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Case number 16-7129, Huishang H. Mominium at all, appellants versus Michael M. Davidson.

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Mr. Hoag for the appellants.

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Mr. Markels for the appellee.

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Good morning.

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Morning.

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Is it Hoag?

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Hoag, yes, Christopher Hoag.

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And may it please the court, Judge Pollard, Wilkins, and Judge Silverman, and Mr. Markels, I would like to reserve two minutes for my rebuttal, please.

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I don't intend to go into the convoluted facts of the underlying transactions that gave rise to this lawsuit other than to say that it involved a series of real estate related transactions between Mr. and Mrs. Mominian by clients and a Mr. and Mrs. Interdonato in which Mr. and Mrs. Mominian claim that they did not get proper credits for certain payments that were made against their obligations under those loans.

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Mr. Davidson, the appellee in this matter, represented the Mominions in a lawsuit against the Interdinatos in the Superior Court.

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And he basically claimed that on behalf of the Mominions that the Interdinatos had not given the credits that Mr. Mominion was entitled to and was sued for hundreds of thousands of dollars in damages.

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He thereupon filed, after discovery and settlement negotiations, he filed a settlement recipe which basically indicated a settlement which granted Mr. and Mrs. Mominian a $15,000 credit against their obligations and dismissed the case with prejudice.

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And the gravamen of the complaint against Mr. Davidson is that he misled Mr. and Mrs. Mominian, specifically Mr. Mominian with whom he was primarily dealing,

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and led Mr. Momenian to believe that the case was only partially settled and that there were other substantial aspects to the lawsuit that would live on.

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How did he lead them to believe that?

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He led him to believe that through various conversations that he had subsequent to the filing of the settlement recipe.

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Mr. Momenian alleged in the amended complaint

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that he would talk to Mr. Davidson roughly every three months to ask about the status of the case.

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And Mr. Davidson would tell Mr. Mamenian that he was still working on the case.

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Mr. Davidson sent a bill to Mr. Mamenian in May.

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Working on the case?

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You say working on the case?

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Yes.

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Or was it that the exact language?

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We don't know the exact language.

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He was working on that.

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Working on that.

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Yes, your honor.

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Not working on the case.

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Well, by that, certainly, Mr. Momenian... I know that's your argument, but I just wanted to make sure you stated it accurately.

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Well, Your Honor, nobody has deposed Mr. Momenian in this case.

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There haven't even been any interrogatories, so Mr. Momenian... No, I'm just talking about what your complaint says.

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What my complaint says is that he was working on that.

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That's correct.

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Referencing the interdonato lawsuit.

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There was also a bill that's referenced in the amended complaint that was sent to Mr. Momenian that references the Interdonata lawsuit.

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And there was also a conversation that took place that was recorded by Mr. Momenian legally in a restaurant in Virginia in which Mr. Momenian was obviously asking a lot of questions about the Interdonata matter.

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The transcript is a little bit of a dense read.

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Mr. Mominian is not the most fluent in the language and is not a model of clarity, but clearly Mr. Mominian is asking why

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He now knows from a foreclosure action that has been filed by the other nonatos that the case has not been resolved and he's still on the, I mean, it's not been resolved to his satisfaction.

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He's still on the hook for a very substantial amount of money.

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And he asked Mr. Davidson, why did you forfeit my rights by means of this precipice?

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And Mr. Davidson, even at that point, was saying, I didn't forfeit all your rights.

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You still have some rights, even though the case was long since closed.

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What's your best authority for the notion that a reasonably diligent individual does not need to check public records to determine the status of a matter?

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Well, Your Honor, I don't know that I have good authority that says directly that a litigant doesn't need to investigate.

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I would turn the question around a little bit respectfully and say there's no authority that says under these types of circumstances a litigant has an obligation to do what the trial court said he must do and what appellee says he must do, which is to

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check the court docket, to check with another lawyer, to basically go behind what he represents.

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But your client signed the precipice, right?

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Client did sign the precipice.

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And the precipice said dismissed with prejudice.

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No question about that, Your Honor, but as Judge Mata said in the first order that he signed,

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memorandum opinion that denied, well, granted the initial motion to dismiss but gave me leave to amend the complaint.

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In the course of that opinion, Judge Maeda said what I think is true, which is that you can't simply assume that Mr. Momenian understood what a dismissal with prejudice meant, that that's not the type of terminology.

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Is it really not so much

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the phrase with prejudice as it is the scope of the settlement that your client is claiming is confusing.

