Oral argument — Malcolm Kelso v. Christine Butler

Mr. Mosley Please the court, Jim Mosley for Appellant Kelso. We briefed three issues before the court. The third issue, which relates to the motion for continuance. I'm authorized to waive and indicate that the court may not address or consider that particular argument. That leaves two other issues before the court, both of which relate to Rule 50. One's a broader issue, and that's the question of whether or not the motion that was presented in this case was sufficient under Rule 50A. That's an argument that could be of a broader import to the court or to others down the road. The other issue goes to assuming that the motion was sufficient, was it proper? Was the evidence such that a reasonable juror could not have ruled on behalf of or could not have ruled on behalf of a reasonable juror? I'm going to spend a little bit of time on the sufficiency of the motion issue first. However, I'm going to then spend most of my time on the factual side with respect to these others because that may be a better help to the court. This is a somewhat confusing record of a difficult trial. That's about all I can say there for starters. Rule 50 provides that a motion, it doesn't say whether or not it needs to be written or oral. There's cases that say it can be either one, and I'm not arguing against those, but the motion specifies the judgment sought and the law and the facts on which the moving party is entitled to judgment. The question for this court here is to what extent does that provide some sort of requirement for information to the non-moving party about the case because this motion provided nothing at all. This is a pure oral judge. We move for judgment as a matter of law, and that was it. Now, absent some kind of information about how to respond to that, it's difficult for the litigant to frame an argument. Mr. Mosley, what about a situation where it is painfully obvious what the deficiency is? I've heard an awful lot of those, seen a lot of those global motions. I made a couple myself, I guess. But because it's just obvious in the context of the trial that what's wrong. And the rule really is a notice rule to allow a curative action, and it's a very important rule. But what do we do with it? I don't know on this record whether that's that basic, if there is such an exception, practical exception to the rule, is it, what's the situation here? Was it not painfully obvious or not that this proof had not been made? Painfully obvious or not, Your Honor. The only comment that the district judge made, that Judge Walter made, was that the fellow that was presenting this, Mr. Kelso, didn't, was there and didn't take the stand to testify, and he's the counter to the assertions of the other side. It's kind of like in a summer judgment motion, you just don't find an answer. Your Honor, in the context of this case, Mr. Kelso was having a difficult time with Judge Walter. And Judge Walter was having a difficult time with Mr. Kelso. But Kelso was successful in presenting some evidence to the court on each of the three elements of each of these causes of action. It may not have been his own testimony, but through the examination of the hostile witness and the documents that were put on and stipulations that were entered into, there's some evidence on each element of these causes of action. But isn't . . . The problem . . . I'm sorry. You go ahead. I'm sorry if you . . . The problem with the, what my law professor used to call the Little Abner rule, which is, as any fool can plainly see, I can see that you're wrong here, is that Mr. Kelso or the litigant in this particular case may not be aware of that. The rules provide, and a good lawyer who's litigating these cases does not need the protection of Rule 50A. But some cases don't end up with those lawyers. In fact, isn't this case a good example of why Rule 50A provides for you to give the reason? Because it would be very easy for him to take the stand and say, yes, I didn't get paid the money, that the money never got transferred. So once he became aware that his ongoing discussions with the court during his questioning of other witnesses was not, in fact, evidence, he could very easily say, well, I want to put on evidence of that. So that's a good . . . this is not a hostile question at all. It's a friendly question. No, that would be appropriate, and that would be a reason that the motion should provide more information. But even if the motion is the bare bones, this isn't enough, judgment is a matter of law, Your Honor. If the judge had come back in and said, in a hypothetical case, you know, there's really no evidence here of consideration, there's a failure of consideration, and therefore there's a contract, and so I'm looking at granting this Rule 50A motion on that particular basis. Then the litigant, in my hypothetical, could step forward and say, I've got some information, I've got some evidence to present with respect to that particular issue or element, and we've had an opportunity to do so. So in this case, there's some information in the record, not trial