law is when performances due from each side it's due simultaneously key point performance in this case was not forth coming from the sellers for all the reasons this panel is enunciated all the failures with the title right where's the evidence you gave them the 10 days secure they had more than 10 days too pure and never did as I think judge Smith indicated the cure hadn't been put into effect when the matter was already in a lawsuit and being tried to a jury and it was clearly material just as a common sense matter it had to do with the access to the island but as a jurisprudential the issue of materiality the issue of their waiver all were issues it went to the jury the jury ruled so I think the path is very clear we get back to the understanding of this case is a case in which concurrent conditions existed they weren't met we looked to what the restatement and the treatise writers say we do we've got some very strong precedence indicating that the only proper path here is to reverse this case important part for the refund of those dollars to tailor to have restitution do you care whether it comes out of demores hide or not I think judge goman has already spoken to that in the sense that he's indicated that at a minimum there cannot be a double recovery there can't be the result you just want your 500 back I want to draw us of whether it's from the more or one point I yeah what the more was only hit for five note we we need 1.5 million dollars plus interest back thank you thank you very much mr

. Thank you Judge. Mr. Sireko, a rebuttal? Yes Your Honor I will I will be brief I think the key statement from my opponent which really helps start on the process of untangling this ball of yarn was the comment when she said I wouldn't pretend to say I agreed with the way the jury ruled well sorry that ship is sailed the jury did rule the jury ruled that the sellers breached this jury ruled Taylor did not breach then judge Gomez started down a path of post trial rulings that sadly in my view didn't add a lot of clarity or accuracy to this because at the end of the day what he found was that instead of the jury concluding that Taylor had not breached he would conclude that Taylor in fact had breached and then he reached a ramification inconsistent with black letter law of what happens when both sides both sellers and buyers have breached that's a failure of concurrent conditions we know that the law calls out in the most clear terms possible what happens under those circumstances everyone has to be put back in their pre contractual position the only way to do that is to get back to how he had correctly viewed the case at one point in time which was that Taylor who had paid this money needed to get it back and that's how could how could you go as I've gotten it right I have great sympathy for the predicament he found himself in once he the verdict was opened right because the jury finds against Adian Perez for damages of $339,000 so if if Adian Perez are liable then that means that the sellers could not have been deemed by the jury to have failed a concurrent condition no the the the the jury found the sellers that excuse me the other buyers in breach Taylor not in breach but Taylor had been the one who had deposited the all of the $1.5 million and his judge Gomez initially correctly understood that meant Taylor needed to get restitution in the form of the return of the $1.5 million in fact when the jury's verdict was for Taylor in the amount of $1.546 million judge Gomez correctly said oh no that amount should be $1.5 that's the amount of the deposit and it's the return of the deposit which is the relief that needs to be accorded here what thereafter happened was we went down a little bit of a cul-de-sac now let me just cut you off because I you gave me the answer I wasn't expecting so I thought you were going to tell me it can be harmonized because Adian Perez were found guilty of fraud well that's true too which is and on the breach of contract claim the sellers were deemed liable and no and no damages were awarded on the breach of contract so all we're talking about here is a contract performances due from each side the presumption in the law is when performances due from each side it's due simultaneously key point performance in this case was not forth coming from the sellers for all the reasons this panel is enunciated all the failures with the title right where's the evidence you gave them the 10 days secure they had more than 10 days too pure and never did as I think judge Smith indicated the cure hadn't been put into effect when the matter was already in a lawsuit and being tried to a jury and it was clearly material just as a common sense matter it had to do with the access to the island but as a jurisprudential the issue of materiality the issue of their waiver all were issues it went to the jury the jury ruled so I think the path is very clear we get back to the understanding of this case is a case in which concurrent conditions existed they weren't met we looked to what the restatement and the treatise writers say we do we've got some very strong precedence indicating that the only proper path here is to reverse this case important part for the refund of those dollars to tailor to have restitution do you care whether it comes out of demores hide or not I think judge goman has already spoken to that in the sense that he's indicated that at a minimum there cannot be a double recovery there can't be the result you just want your 500 back I want to draw us of whether it's from the more or one point I yeah what the more was only hit for five note we we need 1.5 million dollars plus interest back thank you thank you very much mr. Rooker thank you to all three of the council the case was well argued and we'll take the matter

