[00:00:02] Speaker 01:
begin and if you want to reserve time please watch your clock.

[00:00:06] Speaker 02:
Yes I do your honor my name is Mark Ray and spelled W-R-A-Y and I represent the appellant and the defendant below I would request to reserve you know three or four minutes three minutes or four at the end and I appreciate that.

[00:00:21] Speaker 02:
The contract between the parties in this case as you know in our papers is subject

[00:00:32] Speaker 02:
to at least two reasonable interpretations.

[00:00:34] Speaker 02:
And it's a matter of well-settled Nevada law that when that situation exists, a summary judgment interpreting that contract is inappropriate.

[00:00:42] Speaker 02:
Why?

[00:00:42] Speaker 02:
Because, of course, the court needs to consider other evidence and to interpret what the really meaning is because it's ambiguous.

[00:00:50] Speaker 02:
And these are well-settled principles.

[00:00:53] Speaker 02:
We believe respectfully in the district court that not only did we present

[00:00:58] Speaker 02:
another reasonable interpretation of this agreement to the court.

[00:01:02] Speaker 02:
But we offered a better and more reasonable interpretation than the court settled upon at the end.

[00:01:09] Speaker 02:
This was a standard, normal real estate agreement negotiated between sophisticated parties represented by real estate lawyers.

[00:01:18] Speaker 02:
And they had, of course, the key provisions in there regarding due diligence, which is key to any transaction where a buyer is trying to acquire property.

[00:01:27] Speaker 02:
they have that opportunity to look at the property in the circumstances of the title and decide if they want to proceed.

[00:01:34] Speaker 02:
The problem in this case arose when the district court decided that that period of time for due diligence simply meant that First American had a, excuse me, their subrogore, which is graystone.

[00:01:49] Speaker 02:
Graystone

[00:01:50] Speaker 02:
had the opportunity to decide whether to go forward, but left out the part that at the end of that due diligence period, what happens?

[00:01:57] Speaker 02:
A decision has to be made whether to proceed.

[00:02:00] Speaker 02:
You make that decision and go forward from that point.

[00:02:03] Speaker 02:
Under the agreement, it's very clear in Section 6.01,

[00:02:08] Speaker 02:
And of course, you've seen this, but just let me highlight this.

[00:02:12] Speaker 02:
Upon buyer's approval of its feasibility review, buyers shall be deemed to have approved those covenants, conditions, restrictions, rights of way, easements, reservations, and other matters of record as disclosed in the title report, which is the commitment, the preliminary title report that had been provided by First American.

[00:02:33] Speaker 02:
And indeed, in this case,

[00:02:36] Speaker 02:
that process was followed, as it is in all of these commercial real estate agreements with parties represented by counsel.

[00:02:43] Speaker 02:
And at the end of that time, the decision was made by Greystone, thanks to the indemnity provided by First American to Greystone.

[00:02:54] Speaker 02:
The decision was made to proceed.

[00:02:56] Speaker 00:
Let me ask you, counsel, what admissible evidence are you going to offer a trial to establish that in fact the contractual allocation of risk

[00:03:07] Speaker 00:
was to be born by the buyer and not the seller.

[00:03:11] Speaker 00:
What admissible evidence.

[00:03:13] Speaker 00:
So in other words, you're saying that this should not have been decided as a matter of law by the district court judge who found that the language was unambiguous.

[00:03:24] Speaker 00:
So your position is now the risk of loss belonged to the buyer, not the seller.

[00:03:31] Speaker 00:
So what evidence did you proffer to the district court judge that you will

[00:03:37] Speaker 00:
offer at trial.

[00:03:39] Speaker 02:
Your Honor, there's a lot of evidence on that issue.

[00:03:42] Speaker 02:
What admissible evidence?

[00:03:44] Speaker 02:
Yes, I'm sorry.

[00:03:44] Speaker 02:
Admissible evidence, for example, that on December the 3rd, when the exception to Title No.

[00:03:51] Speaker 02:
37 came up, Your Honor, the parties, through their counsel, spent the day deciding what to do about exception 37.

[00:04:01] Speaker 02:
And at that time,

[00:04:03] Speaker 02:
First American, Your Honor, knew that under Exception 37, if they approved the matters of record, which included that exception, they knew that by approving it, they would be taking the risk of that payment not being made under Exception 37.

[00:04:20] Speaker 00:
What I understand, and of course you may not have had thought it was important to set forth all the admissible evidence, but I understand from the briefing and from what I've read in the transcripts that

[00:04:32] Speaker 00:
that council for commerce said they thought the obligation was satisfied.

[00:04:38] Speaker 00:
That's all they said.

[00:04:40] Speaker 00:
And then retrospectively when a deposition was taken, council again for commerce said in the deposition, we knew that this was a payment obligation of commerce's and it wasn't paid and it was our obligation

[00:05:01] Speaker 00:
commerce's obligation to pay it.

[00:05:04] Speaker 00:
So how did during these negotiations that risk allocation change to that of the buyer?

[00:05:14] Speaker 02:
Because under section 6.01 that I just read, it is an exception to title.

[00:05:20] Speaker 02:
And this is the key point.

[00:05:22] Speaker 02:
At the end of the 30 days, if you approve the title matters and you go forward at that point, that's at your risk.

[00:05:29] Speaker 02:
at the risk of the buyer, not the seller.

[00:05:32] Speaker 02:
The seller may have any obligations, whether deeds of trust, Your Honor, assessments, or any of the things that could be prorated, all those kinds of things.

[00:05:41] Speaker 00:
And one of those was that the seller is obligated to pay monetary liens.

[00:05:49] Speaker 00:
So whatever else was set forth in

[00:05:53] Speaker 00:
and 809 I understand that your client has a different view as to whether or not 809 is clear and unambiguous.

[00:06:00] Speaker 00:
But still there was the obligation of commerce to pay monetary liens.

[00:06:07] Speaker 00:
Why isn't this a monetary lien?

[00:06:09] Speaker 00:
One million dollars that all of a sudden is made clear within 24 hours of the closing and your client is not obligated to make that payment without the contract

[00:06:22] Speaker 00:
making clear that this was indeed an obligation to be borne by the buyer.

[00:06:28] Speaker 02:
Absolutely, Your Honor.

[00:06:29] Speaker 02:
That's exactly right.

[00:06:30] Speaker 02:
That's exactly what I'm saying.

[00:06:31] Speaker 00:
It was not a monetary... Show me in the contract.