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Both.

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I think it was both.

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I think my client believed that the case was going to live on, because if you look at the transcript of the conversation, and if you look at the amended complaint in which I've made this allegation, Mr. Mamminian believed that an accountant was going to be appointed by the court and would come in and try to do an audit of the dealings between him and Mr. Ingramata.

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Is your strongest argument here that the reasonableness

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of your client's behavior is a jury question.

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That is certainly a very strong argument.

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I would say that is a strong.

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Here's the way I've tried to articulate what I think is the nub of the issue, Your Honor.

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And that is, can the trial court, or this court, rule as a matter of law that the Momenians were on notice of the malpractice, the alleged malpractice, without identifying a discrete event that occurred subsequent to the filing of the precipice that would have put him on such notice?

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Judge Mata has already ruled, and we endorse this ruling, that the precipice itself did not put him on such notice, just because the words with prejudice were in that precipice.

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What about the authority in the District of Columbia Court of Appeals?

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Do you think the authority is up in the air?

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There's some confusion?

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No, I don't think there's much confusion at all.

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Arguably, there are two cases that may point in different directions.

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Well, Diamond versus Davis, which seems to be the lead case that's relied on by the court and by both sides, I think very much cuts in our favor.

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And the reason is that in Diamond versus Davis, there were three documents that made it clear that Mr. Diamond was on notice of the fact that his lawyer, Mr. Davis, was representing the Reynolds family.

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No, I mean on the question of whether the reasonableness

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of the plaintiff in a situation like this, is a question of fact or a question of law?

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I don't see any case that says it is a question of law.

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Is it clear that it's a question of fact?

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It's clear to me that it's a question of fact.

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Is it clear under D.C.

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law?

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It's clear under D.C.

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law.

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I would submit that it's a question of fact.

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That it's not susceptible of resolution without doing discovery and getting testimony as to what... Well, that's a slightly different point, and I actually understood it more as you just started to describe it.

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If we knew that the facts were as they are alleged,

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In other words, if those had been established at summary judgment beyond dispute or by trial, wouldn't the question of what counts as reasonable diligence on those facts be a question a court could resolve?

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In other words, if I have a lawyer and I have checked with my lawyer at a periodicity that is reasonable and gotten assurances, would that be a question for court to say a fiduciary duty in that situation satisfies the diligence or not?

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Well, I suggest that it's a mixed question of law and fact.

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I think that you have to develop the facts through discovery.

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That's a little bit different than saying the reasonableness itself, as in, for example, negligence is a jury issue versus reasonableness in, let's say, probable cause being a legal issue.

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And I guess I'm just trying to figure out which is your position.

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The reasonableness as such, assuming that we had a factual record that was

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tested to the appropriate procedural stage.

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Well, whether you're talking about negligence or probable cause at a preliminary hearing or reasonableness of investigation in this case, it seems to me that first you have to develop the facts and find out precisely what happened.

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And then you, of course, apply the law to that to ascertain whether, under precedent, the facts give rise to a finding of reasonableness.

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And I guess my question is, assuming the first part of your argument that, yes, the facts need to be developed if you've pleaded to show that you're entitled, that the facts are material, assuming that, then that layer of reasonableness, is that something that is for a court or for a jury?

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I think that's for a jury.

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I think it's for a jury to determine justice.

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I think it's analogous to negligence and not analogous to probable cause, which is an interim type of a process.

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I think my time is up.

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Was any request made of the trial court to take limited discovery on the issue of notice or diligence, et cetera?

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No, Your Honor, we just have the allegations in the amended complaint because I did not make such a request.

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I have a question.

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Why did you bring this case in federal court?

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Why didn't you bring it up?

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I did.

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You were not a lawyer at that point?

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It was removed.

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I brought it into superior court and it was removed.

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I see.

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And is it properly here that the complaint alleges residence and our precedent requires for diversity of citizenship that it be citizenship meaning residence and an indefinite

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intention to remain, and we've actually held that allegation of residence alone is insufficient.

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So is there a defect in diversity?

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Your Honor, I think that's actually a question for my counterpart.

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I have no particular preference as to whether this, I filed in Superior Court.

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I'm fine with having the case litigated in Superior Court.

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I don't have any investment in, as much as I like this court, I don't have any particular investment in the case being here.

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You might like the other court better.

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I have, well, it was not a forum shopping exercise, Your Honor.

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It seemed to me that it was a local court type of a controversy, and that's why I filed it there.

