-: Okay, good morning. -: Good morning.
Man Standing: SJC-13049.
Joseph R. Mullins, v, Joseph E. Corcoran.
-: Good morning counsel.
-: Attorney Albano. -: Morning.
-: Morning, may I please the court, my name's John Albano.
I'm here on behalf of Joseph Mullins.
This is the second of two cases involving disputes
between the beneficial owners
of a Cobble Hill Center in Somerville.
This case involves the same property
that the court heard argument on last month, I believe
with respect to the question of whether Somerville
had lawfully taken the property as an urban blight.
In the first case, the first Cobble Hill case,
Mr. Mullins claimed that the defendants were proceeding
with a project without his consent.
In this, the second case,
he claims that his development proposals,
among other things, were ignored
to the detriment of the property.
In the first case, the defendants prevailed
on their counterclaims,
and the court held that Mr. Mullins had in fact consented
to their development and the superior court awarded damages
based on the value of Mr. Corcoran and Jennison's interests
as of October, 2016.
That was the date, the operative date
for all damages rulings including mitigation.
-: And can I ask, may I ask you, interrupt you for a minute
and ask you a question just for my clarification?
I think in the original brief,
you stated that the liability claims
concerning post 2014 conduct were not actually litigated,
but in the reply brief that seemed to be limited.
You were talking about post 2016 conduct.
Do I have something confused or?
-: No, I'm sure that's my doing.
The essential, it seems to me the dispositive issue here
is that the clock stopped in October, 2016
with respect to Judge Salinger's rulings.
-: Okay. -: But I'm sure
I did not artfully explain in the first brief
was that I do believe that as a technical matter
the liability claims were not resolved in Cobble Hill one.
And I would explain it this way.
So Mr. Mullins moves to amend his,
and supplement his complaint back in 2017,
superior court says, no, these are new claims,
no discovery has been taken on them,
file a new lawsuit, which he did.
The superior court in Cobble Hill one,
then Judge Salinger, in eliminate ruling
said, okay, that some of that evidence
is gonna come in, that evidence about development proposals
that Mr. Mullins made,
that evidence is gonna come in not as to liability,
but as to your affirmative defense of mitigation of damages.
Chief Justice: Okay. -: And so that evidence
did come in and, but it went to mitigation,
Chief Justice: Okay. -: wrote to liability.
-: Mr. Albano, Mr. Albano.
Shouldn't Salinger's rulings,
at least as I think it was Judge Davis,
the argument is that throughout the findings
of facts and rulings of law, it's not just mitigation.
It's addressing the issue of the eviction of the tenants.
It's addressing the alternative proposals.
It's even getting into issues
about whether zoning changes would have occurred.
And the IPA has built issues.
All those issues are weaved in
such that we should have issue preclusion here.
Even though the motion to amend was denied.
And even though the real issue
from your perspective is mitigation.
What's your response to that?
-: I think again that the shortest
and, I think, dispositive response is this,
that the complaint in this case has specific allegations
about proposals that were made in June of 2017.
And there are no findings that Judge Salinger made
after October of 2016.
And if I could just explain a little more
to make sure I'm clear on this,
the appellee's are absolutely correct
that the June, 2017 proposal came into evidence.
It was, I don't have the exhibit number in front of me
but it came in to evidence.
It was in fact offered by Mr. Corcoran.
But, and they say, so, it was all heard.
It's all been wrapped up.
But, I respectfully say that that can't be so
because life went on after October, 2016.
Things happened between the parties.
We know things happened to this property.
And the question on issue preclusion
is were these claims about 2017 actually litigated.
There are no findings made by Judge Salinger
with respect to life-- -: There's no findings made,
for instance, as it relates to the eminent domain
and blighting, and that's way after.
I understand that,
but the argument is that the relationship
between the parties and the manner
in which they're dealing with each other,
how the Corcoran not talking to Mullins,
and everything that would be within those claims
are actually within the four corners of the decision.
And I know you disagree with that
but why is it that they're not right?
That the nature of the relationship,
if it gets into issues
of the breach of fiduciary duty,
are really covered by Judge Salinger's decision?
Why are they wrong about that?
-: Well, I would say they're wrong because it cannot be,
and the law of issue preclusion does not hold
that rights are determined forever.
I can sin here in my partnership
and be held to account for it.
It doesn't mean that next year,
and the year after,
I won't have some legitimate gripes of my own.
Even a force majeure event ends at some point.