[00:06:34] Speaker 00:
Let's start there, where that obligation is clear in the language of the agreement.

[00:06:41] Speaker 02:
Okay, in section 6.01 it says, whatever is listed as a title exception during the due diligence period, you have the opportunity to object and not go forward with the transaction based on the fact that in the title report there's an exception that hasn't been removed.

[00:06:57] Speaker 02:
But if you approve those exceptions.

[00:06:58] Speaker 00:
But at the time of that, the title exception, it was essentially first American.

[00:07:05] Speaker 00:
It was essentially removed.

[00:07:07] Speaker 00:
And it wasn't as if the buyer accepted

[00:07:11] Speaker 00:
the obligation.

[00:07:13] Speaker 00:
And it certainly was a monetary lien, right?

[00:07:16] Speaker 00:
No.

[00:07:18] Speaker 00:
Why not?

[00:07:18] Speaker 02:
I'm sorry, Your Honor.

[00:07:19] Speaker 02:
It was not a monetary lien.

[00:07:20] Speaker 02:
Well, because a monetary lien required security.

[00:07:22] Speaker 02:
It's collateral.

[00:07:24] Speaker 00:
There's no definition of that.

[00:07:25] Speaker 00:
A lien is essentially a charge.

[00:07:28] Speaker 00:
There's a mention of mechanics liens, but then there's monetary liens.

[00:07:34] Speaker 00:
Why is this not a lien?

[00:07:36] Speaker 02:
Because there was no security in the

[00:07:40] Speaker 02:
Property granted to the city for the C1 channel fees one impact phase three impact fee.

[00:07:47] Speaker 02:
There was no correct.

[00:07:48] Speaker 00:
Oh that the city refused to issue Permits for building.

[00:07:55] Speaker 00:
Yes, because it had not been paid because in other words the property and the project was rendered Impossible Unless unless those fees were paid

[00:08:09] Speaker 02:
I don't think you understand the facts the way I do, respectfully.

[00:08:12] Speaker 02:
I believe that what happened was the city has essentially a restriction on title, which means that they don't have to issue a building permit for something unless that fee is paid.

[00:08:21] Speaker 02:
And that was their remedy, and that's exactly what they did.

[00:08:23] Speaker 02:
When, after this transaction closed, the new owners of the property, which included Dunhill and Greystone, went to develop their properties, the city insisted

[00:08:34] Speaker 02:
that the fee be paid as a condition of issuing a building permit, which was the remedy.

[00:08:38] Speaker 02:
Why?

[00:08:38] Speaker 02:
Because they couldn't foreclose.

[00:08:40] Speaker 02:
There was no monetary lien.

[00:08:42] Speaker 02:
Had the city wanted to treat it as a monetary lien, they would have had to have a lien in the form of a consensual lien on the property, like a deed of trust.

[00:08:53] Speaker 02:
But that's not what this represented.

[00:08:54] Speaker 02:
And therefore, the city could not foreclose.

[00:08:56] Speaker 02:
And they didn't try to.

[00:08:57] Speaker 02:
They didn't even try to sue for the monetary amount.

[00:09:00] Speaker 02:
Because the remedy that they had

[00:09:03] Speaker 02:
was to have this restriction on title against whoever owned the property.

[00:09:07] Speaker 02:
And remember, in the court's order and in FACO's brief, First American's brief, what they say, Your Honor, is very definitely, yeah, the amount that this obligation had to be paid by somebody

[00:09:26] Speaker 02:
Not by commerce, not by First America, not by Greystone, not by Dunhill, but it had to be paid by somebody.

[00:09:35] Speaker 02:
So it was an ability for the city to keep anyone who wanted to develop the property from getting a building permit.

[00:09:44] Speaker 02:
That's the way it was structured.

[00:09:46] Speaker 00:
This is what I'm reading from the contract.

[00:09:49] Speaker 00:
All of this information that you're proffering that would be admitted in your view at trial,

[00:09:57] Speaker 00:
All of this occurred after the execution of the contract.

[00:10:01] Speaker 00:
During the performance.

[00:10:02] Speaker 00:
There was nothing, no one ever from the seller or the seller's attorney ever mentioned this.

[00:10:09] Speaker 00:
All of this occurred within 24 hours of the close.

[00:10:13] Speaker 00:
And the provision that I think is significant, and tell me I'm wrong, the seller shall remove at its sole expense before closing and deliver property

[00:10:25] Speaker 00:
conveyed free and clear of any and all mortgages, which you mentioned, it's not a mortgage, mechanic liens, it's not a mechanic lien, or other monetary liens.

[00:10:41] Speaker 00:
And from what you've told me, it is a monetary lien because

[00:10:45] Speaker 00:
The city, six months later in July, refused to offer them, or basically placed a lien on the property, said, we're not going to give you building permits, right?

[00:10:56] Speaker 02:
I believe, Your Honor, that even the district court judge agreed with our position that it was not under that clause.

[00:11:04] Speaker 02:
In the judge's order, Your Honor, the district court judge, who sided with First American's interpretation of everything else, did not

[00:11:12] Speaker 02:
use that as a basis for saying, oh, this is really a monetary lien in the first place.

[00:11:17] Speaker 02:
Everyone agrees.

[00:11:18] Speaker 00:
And you believe, okay, so I will accept that.

[00:11:22] Speaker 00:
But is it your position that under the law it was not?

[00:11:26] Speaker 00:
Yes.

[00:11:27] Speaker 00:
Why?

[00:11:28] Speaker 00:
Why?

[00:11:28] Speaker 00:
What in the contract indicates that?

[00:11:31] Speaker 00:
And I didn't see anything in the case law that defined a monetary lien as not something that was required to be paid at the time of closing.

[00:11:39] Speaker 02:
We did, in our brief, cite Nevada law on the difference between a lien and something that's not a lien.

[00:11:46] Speaker 02:
And we put it in the end of our argument, if you would go to it.

[00:11:49] Speaker 02:
I'm sorry, I don't know the page right now.

[00:11:51] Speaker 02:
We talked about the fact that there was this other argument, the one you're talking about right now, that was made by First American before the district court.

[00:11:58] Speaker 02:
And we said, everyone knew that it did not fall under that, what they called, I forget, safety valve

[00:12:07] Speaker 02:
argument that they were using, and the district court, to its credit, said no.

[00:12:12] Speaker 02:
That provision about payment of monetary liens, removals of deeds of trust that are recorded against the property, is not applicable to this contract, this private contract.