All the next matters, which are the Addy and could you matters I won't go through all the names. You know who you are, we'll call call council forward at this time. The person of Mr. Sriroko. Thank you, Your Honor. May I please the court, John Sriroko, for the repellents, Taylor, Addy and Perez. And I would respectfully ask to reserve three minutes of my argument time for a bottle. Thank you. Your Honor is that specific order in this case? May I interrupt with a point of order? Are you you representing all three? Yes, Judge Hardman. So because there seems to be some conflict in the sense that Addy and Perez got hammered, a trial, Taylor did not. I mean, does that, that doesn't impact in any way your, your argument? No, I don't believe it does your honor because as we'll get into the facts, Judge Gomez in his post trial, adjudications, whatever the jury did that was adverse to Mr. Perez, Mr. Addy, that was wiped off by Judge Gomez's rule 50 adjudication. All right, I'm sorry to interrupt. No, no, thank you, Your Honor. Okay. Your Honor, is that order in this case, which was the effect that the sellers were entitled to retain the $1.5 million deposit from the buyer, Jason Taylor, must be reversed. And the reason for that is because it's inconsistent and it's inconsistent with both the jury's original verdict in favor of Taylor. And because it is also equally inconsistent with the district court's own post trial adjudications, which acknowledge that there have been a failure of concurrent conditions under the real estate contracted issue here. Additionally, it's also inconsistent with the court's initial post trial ruling, which initially reduced the amount of the verdict in Taylor's favor, and this is significant, from $1.546 million to $1.5 million even with Judge Gomez finding specifically that that amount of $1.5 million was the amount necessary to provide appropriate restitution to Taylor. Actually, the district court's order remitting the verdict to $1.5 million from $1.546 million got the applicable law that she'd governed this case exactly right. Because the district court found that that was, quote, the amount of restitution damages necessary and payable to restore buyers to their original position. The Virgin Islands has adopted the restatement second of contracts. And under the restatement second, and it's reflected in the treatise writers like Corbin, when a contract has concurrent conditions. And that means where performance is required of each side to the contract and required on a simultaneous basis. And those concurrent conditions are not met. That's what the court has in front of it here. The law provides that a, neither party can put the other party in breach, b, the contractual obligations are discharged and see restitution is required for any benefit that has been conferred by one party to the other party here. So, doesn't that mean neither parties entitled to a breach of contract remedy? Yes. Really dealing with a quasi-contract remedy. Neither party in this case based on Judge Gomez's rule 50 adjudication was entitled to a breach of contract remedy. But what Judge Gomez got very wrong about this decision was his implication at the tail end of his decision. And it was a lengthy one that because both sides were in breach and because he had originally indicated tailor should get restitution, in his mind apparently that meant tailor couldn't get the restitution in fact he had originally ordered and that got us to an exactly wrong result whether both parties were, with both parties being in breach, neither party could pursue a breach of contract remedy against the other but a breach of contract remedy on the part of tailor against the sellers was not necessary for the court to give back to tailor as restitution the $1.5 million deposit. And what we were left with under Judge Gomez's rule 50 adjudication was the anomalous situation where both sides were in breach but the sellers kept their own property and Mr. Taylor's $1.5 million. What about the seller? The seller's loss of the opportunity to sell someone else or to get other income from the property during the period before this is a final termination of the contract. That might have been a hypothetical remedy the sellers might have been titled to if they had proved a breach of contract claim against Mr. Taylor but the jury found that Mr. Taylor was not in breach of the contract. Judge Gomez overrode the jury we're not appealing that part of it because frankly we don't need to to get to the result that we need to do justice here but that doesn't pertain to this case Judge Roth because in this case what Judge Gomez found was that each side was in breach he simply then in effect scotch taped on to his long opinion the wrong remedy he then said well because both sides were in breach even though I originally ordered that Taylor should get restitution she get as the deposit back I'll now conclude that because both sides were in breach Taylor can't get it back that's exactly 180 degrees the wrong approach under both the restatement what Corbin would say you mercilly had what Professor Kingsfield might say and what the cases we cited the start of our briefs say you know this happens