record, but information summary judgment record that was previously before the court, that some of this information could have been provided had we known exactly what element of which causes of action were being attacked. Do we treat this man as a pro se litigant? Do we give you the evidence that he billed $400 an hour as a litigation consultant? Your Honor, I apologize, my ears are getting older as my voice . . . So are mine. It's the room here. Yes. All right. Mr. Mosley, what went through my mind is that certainly with a pro se litigant, they might need help, but as I understand the record, this man represented himself to be a litigation specialist of some sort, and billed a great deal, $400 an hour is a pretty good billing rate for a layman providing litigation services, which were paid for some period of time. A lot of money, $700,000 or something, was paid to him for that specialty, and now we're going to treat him as a pro se litigant or not? Your Honor, I think the standard applies whether it's a pro se litigant or an attorney. I think the rule will provide either way. I think that the rule doesn't . . . isn't needed as much for that attorney, and there are certainly advocates that need that. I understand that. I respect that answer, and I don't disagree with it, but I really want to know whether we treat him as a lawyer or not. If it was a lawyer representing his own case, I might look a little harder for some way around this. I would not treat him as a lawyer in this case, Your Honor. I don't . . . He's not a lawyer. He's not a lawyer. He's never trained as a lawyer. He does provide or has provided litigation advice and strategy, particularly in the oil and gas industry with respect to . . . Litigation? Litigation and with respect to business deals, both of which he's consulted with by others, including the Fennel Napoli in this case. But to say from that, that he is a courtroom advocate that should have understood the weaknesses, the specificity of the weaknesses of his causes of action is, I think, a stretch. Clearly he was aware of the exact problems, but there's a little doubt. The judge had made that fairly clear, and I need not go into that further unless the court wishes. But with that in mind, Mr. Kelso found himself in a position of . . . I think he felt like he was heard and he needed to get out of there. The judge had threatened contempt, and after he made his point with respect to the issue on the . . . What evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . So what I'd like do today, we've asked that we'd be allowed to split our time not so much as parties, but as to the facts on the one hand and the legal issues, the two legal issues. One was the contineuous, the other was rule 50 procedure. Mr. Phillips is prepared to do a much better job on that than I am. What I'd like to do is start out with the facts and then yield the floor to him. And I think you hit it on the head, Judge Higginbotham, when you talked about the painfully obvious, maybe that's an exception to the rule. I don't think it needs to be an exception, but that is definitely what we had here. We didn't have a situation where some element, some arcane legal knowledge, some element had been omitted. The case was fully tried. He cross-examined my client for two and a half or day and a half at least. Of the 300 pages of transcript, pages 44 to 308 of 319 are cross-examination of my client. And what he actually did was disprove all of his claims. He disproved them. He disproved them out of my client's mouth. And he argued with her and argued with and argued with her. But the jury got her testimony on each of the claims that was at issue. And it was painfully obvious that he could not prove, in fact, that he had disproved his claims. And I'll go over the three claims with you in a minute to show you that. This is not a situation, though, before I leave the Rule 50 thing, this is not a situation where that last sentence is designed to make sure everybody understands what's missing before a judge rules. This was a situation in which nothing was missing and everything pointed against this man's claims. He made a conscious decision, in my view, to avoid cross-examination in his case in chief. I mean, this is a man that supposedly for 25 years has advised Fortune 500 companies how to litigate. All the discovery had been conducted by his lawyers, the deposition had been taken. And Mr. May, who presumably would have been called to testify that my client breached the agreement, the other party, his deposition was never taken. It was scheduled several times, but never taken. Obviously, because they didn't get the information they needed. And that was before counsel withdrew, the first counsel withdrew. But to go to the three causes of action, I want to point out to you in the record where each of them, it's painfully obvious they're disproved. The first one is a breach of a consulting fee agreement. And the testimony was that it was a $400 an hour deal at the beginning, no fixed period, just at will, that when he hit the maximum in the first month or two, they went to a $20,000 