[00:12:23] Speaker 02:
It did not have any clauses in it that said that the property was posted to a trustee or to anyone in favor of the city to foreclose, which is what the power of a lien is, is the right

[00:12:37] Speaker 02:
to foreclose on the property that's the collateral.

[00:12:40] Speaker 02:
I know that I was going to reserve time, but I would like to satisfy you that this issue had been addressed and had been rejected even by the district court as a plausible basis for the decision that it made.

[00:12:56] Speaker 02:
In fact, it wasn't mentioned.

[00:12:58] Speaker 01:
If we can look at Section 8.09B in the contract, you know, it says a seller at the closing shall pay real property taxes, bonds, assessments, et cetera.

[00:13:09] Speaker 01:
The term assessment, if you just look at the dictionary definition, it's a pretty broad term.

[00:13:13] Speaker 01:
Why wouldn't the impact fund fees be included as an assessment?

[00:13:17] Speaker 02:
Because an assessment is a thing that has a very definite meaning under Nevada law.

[00:13:23] Speaker 02:
under Nevada statute, an assessment comes from an ordinance adopted by a county or city, municipality or a county, and under that ordinance, they set up a district, and you can assess people that require installment payment.

[00:13:38] Speaker 01:
The contract then also says SIDs, LIDs, and we assume the words aren't

[00:13:44] Speaker 01:
no word is superfluous and not duplicative.

[00:13:46] Speaker 01:
So that would presumably cover the SID Special Improvement District, the LIDs, but it also has assessments, which, you know, why wouldn't an impact fund arguably be included in that?

[00:13:56] Speaker 02:
I put a section in the brief on this, and you read it, and I know you all read it, so I just want to say that an assessment in Nevada law means something specific.

[00:14:05] Speaker 02:
It's an authority granted by statute by the Nevada legislature to a local municipality to create a district, to assess the people within that district,

[00:14:14] Speaker 02:
require them to make installments of payments on a periodic basis to pay their assessment.

[00:14:22] Speaker 02:
So it's an ongoing current obligation created by statute.

[00:14:27] Speaker 02:
Of course, we're dealing with a private contract, Your Honor.

[00:14:30] Speaker 02:
I mean a private contract between the city and us for a fee, which was eight years old when this new transaction closed.

[00:14:37] Speaker 02:
And that's why the assessment doesn't apply.

[00:14:45] Speaker 02:
The fact that the court, in my view, called this C-1 phase 3 impact fee an assessment shows that the court did not have an appreciation or had a misapprehension of how assessments work and what the word means to two Nevada real estate lawyers that wrote this contract.

[00:15:02] Speaker 02:
Very sophisticated, experienced people who knew what an assessment was and said.

[00:15:07] Speaker 02:
We're talking about taxes.

[00:15:08] Speaker 02:
We're talking about assessments.

[00:15:09] Speaker 02:
Let me stop.

[00:15:10] Speaker 01:
Well, then why did they use the word, why did they reference special improvement districts and LID fees?

[00:15:14] Speaker 01:
Because it's an assessment.

[00:15:16] Speaker 01:
Well, I know, but the contract lists them separately.

[00:15:19] Speaker 01:
Why include SIDs, LIDs if they're included in their assessments?

[00:15:22] Speaker 02:
They're giving examples.

[00:15:23] Speaker 02:
They're giving examples.

[00:15:23] Speaker 01:
Well, they didn't say examples, assessments including but not limited to SIDs, LIDs.

[00:15:28] Speaker 01:
They said assessments, comma.

[00:15:30] Speaker 01:
LID slash SID.

[00:15:32] Speaker 02:
I think the structure of the sentence is fairly read as saying we want to direct escrow and that's what the topic of this whole thing was.

[00:15:38] Speaker 02:
We want to direct escrow how to proceed with prorations and we want all the things that can be prorated to be prorated by you.

[00:15:46] Speaker 02:
Here's what examples of things are that are prorated and any other obligations.

[00:15:53] Speaker 02:
That's how they worded it to make sure that escrow is instructed.

[00:15:57] Speaker 02:
That's what this clause was about.

[00:15:58] Speaker 02:
It wasn't even directed towards

[00:16:00] Speaker 02:
First American or commerce is directed towards the escrow.

[00:16:03] Speaker 00:
But the language which is the most difficult language I think for your client is the language that says all payments that were accrued must be paid.

[00:16:14] Speaker 00:
It doesn't say all payments that are to be prorated must be paid and that it's the interpretation is

[00:16:24] Speaker 00:
is this is to be interpreted broadly.

[00:16:27] Speaker 00:
So unless there's something in the contract, it seems to me that what you're telling me is that the interpretation of the contract is it was incorrect by the district court judge and all you're going to offer at the time of trial is your particular interpretation of the contract based upon what you believe to be Nevada law is that this is not an assessment.

[00:16:54] Speaker 00:
and that any issue that's raised at the time of closing is the responsibility of the buyer.

[00:17:03] Speaker 00:
Am I right?

[00:17:04] Speaker 00:
Your position is you just look at the contract because if you look at the facts, then Mr. Rice made clear that he thought the obligation was paid at the time of the closing and then retrospectively he said yes, this was commerce's obligation.

[00:17:23] Speaker 00:
Yes, it was to be paid.

[00:17:25] Speaker 00:
Yes, it wasn't paid.

[00:17:27] Speaker 00:
So what's your evidence?

[00:17:30] Speaker 02:
OK.

[00:17:31] Speaker 02:
Your Honor, I put down my evidence in paragraph 38.

[00:17:33] Speaker 02:
May I just go through it?

[00:17:34] Speaker 02:
One thing we wanted to offer was that when First American approved it on December the 3rd, and we're talking about December 3rd is where most of the evidence comes from.

[00:17:45] Speaker 02:
It was a business decision to assume the risk.

[00:17:47] Speaker 02:
Their own experts said that's what they were doing.

[00:17:49] Speaker 02:
They had the right to do it.

[00:17:51] Speaker 02:
I'm not saying they didn't.

[00:17:52] Speaker 02:
But once you do it, it's over.

[00:17:54] Speaker 00:
They said they will admit this was our obligation and we assumed it.

[00:18:00] Speaker 02:
The evidence.

[00:18:01] Speaker 00:
And therefore, it is our responsibility under the contract?

[00:18:07] Speaker 00:
That's their admission?

[00:18:08] Speaker 02:
Yes, their conduct.

