[00:00:01] Speaker 03:
Enrae Paniola Cable Company, Addison Bonner appearing for Appellant, Jonathan C. Bolton appearing for Appellee.

[00:00:13] Speaker 04:
Council, Mr. Bonner, would you like to reserve time for reply?

[00:00:17] Speaker 04:
Yes, Your Honor, five minutes, please.

[00:00:19] Speaker 04:
All right, five minutes, and you may begin.

[00:00:21] Speaker 03:
Thank you, Your Honors.

[00:00:24] Speaker 03:
May it please the court?

[00:00:25] Speaker 03:
I'm Addison Bonner.

[00:00:26] Speaker 03:
I'm here for Appellant, Clearcom Inc.

[00:00:30] Speaker 03:
We all know that summary judgment should not be granted in matters where there are genuine win issues of material fact.

[00:00:37] Speaker 03:
Clear Commons filed this appeal because the bankruptcy court in disposing of the underlying adversary proceeding did so by summary judgment.

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And that was improper for three reasons.

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First, the bankruptcy court decided issues of the intent of the parties.

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And there are genuine issues of material fact as to the intent of the parties in numerous of the key issues here.

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And we're talking about the intent of the parties in entering into certain agreements.

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the intent of the parties in making certain payments and in receiving certain payments and in what those payments were supposed to be for, the application of those payments and who the ultimate recipient of those payments were, issues of intent that the bankruptcy court improperly decided.

[00:01:28] Speaker 03:
Next,

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The second reason the bankruptcy court erred relates to credibility determinations.

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It's clear from the bankruptcy court's rulings that the court found that Clearcom's representatives, the he's who submitted declarations in support of Clearcom's positions, the court believed that they were not credible.

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And in the summary judgment context, when Clearcom is defending against the summary judgment,

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They should have been given the benefit of the doubt, and they weren't.

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It's clear that the court just disregarded what they had to say, accepted what was presented in support of summary judgment, and found against clear caught.

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Third, the bankruptcy court overlooked many issues of material fact in the case generally.

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And that's basically what's all laid out in the briefing.

[00:02:22] Speaker 02:
The- Mr. Bonner, this is Judge Corbett.

[00:02:26] Speaker 02:
I do have a question for you.

[00:02:28] Speaker 02:
Yes.

[00:02:28] Speaker 02:
You talk about Judge Farris making credibility determinations, but I'm concerned about what was the objective evidence before him.

[00:02:39] Speaker 02:
And if you could please direct me to

[00:02:41] Speaker 02:
the objective evidence, not conclusory declarations, but objective evidence that supports the appellate's argument that the money paid by charter to clear com after January of 2019 was for use of something other than the Paniolo cable network.

[00:03:03] Speaker 03:
that's exactly what we're talking about.

[00:03:06] Speaker 03:
There are issues of material fact as to what that money was paid for.

[00:03:10] Speaker 03:
And I think, you know, going through the declarations and what people have said, I'll point you to specifically the declaration we submitted for Mr. Santos, and that was- Excuse me.

[00:03:20] Speaker 01:
Excuse me, counsel.

[00:03:21] Speaker 03:
Yes.

[00:03:22] Speaker 01:
Just again, he asked you for non-declaration testimony, evidence, not the declaration testimony.

[00:03:29] Speaker 01:
So, we understand that

[00:03:32] Speaker 01:
what Judge Farris made the decision based upon was interrogatory responses, answer other documents that were admitted.

[00:03:41] Speaker 01:
What objective evidence other than the declaration do you rely upon?

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That's basically all we have.

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And I think that's why it's so important that those determinations should not have been made in the summer judgment context.

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All we have because of just the history of relationships between these companies is, hey, what were the people doing?

[00:04:02] Speaker 03:
The people were actually on the ground negotiating these agreements, making payments, addressing emergency situations.

[00:04:10] Speaker 03:
Why were these things happening?

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And that's why we need to get the full story.

[00:04:15] Speaker 03:
We can't just do this on a... That's not correct.