maximum deal, and she was paying him $20,000 a month. And yes, she did pay $766,000 over the course of three plus years before Mr. Kelso went to prison. And of course that, I'll get to that later, created some problems with his other causes of action. But just on the consulting fee claim, we don't have a statement, we don't have an invoice, we don't have a timesheet, we have nothing. In fact, if you look at the- more than one, acknowledging that certain amounts were owed, and that's some evidence that some amount was owed at some point in time. She also wrote him letters that explained clearly that she had been mistaken about that and re-evaluated the situation ad nauseum, as she did again in the record, when he cross-examined her about both of those letters. What happens is we have nothing in this record to differentiate what he claims he did that he wasn't paid for, as opposed to what he claims that he did that he was paid for. There is nothing in the record to differentiate that. Well, I have two questions related to this, about being paid or not. Couldn't the jury say that they believed her first letter, not her explanation of the confusion? I mean, why doesn't that create a fact issue? And my second question is, if that doesn't create a fact issue, why shouldn't he have been told that he needs to say he hasn't been paid for all the work he's done, and that that's what he needs to tell- that's the missing link? Well, there was no issue as to whether he had been paid $766,000. The only issue was as to whether or not he was owed any more than that. Right. I'm sorry. It seems like either there is some evidence in the record that he might be owed more than that, because she has some difference in the letters, or else there's not evidence in the record, but he could cure that if he'd been told that that's a deficiency, if he testified. He might not be able to, because he might not be able to truthfully distinguish that, but not getting the chance under Rule 50, it seems like a problem for either way. Well, I understand your point, and I'm going to try to address that a little bit, but the Rule 50 procedure is really something Mr. Phillips is going to deal with you on the cases about, but I do want to get to the facts. Let me see. On this first thing, there's nothing that crystallizes what he's claiming that he's owed and for why, and he did rely on the letters, and she positively showed how she had recalculated and sent him detailed letters of the offsets, the recalculations, the things that he did for his own account. Most of this, you have to understand, is the time period in which he was in prison. He'd already been sent to prison for tax evasion, and yet he claimed he's still consulting or doing whatever. She didn't pay him for things that he did for his own family's interest after he'd acquired this 25% interest. What she said, and if you can look at it, 286 to 291, she goes over ad nauseam. I did not, all of these qualifications, how she accounted for it, I did not owe you anything else, and to top it off, this is your point, Judge, was there any evidence to the contrary? He admitted in the course of the colloquy with her that she kept track of what he did. He didn't keep any records. He didn't keep any. She, based on her involvement with him, kept track of what he was doing and how much time was involved. That's not evidence. Oh, yes, it is. No, him admitting things during the colloquy, just like we had earlier today, what the person says during the questioning is not evidence. I mean, that's ... The colloquy got it from her. She testified to that. She kept all the records. She's the one that kept the records and admitted in third-party correspondence, as I understand it, she owed him money, not just her correspondence. Not third-party. It was to him. I thought she wrote in a letter to somebody else. I've ... I do not think so, Your Honor. ... somebody else in some form or fashion. It was correspondence to him, and you got to remember, and I argued this to the jury. I think they got my point. He had taken advantage of this lady in every way that a man can take advantage of a woman during the course of this three years, and I really, in my opening statement when we started the case, said, this is a case about an abused woman. This is a case about seven years of somebody taking every advantage he can, going to prison, and then having the nerve, after getting paid $766,000 for basically the unauthorized practice of law, which is a crime, to sue her for another $120,000. Now, the evidence of that that came out on summary judgment was an affidavit from him. She owes me $117,000. It was an affidavit from him. Do you really need to tell a guy whose only evidence to survive summary judgment was his own affidavit that he needs to testify when he comes to trial? So that claim on the consulting fees was just totally disproven, and there was no evidence he could have come up with in addition to what he had already enlisted from her. And he had already put in her hands, in her testimony, that she was the master of the documents and had made the decisions. And