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And you'll have to ask my counterpart as to why he chose to read it.

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But I mean, on a serious matter, I mean, we have to determine whether we have subject matter jurisdiction.

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I quite agree.

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We can't dodge the question.

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I don't disagree with that, Your Honor.

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So you kind of dodged Judge Pillard's question.

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Well, I'm not arguing for the jurisdiction of the federal court.

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That's why it dodges a little bit.

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Nevertheless, we have to answer that question, so we ask counsels.

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You have to have a view of that.

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Your Honor, nobody has ever, I mean, as far as I know,

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Mr. Mamanian is a resident and has been a longtime resident.

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He's owned a home in Maryland.

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I think I alleged that in the Amanda complaint, but I'm not sure.

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And then we know that Mr. Davidson is a resident of Virginia.

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Those are the facts that I'm aware of, but again, I didn't allege diversity in my initial complaint.

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That's been alleged by my counterpart.

[00:13:07] Speaker 01:
Mr. Momenian has a home in Maryland, but also in DC.

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Business in DC.

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Business in DC.

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His business is in DC, Your Honor.

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He's a merchant who has had a business in the District of Columbia for a long time, but he's resided in Maryland for his

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So I'm not sure that I've used up all my time here.

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I think I have.

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But if I haven't, do you want me to keep talking?

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No.

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I'm not quite sure I'm following the course.

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We'll hear from the other side.

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Thank you.

[00:13:49] Speaker 03:
Good morning, Your Honor.

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May I please the Court?

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My name is James Markells and I represent the attorney, Michael Davidson, who is present here in the courtroom today.

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He is now retired and as far as I know, he is a long-term resident of Virginia, that that shouldn't raise an issue as far as the intention of residency, affect subject matter, jurisdiction, whatever.

[00:14:07] Speaker 03:
Your honor, I think the case that really answers the questions that you were asking, Mr. Hogue earlier, is the Jacobson v. Oliver case.

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That was a 12b6 dismissal on statute of limitations grounds that this court affirmed in 2012.

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It's cited to in the pleadings.

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Specifically, this court found, this was the issue of the plaintiffs had been abducted

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by terrorists and were making a claim of damages, I believe it was against Iran, and that they were led to believe later after they obtained default and obtained damages against Iran, then they sued their counsel for saying, well, you didn't let me know that we could go after also an arm of the Islamic State as well and seek seletium damages.

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And this court held that the passage of the Flatow Amendment, as well as the subsequent court case, also Flatow, was a party to that as well.

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This court held that those established

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the inquiry knowledge necessary to stop the tolling of the statute of limitations, that the plaintiffs could not rely on not knowing beyond that point because those incidents put them on notice that they had these legal rights.

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Now we're asking for even far less in this case.

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What about the, you're relying on our interpretation of D.C.

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law, right?

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Yes, Your Honor.

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D.C.

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law applies here.

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Are there any later cases in the District of Columbia Court of Appeals that we should look to?

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Later than the Jacobson case?

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Yes.

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Your Honor, no.

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I don't think there's a subsequent case in D.C.

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applying D.C.

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law from 2012 on that speaks exactly to that issue.

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What about the reasonableness of them?

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Why isn't, as plaintiff's counsel argues, the reasonableness of the plaintiff's behavior in inquiry a jury question, much like negligence would be a jury question?

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Because here we're looking at the face of the complaint.

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You assume everything in the face of the complaint to be true as pled, almost like a summary judgment motion in that case.

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And here it is pled that Mr. Moemenian signed a recipe that said that the clerk shall dismiss with prejudice this action.

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Now, leaving aside whether or not with prejudice he understood that, it did not say only certain

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incidents of the case would be dismissed.

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It said this action.

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There could be no question about that.

[00:16:58] Speaker 04:
Suppose the evidence in this case or the complaint alleged that the plaintiff was specifically told by counsel, don't worry about the press release and don't worry about the with prejudice.

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Some of your claims are still survived.

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Well, not only is that not in the complaint and hasn't been offered to be in the complaint.

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I understand.

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Please, when I ask a hypothetical, the worst answer possible is that's not this case.

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I understand.

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But you just gave the worst answer.

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But Your Honor, the... Suppose that had been true.

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What actually... Suppose that had been true.

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Suppose that was in the complaint.

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Well, it would have to have been... That the Council had told the planet, don't worry about what the

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I'm presently saying don't worry about the document, the dismissal.