[00:04:18] Speaker 04:
I mean, that seems to fly in the face of the amount of the services being provided.

[00:04:24] Speaker 04:
You have $68 million worth of payments over the years.

[00:04:29] Speaker 04:
There's a detailed history of those payments spanning from 2019 to 2023.

[00:04:35] Speaker 04:
They break down into certain components and stuff.

[00:04:38] Speaker 04:
Where is the evidence that matches an invoice or a billing statement or what is the internal records from Charter as to what was being paid for what?

[00:04:52] Speaker 04:
That's the problem.

[00:04:53] Speaker 04:
The only thing we really have is the October 2019 emails that result in the $120,000 payments.

[00:05:00] Speaker 04:
And then we have a string of $120,000 payments.

[00:05:04] Speaker 03:
Yeah, fair enough, your honors.

[00:05:05] Speaker 03:
And I mean, evidence takes different forms, right?

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And so there are some documents in the case.

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And so I'm familiar with the string of invoices you're talking about there.

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But there are further questions because it's clear that these agreements encompass more than just those issues that you can see right there with those invoices.

[00:05:26] Speaker 03:
There are other reasons that these agreements exist.

[00:05:29] Speaker 03:
It's not just for use of the cable.

[00:05:32] Speaker 01:
like the trustee is saying it's not just for that but counsel it's true that there are no records there is no document no contract there are no invoices there's nothing other than your client's testimony in the declaration that suggests there's another explanation correct

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not just my client's declaration.

[00:05:57] Speaker 03:
It is true that there are just declarations but we've also got Mr Santos's declaration and Mr Santos doesn't work for my client.

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He works for charter in fact and so to me that creates a significant issue of fact you have two different people from charter saying hey one person is saying this is what the payments are for

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And this is what the contracts mean.

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And you have the other person who actually was part of creating the contract saying, no, actually these are for other things.

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And the only time we're making payments related to the Paniolo Cable are during these special emergency situations.

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And because we're the defendant here, the trustee has to show what these monies were related to.

[00:06:40] Speaker 02:
You say that there's evidence that the payments were for something else.

[00:06:47] Speaker 02:
There's no other cable and they needed cable service.

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Is there another cable that was used?

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We have the Paniolo cable.

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Right, so the Paniolo- And that was used by, that was used by Charter, right?

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And Charter was making payments for the use of that cable.

[00:07:05] Speaker 03:
At a certain point in time.

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However, the Paniolo cable is not the only cable system that's covered by these agreements.

[00:07:13] Speaker 03:
Okay, where's the evidence that says there's other cables?

[00:07:17] Speaker 03:
I mean, a cable's not too hard to find.

[00:07:22] Speaker 03:
In the documents, they're described as, we're talking about circuits and infrastructure.

[00:07:26] Speaker 03:
So long story short, the agreements apply to all of the infrastructure and not just the Paniolo cable.

[00:07:34] Speaker 04:
But where's the breakdown?

[00:07:35] Speaker 04:
That's the problem is I understand that.

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And that he said, yeah, there was other things.

[00:07:40] Speaker 04:
That's great.

[00:07:40] Speaker 04:
The problem that I think the court had and that we seem to have is,

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That isn't anything.

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That's just saying that's not us.

[00:07:49] Speaker 04:
So what is it?

[00:07:50] Speaker 04:
Where is it?

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What is the breakdown?

[00:07:53] Speaker 04:
Where is the detail to support that statement as, oh, we bought other things?

[00:07:58] Speaker 03:
So our position is that's really putting the burden on us as the defense, whereas it's the trustee that's saying every dollar of payment that was made under these various agreements, all related to the Paniola Cable.

[00:08:11] Speaker 04:
And we're saying- I mean, they point to Mr. Fujimoto's declaration and again, it's short.

[00:08:18] Speaker 04:
I mean, a lot of this is short.

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I give you credit for that.

[00:08:21] Speaker 04:
And they say,

[00:08:23] Speaker 04:
look at the grand total is that everything that you paid and was it from the internet and video services rights and data purchase from 2019 to 2023 and he says yes

[00:08:34] Speaker 04:
There's a statement identifying specific payments to a specific agreement.