And here we had a relationship that continued,
they got their judgment.
They got their judgment
that said as of 2014 this project should have been built
in that by October in 2016, here's your damages award.
But the property didn't go away.
The relationship between the parties did not go away,
and because life continued.
And I should also address, I think why I've mentioned both
in the briefs and here, the takings case,
and the fact that the property has been declared
an urban blight.
Appelees will say, and I understand why they would,
hey, that's not in the complaint.
You shouldn't even be talking about it.
But if I could, I do think it's fair
for the court to consider.
In this case, those issues, because we have an allegation
in this complaint, the derivative claim,
for example, is all about there are decisions being made
that are not properly protecting the property.
Now, I think at the outset,
the court, yes, can take judicial notice
of the takings case and and what happened to the property.
But I would add to that.
I think we're all in agreement,
if you look-- -: Counsel, can I stop you,
'cause I'm trying to figure out what's new.
So you're saying, or what you're alleging is new.
So you're saying the June, 2017 letter, that's new?
-: That's new.
-: Okay what else?
What else?
-: Were the properties now an urban blight.
-: And that's in your complaint?
-: No, and if I may, that's what I was trying to,
that's what I, if I could, I would like--
-: Okay but, so now, so it's a June, 2017 letter is new.
The fact that it's an urban blight
which is not in your complaint, that's new.
What else?
-: The allegations of the complaint
are that the defendants failed to consider
the proposals made by Mr. Mullins,
and it led to, that was to the detriment of the property.
And we are now, and that-- -: No, I've read the complaint.
I'm trying to figure out what's new.
What has not yet been decided in your estimation?
So June, 2017, urban blight, what else?
-: What hasn't been decided is that the property,
well, no that's a fair summary your Honor.
What hasn't been described-- -: So the urban blight
which is not actually in the complaint,
and the June, 2017 letter?
That's what's new?
-: Except I would say it's fair to say
that a complaint that says my proposals are being rejected
and to the detriment of the property
that hasn't been resolved
in Cobble Hill one, states a claim that is not barred
by issue conclusion.
-: Well, no, but yeah, no, yes and no.
I mean, so June, 2017 and the urban blight
those are the two new things?
-: Well I think fairly read, the complaint alleges
that Mr. Mullins is being ignored,
frozen out to the detriment of the property
and that states a claim.
-: Well, yeah, but wasn't that claim one?
Attorney Albano: No.
-: No? -: No because--
-: [Justice Wendlandt] Well, claim one.
-: Claim one was, here's how it was explained
below your Honor, by the defendants, the derivative claim
which was count three
in the amended complaint that wasn't allowed.
So it's now the derivative claim here.
Count three adds a different theory of liability.
Focusing on the best-- -: No, no, no.
-: I'm not asking you to quote
to me what the defendants described your claim to be.
I want you to tell me what your claim was.
-: I adopt their view, your Honor.
And I would restate it this way.
It's a different claim because Cobble Hill one,
Mullins is saying you're going forward
on this 214 project without my consent.
In Cobble Hill two he says, you are letting the property die
by not doing anything.
It comes later in time.
It's a different claim.
It's never been resolved.
-: So let me ask you this Counsel,
if we disagree with you,
does the derivative claim go away as well?
Do y'all rise and fall
on the individual and the derivative?
-: No, the derivative claim.
Well, I'm sorry, your Honor.
If you disagree with me, that issue--
-: If I disagree with you that Mullins has stated anything
new here that has not already been decided in one,
does the derivative claim survive?
-: It does because the derivative claim is so different
than what-- -: Explain to me
how it is so different.
-: Because the derivative claim
is that, if I can paraphrase,
this property has been allowed to go to waste.
That that is not-- -: And, I'm sorry,
how does that differ from the Mullins claim?
-: 'Cause Mullins claim was quite different your Honor.
Mullins's claim was you are proceeding
with a development project that I do not consent as of 2014.
This claim, the derivative claim, is quite different.
It's that, okay, you boys had your fight.
You then ignored me, the property,
for the following successive years,
leading to the current condition of the property,
which is-- -: And how is that different
from Mullins claim in this case?
Isn't that the basis of Mullins's claim?
Like yeah, yeah, yeah, I lost the 2014 fight,
but now I want to bring an action
for your failure to do anything with the property
and bring it and let it waste away.
-: Right, I agree with you on that.
-: All right, so that's Mullins individual claim.
What is the derivative claim?