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Some of your claims survive and I'm working on it.

[00:17:54] Speaker 03:
Under that, and I believe that's the Rocha case, which holds that if the lawyer gives false legal advice to the client, that is an issue of fact that would preserve the claim, that would toll the statute of limitations.

[00:18:11] Speaker 04:
So then whether you talk about it as tolling or whether you talk about it as inquiry notice, it's really almost the same issue.

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Right.

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Why isn't the allegations in the complaint sufficient to do that?

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If there was discussions afterwards in which the lawyer said, I'm working on your case.

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I'm working on the problem.

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Don't worry about it.

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Why isn't that the same thing?

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Well, there is no fraudulent concealment in this case because... No, no, no.

[00:18:40] Speaker 03:
We disagree.

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I understand.

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The holding or fraudulent concealment and notice are blended.

[00:18:46] Speaker 03:
But you're talking about the continuous representation, whether there was... No, I'm talking about whether or not the plaintiff was on notice.

[00:18:56] Speaker 04:
You say the documents alone put him on notice, and I say, well, suppose the lawyer subsequently said, don't worry about what the document says, I'm still working on the case.

[00:19:07] Speaker 03:
Okay.

[00:19:07] Speaker 03:
And in that case,

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then what you have there is, what did the lawyer represent specifically that he was doing?

[00:19:15] Speaker 04:
The cases in which- What's the answer to my hypothetical?

[00:19:19] Speaker 03:
Well, the answer is, if the lawyer is also alleged- What's the answer to my hypothetical?

[00:19:24] Speaker 03:
Well, taking with nothing else, that might be plausible to get to a jury.

[00:19:32] Speaker 03:
But it would also require the lawyer to also allege that concrete action is being taken of some kind, as in, I'm about to file a complaint.

[00:19:42] Speaker 04:
So if the lawyer simply said, don't worry about what that document says, I'm working on the case, that would not be enough.

[00:19:50] Speaker 03:
that would not be enough, because it is not a definitive statement of work that is going to be taken, of some kind of action that is going to be taken.

[00:19:59] Speaker 01:
So you're not relying on the fact that Council was representing the mammalians in other matters.

[00:20:04] Speaker 01:
You're relying on the fact that the statement itself, even assuming this was their only matter, is too vague.

[00:20:10] Speaker 03:
That is correct, Your Honor.

[00:20:10] Speaker 03:
And in fact, but continuous representation has to be specific as to that matter.

[00:20:16] Speaker 03:
So statements as to other matters don't toll for continuous representation.

[00:20:20] Speaker 03:
How specific?

[00:20:21] Speaker 01:
What would count in your view?

[00:20:23] Speaker 03:
Well, there has to be a promise of some kind of action, some incident that is going to occur.

[00:20:28] Speaker 01:
What if you're at the stage of trying to decide what to do next or investigate

[00:20:34] Speaker 03:
Indeed, there's a case like that, and there's, I want to get it right for you, Jones v. Latimer.

[00:20:42] Speaker 03:
That's the case where there was an email sent by counsel to the client saying, I've looked over your case, I think, and they had lost on appeal.

[00:20:53] Speaker 03:
And he says, I've looked over the appendix again.

[00:20:56] Speaker 03:
I've looked over the case.

[00:20:57] Speaker 03:
I really feel bad that this has ended up in a bad way.

[00:20:59] Speaker 03:
I think we have a chance to get this before the Supreme Court of the United States.

[00:21:03] Speaker 03:
I don't want to give up on this case.

[00:21:05] Speaker 03:
Let's have that conversation.

[00:21:07] Speaker 03:
Let's have that strategic conversation about what we do next based on where we are now.

[00:21:12] Speaker 03:
That is exactly what Jones v. Latimer, and that was this court in 2014, another 12b6, on statute of limitations grounds.

[00:21:21] Speaker 03:
case that this court upheld, actually this case held that that email brought it within this actual limitation.

[00:21:27] Speaker 04:
What about the DC court cases?

[00:21:30] Speaker 04:
I saw there were a couple of cases that both you and counsel on the other side discussed.

[00:21:38] Speaker 04:
You think they're clear?

[00:21:41] Speaker 03:
I think they are clear, Your Honor, as to what is necessary.

[00:21:45] Speaker 03:
For instance, the Rocha case, that was the Mesothelioma case.

[00:21:50] Speaker 04:
Which is the one where the three judges dispute three different opinions?