[00:08:39] Speaker 04:
They carry their burden.

[00:08:40] Speaker 03:
Then it shifts to you, doesn't it?

[00:08:42] Speaker 03:
And so that's why we're talking about the Santos declaration and that document- Which came in late, didn't it?

[00:08:48] Speaker 03:
Well, it came in afterward as part of a reconsideration, but that's when we became aware of this information.

[00:08:54] Speaker 01:
Were there documents to support Santos's declaration?

[00:08:59] Speaker 01:
Were there independent contracts, agreements, emails,

[00:09:02] Speaker 01:
invoices to support his position?

[00:09:06] Speaker 03:
So Santos is making his declaration based on his knowledge of having worked at charter.

[00:09:12] Speaker 03:
So, I mean, to the extent that that's exactly why I think this matter should have proceeded and not been disposed of by summary judgment because then we could get into those issues.

[00:09:21] Speaker 03:
Santos could be deposed.

[00:09:22] Speaker 03:
They can ask him, hey, what's the basis for your declaration?

[00:09:24] Speaker 03:
And he can talk about all these emails and et cetera, et cetera, that Fujimoto.

[00:09:30] Speaker 02:
Mr. Bonner, confronted with

[00:09:32] Speaker 02:
the moving party's materials, shouldn't you have done that?

[00:09:36] Speaker 02:
You needed to respond to the plaintiff's showing.

[00:09:40] Speaker 02:
And if there was another cable used or another piece of equipment that was used that relate to the payments,

[00:09:48] Speaker 02:
Couldn't you have shown them?

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Couldn't you have gathered that information and given that to the judge before he rolled on the summary judgment?

[00:09:56] Speaker 03:
Well, we did respond by saying that, hey, you're not looking at the full picture.

[00:10:02] Speaker 03:
You're just assuming that all these payments were for this one use of cable.

[00:10:07] Speaker 03:
But everyone was aware that there are other cables and networks out there.

[00:10:10] Speaker 03:
It's just that

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I mean, I don't know that specific information exists to say what was used, what networks were used in particular, but the fact is these agreements that are at issue cover multiple networks, not just the Paniolo cable.

[00:10:24] Speaker 03:
And to the extent payments were made for a purpose other than the Paniolo cable, then the judge was wrong in deciding all of these dollars should be awarded to the trustee.

[00:10:33] Speaker 03:
I mean, that's our whole point.

[00:10:34] Speaker 03:
This matter should have been allowed to proceed further so we could resolve all these issues of material fact.

[00:10:41] Speaker 01:
You're at the five minute mark.

[00:10:43] Speaker 01:
You want to reserve the rest of your time?

[00:10:46] Speaker 03:
Thank you.

[00:10:47] Speaker 03:
Yes, please.

[00:10:48] Speaker 01:
Thank you very much.

[00:10:51] Speaker 00:
All right.

[00:10:52] Speaker 00:
Council for Appellee.

[00:10:54] Speaker 00:
May it please the court.

[00:10:55] Speaker 00:
My name is Jonathan Bolton, and I represent the plaintiff, David Farmer in this matter, and the appellee here.

[00:11:03] Speaker 00:
I think the panel is sort of zeroing in on exactly the main points of this case, which is, you know,

[00:11:11] Speaker 00:
the trustee came forward looking for information about whether or not ClearComm had used this cable.

[00:11:20] Speaker 00:
It used its discovery, it used interrogatories to try to find out what the information was because remember the trustee is sort of suspicious about whether this cable is being used

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and is using its discovery devices in order to figure things out.

[00:11:38] Speaker 00:
So as the panel pointed out, we did have interrogatory responses where first they admitted that these contracts that were identified relate to the Paniolo cable assets.

[00:11:52] Speaker 04:
That's a pretty broad statement though, right?

[00:11:55] Speaker 04:
And that was the point they tried to make in the objection to the vague and ambiguous.

[00:11:59] Speaker 04:
They relate.