quite a bit Mr. Shroko do you agree with the notion that this deal never took yes I don't know what buyers you didn't have the money and sellers you didn't have marketable title I don't think the end of the matter is it is it really there's a lot going on here a lot of parties a lot of claims but is the case in your view that simple that certainly Judge Hardman not an unfair way to look at it and under those circumstances the laws very clear the legal principles are very clear the contract law principles are very clear everyone in the position they were in before they met and absolutely one of the parties to that transaction can't wind up at the end of the day with an advantage just because someone paid a deposit has to be refunded and Judge Gomez what's ironic about this case is Judge Gomez had zero problem understanding that originally but we went off into a kind of a rabbit hole when he overruled the jury whether he should have or not on his role 50 motion and again just to be clear we're not appealing that because the cases far too simple for us to have to do that when he went off on his role 50 adjudication he decided in fact everyone had reached he reached 180 degrees the wrong implication from that he said well then that must mean that what I originally ordered the restitution of the deposit to Taylor that now can't happen and when he Professor Corbin was once arguing an issue of contract law before the Massachusetts Supreme Judicial Court and he made a statement of his client's position and he said I support that and the court said well doesn't Corbin on contracts they differently and he said yes but I've changed my mind well I haven't changed my mind on this one although we're here because I don't want to put too fine a point on it judge Gomez changed his mind he went from having originally decided the case the right way which was kind of in a both the blame case or a deal judge hard I'm going to deal that never congealed everyone should go back to their status quo pre contractual positions at one point this case was rightly decided but it got tinkered with if you'll allow me to put it that way on these rule 50 and 59 motions and at the end of the tinkering we have a totally incorrect result we have a result that can't stand it's a result that unjustly enriches you're talking about the 1.5 million as a monolith let's break that down a little because there would seem in the record to be quite a factual distinction I find no evidence based on my own review of the record that any of the buyers authorized the disbursement of the 500,000 which helps your cause yes obviously unfortunately there's a pretty clear statement from one of your clients to go ahead and cash the million well and that was you know part of the deal was here's some hand money and that's why people are willing to lock up their property because they get some protection through the hand money so why why don't the sellers keep the million and lose the half I don't think I don't think that's quite accurate I don't I don't think the term go ahead and cash the million dollars or any other amount is quite that equivalent I mean that is the import of that earlier set of communications isn't it there was approval of release of the one million it was it was an approval on the part of one of the buyers not Mr. Taylor and here's where I think the jury for his partner I mean well that is part of his agent the partner is an agent and the lawyer there was there was a statement the lawyer said go ahead so why isn't Mr. Taylor's recourse to his partner and or lawyer a couple points on this a partnership theory a theory of agency was actually argued in the trial and rejected by the jury the real estate contract was not with an entity the XYZ partnership of which these three individual gentlemen were partners this was a real estate contract perhaps a little unusual with three individual people who I don't agree that they had actual and I think the parent at least well this is why we had a jury trial in this case one guy was on vacation Mr. Taylor's unavailable somebody spoke I think it was peresive from a my career he spoke for the three I hear you and all I think the quick but I also think the accurate answer to say is that was the summons substance in part of the jury trial and the jury we've had references early this morning to what deference should be awarded or courted a jury trial in a case that's like this one little different than the unusual circumstances this panel has had in front of a this morning but in a what I'll just use the phrase a more garden variety civil case like this one that jury and its determinations get an awful lot of deference and this jury at the end of the day determined that Taylor was not in breach and also theories like one of these gentlemen spoke for the other one was the agent for the other we're all rejected this has to be given deference interestingly judge Gomez in his rule 50 and 59 adjudications he confirmed this is a case in which both sides breached he originally ruled on his remitted that the amount of 1.546 million should be reduced to 1.5 because Taylor should get restitution the restitution is the form of the return of the deposit it had been released whether it was in escrow or released out of escrow and that's all we're talking about that's why judge harryman I reacted little when your honor said cash cash means this is your money go have a good time that's not what was happening here was simply released out of escrow in connection