[00:18:10] Speaker 02:
Yes, Your Honor.

[00:18:11] Speaker 00:
The evidence is... Okay, you said they said, so I'm confused here.

[00:18:15] Speaker 00:
What was the conduct?

[00:18:16] Speaker 02:
Well, the conduct on December 3rd, First American, upon inquiring as to the status of this item, number 37, which they had neglected for the previous 29 days, on December 3rd, can be very important.

[00:18:31] Speaker 02:
and as you know that's when the attorney started talking all day long and there's a lot of evidence.

[00:18:36] Speaker 00:
What conversation what conversation is going that you are going to offer where say for example buyer admitted oh yes this is our obligation and we're we're not but but we're just going to go ahead and close anyway and no one said in their testimony we admit it was our obligation that's not what the plaintiff said what they said was

[00:18:59] Speaker 02:
We need you to indemnify us against this obligation, which means they knew that they had the obligation flowing to themselves as a result of approving this.

[00:19:09] Speaker 02:
That's why December 3rd was so critical.

[00:19:11] Speaker 02:
That's what happened on December 3rd.

[00:19:13] Speaker 02:
Everyone went to general quarters, didn't they?

[00:19:16] Speaker 02:
Why?

[00:19:16] Speaker 02:
Why was it so important?

[00:19:18] Speaker 02:
Because approval meant something.

[00:19:19] Speaker 02:
It meant a shift between the seller and the buyer as to who's going to be responsible for matters of record.

[00:19:26] Speaker 02:
It was a matter of record, and surely this was a matter of record.

[00:19:29] Speaker 02:
I know you said First American withdrew or eliminated it, took it off the title report.

[00:19:37] Speaker 02:
But that doesn't mean it's not of record.

[00:19:38] Speaker 02:
It's still in the recorder's office.

[00:19:40] Speaker 02:
Anyone who looks at the property is going to see that's a matter of record to this APN.

[00:19:46] Speaker 00:
And I suspect that you know the facts better than I do.

[00:19:49] Speaker 00:
And I'm very interested in what you have said.

[00:19:52] Speaker 00:
But as I understand it, when

[00:19:56] Speaker 00:
the attorney for First American or for Greystone, I think it was Mr. Bennett, tried to get a hold of the attorney for commerce.

[00:20:06] Speaker 00:
And the attorney for commerce said something about, we thought the obligation had been paid.

[00:20:15] Speaker 00:
And the attorney for first, I'm sorry, it was actually Greystone, tried to call him back.

[00:20:24] Speaker 00:
He never returned the call.

[00:20:25] Speaker 02:
Okay, what happened was they both talked about it, both attorneys talked about it on December the 3rd.

[00:20:32] Speaker 02:
Nobody said on December the 3rd, Your Honor, Section 8.09 is clear as a bell.

[00:20:37] Speaker 02:
This is a responsibility to the seller.

[00:20:39] Speaker 02:
End of story.

[00:20:40] Speaker 02:
That's not what anyone said.

[00:20:42] Speaker 02:
Everyone knew that wasn't the case.

[00:20:44] Speaker 02:
Why does that matter?

[00:20:45] Speaker 04:
If the court finds that the contract itself is unambiguous, it doesn't really matter what people at the time thought.

[00:20:54] Speaker 04:
You've got parole evidence problems.

[00:20:56] Speaker 04:
You've got other problems.

[00:20:57] Speaker 04:
I think to get this into evidence is a problem for your trial.

[00:21:04] Speaker 02:
May I just say this was decided, Your Honor, on summary judgment.

[00:21:09] Speaker 02:
And therefore, as you well know, there's only certain things you can do.

[00:21:12] Speaker 02:
There's no cross-examination.

[00:21:13] Speaker 02:
You just decide whether there's an issue for trial, of course.

[00:21:16] Speaker 02:
So obviously, Your Honor, I believe this judge was trying to decide an issue because of the reason you said, oh, this is my function.

[00:21:24] Speaker 02:
I'm a judge.

[00:21:25] Speaker 02:
I get to interpret contracts.

[00:21:27] Speaker 02:
However, if there's two reasonable interpretations of that contract, Your Honor,

[00:21:32] Speaker 02:
There shouldn't have been a summary judgment.

[00:21:34] Speaker 02:
There could have been some other disposition, but not a summary judgment.

[00:21:37] Speaker 02:
And I think the factors that show what was happening there as we were beginning COVID, we couldn't get a trial date that would run, that would go.

[00:21:46] Speaker 02:
We had four or five trial settings before the judge said, oh, I'm going to change my mind on summary judgment.

[00:21:50] Speaker 02:
So that's not evidence.

[00:21:52] Speaker 04:
No, no.

[00:21:53] Speaker 04:
I'm asking a different question, but that's OK.

[00:21:55] Speaker 04:
I'm taking up your time.

[00:21:57] Speaker 04:
I'm so sorry.

[00:21:58] Speaker 04:
Go ahead.

[00:21:59] Speaker 02:
Please.

[00:21:59] Speaker 01:
I think we are way over time, but it's because we asked you a lot of questions.

[00:22:04] Speaker 01:
But we'll give you two minutes of rebuttal.

[00:22:07] Speaker 02:
Well, thank you very much for that consideration.

[00:22:09] Speaker 02:
And thank you for allowing us to have oral argument today.

[00:22:11] Speaker 02:
Appreciate it.

[00:22:30] Speaker 03:
May it please the court.

[00:22:31] Speaker 03:
Good morning.

[00:22:32] Speaker 03:
My name is Kevin Sinclair.

[00:22:34] Speaker 03:
I represent the Appellee First American Title Insurance Company.

[00:22:38] Speaker 03:
Judge Lee, I wanted to address one of the questions that you posed to my colleague, Mr. Ray, because I don't believe that the answer that he gave was the correct answer.

[00:22:50] Speaker 03:
You asked this question about the definition of an assessment, and Mr. Ray answered that an assessment is this very specific thing.

[00:22:58] Speaker 03:
It must be

[00:22:59] Speaker 03:
created by way of a municipal ordinance or something of that nature.

[00:23:04] Speaker 03:
That's not the case under Nevada law.

[00:23:05] Speaker 03:
You have private assessments.

[00:23:07] Speaker 03:
You have them all the time.

[00:23:10] Speaker 03:
Common interest communities or HOAs are quite common in Nevada.

[00:23:14] Speaker 03:
HOAs levy assessments all the time.