[00:12:01] Speaker 04:
But it gets to the detail.

[00:12:04] Speaker 04:
I think my problem with this case in general is just a lack of focus, of sharpness, as to these payments traced to these invoices for these services tied to these agreements.

[00:12:17] Speaker 04:
And you have your charts and your spreadsheets, and they show multiple.

[00:12:22] Speaker 04:
The easiest one to flow through is the 120,000, presumably, because that is your argument.

[00:12:28] Speaker 04:
That's the October 2019 agreement.

[00:12:30] Speaker 04:
Carry forward.

[00:12:32] Speaker 04:
It's only a fraction.

[00:12:33] Speaker 04:
I mean, it's only a million in change.

[00:12:36] Speaker 04:
It's not the six million.

[00:12:38] Speaker 04:
So what ties the other six million?

[00:12:42] Speaker 00:
Okay, well, remember first, the first motion for summary judgment dealt with that 2019 agreement.

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And that 2019 agreement, all we had was emails and the internal documents that ClearCom did produce.

[00:12:56] Speaker 00:
So that's what we had to go on.

[00:12:57] Speaker 00:
So you're right.

[00:12:59] Speaker 00:
That one, remember, they admitted that related to the Paniolo cable.

[00:13:02] Speaker 00:
That was clear.

[00:13:03] Speaker 00:
They never disputed that that related to the cable, although they did claim it was only one month and only for an emergency.

[00:13:10] Speaker 00:
But then, as you recall, when we deposed the charter representative and we found out about this master service agreement, which we didn't know about before, that the testimony was that the 2019, let's call it invoice and emails,

[00:13:27] Speaker 00:
was a part of that master service agreement.

[00:13:29] Speaker 00:
So we didn't know that at the time, but apparently that was done pursuant to the master services agreement.

[00:13:35] Speaker 00:
And then we asked, okay, well, if it was done pursuant to that master services agreement, you'll look at the testimony from the charter representative, what payments were made pursuant to the master services agreement and the 2019 agreement.

[00:13:50] Speaker 00:
So that's what tied it all together was that testimony from the charter representative said,

[00:13:56] Speaker 00:
The 2019 agreement was a part of the master service agreement.

[00:13:59] Speaker 00:
I think there were exhibits A and B, if I recall, and all the payments were made pursuant to that.

[00:14:05] Speaker 00:
So that's how we tied together the master service agreement to the Paniolo cable.

[00:14:10] Speaker 00:
Now remember, they also admitted that, as you said, it's broad, but they admitted in the interrogatory response that it did relate to the Paniolo assets.

[00:14:18] Speaker 00:
But clearly when we have the 2019 piece of it, where they admitted it used the cable, which was a part of the master service agreement, that's what ties it all together.

[00:14:30] Speaker 04:
So that sort of addresses some confusion I have, because you're referring to the deposition on the interrogatories to Mr. Fujimoto?

[00:14:41] Speaker 00:
Yes.

[00:14:42] Speaker 04:
All right, as a charter representative.

[00:14:43] Speaker 04:
Yes.

[00:14:44] Speaker 04:
And then ultimately, the most significant statement is directed to looking at the exhibit, which is a spreadsheet that has a grand total for the $6 million in change, I believe.

[00:14:57] Speaker 04:
Yes.

[00:14:58] Speaker 04:
And then he asks, I believe, you know, the interrogatory, is that reflects the amount charters paid to clear calm from January 1, 2019 through February, 2023?

[00:15:08] Speaker 04:
Yes.

[00:15:09] Speaker 04:
Pursuant to exhibit, see the internet and video service rights and data from 2019 to 2023.

[00:15:15] Speaker 04:
When was the internet and video service rights executed?

[00:15:21] Speaker 00:
That is a...

[00:15:26] Speaker 00:
I have a copy of it.

[00:15:28] Speaker 00:
I think it was executed in 2021, I believe.

[00:15:32] Speaker 00:
That's the 2021 agreement.

[00:15:34] Speaker 00:
So that came after the settlement.