with a real estate transaction that failed let me ask you a question the deposit does which has to be returned does it matter whether it's been released out of escrow or not no I mean it's returnable wherever it's sitting in exactly and some was pocket judge raw if I could buy a piece of property from you and I could say here is my check it is a deposit against white acre that you are about to sell to me you can be walking around with that check in your purse you can be walking around with the cash in your pocket but when our real estate transaction never takes hold and the concurrent conditions are not met with both the jury and judge Gomez characterized correctly was the operative principle in this case then professor korban would say the restatement would say the cases we have cited would say I get my money back not because I get contract damages but because I get the relief to put me back in the status quo pre-contractual position the status quo pre-contract where that money is correct judge it does not not at all thank you very much miss roger we'll have you back on the bottle thank you miss tolton may it please the court good morning my name is sherry talton and I represent the sellers in this case given our limited time today I'd like to focus my remarks on the contract issues and in that regard I have three key points I'd like to make to you today first buyers argue that a court must return the parties to their pre-contract positions when there's a failure of concurrent conditions but there was no such failure in this case because sellers offered and were able to so restitution is not an available remedy to the buyers second even if restitution were an appropriate remedy in this case mr. Taylor would not be entitled to the 1.5 million dollars that he paid because section 374 of the restatement would limit his recovery to the portion of money that he paid in excess to the damages that his breach caused to sellers and finally contrary to the buyer's repeated statements the correct standard of review for the district courts ruling under rule 59 is generally abuse of discretion giving plenary review of legal conclusions and clear error review of factual determinations it's important to keep in mind judge gomez's march first 2011 opinion vacating the jury award of damages to mr. Taylor was not on the basis of 0.50 it was under the basis of rule 59 which certainly has a different standard including whether there was a manifest error of justice which there wasn't this case well why do you claim or how did your clients not fail one of the concurrent or more of the concurrent conditions when it appears to me anyway that they were just not able to deliver clear and marketable title particularly as defined by the agreement in fact if I could follow up on that did you maybe I missed something did you even respond to the Taylor argument about the exception for the right away materially breaching the requirement of clear marketable title we did respond to that argument your honor and I can happily address that now why isn't that why wouldn't that be enough to overturn the district courts they case here there's really it's the same reason for all the objections and and there's several if if if I may section 238 of the restatement instructs us that in order for a party to satisfy its concurrent conditions under a contract it need only offer performance with a manifested present ability to do so but some of the things that were needed still even at the time of trial hadn't been delivered if I remember the doc permits I mean your argument essentially was well don't worry about it's a material they were going to build a new doc anyway am I mischaracterizing that you're not mischaracterizing the specific reason on the dot permits but but maybe I should just jump ahead to the specific issue of seller's ability to perform I really think the case hinges on that question anyway the sellers were able to reform all of their requirements under these contracts for several reasons number one the seller's obligations under the contracts were modified by virtue of the buyer's waiver of their right to raise any objections regardless of whether it was the exceptions that Judge Smith asked me about or the doc permits that you you've asked me about Judge Smith where was that intentional relinquishment of a known right founded in record it was clearly found in mr. Perez's August 3rd 2004 email which clearly and unequivocally represented that buyers counsel had approved the documents that we submitted in July 2004 the contract would have required the buyers to raise a timely objection to any of these defects and then give sellers a chance to cure those defects otherwise under both the contract the contract statement on waiver of conditions and the common law of waiver mr. Perez's email was a clear and unequivocal waiver on behalf of all the buyers you say you say that a response that the documents look good is is tantamount to saying I waive any objection to any failure to comply with the documents that statement combined with the failure to timely raise the objection and give sellers the opportunity to cure as the contracts specified combine those two factors and there was a clear waiver of all of those obligations under the contract which means sellers never had to do it that's the first reason we were able to perform add two other reasons we were able to perform okay if I may the second reason is none of these pretextual defects that were untimely raised ever