[00:23:17] Speaker 03:
That is a quintessential example of a private assessment.

[00:23:20] Speaker 03:
So by no means are assessments limited to the one example proffered by my friend Mr. Ray.

[00:23:27] Speaker 03:
as you noted, the definition is quite broad.

[00:23:34] Speaker 03:
There's baked in to Commerce Associates' argument an assumption that if something falls within the ambit of Section 6.01 of this agreement, it is necessarily excluded from Section 8.09B.

[00:23:57] Speaker 03:
This is a false dichotomy.

[00:23:59] Speaker 03:
The HOA is a perfect example of this.

[00:24:04] Speaker 03:
All HOAs are created by the recording of a document, a declaration of covenants, conditions, and restrictions, or CCNRs.

[00:24:14] Speaker 03:
That is obviously a matter of title.

[00:24:17] Speaker 03:
In fact, that is specified as one of the things listed in 6.01 as the things that might show up, list covenants, conditions, and restrictions.

[00:24:28] Speaker 03:
HOA, the recorded declaration of CCNRs is what gives HOAs the rights to levy assessments and creates the assessments.

[00:24:38] Speaker 03:
So you can simultaneously have something recorded against the title, which would be identified under 6.01, and you could have something, and then it could also lead to an assessment under 8.09B.

[00:24:51] Speaker 03:
And so we don't see these two things as mutually exclusive.

[00:24:56] Speaker 03:
And there's nothing in the contract that says that they are mutually exclusive.

[00:25:02] Speaker 03:
Again, running with the example of the HOA, if hypothetically the preliminary title report showed a declaration of CCNRs, then the buyer would have had until 30 days after the contract was signed to agree to move forward subject to that declaration of CCNRs.

[00:25:22] Speaker 03:
But that does not mean that if there were assessments due and owing from before the ultimate close of escrow, that those were not still the obligation of the seller.

[00:25:36] Speaker 03:
And if it subsequently came out that there was some unpaid assessment that had accrued before the close of escrow but for whatever reason had not been paid, there's no reasonable basis to dispute.

[00:25:51] Speaker 03:
that that would still have remained the obligation of the seller.

[00:25:54] Speaker 03:
In fact, we have that sentence at the very end of 8.09b.

[00:25:57] Speaker 00:
Let me ask a question, though, on that.

[00:25:59] Speaker 00:
Of course.

[00:25:59] Speaker 00:
The argument that Mr. Ray is making is that 8.09 is not applicable or the provisions of it aren't applicable because this was not to be prorated.

[00:26:14] Speaker 00:
It was due.

[00:26:16] Speaker 00:
So that 8.09 is not, it doesn't,

[00:26:20] Speaker 00:
your argument about it being an assessment doesn't apply.

[00:26:23] Speaker 00:
Why not?

[00:26:24] Speaker 03:
Sure.

[00:26:25] Speaker 03:
Let me address that.

[00:26:25] Speaker 03:
The word prorate means to assign proportionally, right?

[00:26:30] Speaker 03:
That's a rough dictionary definition, forgive me.

[00:26:33] Speaker 03:
I didn't bring Merriam-Lebster's with me today, but would you agree that that's a rough dictionary definition?

[00:26:38] Speaker 03:
Well, we prorate things all the time where one party is ascribed 100 percent and the other party is ascribed zero.

[00:26:45] Speaker 03:
So, for example, if when I get home today I'm leaving the airport

[00:26:49] Speaker 03:
and someone rearends me at an intersection, my insurance company and their insurance company are going to prorate liability between the two drivers to figure out which insurance company is going to pay for that.

[00:26:58] Speaker 03:
If I'm just sitting there minding my own business and get rearended.

[00:27:02] Speaker 00:
Yeah, I understand your argument.

[00:27:03] Speaker 00:
But he's saying that the caption at the top says something that is to be prorated.

[00:27:11] Speaker 00:
And this was something that was due before.

[00:27:13] Speaker 00:
So the position of Mr. Ray is,

[00:27:16] Speaker 00:
It's not.

[00:27:17] Speaker 00:
It doesn't apply.

[00:27:18] Speaker 00:
And of course, where you have taxes, then that's obviously a situation that commonly is prorated.

[00:27:26] Speaker 03:
Sure.

[00:27:28] Speaker 03:
Let's take the example of taxes.

[00:27:30] Speaker 00:
But I'm asking to look at the contract and tell me why the identification of proration doesn't apply to only those matters that had to be prorated like taxes, which this is not.

[00:27:43] Speaker 00:
It was a prior obligation, payment obligation.

[00:27:47] Speaker 03:
Sure.

[00:27:48] Speaker 03:
So if you look at 8.09b, it lists various items that were subject to that section.

[00:28:04] Speaker 03:
Real property taxes, bonds and assessments, SIDs, LIDs, any assessments with respect to any association.

[00:28:12] Speaker 03:
If there were tax payments, all those things,

[00:28:16] Speaker 03:
are sometimes charged on regular intervals and sometimes they're not charged on intervals.

[00:28:22] Speaker 03:
So for example, if a tax payment had been due before the close of ASPRO but not paid, that would have still been prorated to the seller.

[00:28:34] Speaker 03:
If it had not yet been due, but it was for the portion of time after the last payment had been made, that would still get prorated to the seller.

[00:28:45] Speaker 03:
So just because

[00:28:46] Speaker 03:
a payment just because the deadline to pay arose before the close of escrow doesn't mean it's exempt from proration.

[00:28:56] Speaker 00:
For example, there was- You're saying, in other words, proration means it may or may not exist beyond the date of the close.

[00:29:07] Speaker 00:
So merely because it was obligated before, and once it's paid,

[00:29:13] Speaker 00:
it will not be paid in the future like taxes.

[00:29:17] Speaker 03:
Sure.

[00:29:19] Speaker 00:
So essentially, it is something that could be prorated if it were a tax, but it won't be because it's owed before.

[00:29:31] Speaker 00:
So you're just answering the question that it's not proratable.

[00:29:35] Speaker 03:
No, it is proratable.

[00:29:37] Speaker 03:
If, for example, so the C-1 channel phase three agreement

[00:29:43] Speaker 03:
imposed two deadlines to pay the C1 impact fee in two tranches, right?

[00:29:49] Speaker 03:
May 31st of 2005, November 30th of 2005.

[00:29:54] Speaker 03:
If we change the fact pattern a little bit and we move the close of escrow to in between those two dates, then commerce would be here arguing that it was only on the hook for the first half and the buyer was on the hook for the second half because the second half was due after the close of escrow.