[00:15:38] Speaker 04:
But that means that Mr. Fujimoto's statements that the payments from January 2019 to 2023 could not have been on the internet and video, doesn't it?

[00:15:56] Speaker 00:
That's a very good point.

[00:15:57] Speaker 00:
That's a very good point that you're pointing out that didn't hit me before.

[00:16:06] Speaker 00:
Yeah, I believe that video services agreement was from 2021.

[00:16:09] Speaker 00:
And you're right, it does say 2019 through 2023.

[00:16:13] Speaker 00:
And I haven't looked back to compare that.

[00:16:15] Speaker 00:
But that's a very good question.

[00:16:17] Speaker 00:
I don't know the answer to why he would have said that.

[00:16:20] Speaker 00:
But I believe it is a 2021 agreement.

[00:16:22] Speaker 00:
I'd have to look back and check.

[00:16:23] Speaker 04:
I think you're right.

[00:16:24] Speaker 04:
It's 2021.

[00:16:25] Speaker 04:
But that spreadsheet and spreadsheets of other things and checks go to 2019, to January 2019.

[00:16:35] Speaker 04:
What is the evidence that those early payments predating the October 2019 agreement relate to clear comms,

[00:16:45] Speaker 04:
leasing of capacity on the network to charter.

[00:16:50] Speaker 00:
Okay, so with respect to Clearcom's use of the cable, 2019 through 2020, I believe all of those relate to the first two contracts, which are the master services agreement and the 2019 agreement.

[00:17:12] Speaker 00:
I think we called it the October agreement.

[00:17:15] Speaker 00:
You do point out that on this video services agreement, you know, there's a gap there.

[00:17:20] Speaker 00:
There's two years worth.

[00:17:22] Speaker 00:
And I'm not sure if, you know, for example, you can see from the record that it's very unclear about exactly how these people do business.

[00:17:35] Speaker 00:
Sometimes Clearcom is acting as the agent for SIC.

[00:17:40] Speaker 00:
It's always been unclear to the trustee exactly what's been going on.

[00:17:43] Speaker 00:
It's kind of like a shell game moving things around.

[00:17:48] Speaker 00:
This was a specific interrogatory and

[00:17:52] Speaker 00:
You know, he did answer it the way that he answered it, but there is a question about those dates.

[00:17:57] Speaker 00:
It may be that they were doing this service before they entered into the contract, you know, because there was some of that.

[00:18:07] Speaker 00:
Like, for example, in the 2019 agreement, you saw emails.

[00:18:11] Speaker 00:
They would email about coming into an agreement and then later document it.

[00:18:15] Speaker 00:
It could have been the case.

[00:18:16] Speaker 00:
I just don't know.

[00:18:17] Speaker 00:
I don't think that's in the record.

[00:18:22] Speaker 04:
Part of the $6 million goes back, like I said, to 2019, January running through all of 2019.

[00:18:30] Speaker 04:
The beginning of 2019 is generally for charges of $6,279.

[00:18:35] Speaker 04:
One, that predates the settlement agreement, right?

[00:18:42] Speaker 00:
Yes.

[00:18:43] Speaker 04:
So how is that recoverable as a damage?

[00:18:51] Speaker 00:
Okay, well, I think what Judge Ferris did was, remember, there's three contracts, the earlier contracts, let's call them the two that came before 2020 when the settlement was, and then this 2021 agreement, which was after.

[00:19:05] Speaker 00:
Judge Ferris, I think, in his opinion, essentially said, look, it was a breach, but I'm not a warning you breach of contract damages.

[00:19:14] Speaker 00:
I'm a warning you restitution and unjust enrichment, because that money from Charter should have gone to Paniolo for the use of its equipment.

[00:19:23] Speaker 00:
So he didn't necessarily tie the breach of contract, which arguably did occur because they did make a representation that they hadn't entered into agreements.

[00:19:33] Speaker 00:
But the damage really came from the fact that Clearcom

[00:19:38] Speaker 00:
worked with SIC to allow use of the Paniolo cable network when it was not permitted.