[00:21:55] Speaker 03:
That's Diamond v. Davis.

[00:21:56] Speaker 03:
Yes, that's one.

[00:21:57] Speaker 03:
Yes.

[00:21:58] Speaker 03:
And that is a confusing case.

[00:21:59] Speaker 04:
I must say I couldn't decide, figure out what DC law was.

[00:22:03] Speaker 03:
Well, that was in 1996, and I think there has been some more case law since then.

[00:22:12] Speaker 03:
In D.C.?

[00:22:13] Speaker 03:
In D.C.?

[00:22:15] Speaker 03:
I believe so, Your Honor, like Wagner v. Selinger, and that was in 2004.

[00:22:19] Speaker 03:
But I think it was the facts that made Diamond v. Davis so difficult.

[00:22:24] Speaker 04:
And because that was an issue of the- Well, I was trying to figure out just whether the reasonableness of inquiry was a jury question or not.

[00:22:31] Speaker 04:
That was the issue that I found difficult to determine under DC law.

[00:22:35] Speaker 03:
But Diamond v. Davis, you have two judges who said no.

[00:22:39] Speaker 03:
It was not.

[00:22:40] Speaker 03:
And ruled that on the face of it, as the facts had been developed, that it was not a jury question.

[00:22:49] Speaker 03:
That the three documents that came out before

[00:22:53] Speaker 03:
were sufficient to put the Mr. Diamond on inquiry notice.

[00:22:58] Speaker 03:
So.

[00:22:58] Speaker 04:
What about the other case?

[00:23:01] Speaker 03:
I believe Wagner B. Selinger.

[00:23:04] Speaker 03:
That was the one involving a med mal case where when the firm had been fired, the med mal case was still going on.

[00:23:15] Speaker 03:
And so there hadn't been an accrual of an injury yet, because once that case ended, then you had an actual case to bring.

[00:23:23] Speaker 03:
So those facts weighed, were much easier to, I think, discern.

[00:23:28] Speaker 03:
And that was in a 12 v 6 case.

[00:23:29] Speaker 03:
But here, Your Honor, we have the face of the complaint, and the District Court put the Minions on notice right from the outset, right after the first complaint.

[00:23:38] Speaker 03:
Hey, on the face of this, you've got a statute of limitations issue because you filed in 2015, and it's very clear that your injury occurred in 2010 when you signed the precipice.

[00:23:48] Speaker 03:
I see that my time is up if I may just briefly just say that he had a second chance to fix these, to put in the new information, the new allegations that would bridge that gap, and the best he could do is early 2012, which can't be read to get him to the May 7, 2012 that he wants.

[00:24:06] Speaker 05:
There's just no... But we're restricted to what's in the complaint, and I guess

[00:24:12] Speaker 05:
Like the district court, we can consider the material that is incorporated by reference into the complaint.

[00:24:19] Speaker 03:
Yes, your honor.

[00:24:21] Speaker 05:
What if any of that material shows that Mr Davidson was representing the appellants on any legal matter that did not involve the subject property here?

[00:24:37] Speaker 03:
There's just an allegation that he was working that I think it's in paragraph three he talks about or four he talks about how he that.

[00:24:49] Speaker 03:
My client had represented the Mominians in several matters.

[00:24:54] Speaker 03:
And then later, it's in 33, paragraph 33.

[00:24:58] Speaker 03:
That's when they talk about how Mr. Mominian calls Mr. Davidson approximately every three months to talk about the interdenado matter.

[00:25:07] Speaker 01:
Are you talking about paragraph 3 of the amended complaint?

[00:25:10] Speaker 03:
I think I'm wrong.

[00:25:10] Speaker 03:
It's not in paragraph 3.

[00:25:13] Speaker 03:
I don't have it in front of me.

[00:25:14] Speaker 03:
It's the paragraph where it introduces Mr. Davidson.

[00:25:17] Speaker 03:
So probably paragraph four, where it is alleged.

[00:25:21] Speaker 01:
Represented plaintiffs in litigation in the Superior Court.

[00:25:24] Speaker 01:
Right.

[00:25:25] Speaker 01:
It references the further allegations of the complaint, which talk about this one case.

[00:25:30] Speaker 03:
Right.

[00:25:31] Speaker 03:
So that's all that's in the complaint, is that it doesn't go into detail about what these other matters were.

[00:25:37] Speaker 03:
It's just that in paragraph 33 talks about that there are phone conversations about this matter and some other matter.