[00:30:10] Speaker 03:
If we change the fact pattern further still,

[00:30:13] Speaker 03:
and make the close of Astro before May 31, 2005.

[00:30:17] Speaker 03:
Then again, Commerce would be here arguing, hey, we have no liability.

[00:30:22] Speaker 03:
This is a payment obligation that accrues after the close of Astro because both deadlines are after.

[00:30:26] Speaker 00:
In this case... But the facts in this case is it was due 2005, two separate payments.

[00:30:33] Speaker 00:
So it was due.

[00:30:34] Speaker 00:
And maybe the other argument that Mr. Reyes made is that it was delinquent.

[00:30:41] Speaker 03:
Well, if it's delinquent, just because it's delinquent doesn't mean that it's not their obligation to pay it.

[00:30:49] Speaker 00:
Under what portion of the contract?

[00:30:54] Speaker 03:
So if I read the third sentence of 8.09b, it says,

[00:31:11] Speaker 03:
This section shall be interpreted broadly toward the end that any taxes, assessments, bond obligations, or other payment obligations accruing prior to the close of escrow shall be the responsibility of seller.

[00:31:24] Speaker 03:
And any taxes, assessments, bond obligations, or other payment obligations accruing after close of escrow shall be the responsibility of buyer.

[00:31:32] Speaker 03:
Accruing is when the obligation must be paid.

[00:31:35] Speaker 03:
And so if it had to be paid before the close of escrow, it is the responsibility of the seller.

[00:31:39] Speaker 00:
I understand your argument.

[00:31:41] Speaker 00:
That was the position that the district court took.

[00:31:43] Speaker 00:
But what I'm asking you is to respond to what Mr. Ray's argument is, which is it was not to be prorated because it was a prior obligation, correct?

[00:31:55] Speaker 00:
It was already due.

[00:31:57] Speaker 00:
And he also claims that it was delinquent because it wasn't paid in 2005.

[00:32:04] Speaker 00:
So that the general provision relied on by the district court

[00:32:10] Speaker 00:
is not applicable, that all payments had to be made?

[00:32:15] Speaker 03:
I would respond, Mr. – well, I'd respond to that characterization of the contract that a delinquent payment is outside of the scope of 8.

[00:32:25] Speaker 03:
– sorry.

[00:32:27] Speaker 03:
To the extent someone were to argue that a delinquent payment is outside of the scope of 8.09B,

[00:32:34] Speaker 03:
I would respond by saying respectfully that interpretation is not supported by the plain language of the text of 8.09b.

[00:32:43] Speaker 00:
And why?

[00:32:44] Speaker 03:
Because, again, the sentence I just read says, any obligation accruing.

[00:32:52] Speaker 03:
It doesn't say any obligation accruing, but not yet delinquent.

[00:32:55] Speaker 03:
It just says any obligation that has accrued prior to that date.

[00:33:00] Speaker 00:
So despite the fact that at the beginning it says non-delinquent,

[00:33:05] Speaker 00:
at the beginning of that, of 8.09, that the language, the very strong language, later, about the third sentence down, you think is controlling?

[00:33:19] Speaker 03:
I don't think the two are inconsistent because, for example, in, so by including the phrase non-delinquent, that expands the scope

[00:33:33] Speaker 03:
of what must be paid.

[00:33:35] Speaker 03:
It doesn't contract it.

[00:33:37] Speaker 03:
In most states, including California, where we're currently located, you pay your property taxes into tranches for the entire fiscal year.

[00:33:47] Speaker 03:
You have a tranche that's due in November and a tranche that's due in February.

[00:33:52] Speaker 03:
But the tranche that you're paying in November covers the first half of the fiscal year from July 1st until

[00:34:03] Speaker 03:
December 31st.

[00:34:05] Speaker 03:
And so if you were to sell a property between July 1st and the November payment deadline, even though those taxes are non-delinquent, there's still a portion of them that is allocable to the seller because the tax covers that full period.

[00:34:27] Speaker 03:
So the inclusion of the phrase

[00:34:32] Speaker 03:
non-delinquent does not narrow it, it broadens what the seller must pay and is consistent with erecting this bright line that anything accruing before the close of escrow is the responsibility of the seller and anything accruing after the close of escrow is the responsibility of the buyer.

[00:34:51] Speaker 00:
I'll be out with the interpretation of two provisions of the contract.

[00:34:55] Speaker 00:
One is the provision that allocates the risk at the time of closing.

[00:35:00] Speaker 00:
Now, Mr. Ray believes that this was a risk according to that provision of the contract that was allocated because the buyer did not, went ahead with the contract despite the fact that it was brought to their attention.

[00:35:17] Speaker 00:
So he assumed the risk.

[00:35:19] Speaker 00:
With the language in the contract that provides that the seller is to provide title free and clear

[00:35:28] Speaker 00:
of all monetary liens, which could be obligations.

[00:35:36] Speaker 00:
Is it your position that the risk of allocation is the provision that applies despite the fact that the other provision in the contract says all monetary liens are the responsibility of the seller?

[00:35:55] Speaker 03:
I don't think, well, the two provisions

[00:35:58] Speaker 03:
can both yield the same result.

[00:36:01] Speaker 03:
They're not mutually, again, they don't cancel one another out.

[00:36:09] Speaker 03:
So Mr. Ray's, or Commerce's argument is that Greystone agreed to move forward with the agreement.

[00:36:23] Speaker 03:
What Greystone did when it moved forward with the agreement

[00:36:27] Speaker 03:
was to proceed to close escrow based on what had been reported as the matters that had been recorded against the title.

[00:36:37] Speaker 03:
So, for example, you can move forward saying, oh, yeah, I know that's, you know, I know that that covenant is there.

[00:36:44] Speaker 03:
I know that that restriction is there.

[00:36:45] Speaker 03:
It doesn't alter the fact that the payment obligation was already allocated under the contract under 8.09B.

[00:36:55] Speaker 03:
to the seller.

[00:36:57] Speaker 03:
On top of that, to the extent that this is a monetary lien, 6.01 is also clear that that is an obligation of the seller.

[00:37:06] Speaker 03:
6.01 is quite clear that under no circumstances will unpaid monetary liens be considered permitted title exceptions.

[00:37:17] Speaker 03:
It says permitted title exceptions shall not include and seller shall remove at its sole expense at or before the close of escrow.