[00:19:45] Speaker 00:
And Judge Ferris said that was wrong because the estate of Paniolo should have gotten that money.

[00:19:50] Speaker 00:
They were unjustly enriched by using that cable and not paying the proper person, the owner of the equipment, which was Paniolo.

[00:20:04] Speaker 00:
The Judge Gann, I think, was asking a little bit about the documents and whether there's any documents supporting Mr. Santos's declaration.

[00:20:14] Speaker 00:
I want to point out to the panel is this Santos declaration that came in with the motion to reconsider

[00:20:22] Speaker 00:
It's curious that Mr. He didn't come forward and put forth the same sort of facts that Mr. Santos was alleging, because remember, Clearcom and Mr. He, they were the other side of the transaction, so they could have come forward earlier.

[00:20:37] Speaker 00:
and tried to come forward with the evidence that Mr Santos was trying to put in at the last minute.

[00:20:43] Speaker 00:
It's curious, number one, that they didn't talk to Mr Santos beforehand.

[00:20:47] Speaker 00:
Remember, you'll recall in the record, Clearcom made an allegation that Mr Santos was somehow prevented from testifying.

[00:20:55] Speaker 00:
There's no evidence of that.

[00:20:56] Speaker 00:
Nobody knows where Mr Santos came from, but

[00:20:59] Speaker 00:
If there was evidence that was contrary to what was said earlier by CLERCOM, of course, Mr. He or Mrs. He could have come forward and said the same evidence.

[00:21:09] Speaker 00:
And they didn't do that.

[00:21:10] Speaker 00:
And I think what you see in this case is from the beginning, the first motion for summary judgment, there was very little dispute by CLERCOM about the facts being alleged by the trustee.

[00:21:21] Speaker 00:
Again, the trustee was shooting in the dark.

[00:21:22] Speaker 00:
We didn't know exactly what was going on.

[00:21:24] Speaker 00:
We've got some documents.

[00:21:26] Speaker 00:
We got some discovery.

[00:21:27] Speaker 00:
And we were kind of pursuing our way through that.

[00:21:30] Speaker 00:
So we got the first motion for summary judgment.

[00:21:33] Speaker 00:
They didn't make any claims that it didn't relate to the cable.

[00:21:35] Speaker 00:
They didn't make any claims that it was expired like they are now.

[00:21:39] Speaker 00:
So then we move on on a partial summary judgment.

[00:21:42] Speaker 00:
We do some more discovery and come back with our second motion for summary judgment.

[00:21:46] Speaker 00:
And that's when we found out about this master services agreement.

[00:21:49] Speaker 00:
And so we tied that in as well and said, your honor, it's also a breach because as shown by the charter testimony, the two, the 2019 and master services agreement tie together.

[00:21:59] Speaker 00:
They never disputed that the second one related to the cable so that, you know, they shouldn't be disputing that the the master services agreement relates to the Paniola assets.

[00:22:11] Speaker 00:
And again, if you look at their responses to the second motion for summary judgment, and in particular what they did in their concise statement, they actually admitted that

[00:22:26] Speaker 00:
it related to the Pontiolo Cable Assets.

[00:22:29] Speaker 00:
The big defense that they had, if you recall, was that, yeah, Clearcom received the money, but it gave it to SIC.

[00:22:38] Speaker 00:
So that was sort of their big defense in trying to defend against the second motion for semi-judgment was, yeah, we got the money, but we were sort of a mere conduit because we gave it away to SIC right away.

[00:22:52] Speaker 00:
So then, of course, as the case proceeds, we had amended our damage claim down because we figured out that we double counted.

[00:23:03] Speaker 00:
So we told the court, look, Judge, we figured out we made a mistake.

[00:23:07] Speaker 00:
We want to amend our pleadings and lower the pleadings because we double counted.

[00:23:12] Speaker 00:
And Mr. Bonner asked the court to file a reply.