[00:25:43] Speaker 01:
And again, it doesn't mean, oh, as well as another pending case.

[00:25:48] Speaker 03:
Right.

[00:25:48] Speaker 03:
And that he's working on it, which is indistinct as to what he's working on, but certainly isn't a promise of any specific action.

[00:25:55] Speaker 05:
Well, here's, we're supposed to determine plausibility at this stage, right?

[00:26:02] Speaker 05:
Right.

[00:26:03] Speaker 03:
Iqbal and Twombly.

[00:26:05] Speaker 03:
Yes.

[00:26:06] Speaker 05:
So the complaint doesn't allege anything or set forth any facts.

[00:26:13] Speaker 05:
that say that when these conversations were happening, they were clearly related to some matter other than this litigation that you say had previously been settled, right?

[00:26:30] Speaker 03:
Correct.

[00:26:30] Speaker 05:
How can we, reading the complaint and taking the facts and inferences in the light most favorable to the plaintiff, say that any of these conversations

[00:26:44] Speaker 05:
did not involve the litigation against the Internet.

[00:26:49] Speaker 03:
I think we can even if we assume it all had to do with.

[00:26:54] Speaker 03:
this note, and what was owed under this note, and whatever litigation was going on with regard to this note, it still doesn't meet the test.

[00:27:02] Speaker 03:
Because the only two things, we have paragraph 32, which talks about the invoice that Mr. Davidson sent to the Mominians, which talked about meeting with an accountant and talking about the note.

[00:27:12] Speaker 03:
Not talking about litigation.

[00:27:14] Speaker 05:
It says an accountant, and it talks in those, that invoice is for work done in 2011 after the settlement, right?

[00:27:21] Speaker 03:
So 2011, we're still a year short.

[00:27:24] Speaker 03:
and then the other thing.

[00:27:25] Speaker 03:
Okay, well, we're still a year short.

[00:27:28] Speaker 05:
But does that mean that as of 2011, it's plausible that they should believe that there's something still outstanding with this litigation?

[00:27:41] Speaker 03:
The invoice makes no mention.

[00:27:43] Speaker 05:
Give me a date.

[00:27:44] Speaker 05:
Give me a date as to when, you know, it's not plausible anymore for them to have a belief that this litigation is open.

[00:27:52] Speaker 03:
Our position is as soon as the recipient was signed.

[00:27:55] Speaker 03:
The recipient on its face said that.

[00:27:56] Speaker 05:
So the invoice doesn't do anything?

[00:27:58] Speaker 03:
The invoice doesn't talk about the litigation.

[00:28:00] Speaker 03:
All the invoice talks about is accounting on the note and meeting when they count it.

[00:28:04] Speaker 03:
It doesn't talk about

[00:28:05] Speaker 03:
drafting any motion, any kind of complaint, any kind of issue with the court, and I don't think anyone reading that would think that there was a case going on at the time.

[00:28:16] Speaker 05:
But we don't know what the accountant's for.

[00:28:19] Speaker 05:
You want us to infer that it couldn't have been about this, but isn't that opposite of the way we're supposed to infer facts at this stage?

[00:28:28] Speaker 03:
If by this you mean a pending litigation,

[00:28:31] Speaker 03:
I don't think, I think that's a bridge too far.

[00:28:34] Speaker 03:
But even if it, even if you consider... Why is it a bridge too far?

[00:28:38] Speaker 03:
Because, Your Honor, the, a person can meet with an accountant to talk about what's owed under a note without there being litigation involved.

[00:28:45] Speaker 03:
You're just, all they're trying to do at that point is determine what's owed under the note.

[00:28:50] Speaker 04:
But that's the very issue in the litigation.

[00:28:53] Speaker 03:
That's correct, Your Honor.

[00:28:54] Speaker 03:
However, there can be issues that come up after the litigation as to, well, did this get factored in?

[00:29:01] Speaker 04:
Or it could be an accounting meeting about... That's the very issue in the whole case.

[00:29:04] Speaker 04:
What was factored in?

[00:29:05] Speaker 04:
What was not?

[00:29:05] Speaker 03:
Right.

[00:29:06] Speaker 04:
And again, as we've already... As your client had said, well, explicitly, the settlement doesn't deal with some of the claims you have against the, whatever, the intonatos?