Isn't the derivative claim the same thing?
-: It's quite similar your Honor,
it may be, they were both pled.
It certainly could be that the court would determine
on remand that it is all really a derivative claim
but not unusual to have a claim pled.
Here's my individual claim.
I have an interest that's been injured
but it also is to the detriment of the company,
and that is-- -: Okay, so it sounds
like what you're saying is that the derivative claim
and Mullins individual claim
in this case rise and fall together.
-: That I think that's fair, your Honor
that if the court says that neither the company,
nor Mr. Mullins is entitled to pursue a claim
that the proposals about what was best for the property
were not pursued by the majority
and that neither the company, nor Mr. Mullins has the right
to sue over that issue.
Then I have to face, I lose that one.
If the court says, nope,
but I would, may I just say this, how can that be?
That the Cobble Hill one findings stop
in October of 2016 life did go on,
there were other opportunities to develop this property.
-: Right, Counsel, I understand your answer
to Justice Wendlandt question,
but can you go back to the issue
of the derivative claims falling
if the major claim falls?
Isn't there, aren't you arguing
that there's a difference in the party?
-: That's very fair, and I'm sure, I--
-: I just want to make sure,
you know you conceded that. -: This is an issue,
this is the issue, the Whirlwind issue.
And here is my position on that.
The restatement says that often
in, if it's a closely held corporation,
an individual claim may bar a derivative claim,
unlike if you're a shareholder of IBM.
-: [Justice Wendlandt] Right.
-: But it's very fact specific.
And the competence to section 59,
really talk about preclusion
when the plaintiff is the majority owner.
The examples are a 95% owner of a closely held corporation,
sues in his or her individual capacity,
that, the restatement says,
should bar a, essentially, similar claim on behalf
of the company.
And that applies here, Mr. Mullins is the minority owner.
So that presumptive rule should not apply,
but at a certain point, because I do concede the issue
of when does a derivative claim become so close
to an individual claim is really quite fact specific.
My position here is that this derivative claim
is at a bare minimum.
The claim that should survive because the property
has been harmed, the company has been harmed
in that case has never been tried, or resolved.
On the issue of whether-- -: Your position
is whether Whirlwind is a 128 or not.
Whether the restatement is limited to a situation
where the individual is in a different position,
as a matter of control and power
of the close cooperation that the derivative suit
no matter where we come out on that doctrine
should survive because, mitigation aside,
the issue just has not been addressed
in the long and short of it
as to the condition of the property after October, 2016.
-: That's correct, your Honor.
And I would, another way of saying it
would be I saw the amicus announcement
that went out in this case
and it seems to me
that, that issue doesn't need to be addressed.
It's an interesting undecided issue.
The restatement has a lot of interesting things in it
but here, here, the reason the derivative claim survives
is because it's not the claim
that Mullins brought the first time around
in Cobble Hill one.
And, you know, on the, I take the point
that the complaint doesn't mention the takings,
but if I may there,
when the Cobble Hill two case was filed,
the case was effectively stayed.
As soon as the defendants answer was filed.
That's according to the appelee's briefing at page 11
while Cobble Hill one was proceeding.
Cobble Hill one gets decided,
then the Cobble Hill two court states a hearing
on the, states the case and puts the motion for judgment
on pleadings on hold,
until the Cobble Hill one appeal is decided.
In March of 20, so now we're in March of 2019,
case is (mumbles), the takings occurs.
The appeals court decides
Cobble Hill one the next month in April
and the Cobble Hill two court decides the motion
for judgment of pleadings on the papers.
My position is that the court, given the unique posture
of this case, one case proceeding,
the other one sort of in limbo stayed,
informally, stayed formally,
that the court should not need not,
and I say should not, blind itself to what actually happened
to this property, particularly on a complaint
that fairly read, says this property is going to waste.
No one's doing anything about it.
No, one's listening to me.
This claim should be heard.
It is very different than saying this 2014 project
shouldn't be going forward because I don't like it,
and I don't consent.
Life did go on after October, 2016,
and we know what happened to the property
and those claims have never been heard by anyone.
And I, you know, what's the alternative--
-: I'm sorry,
Mr. Albano, it appears your time has long expired.
So we're gonna-- -: I'm sorry, forgive me.
-: No no, no problem.
We're gonna move on to Attorney Levin.
-: Good morning, may it please the court,
good morning, chief justice and associate justices.
I represent Gary Jennison.