[00:23:17] Speaker 00:
sir apply that is and the judge said look you can file a sir apply but i only wanted to deal with the narrow issue of these damages that have that have changed and mister bar took an opportunity basically we are the entire case that was improper i think judge ferris noted that in his opinion he said

[00:23:36] Speaker 00:
You know, it was a limited reason why he allowed them to do the surreply, and it was improper.

[00:23:42] Speaker 00:
And it said, I think in 2017 of his opinion, he says, contrary to the court's direction.

[00:23:48] Speaker 00:
So I think Judge Farris, you know, was pointing out the fact that, look, you guys weren't supposed to do this, but he did look at it.

[00:23:54] Speaker 00:
He did consider it.

[00:23:56] Speaker 00:
And even looking at the stuff that they filed, he compared these declarations to the evidence that was before him that we've talked about, the discovery, the interrogatories, the testimony of the witness from clear, sorry, charter and said, you know- What is your strongest evidence that all these multi-million dollars were actually for use of the Paniolo cable network?

[00:24:24] Speaker 00:
I think the strongest evidence is the 2019 agreement.

[00:24:28] Speaker 00:
And if you look at also their admissions in their responses to the motions for summary judgment, because I think in the second response to the summary judgment, they actually pled in their pleading.

[00:24:52] Speaker 00:
Sorry, let me find it, Your Honor.

[00:25:00] Speaker 00:
On page seven of their response, it says, contrary to plaintiff's assertion, Clearcom did not receive the benefit of the monies paid by charter for the use of SIC's capacity on the Paniolo cable network.

[00:25:13] Speaker 00:
So I think the admissions that they make, plus that 2019 agreement, Your Honor, is the best evidence we have.

[00:25:22] Speaker 00:
Plus, of course, I said the discovery, and you alluded to it.

[00:25:27] Speaker 00:
It was vague, the interrogatory response where it said relate to or relate to access to.

[00:25:35] Speaker 00:
But in our mind, the question, although maybe not well directed, what we were looking for in that discovery was,

[00:25:43] Speaker 00:
Are you using the Paniolo assets?

[00:25:45] Speaker 00:
It's clear from the complaint that that's what we were after.

[00:25:48] Speaker 00:
Maybe it could have been worded a little better.

[00:25:51] Speaker 00:
But when we saw that response, we took that as, OK, these contracts relate to the use of the Paniolo cable network.

[00:26:00] Speaker 00:
And that's what we had to go on.

[00:26:03] Speaker 04:
Thank you.

[00:26:03] Speaker 04:
Any other questions, Judge Gabb?

[00:26:06] Speaker 04:
Judge Corbin?

[00:26:07] Speaker 04:
Thank you, Mr. Boll.

[00:26:08] Speaker 00:
Thank you.

[00:26:11] Speaker 04:
Mr. Bonner, I think you have about four and a half minutes left.

[00:26:14] Speaker 03:
Thank you, Your Honor.

[00:26:17] Speaker 03:
So, I think really two things I want to respond to.

[00:26:19] Speaker 03:
One is, Claire Combs is not in here saying that, you know, the pineal acids were never used for anything.

[00:26:26] Speaker 03:
We're not in here saying that.

[00:26:28] Speaker 03:
What we are saying is the use was quite limited, as Mr. Santos said,

[00:26:33] Speaker 03:
and also that those monies were paid over to the standard shops.

[00:26:37] Speaker 03:
That's what we're saying.

[00:26:38] Speaker 03:
So there's no admission that, you know, every single dollar was related to the use of the pineal network.

[00:26:45] Speaker 03:
So that's the first thing.

[00:26:46] Speaker 03:
The second thing is what, you know, the opposition is doing is basically using our discovery response.

[00:26:54] Speaker 03:
We're the ones who produce these documents just in an effort to be

[00:26:59] Speaker 03:
honest.

[00:27:00] Speaker 02:
We're not trying to hide these documents because if they found these in some other... Mr. Bonner, if the payments were limited or the amount of the payments was limited with respect to the Paniola cable, what was the balance used for?

[00:27:24] Speaker 02:
I mean there's no evidence that came in for some other

[00:27:28] Speaker 02:
or some other cable or some other equipment.