she said, as I said, $286,000 to $291,000. I did not owe you anything else, over and over again. The second cause of action was a specific performance claim, and what he said was, I was owed a 25% mineral interest, which he was, and I didn't get it. There was a document. It's P-41. It's an assignment of a 25% mineral interest. It's in the record. It's there. It's pages 214 and 218 of Record Document 2041. It's translative of title. It's an assignment. Everything about it is valid under Louisiana law. What happened is, during the course of this discovery dispute, we had an extensive discovery dispute, we made the mistake, I guess, of saying, fine, take the records from this mineral title lawyer, and he found a letter which said, you know, you've got this assignment, and it probably could be attacked on some technicalities about the signatures, whether they're in authentic form or this or that. Counsel, you've used your ten minutes. I'm sorry? Your time has expired. Okay. Good morning, Your Honors. Daniel Phillips for the defendants, Christine Butler and all the rest of them. Your Honors, I'm here to talk to you about why the Rule 50 motion that was granted by the trial court was proper as a matter of law. First of all— Do you really believe it was proper as—I mean, on the text of Rule 50, there's no compliance here, right? There is the one sentence where it says that the motion has to identify the facts and the law, but— Right, and this didn't do that. The Fifth Circuit has interpreted that rule to mean that whenever the purposes of the motion, then it's acceptable, and that's what happened in this case. Okay. Well, can we start—I want to start, if it's okay with you, with the text of the rule, then do the advisory committee notes, and then go to the case law, because I think that would be the logical progression. So do you agree that this does not satisfy the text of the rule? I would agree that you can interpret it that way. Is there some other interpretation of the text of the rule? Well, the judge did also say things to the effect that Mr. Kelso did not testify, and he didn't put on any evidence for himself. So those right there are sufficient reasons. So even if the motion itself didn't— Well, but did he give an opportunity to testify after he said that? He said, you know, I'm going to grant it unless you testify and present evidence of— Right. He just said I'm granting it because you didn't testify. Boom. Right, and that's something I was going to talk about, is that what do you do at that point? He had already rested his case. He doesn't—none of the cases cited by Mr. Kelso or any of the ones that I've found— What has our court said about Rule 51, then? The court has said that whenever the purposes are satisfied, then technical noncompliance with the rule is not necessary. Have we ever said that in the context of an initial Rule 50 motion that has not been followed at the end of the actual close by a detailed, robust one that does satisfy? Well, again, I think that that's an important point because when the rule comes up a lot of times and what the purposes of the rule were designed for in the first place is not a situation that we have here where the motion is granted after the plaintiff's case in chief. If you look at the cases, and I think it was—well, I've got a big list of cases, but some of the cases refer to the defendants not wanting to trap a plaintiff. They don't want a defendant to not make a motion after the plaintiff's case in chief when they know that they could because it would identify defects and then just hang on to it until after the case has been submitted to the jury and then at that point say, well, we move for judgment as a matter of law. Right, but if the court didn't allow the plaintiff to reopen to cure deficiencies, that could be abuse of discretion. So they actually do have a right to say, I want to reopen, and if there's no—and they have a right to cure those deficiencies at that point, but they have to know that there are deficiencies to be able to do that. Well, first of all, Mr. Kelso didn't ask for that. But he didn't know what the deficiencies were because nothing was ever specified. The judge did say, Mr. Kelso, you didn't testify. You didn't put on any evidence for yourself. At that point, he did not say, Judge, can I have an opportunity to do so? Well, but, I mean, he didn't say you don't have damages testimony or you don't have evidence of causation on your second. He didn't tell him what the deficiencies were, and the counsel didn't articulate those in pressing the motion. The purpose of the rule are not to force the court to tell a party how to practice law. No, but it's to force the party to articulate the basis on which the judgment as a matter of law might be rendered, and it's necessary to achieve the purpose of the requirement the motion be made before the case is submitted to the jury so that the responding party may seek to correct any overlooked deficiencies in the proof. We know that's the purpose because that's in the advisory committee note. That is verbatim, the advisory committee note. Yeah, that