[00:29:21] Speaker 03:
intergenerational yes you conceded earlier that would be problematic for you i think there's a difference though the complaint that was filed by my client alleged there were four payments that should have been credited and were not credited the complaint filed by mr davidson there were four payments that should have been alleged and to date no other payments there have been no other allegations of other payments

[00:29:49] Speaker 03:
Mr. Momenian says, that payment I made and should have been credited.

[00:29:53] Speaker 03:
These are the only four that have ever been alleged.

[00:29:56] Speaker 03:
And it is clear, especially when you look at the recorded, and actually specifically if you look at pages, I'll get you the pages shortly.

[00:30:08] Speaker 04:
While you're thinking about that, what about the recorded conversation?

[00:30:13] Speaker 04:
Your client did make a statement there that was troubling, wasn't it?

[00:30:17] Speaker 03:
No, Your Honor, I think there's a misunderstanding.

[00:30:19] Speaker 04:
Oh, a misunderstanding as to what the statement meant?

[00:30:22] Speaker 03:
Yes, because... What was the statement?

[00:30:25] Speaker 03:
What was the statement?

[00:30:27] Speaker 03:
Well, he said... What was the statement?

[00:30:30] Speaker 03:
I don't have the exact quote on me, but... Well, that's sort of important, isn't it?

[00:30:34] Speaker 03:
Well, the intent, what was stated...

[00:30:37] Speaker 03:
was when, if later on, the interdonado would bring a claim and say, you need to pay amounts under this note, you're in default, there would still be defenses there available with the Mominians as to, well, you still have to prove up, Mr. Interdonado.

[00:30:55] Speaker 04:
That is the statement.

[00:30:56] Speaker 04:
That's your interpretation of the statement.

[00:30:58] Speaker 03:
What was the statement?

[00:31:01] Speaker 03:
The exact statement.

[00:31:03] Speaker 03:
Let me see.

[00:31:06] Speaker 03:
Well, he said you did not forfeit any of your rights on that.

[00:31:08] Speaker 04:
That's right.

[00:31:09] Speaker 04:
On that, meaning the lawsuit.

[00:31:11] Speaker 03:
Well, he did not forfeit any of his rights to... No, he did that.

[00:31:18] Speaker 04:
I read that to refer to the lawsuit.

[00:31:21] Speaker 03:
No, as to the note, as to what is owed under the note.

[00:31:24] Speaker 04:
Which was the lawsuit?

[00:31:26] Speaker 03:
Well, but also what's stated in the recorded conversation is that Mr. Davidson tells Mr. Mamminian, you know those four payments?

[00:31:36] Speaker 03:
Do you remember Mr. Mamminian?

[00:31:38] Speaker 03:
We looked at his ledger, and all of those payments had been credited.

[00:31:42] Speaker 03:
All the payments that are alleged in the amended complaint, those were already credited to you.

[00:31:47] Speaker 03:
And Mr. Mamminian says, yeah, that's right.

[00:31:50] Speaker 03:
So the reaction from my client was, well, we need to settle for the $15,000 because the only thing that hadn't been credited were back taxes that you had paid that Mr. Interdenato did not credit you for.

[00:32:03] Speaker 03:
And that's how they got to the $15,000.

[00:32:04] Speaker 03:
It wasn't even something alleged from the complaint.

[00:32:06] Speaker 03:
They went beyond the complaint and found this other credit that he was entitled to, and that's what they settled it for.

[00:32:11] Speaker 05:
Did the district judge listen to the recording?

[00:32:14] Speaker 03:
I don't believe so.

[00:32:15] Speaker 03:
I think only the transcript was submitted to the court.

[00:32:21] Speaker 05:
Isn't that problematic?

[00:32:25] Speaker 03:
As in, is there additional meaning?

[00:32:26] Speaker 03:
You think there might be additional meaning in the... I'm an old trial lawyer.

[00:32:30] Speaker 05:
Mm-hmm.

[00:32:31] Speaker 05:
Recovering, you know, trial lawyer.

[00:32:35] Speaker 04:
The transcript was never... I stipulate he's old.

[00:32:44] Speaker 05:
The transcript is never the evidence in a trial.

[00:32:50] Speaker 05:
It's always the recording.

[00:32:52] Speaker 05:
A lot of times, the transcripts aren't even introduced.

[00:32:56] Speaker 05:
The jurors might see them as an aide while they're listening to the recording, but they don't even go back in the jury room.

[00:33:05] Speaker 05:
Why should this case be decided

[00:33:09] Speaker 05:
by reading a transcript and not even having listened to what the real evidence is of something that was incorporated by the complaint.