One of the appellees in this action.
And I had planned on addressing the question
for which the court asks for amicus briefs.
What it seems that Mr. Albano has largely conceded
that, one, that Mr., or the corporation is bound
by the factual findings from the initial case
and has turned this into a factual argument
as to whether or not those are dispositive
and that Mr. Falby will be addressing.
And so, but I did want to touch up on a few things
briefly that he did mention.
The restatement, first of all, I agree with Mr. Albano
that the court need not adopt the restatement
in order to decide this case
in favor of Mr. Corcoran and Mr. Jennison.
And frankly, the restatement is entirely consistent
with Massachusetts law on issue preclusion
and merely provides a consistent framework
for a presumptive analysis
as to whether or not shareholders
in a closely held corporation
are in privity with the corporation.
The one argument that Mr. Albano made
was, with respect to the commentee,
to the restatement in which it talks about the fact
that it's fair to bind a majority shareholder
because he controls the company and also bind the company
to findings in a case involving the majority shareholder.
But what we have here is the exact,
is the corollary to that argument.
Because in this case, it was Mr. Mullins,
who, as a minority shareholder,
brought the first action individually.
And here he's bringing the second action
on a derivative basis.
It's not the majority bringing the second action.
It's Mr. Mullins on a derivative basis,
bringing the second action
and arguing the minority position.
So it's the exact same situation
that the restatement addresses,
but instead of addressing it from the minority,
the majority point of view,
it's addressing it from the minority point of view.
With respect to Whirlwind,
if you actually look at the briefs, the defendant
in that case argued that the plaintiff
in the second case was actually a plaintiff
in the first case.
There was no argument of privity made
in the Whirlwind case and the court doesn't address privity.
And the reason it didn't
was because in Whirlwind,
the defendant said, and I'm quoting
from his brief, "Whirlwind was/is the plaintiff
in both actions."
That's the brief that they filed with the SJC.
And the court was merely saying,
it's not, they're different parties.
It wasn't a party the first action.
So nobody ever argued privity in that case
and the court never decided primitive.
And I think it's, because of the words
of the decision it's been taken out of context.
In terms of whether or not it's fair
and equitable to apply issue preclusion to CHC.
I think Judge Davis got it exactly right.
This is a litigation
involving all three beneficial owners of CHC.
They were parties to the first case.
They are parties to this case.
-: Counsel, can I interrupt you on that point?
Because I'm interested in your answer
on the discovery part of it.
That's the part that troubles me the most.
So the claims, at least individually to Mr. Mullins
in Cobble Hill two,
were not allowed to be amended
in Cobble Hill one to be added on the eve of trial.
In one of the arguments
that both you and Mr Corcoran's counsel made
was that it's too late.
We haven't even, we haven't discovered any of these claims.
We haven't had, we've had mountains of discovery
in Cobble Hill one, on the claims that were planned
in the original complaint.
We went through the discovery process.
It's not fair to do that now.
And so all of those claims were never discovered.
Now he files Cobble Hill two,
that action is stayed and decided on judgment
on the pleadings, there's never been discovery
on those claims about the 2017 proposal.
How can we say it was fairly litigated
when it was never discovered, there were no depositions,
no document requests, no nothing.
How can we say it was fairly litigated?
-: So I think Mr. Falby is gonna address this more,
in more in depth.
But I would say that the issues that were tried
in Cobble Hill one are dispositive of the issues
in Cobble Hill two.
For instance the 2000, the PQA proposal,
the court in--
Regardless of whether or not there was any discovery
on that issue.
Although frankly, all the information
was in possession of Mr. Mullins.
He had the information, he made the proposal.
The court said after trying this,
and both parties putting in evidence,
the court said, this is, violates zoning code,
the city would never allow this.
So their failure to go forward with the PQA proposal,
it doesn't give you anything in terms of mitigation
because it couldn't go forward.
That finding that it couldn't go forward,
all the facts necessary for the parties
to make that argument were presented to the court.
In the first case.
And Judge Davis is-- -: The big picture
issue though.
And I'll put aside the issue of the burden of proof
whether it's different on mitigation or not.
But that's the big picture issue
is if your view is that these issues have been resolved
in Cobble Hill one.
And I think Mr. Mullins's position
is all through the prism of mitigation
and not whether or not there was a breach of fiduciary duty,
particularly post October, 2016.
-: Right but-- -: Does it matter?