is correct. Of course, the . . . Rule one of the Rental Rules of Civil Procedure direct the method of interpretation. What is the . . . Go back to the law of the circuit with regard to this particular Rule 50. You started off to describe a case, and then you were asking other questions. Tell me about the cases that do not insist upon the literal application of this rule. One good example is the Hearst case where, in this instance, the plaintiff was a sheriff's department deputy, and he made some comments to the media about a case that had been pending, and he was eventually fired, and after he was fired, he sued saying that he made those statements in his capacity as an individual, not in his capacity as a sheriff's deputy. After his case in chief, the defendant moved for judgment as a matter of law, and it was general in nature. The case doesn't really get into a lot of the details as far as that judgment. He made a judgment as a matter of law, and it was granted because the court found that the evidence that was presented showed that he was acting in his capacity as a deputy, and he presented no evidence to show that he was acting in his capacity as an individual. What did the trial judge . . . Granted a Rule 50 motion, what, if anything, did the trial judge advise the plaintiff of? I don't believe he advised him of anything. And what did the panel of our court say about that? The Fifth Circuit affirmed. Yes, but what did they say about it? Yeah, and they said that it was proper in that instance, even . . . Yeah, but what's their language? Yeah, I'll find it for you, so I'll read the court's exact language. The court went back and reviewed all the evidence and found exactly as the district court did. That there was no evidence to show that the district . . . or the deputy was acting in his capacity as an individual. Was the deficiency of the Rule 50 motion at issue? The Rule 50 motion was what was on appeal, and . . . Was the deficiency . . . was it alleged that the Rule 50 motion was deficient? Yeah. I don't know that they specifically get into that, but if it is a general motion, then that's a case . . . in that instance . . . Can you point us to any case where we talked about Rule 50? I'm sorry, Judge? Can you point us to any cases in which we talked about Rule 50's application and noncompliance with it? Sure, the Greenwood case. Greenwood v. Society Francais explains that when the purposes of the Rule are not satisfied . . . or, I'm sorry, when technical compliance with the Rule is not made, but the purposes of the requirement have been satisfied . . . Read me what it says. Read what it says. Do you have it there or not? Sure, it's a much better way of saying it to me, or in my words. This Court has not required strict compliance with Rule 50B and has excused technical noncompliance where the purposes of the requirement have been satisfied. Go down and just read it out loud so I can hear and understand it. I'm sorry. This Court has not required strict compliance with Rule 50B and has excused technical noncompliance with the purposes of the . . . sorry, where the purposes of the requirement have been satisfied. And then it goes on to say that the purposes are met when the court and plaintiff are alerted to the grounds on which the defendant contends the evidence is insufficient. But how was the plaintiff alerted to the grounds in this case on which they were insufficient? And actually, that's a post-close of all the evidence for 50B, but how was the plaintiff apprised of the grounds? I can tell you from being there that it was painfully obvious to everyone in the courtroom that his case was deficient throughout, just as . . . But you're a lawyer and you're an intelligent lawyer. Yeah, and in addition to that, you know, first of all, like we talked about, the judge identified the fact that he didn't present any evidence for himself. Is that the only case? There are other cases. There are other cases out there that dealt with it. Yes. Echeveria v. Chevron is another one. I don't want to hold you up with reading those. Yeah. But Hearst is not applicable, is it? I believe it is. I mean, Hearst is . . . I mean, it's an example of where a motion for judgment as a matter of law was made after . . . What the Rule 50 motion contained. And they filed a written Rule 50 motion in Hearst. They filed a motion. So if you're filing a motion, Rule 50, then you certainly are going to discuss grounds and things in it. One big key point in Hearst is that there's no indication that the plaintiff was given another opportunity to cure the defect. The defect was . . . Was the defect an issue in Hearst? We can go . . . It doesn't sound like anybody was saying the Rule 50 . . . Nobody argued the points, what you said. It could have been 100 pages long. It could have been two paragraphs. We don't know. But nobody was complaining about that. So we don't know. So it's not . . . It doesn't help us decide when a Rule 50a motion is deficient or not. All it requires is . . . And the Hearst case says this, is that the plaintiff has to be fully heard. And then at that point, a