[00:37:25] Speaker 03:
and shall cause the property to be delivered and conveyed free and clear of any and all deeds of trust, mortgages, mechanics, liens, notices of list pendants, and or other monetary liens.

[00:37:35] Speaker 03:
So there's no inconsistency in the contract.

[00:37:37] Speaker 03:
It's not like one provision of the contract says this is your problem and the other says someone else's.

[00:37:41] Speaker 00:
So tell me what, you know, obviously it was a quick closing at the end.

[00:37:48] Speaker 00:
So why isn't the buyer responsible for, under the,

[00:37:54] Speaker 00:
the contract allocation when that buyer was made, it was made clear to the buyer there's a problem here and that the seller said we're not paying it.

[00:38:07] Speaker 00:
Why?

[00:38:07] Speaker 00:
Why under those circumstances isn't it the buyer's obligation under the contract?

[00:38:14] Speaker 00:
that that particular provision of the contract, which says, as you're stuck with it, essentially, as I think you said in your brief, you're stuck with it.

[00:38:26] Speaker 00:
Why?

[00:38:27] Speaker 00:
Why weren't they stuck with it?

[00:38:29] Speaker 03:
Sure.

[00:38:30] Speaker 03:
The short answer is because the contract says that they're not stuck with it.

[00:38:35] Speaker 03:
But the longer answer to your question, Your Honor, is that let's be very clear about what

[00:38:44] Speaker 03:
Commerce alleges was and was not disclosed in December of 2012 before the close of escrow.

[00:38:54] Speaker 03:
Commerce does not suggest, hey, we notified you that this had not been paid and that, you know, that this was due in owing.

[00:39:04] Speaker 03:
That's not what they said.

[00:39:05] Speaker 03:
They didn't come clear with that.

[00:39:10] Speaker 03:
What commerce is saying,

[00:39:12] Speaker 03:
is that they provided answers, graced and said, well, just in case, will you indemnify us for this?

[00:39:21] Speaker 03:
Commerce said, no, we don't want to do that.

[00:39:23] Speaker 03:
And so what Commerce is saying, well, based on that, then that must mean that our interpretation of the contract is correct.

[00:39:29] Speaker 03:
But the plain language of the contract only supports one interpretation, namely that all monetary obligations accruing prior to the close of escrow were the responsibility

[00:39:41] Speaker 03:
of the seller and all monetary obligations occurring after the close of escrow were the responsibility of the buyer.

[00:39:47] Speaker 01:
Isn't this what really happened here is commerce hit the ball.

[00:39:52] Speaker 01:
They should have known whether they paid the impact fee.

[00:39:54] Speaker 01:
It's two payments of four hundred something thousand dollars.

[00:39:56] Speaker 01:
Presumably it's on their ledger.

[00:39:58] Speaker 01:
They took advantage of it.

[00:39:59] Speaker 01:
The city itself really didn't know.

[00:40:01] Speaker 01:
They had bad records and commerce hit the ball and you know the other side at the end of the contract really didn't address it directly here.

[00:40:10] Speaker 01:
I don't think anyone really thought about whether the language includes something like an impact fee.

[00:40:16] Speaker 01:
Perhaps the language of the contract here covers it, maybe.

[00:40:19] Speaker 01:
It's broad.

[00:40:20] Speaker 01:
On the other hand, maybe not.

[00:40:23] Speaker 01:
word assessment and tax bonds that are about periodic payments.

[00:40:27] Speaker 01:
So why isn't this a factual issue?

[00:40:28] Speaker 01:
I mean, you can make your case before a jury that, you know, commerce hit the ball at the last minute and pressured, et cetera, and maybe the agreement, you can cite custom and usage in the industry of what assessment means and just send it to a jury.

[00:40:43] Speaker 01:
Sure.

[00:40:44] Speaker 03:
In your question, you used an important phrase.

[00:40:48] Speaker 03:
You said periodic payment.

[00:40:51] Speaker 03:
There's no requirement under 8.09 that it be a periodic payment.

[00:40:55] Speaker 01:
But if you look at it, I mean, taxes, real property taxes, usually paid every year.

[00:40:59] Speaker 01:
Bonds, usually it's over duration of the bond.

[00:41:02] Speaker 01:
SIDs, LIDs, typically whatever, monthly payment, quarterly payment, they all seem periodic.

[00:41:06] Speaker 01:
So assessment presumably be like that.

[00:41:10] Speaker 03:
May I offer an example of an assessment that's not periodic that would clearly be covered by this?

[00:41:15] Speaker 03:
If you're a member of a homeowners association, you pay periodic HOA dues monthly, quarterly, or annually.

[00:41:21] Speaker 03:
But sometimes your HOA also levies a special assessment.

[00:41:24] Speaker 03:
You have an unusual bill that comes up.

[00:41:31] Speaker 03:
There's nothing in the language of this that would suggest that such a one-time payment to an HOA, which is clearly a kind of assessment.

[00:41:39] Speaker 03:
It's a special assessment.

[00:41:40] Speaker 03:
And NRS 116 talks about special assessments as a kind of assessment.

[00:41:45] Speaker 03:
There's no suggestion that that would not be required, or that would not be covered.

[00:41:51] Speaker 03:
Just because many of the things in here are periodic does not mean that it is limited to things which are periodic.

[00:42:01] Speaker 00:
So I'm looking at 6.01, which Mr. Ray is relying on, the language.

[00:42:07] Speaker 00:
It says upon buyer's approval of the feasibility review, buyer shall be deemed to have approved covenants, conditions, restrictions.

[00:42:19] Speaker 00:
That's not applicable in my view, but you can tell me otherwise.

[00:42:23] Speaker 00:
Rights of way, easements, reservations, and other matters of record.

[00:42:30] Speaker 00:
Why isn't this an other matter of record that was approved by the buyer?

[00:42:36] Speaker 03:
Approving the fact that the instrument is recorded is not the same thing as assuming the pre-closing obligation to make the payment.

[00:42:45] Speaker 00:
So what you're saying is, is that this particular circumstance of which arose the last minute, which was the impact fee, was not a matter of record, although it was brought to the attention of the buyer?

[00:43:01] Speaker 03:
No, the phase three agreement

[00:43:06] Speaker 03:
was a matter of record.

[00:43:07] Speaker 03:
But the obligation to make the payment is covered by 8.09.

[00:43:16] Speaker 03:
That was the point I was trying to make earlier, that the two are not mutually exclusive.