Does that matter that these--
-: It doesn't matter because the factual finding
was that these proposals couldn't have gone forward.
What Mr. Mullins was proposing,
by law, the city of Cambridge would not have allowed.
And so, regardless of what prism, you look at it through
it's not, it wasn't decided on an issue of duty.
What it was decided upon was that regardless
of what you were proposing, whether they ignored it or not
the city wasn't going to allow it.
So not only did they not fail to mitigate their damages
but in this case, you can't say that you are harmed
by any alleged breach of duty because the court has found,
in the first case, that those proposals
wouldn't have been allowed to go forward.
Justice Lowy: Not all the proposals,
the proposals that required
zoning changes that were never going to occur.
-: Well, those were all the, the proposals
that were referenced in the complaint
and Mr. Falby will address this more in depth
but those proposals were all addressed in the first case
and Judge Salinger made findings on those.
And Judge Davis based his decision
in this case, upon those findings.
-: Counsel, I understand that Mr. Falby's gonna address
some of the factual overlap between Cobble Hill one,
and Cobble Hill two.
So I'm gonna ask you a question
about what you said you were here to discuss
which was the closely held derivative,
closely held corporations, derivative action
being bound by the minority shareholders prior adjudication.
Can I ask,
you said we don't have to reach that in this case.
Why not?
Why wouldn't we, and what are the downsides
to agreeing with the restatement of judgments?
-: Yeah, I'm not saying
that you don't have to reach that issue.
What I'm saying is the court
need not necessarily adopt the restatement
of judgment as the prism.
-: I guess my question is, what's the downside?
What policy would we be prohibited by,
or what are the consequences
of adopting the restatement of judgment position?
-: I think there are no negative consequences
because in our position
is that the restatement is entirely consistent
with Massachusetts law and issue preclusion and privity
and it's merely a presumption
that in the context of a closely held corporation
the shareholders are going to be in privity
with the corporation.
And so I don't think there's a downside.
In fact, I think it's, as I've argued, it's consistent
with Massachusetts law.
If, there are no other questions,
I'll turn it over to Mr. Falby.
Okay, let's do it.
Attorney Levin: Thank you.
-: May it please the court, My name is Bruce Falby.
I represent the appellee
to the estate of Joseph E. Corcoran.
As Judge Davis recognized,
and as the parties agree
the essence of issue preclusion
is whether Mr. Mullins had a full and fair opportunity
to litigate the factual findings that Judge Davis found,
precluded his claims
because they're contrary
to the core allegations of his claims.
-: So Mr. Falby, can I ask you to address
Justice George's previous question,
which is here are the motion,
was it, motion to amend was not allowed.
And your client's position
was, yeah we don't have discovery on this.
It's not fair.
This is a separate suit.
Go file your separate suit, Mr. Mullins, and he did.
Why is it fair then to say
that he's suddenly precluded by what happened
in Cobble Hill one, given your position before?
-: Because when Mr. Mullins moved
to amend his complaint,
he did so based on the fact
that no discovery was needed, he didn't need discovery.
He said we didn't either, because all the facts
about his claims were known to us as well as him.
So the discovery issue
is really one that's a red herring,
because although we made that point
he didn't believe discovery was needed
and it's then fair. -: Yeah, but you won.
But you won.
And so the, he wasn't allowed to bring in those claims.
-: That's correct.
We won on the motion to amend,
but the case did not stop there
because despite the court's ruling on the motion to amend,
the court denied our motion in limine to exclude evidence
of events after the September, 2015 close of discovery.
The judge allowed Mr. Mullins to submit mitigation
evidence of damages, right through trial.
And therefore Mr. Mullins was permitted
at trial to introduce detailed evidence.
And he did introduce detailed evidence
of all of the alleged conduct on which the claims
in this case are based in the claim in this case--
-: Counsel, may I ask you one question
about that before you go on? -: Sure.
-: I understand this is, did you object,
I know you filed a motion in limine
did you object to the use of this evidence later?
Or was it, did it never come in
to Mullins's satisfaction?
What ended up happening there, was it only admitted
with regard to damages?
Was it also, was admitted with regard to the liability?
How finely is this objective--
-: That trial, the evidence came in on liability
for both sides, at least through September, 2015.
And then the judge allowed evidence thereafter,
which I think fairly read on a review of the record
went to mitigation the evidence after September, 2015.
That's what it was supposed to come in for,
but to answer your question -: Okay.