constituted a material breach of these contracts the district court itself found that neither the expiration of the dot permits were a material breach under the relevant factors and restate met 241 he also found that the exception relating to the Open Shorelines Act which I refer to as the OSA here that the OSA was a a material breach in addition the exceptions regarding the right of Judge Smith asked me about the 1953 right of way which I believe is Red Hook Road here that exception couldn't be a material breach because it's undisputable in the record that it was cure. Where was the critical deficiency in the evidence relative to the doc permits though? I'm sorry I don't understand your question but why why are the doc permits not material here? There's several reasons why the doc permits weren't material some of them the district court enunciated and some of them it didn't the first reason would be that there was undisputed testimony that the doc permits could be renewed and in fact the that they weren't. No they weren't but the question is could they have been because remember under the contract sellers were entitled to a 10 day cure period of any time any time we objection including the objection to raising the doc permits will never know whether they could have been cure except for the undisputed testimony of Mr. Dormour and the undisputed statements in his correspondence from September 2004 saying hey sellers are really ready willing and able to perform we can do it just let us know if you're ready and in response to that request for assurance we got a repudiation which would be another topic I'd like to talk about. But before you go there though what about the right of way on a state Nazareth that? Sure. There's a pair is the title. Well number one for sake of argument I would deny that it impairs the title it's a it's the right of way that allows the public access road to the property without that right of way you can't get to the court. It's in derogation of the the contract. Well it certainly would be I thought you were going to argue waver on that. Well I mean it is a problem but your argument is well they've waived it. That's my number one argument you're on are they've waived the right to objection to that to that exception. Number two though is that it wouldn't be a material breach because the undisputed evidence was we could take any of those exceptions off and remove and cure that problem but they never gave us our opportunity to do that. Okay so I'm sorry did I completely answer your question? Yes. So moving on I'd like to go back to the dog permits issue though because I didn't complete my statement on that. The the final reason and and I think perhaps the most important reason that the expiration of the dog permits didn't constitute a material breach of this contract is that it was it was a pretext. There's undisputed testimony from a number of witnesses including Mr. DeMour Mr. Car who was the architect Mr. Snap from the previous deal and Mr. Oriol who was the director of the CZM that the buyers never had any need for these permits. They had to build new docs and they had to get new permits. In fact they did file new permits. But how do you square that argument and your argument with respect to the right of way on a state Nazareth with the jury verdict? The jury can't come out the way it did if it supported what you just argued. Well I wouldn't pretend to say that I agreed with how the jury verdict came down on these issues but clearly it's consistent to argue that all of these exceptions were waived through through the buyers clear and unequivocal way through through Mr. D. But the jury could not have found that though and still ruled for Taylor. Well I think that again one of the arguments no I think that you're certainly right but there was another element here which we're not we're not saying the pink elephant in the room is that there was inconsistency in the jury's verdicts as to Mr. Taylor and the other buyers and whether that was a matter of his celebrity or some other reason I can't I can't pretend to know. Well we can't write an opinion based on speculation of that sort either we have to do our best to harmonize the the meal that's been served up to this appellate court right? I agree but I'm sorry. So how again what we join or do you have to my challenge that your arguments about your client being able to deliver clear and marketable title cannot be squared with the jury verdict? My rebut that would be the district court ruled under rule 59 his ruling was a correction of the clear manifest error and that error was allowing Mr. Taylor to get his deposit back after he admittedly breached the contract to Sellers Determine. That's an that's an injustice and the court correctly under rule 59 corrected that injustice. But again I think the most important part as for the specific reasons why Sellers were able to perform despite all of the buyers objections is that they weren't required to under the contract anymore after the buyers waived. Further if I can quickly say they weren't required to do that performance because their performance was excused through repudiation. So if there's no other questions I have one final quick remark about fairness that I'd like to make to the court. Buyers say it's just unfair to let us keep to let the sellers keep both the deposit money and the property but in fact the opposite is true. Non-refundable deposits are common in the real estate market to protect Sellers against the risk