[00:33:18] Speaker 03:
I don't think the transcript materially changes the situation, the problems that are inherent in the complaint.

[00:33:25] Speaker 03:
Nothing in the transcript transforms any of the payments that are listed therein into credits that were not

[00:33:33] Speaker 03:
made against the note, because they were.

[00:33:35] Speaker 03:
In fact, the recorded transcript only affirms that there's no cause of action here, because the only credits that Mr. Mimignano... But we're arguing here about the meaning of a statement.

[00:33:46] Speaker 05:
And you're saying that the transcript shows that the statement meant this, or your brother on the other side says, no, it really means that.

[00:33:57] Speaker 05:
Those kinds of things are resolved by listening to the recording, not by arguing about how you read words on a dead page.

[00:34:07] Speaker 03:
But we don't have to even take the transcript in my favor.

[00:34:10] Speaker 03:
Even under the terms of the complaint, the four payments that have been alleged that should have been credited don't meet muster, because three of them came before the January 1, 2002 note modification agreement, which by its terms is alleged in the complaint.

[00:34:22] Speaker 01:
specifically states that it incorporated all prior... Well, that's a question of contract interpretation that the district judge did not pass on and that it's not... It would be awkward for us to pass on that.

[00:34:35] Speaker 01:
I mean, the Lumenians are saying that means something different.

[00:34:37] Speaker 01:
It echoes their underlying claim, which is all issues between us on this part of the dispute, not on the entire dispute.

[00:34:47] Speaker 01:
I'm not sure that's it.

[00:34:48] Speaker 03:
Your Honor, I have gone way over my time, and I apologize.

[00:34:51] Speaker 01:
You have, thank you.

[00:34:51] Speaker 01:
We'll hear briefly from Mr. Hogan, rebuttal.

[00:34:55] Speaker 01:
We took some of your time questioning on direct, and so we'll give you another minute.

[00:35:02] Speaker 06:
Thank you.

[00:35:04] Speaker 06:
I think Judge Wilkins had precisely the correct question, which is, what date did it become clear to the Mominions that they had a claim against Mr. Davidson?

[00:35:14] Speaker 06:
And the real problem with the trial court's ruling is that he does not point to any such date.

[00:35:21] Speaker 06:
no such date is identified.

[00:35:23] Speaker 06:
He talks about an 18-month period between the filing of the precipice and the filing of the law and the time of the notice of foreclosure.

[00:35:32] Speaker 04:
Oh, wait a minute.

[00:35:32] Speaker 04:
Suppose 10 years had elapsed.

[00:35:36] Speaker 06:
Suppose 10 years had elapsed.

[00:35:38] Speaker 04:
And the district judge said, I don't know what date

[00:35:42] Speaker 04:
This action accrued, but it sure as hell didn't last for 10 years.

[00:35:48] Speaker 04:
Would you still say there was a reversal error because the judge didn't identify the date?

[00:35:54] Speaker 06:
You know, I think that it's a matter of reasonableness here.

[00:35:59] Speaker 06:
I have to tell you that there are some judges that I'm aware of in some of the courts of this jurisdiction that have taken as long as eight and ten years to make decisions on cases.

[00:36:09] Speaker 04:
No, no, that's not the same question.

[00:36:12] Speaker 06:
Well, I understand.

[00:36:12] Speaker 06:
There's a rule of reasonableness, but 18 months, I would submit, clearly falls within the area of

[00:36:23] Speaker 06:
Can you honestly say, as a matter of law, that Mr. Mominion had some obligation in an 18-month period to double-check what his lawyer was telling him via the invoice that's alleged in paragraph 32 and via the conversations, the regular conversations, that the case is still ongoing, that he had to himself try to check the docket or contact another lawyer for a second opinion?

[00:36:49] Speaker 06:
And, you know, I'm not sure what the bright line is between

[00:36:52] Speaker 06:
18 months and 10 years, but I would say that they would have a better argument of it if they were in a 10-year period than an 18-month.

[00:37:03] Speaker 06:
I also want to just mention that the Wagner v. Selinger case that Mr.

[00:37:08] Speaker 06:
Gillian has discussed as later law from the District of Columbia after the Diamond case in 2004 actually supports our case.

[00:37:19] Speaker 06:
We cited in our brief.

[00:37:21] Speaker 01:
Okay, Mr. Hogue.

[00:37:22] Speaker 01:
Thank you.

[00:37:22] Speaker 01:
The case is submitted.