[00:27:31] Speaker 03:
Except that the agreements themselves cover use of other equipment, not just the Paniolo cable.

[00:27:37] Speaker 03:
I don't think the other side would dispute that.

[00:27:40] Speaker 02:
I didn't see anything that said, well, we paid this money, okay, a limited amount.

[00:27:48] Speaker 02:
I don't know, sign some percentage to it.

[00:27:50] Speaker 02:
30% of it was for the Paniolo cable.

[00:27:53] Speaker 02:
The other 70% was for X, Y, and Z.

[00:27:56] Speaker 02:
But I don't see anything other than conclusions saying that it was for X, Y, and Z, but nobody's saying or identifying the X, Y, or Z. Right.

[00:28:05] Speaker 03:
So again, I think those are the issues of material fact.

[00:28:08] Speaker 03:
What were those for?

[00:28:09] Speaker 03:
And I don't think it's our responsibility.

[00:28:12] Speaker 02:
But your client was asked about these things and your client was facing a summary judgment.

[00:28:17] Speaker 02:
And to oppose that summary judgment, your clients would have known what the X, Y, and Z were.

[00:28:24] Speaker 02:
Why didn't you tell Judge Farris what they were as part of your response to the summary judgment?

[00:28:29] Speaker 03:
Well, the response was essentially there for other networks.

[00:28:31] Speaker 03:
But in our view, the specifics of other networks are really not germane.

[00:28:37] Speaker 02:
Well, it changes the statements in your response from just sort of a conclusory statement to something that is based on

[00:28:46] Speaker 02:
objective evidence.

[00:28:48] Speaker 02:
And I just don't see anything else that you could have paid for it.

[00:28:52] Speaker 03:
You said it might be.

[00:28:55] Speaker 03:
So I think, you know, this goes to another concern my clients always had related to the Stern v. Marshall case, right, about what jurisdiction should the bankruptcy court have?

[00:29:05] Speaker 03:
Because, you know, clear comms not a party to the bankruptcy proceeding other than in this adversary proceeding.

[00:29:10] Speaker 03:
And so really what we're talking about here and what the bankruptcy judge decided was that all of these agreements,

[00:29:17] Speaker 03:
basically interpreted them and he prejudged what payments between these entities or these parties to these agreements were for based on his thinking about the underlying bankruptcy matter that Clearcom really is not a part of.

[00:29:33] Speaker 02:
Okay, well Clearcom was a party in the adversary action, right?

[00:29:36] Speaker 02:
They were just that?

[00:29:38] Speaker 02:
Just that, yes.

[00:29:41] Speaker 03:
And they were served with process.

[00:29:43] Speaker 03:
Right, and just in that proceeding, but my point is, just because payments were made to Clearcom by charter doesn't mean that they relate to this bankruptcy asset.

[00:29:54] Speaker 04:
And that's- You've admitted that you've admitted at least at some part, even in a limited, you use the estate's assets.

[00:30:03] Speaker 04:
Yeah, I mean, I don't think that's- That would be the tie.

[00:30:06] Speaker 03:
Right.

[00:30:07] Speaker 03:
Well, I mean,

[00:30:09] Speaker 03:
to a limited extent, yes.

[00:30:11] Speaker 03:
And that's our whole point here is why did the bankruptcy judge just prejudge this thing and go straight to summary judgment when actually there's a lot of nuance to this.

[00:30:19] Speaker 03:
And it's not as simple as every dollar that charter paid over is damages.

[00:30:24] Speaker 03:
It's just not.

[00:30:26] Speaker 03:
And so that's really what our argument is.

[00:30:30] Speaker 04:
Thank you.

[00:30:31] Speaker 04:
Any other questions?

[00:30:33] Speaker 04:
Well, thank you for a very interesting argument.

[00:30:36] Speaker 04:
The matter will be deemed submitted and we'll try to get out a decision as soon as possible.

[00:30:40] Speaker 04:
Thank you both.

[00:30:42] Speaker 04:
Madam Clerk, can we call the next matter?