of market losses and lost our opportunities for sales and that's exactly what happened in this case. In that regard let me ask you follow up question relating to what I believe was the remedial argument that you made. I mean should if we found Eric if we proceeded as you suggest do we need to remand which I think you have suggested or can we just reinstate. Well if you if I may I believe that restitution is not appropriate so reversal is the appropriate order here however if the court is inclined to grant Mr. Taylor any restitution it's only option would be to remand to do the balancing test that's required by section 374 of the restatement. Does that answer your question yes it does thank you thank you I see that I'm out of time so if there's no other questions I'll thank the court thank you very much thank you thank you thank you is Hodge. Good morning your honor Maria Tankenzen Hodge I represent Kevin DeMourne this matter as you know from the record Mr. DeMourne was the attorney for the Sellers in this transaction and also a principle of the Espoe company premiere title which is a party below but settled during the course of the proceedings. The district court committed error in the award of summary judgment for conversion and also in its post trial ruling upholding the fraud verdict against attorney DeMourne because the gist of the action doctrine properly applied should have barred both of those tort claims against him. The court ruled that the gist of the action doctrine did apply. The gist of the action doctrine been adopted as a matter of the common law of the Virgin Islands. It has Judge Gomez himself adopted it but not by the Supreme Court of the Virgin Islands. I don't know we were required to predict here. I think it is probably an element of prediction that I don't think the Supreme Court has ruled we didn't find any cases by the Supreme Court in the last time. Because gist of the action doctrine is not universally recognized among the various states. But it certainly has been adopted by the district court here and to the extent that the district court has chosen to adopt it we submit that it must do so it certainly should do so in a fashion that recognizes the doctrine appropriately as it has been explained. Do I remember correctly that the Superior Court has adopted the gist of the action? The Superior Court has applied it as well. All right thank you. So the concern that we're expressing your honor is that the district court applied the doctrine here, extensive opinion on the doctrine in its application to the sellers, the buyers and the escrow agent and the only party in the entire proceeding that he singled out not to apply the doctrine to was the sellers attorney and the principle of the escrow agent. And we submit that was an arbitrary and legally unjustified distinction. The third circuit has ruled that the gist of the action doctrine bars tort claims against individual defendants where the contract between the plaintiff and the individual officers company created the duties that the individual allegedly breach. That's the holding in Williams versus Hilton Group. It's the same conclusion the court reached in Billa versus mutual fire decided several years later which we've said it in our briefs. Do you have any objection to us reversing the judgment against your client and instead ordering that that 500,000 be part of the restitutionary award? I don't even know how to answer that you know and I wouldn't want to concede something that would be detrimental to another party but I certainly do not object to the court reversing the judgments against Mr. DeMour as a standalone part of any ultimate decision you reach. I'm not sure you answered my question. I'm not sure that I've understood it then, Judge. My point is and this is a big assumption I'm not suggesting I'm going to come out this way in case but it occurs to me looking at the fact that your client is on the hook for 500,000 dollars. It's not a coincidence that that's the same amount as the second deposit. Would you agree with that? Exactly. It is the second deposit. Right. So let's assume that some of your adversaries, one or more of them are entitled to get that second deposit back. Do you care? As long as your client is exonerated and they get that money back, you're okay with that. Well, I'm sure that my client cares because this is his client but I would say that the court ought to take the step that is correct as Mr. DeMour and reverse this and if you also conclude in this case that there is some amount of restitution due to the buyers which I obviously don't predict that that would be a standalone issue and if there is such restitution due that the court would hopefully make a determination that allows for the amount if any to be restored to be determined on the basis of the record corrected in part for what we believe is this legal error as to Mr. DeMour's part of the case. And what about the fraud part? The fraud part should be treated in the same fashion as the conversion of our judge because they're both torts and they both should have been barred by the gist of the action doctrine under the correct application. Because with those in misrepresentation made it was a misrepresentation within the the and bit of the contractional documents. Exactly. Judge, in fact the specific allegations that the buyers are lying against Mr. DeMour when they contend that he sent documents that were in one manner or another not in conformity with the contracts that they