motion for judgment as a matter of law is right. And if we are to articulate a standard where it says that a plaintiff must always have an opportunity to cure a defect, then no motion for judgment as a matter of law could be granted after a plaintiff makes his case and she completes that process. That's not true, is it, counsel? Because there will be circumstances that the case . . . There's not a fact that you could . . . You can't put on the evidence or else it's legally prescribed because the statute of limitations is run or something. So there are lots of cases that Rule 50 could still be granted even if you're given a chance to cure defects as the rule specifically contemplates. Well, there may be instances where some testimony or some evidence that's presented would rule out. Well, let me give you a quick example of that. Suppose that to close the plaintiff's case, the judge turns to him and says, Counsel, I'm going to have to grant this motion unless you can . . . I've looked at them. They do not meet the requirements, but you can get that done down in the clerk's office. Now, that's a technical requirement that could be fatal, but it's curable. Now, what you were dealing earlier, and you got off of it, was the question of the situations where we say we do not literally read them formally, whatever, whatever. In other words, they contemplate that there are some situations in which we do not go forward. And what I'm trying to get at is what are those situations? And if you've got any other cases, maybe you ought to just follow a little brief and articulate them. Sure. We definitely cited those cases in our brief. We talked about the Greenwood case, talked about Logan versus Berger's Ozark County cured hams, talks about when the court declined to adopt a newly burdensome view of Rule 50 that would require litigants to detail every aspect of a case where a general, all-encompassing statement would suffice. And that's what we have in this case. So, you're talking about Rule 50b motions for a new judgment as a matter of law. That triggers, you have to renew your motion that concludes the entire case in order to, your failure to do so will affect the standard review of sufficiency of the evidence. But that's not the situation of the directed verdict itself. That's my question. Right, Your Honor. And as I was talking about earlier, that the original purpose behind the rule is they didn't want defendants to not make a motion for judgment as a matter of law after the plaintiff's case in chief. And then knowing that their case is defective and then only make that rule or make that motion at the end of all evidence. Counsel, I don't think you showed us any cases in your brief that have Rule 50a that was allowed. And in this circuit, assuming that we do have argument or that we have a more relaxed rule, I don't believe any of the cases that you cited are 50a cases where it was just a general statement that it fails and therefore we win. If you have such a case, that would be very interesting to me because I don't believe you've cited a single case that says that in Rule 50a we have ever allowed just the general sentence to be enough, where it was challenged as being insufficient. But Your Honor, we did the best with what we could. No, I'm just saying I don't think that you have a case that says that. And that may be the case. But what I would say to that. Why don't you take advantage of the invitation to file anything in writing in 10 days and if you have such a case and counsel can reply to it. Thank you, Your Honor, I appreciate it. Let's both reply to it and that'll work. Thank you, Counsel. Thank you, Your Honor. Your Honor, we responded to the Hurst case, which was the case that counsel was talking about a minute ago. The answer is I don't know what was in the Hurst motion. There was a motion filed. The opinion doesn't talk about what was in it. I can't tell you. That's number one. Number two. The case wasn't decided on the proposition of whether that was sufficient. I believe that's correct, Your Honor. Go ahead. We cited it for a different reason. The Fifth Circuit in CERNA says that the motion must still satisfy the purposes of the rule. And the purposes of the rule, I think, are set forth in the advisory committee notes. Let me ask you this. Is there any kind of harmful error requirement? And if so, when do you have to, when and how do you put in evidence and say, look, I'm not going to do this. If you send this back for a new trial, we could put on adequate evidence so that we're not just redoing a painful experience for everybody for naught. Your Honor, I do not have an answer to that question. I'm going to have to think about that and take advantage of Judge Higginbotham's kind offer. OK. You see my, you take my point. I mean, there was no proffer here, obviously. There's no, there's no motion for a new trial saying I've got all this evidence and had I known specific grounds. Here's evidence on each element. Your Honor, in drafting this brief, we were doing a little bit of guessing ourselves. We got three causes of action, three elements each, and