[00:43:21] Speaker 03:
Something can be both a matter affecting title under 6.01 and also give rise to a payment obligation.

[00:43:30] Speaker 01:
Great.

[00:43:31] Speaker 01:
Thank you.

[00:43:32] Speaker 01:
Thank you so much.

[00:43:39] Speaker 02:
I respectfully disagree with my colleague.

[00:43:40] Speaker 02:
And thank you, by the way, for these extra two minutes of stoppage time.

[00:43:43] Speaker 02:
I'm really appreciative of this.

[00:43:46] Speaker 02:
Make no mistake, an HOA is a classic assessment.

[00:43:49] Speaker 02:
We understand that completely.

[00:43:51] Speaker 02:
By the way, foreclosable to enforce it.

[00:43:56] Speaker 02:
Exactly what we're talking about when you talk about a prorated item.

[00:43:59] Speaker 02:
And by the way, you are correct, Your Honor.

[00:44:02] Speaker 02:
The contract says non-delinquent items are the things that get prorated.

[00:44:07] Speaker 02:
anything delinquent is obviously the obligation of the seller.

[00:44:11] Speaker 02:
A delinquent assessment, a delinquent tax, anything, but not what we're talking about here, which is covered by section 6.01 and 7.01, which is a matter of title.

[00:44:23] Speaker 00:
If we don't have this... And I'm looking at the language, Mr. Ray, and I read that it said, matters of record.

[00:44:31] Speaker 02:
Yes.

[00:44:31] Speaker 00:
As disclosed in the title report.

[00:44:33] Speaker 00:
So this is, is that what you're, is that the language you're relying on?

[00:44:37] Speaker 00:
Yes, as... Does that mean it's not an easement, it's not a right of way, it's not a restriction, conditions, covenants?

[00:44:45] Speaker 00:
It falls in the category matter of record?

[00:44:48] Speaker 02:
Absolutely.

[00:44:50] Speaker 00:
Of course it is.

[00:44:50] Speaker 00:
And why?

[00:44:51] Speaker 00:
How is it a matter of record?

[00:44:53] Speaker 02:
It's recorded and it shows up in a toddler report.

[00:44:55] Speaker 02:
If you did a toddler report today, it shows up.

[00:45:00] Speaker 00:
When you say record, I'm sorry.

[00:45:02] Speaker 02:
Clark County, Nevada.

[00:45:04] Speaker 02:
Clark County Office of the Recorder.

[00:45:06] Speaker 02:
So it's a matter of record.

[00:45:08] Speaker 02:
If we don't have what happens at 6.01 and 7.01,

[00:45:11] Speaker 02:
We're not going to be having due diligence periods at all because it would make no difference.

[00:45:14] Speaker 02:
Why bother with due diligence if it doesn't mean anything?

[00:45:18] Speaker 02:
At the end of that, someone either approves or disapproves of the due diligence and decides to go forward.

[00:45:24] Speaker 02:
That's key.

[00:45:25] Speaker 02:
That's what's so important.

[00:45:26] Speaker 02:
And we fulfilled every obligation.

[00:45:27] Speaker 02:
We didn't hide the ball.

[00:45:28] Speaker 00:
OK, so let me ask you this.

[00:45:30] Speaker 00:
So you said something that was rather interesting.

[00:45:32] Speaker 00:
You said that these impact fees

[00:45:36] Speaker 00:
this requirement that it be paid by commerce was recorded?

[00:45:43] Speaker 00:
Was it in an accounting recorder's office, like a lien?

[00:45:46] Speaker 02:
Yes, not like a lien.

[00:45:48] Speaker 02:
It's not a lien.

[00:45:48] Speaker 02:
It's a matter, it's an exception to title.

[00:45:51] Speaker 00:
For example, an easement or... I mean, it was recorded?

[00:45:54] Speaker 00:
It was... I don't have the information for any of the facts that it was... I'm sorry.

[00:45:59] Speaker 00:
They didn't seek to collect it, right?

[00:46:04] Speaker 00:
So in a way, the council's position is it wasn't delinquent until they seek to collect it.

[00:46:09] Speaker 00:
But I didn't see anything in the record that indicated that it had been recorded.

[00:46:15] Speaker 02:
Yes, I'm sorry.

[00:46:16] Speaker 02:
My oversight.

[00:46:18] Speaker 02:
The evidence was, in court, undisputed, that it showed up as an exception to title in a title commitment, i.e.

[00:46:24] Speaker 02:
a preliminary title report.

[00:46:25] Speaker 02:
saying these are the matters that show up if you look at your property, you're taking this property subject to the following things.

[00:46:31] Speaker 00:
And one of them... Right, but was it recorded?

[00:46:36] Speaker 00:
Once the obligation arose in 2005, did the city record it?

[00:46:43] Speaker 02:
No, they waited until 2006.

[00:46:45] Speaker 00:
That's what I'm saying.

[00:46:46] Speaker 02:
They recorded it after the fact, after it was delinquent, they recorded it, believe it or not.

[00:46:52] Speaker 02:
I know, the city just dropped the ball completely,

[00:46:55] Speaker 02:
This happened eight years, Your Honor, before December of 2012, eight years earlier.

[00:47:01] Speaker 02:
So no one knew in the 24 hours or less than that on one business day exactly the status of this payment.

[00:47:07] Speaker 02:
And they're complaining about that.

[00:47:09] Speaker 02:
They raised it on the very last of the 30th day of the thing.

[00:47:13] Speaker 02:
I also wanted to say, please understand, the judge said, Your Honor, we are liable for all debts, all debts accruing prior to close of heaven.

[00:47:23] Speaker 02:
Just like counsel said, my colleague said it right to you.

[00:47:26] Speaker 02:
That's not true.

[00:47:27] Speaker 02:
We're not liable for all debts accruing prior to close.

[00:47:30] Speaker 02:
We're not liable for that.

[00:47:31] Speaker 02:
It's not what it says.

[00:47:33] Speaker 02:
We're not liable for things they approve as matters of record.

[00:47:36] Speaker 02:
We're not.

[00:47:38] Speaker 01:
I think you made your point.

[00:47:39] Speaker 01:
We've given you plenty of time.

[00:47:41] Speaker 02:
I'm so sorry.

[00:47:42] Speaker 02:
Thank you very much.

[00:47:42] Speaker 01:
Great.

[00:47:43] Speaker 01:
Thank you both for the helpful argument.

[00:47:44] Speaker 01:
The case has been submitted.