weren't sufficient under the contracts that the applications for example to transfer the CZM permits that were sent to the buyers were not in the buyers estimation satisfactory in retrospect though they were at the time that those are those are the meat of their claim of fraud against Mr. DeMour. And so if they are relying on that as part of their claim of fraud against Mr. DeMour by definition in our view that's intertwined with the contract and that's what the gist of the action doctrine says shouldn't be allowed. Thank you Ms. Hodge your time is up unless you have some quick point that you want to close on. I just like to say judge and closing that for practical purposes for the practice of law for real estate lawyers the notion that a lawyer can be sued in tort either for conversion or fraud on the basis of saying things to another party about his client's ability to perform a real estate transaction to convert that to a tort against the lawyer is just fundamentally inconsistent with the way people practice law if the client can't be sued for those statements under the gist of the action doctrine then certainly the lawyer shouldn't be subject to suit in tort for the very same statements. Thank you very much. Thank you Judge. Mr. Sireko, a rebuttal? Yes Your Honor I will I will be brief I think the key statement from my opponent which really helps start on the process of untangling this ball of yarn was the comment when she said I wouldn't pretend to say I agreed with the way the jury ruled well sorry that ship is sailed the jury did rule the jury ruled that the sellers breached this jury ruled Taylor did not breach then judge Gomez started down a path of post trial rulings that sadly in my view didn't add a lot of clarity or accuracy to this because at the end of the day what he found was that instead of the jury concluding that Taylor had not breached he would conclude that Taylor in fact had breached and then he reached a ramification inconsistent with black letter law of what happens when both sides both sellers and buyers have breached that's a failure of concurrent conditions we know that the law calls out in the most clear terms possible what happens under those circumstances everyone has to be put back in their pre contractual position the only way to do that is to get back to how he had correctly viewed the case at one point in time which was that Taylor who had paid this money needed to get it back and that's how could how could you go as I've gotten it right I have great sympathy for the predicament he found himself in once he the verdict was opened right because the jury finds against Adian Perez for damages of $339,000 so if if Adian Perez are liable then that means that the sellers could not have been deemed by the jury to have failed a concurrent condition no the the the the jury found the sellers that excuse me the other buyers in breach Taylor not in breach but Taylor had been the one who had deposited the all of the $1.5 million and his judge Gomez initially correctly understood that meant Taylor needed to get restitution in the form of the return of the $1.5 million in fact when the jury's verdict was for Taylor in the amount of $1.546 million judge Gomez correctly said oh no that amount should be $1.5 that's the amount of the deposit and it's the return of the deposit which is the relief that needs to be accorded here what thereafter happened was we went down a little bit of a cul-de-sac now let me just cut you off because I you gave me the answer I wasn't expecting so I thought you were going to tell me it can be harmonized because Adian Perez were found guilty of fraud well that's true too which is and on the breach of contract claim the sellers were deemed liable and no and no damages were awarded on the breach of contract so all we're talking about here is a contract performances due from each side the presumption in the law is when performances due from each side it's due simultaneously key point performance in this case was not forth coming from the sellers for all the reasons this panel is enunciated all the failures with the title right where's the evidence you gave them the 10 days secure they had more than 10 days too pure and never did as I think judge Smith indicated the cure hadn't been put into effect when the matter was already in a lawsuit and being tried to a jury and it was clearly material just as a common sense matter it had to do with the access to the island but as a jurisprudential the issue of materiality the issue of their waiver all were issues it went to the jury the jury ruled so I think the path is very clear we get back to the understanding of this case is a case in which concurrent conditions existed they weren't met we looked to what the restatement and the treatise writers say we do we've got some very strong precedence indicating that the only proper path here is to reverse this case important part for the refund of those dollars to tailor to have restitution do you care whether it comes out of demores hide or not I think judge goman has already spoken to that in the sense that he's indicated that at a minimum there cannot be a double recovery there can't be the result you just want your 500 back I want to draw us of whether it's from the more or one point I yeah what the more was only hit for five note we we need 1.5 million dollars plus interest back thank you thank you very much mr. Rooker thank you to all three of the council the case was well argued and we'll take the matte