we're trying to figure out which one or ones were under attack. And so we have a fairly full brief because we hit everything. I'll suggest to you that the evidence that supports our elements. Would you go through quickly on each cause of action and say where you've met, there is evidence in the record on each cause of action? I don't have specific record sites for all of them, but they're in the appellant's opening brief on pages 21, 22, opening brief pages 23, 24, and opening brief page 27. They're also in the reply brief on pages 2, 3, 4, 5, and I believe 7. Would we be clear? That's what that evidence is. Now, let me say one other item in response to what we've heard today. The standard that the court applies, the standard that the Supreme Court says, is that you don't view or you discount the evidence that the jury wasn't required to believe. And that includes evidence from a interested party. There was a quote in an appellee's brief from Brennan's Inc. where they omitted that particular portion from the quote. The full quote is, the court should give credence to evidence suggesting the moving party or supporting the moving party that is uncontradicted and unimpeached. At least, there's the part that was left out. At least to the extent that the evidence comes from a disinterested party. Ms. Butler was not a disinterested party. The jury didn't have to believe her when she said, oh, I've done an accounting, don't have any papers to support it. But I've done accounting, I've decided that now I owe him nothing. You can't make a case, however, by putting on that witness and the witness denies it and you have nothing else and you say, well, the jury may not believe her so I'm entitled to go to the jury. You have to have some other evidence. Do you agree with that? I agree with that. Some other evidence was correspondence and testimony from the time period. From her, indicating that she felt like she owed more money. That's on the consulting fees. What about the other two causes? The option agreement, I will mention quickly. Yes, there was an option. That's undisputed. It was exercised. There was a transfer, at least made or attempted to be made. The question is whether or not it was effective. Forty-five percent? Yes, there are documents in the record. Tab 13 is the opinion letter. Not from our lawyer, from Ms. Butler's lawyer, saying you've got problems with the title and here's how to fix them. That letter is in evidence. Ms. Butler indicated and admitted there was some problems with the title. I believe that's on pages 24 of the appellant's brief, record 4485 and 86, 4491 and 93. There's no question that there are problems with the title and she even said, I will fix those problems. But they haven't been fixed. But they don't have to, do they? That's what this lawsuit was about, was to obtain an order. Specific performance. Specific performance, but is that really required? I guess that's a legal issue. That would be a legal issue. But then you also complained about the mortgage on the 25%. I'm sorry? You complained about the mortgage on the 25%. The mortgage on the 25%. Evidence on that is a little bit sketchier. There was a $500,000 mortgage that was placed on the property. Ms. Butler testified she wasn't clear, couldn't remember whether it was placed before or after Kelso obtained the option or before or after Kelso exercised the option. Again, looking at that light in the light most favorable to Kelso, there's some evidence to support that the mortgage was put on. By the parties, and the parties are the family trusts and the family holding companies here. If we were to hold that the 50A motion was satisfactory, would we be creating a circuit split with the Ninth Circuit? I think you would be, Your Honor. I'll have to, I'll check on the Ninth Circuit. You know, the Waters case that you've cited. Yes, ma'am. If we were to say that this, because it would be saying for the first time that this is, this bare thing is enough, would we create a circuit split? I think that's a possibility. Or is there already a circuit split so we wouldn't be creating one? Nobody, I don't think, has told us that. Your Honor, I will, one more minute. I'll say this. I would not suggest that the court get into the details of the nature of the title defects in this case. I don't think that's necessary in order to reach the ultimate issue here. Number two, I would say that painfully obvious isn't a standard of review. It can't be applied from court. That's why it's painful. That's why it's painful, you're right. Further, testifying on your own behalf isn't an element of a cause of action. It would have been wiser. It might even have been necessary depending on the facts of a particular case. But in this case, the issue is looking at the elements of the plaintiff's claim, these three claims. Is there some evidence from which the jury could have gone forward? That's assuming that you find that the motion is sufficient. I think we have. I think we're done, Your Honor. Thank you. That concludes the arguments for the day. Court will stand adjourned until nine o'clock in the morning.