-: and to answer the fairness question
is the proof positive
that Mr. Mullins had a full
and fair opportunity to litigate
the claims that he asserts in this case is that after trial
in his closing and in his proposed findings and rulings,
Mr. Mullins asked the court to rule,
not just on mitigation issues,
but the rule on the merits of all of the claims asserted
in the Cobble Hill two complaint.
He asked the court to rule
that our breaches of duty
and of the contract included all of the conduct alleged
in paragraphs 96 and 102 of the Cobble Hill two complaint.
He asked us to be found liable for evicting tenants,
for failing to disclose the second JPI offer,
for not selling the land and for refusing to consider
all of the proposals that Mr Albano mentioned
in which are listed in the complaint.
In this case, the PQA study, the DPZ study,
the IPA study, the June 9, 2017 letter.
He asked the court, and we cite the where in our brief,
he asked the court to decide all these claims
on the merits, to rule
that these were breaches of fiduciary duty.
-: I can interrupt you for a moment.
And I wanna ask you about the judicial estoppel
on this context as well. -: Sure.
-: On the merits or as evidence as to the breaches
within the time period alleged
in the Cobble Hill one complaint.
-: I'm sorry, your Honor, could you repeat the question?
I didn't get it.
-: Sure, sure, all of these requests for findings,
they were request for findings as to the gravamen
of the Cobble one complaint,
not to what was pled as to breaches
or breach of fiduciary duty or contract,
as to Cobble Hill two,
'cause that hadn't been filed yet.
So you went on the motion to amend,
you lose at least on the motion in limine,
as it relates to mitigation of damages.
There's proposed findings of fact,
and Mr. Mullins presents under the findings of fact
certain things that have happened,
not as to the Cobble Hill two complaint,
but as to the gravamen of the complaint in Cobble Hill one.
-: But it's all of the same stuff that he alleged here.
It was all of the claims that are alleged
in paragraphs 96 and 102.
And the judge, Judge Salinger and his findings
and his detailed findings actually expressly rejected
many of the claims that Mullins asserts in Cobble Hill two.
He found that we didn't breach
by evicting tenants 'cause we had a right to do it.
He found that we did breach
by not disclosing the second JPI offer,
but that wasn't material.
He found that we didn't breach
by not selling the land
because it should have been developed,
but for Mr. Mullins,
and he gave Mr. Mullins the financial benefit
of the sale of the land anyway
through his mitigation of damages rolling.
And then he made mitigation findings explicitly
as to all the other proposals
that we supposedly didn't consider,
finding that they were not feasible.
And therefore the failure to consider them
would have been immaterial as well.
And he made those findings specifically
as to the DPZ study and the PQA study.
He found, with respect to the IPA analysis,
that it was Mr. Mullins who breached, not us.
In other words-- -: Counsel,
if I could interrupt you on one moment,
'cause if you could point it -: Sure.
-: to me in the record.
On what basis that the Judge Salinger find
that the proposals weren't gonna be feasible?
Could you direct me to where the support was for that?
-: Sure, and the record appendant
is at RA five page 948 at trial page 2183.
-: Could you summarize for me what that evidence was?
-: Sure, the evidence
was that the proposals proposed buildings
that could not be built under the zoning code
and that there was evidence that it was highly unlikely
the judge found that the property could be rezoned
and that the building code would, or the zoning codes
have changed. -: That's what I'm getting at.
That's what I'm getting at.
What was that predicated on?
Was that on witness testimony?
Is that the something-- -: It was, it was it was,
we introduced the zoning ordinance
itself, and there was testimony from witnesses
about interactions with the city
as to whether or not the zoning ordinance could be amended.
And in fact, the judge cited a recent statement
by the mayor of Somerville that the property
should be rezoned to preclude any residential.
So there was evidence about the zoning ordinance
and about the possibility of rezoning.
-: I guess that's what my issue is.
So that's a really big issue with this case
about what kind of use could effectively
be permitted in that area.
And so to the extent that there's the finding on that
when there's been no discovery on that,
yeah there might be some things in there
about what the mayor said
and some other things about what they think
that the city's going to allow or not allow.
How can that determination be made
with respect to vis-a-vis the feasibility
of Mr. Mullins's proposal without it being discovered,
without there actually being discovery on that?
-: Your Honor, it was Mr. Mullins who chose to submit
that issue to the court
to find that we breached by not pursuing those proposals.
It was Mr. Mullins who asked the court
that we failed to mitigate, that we acted unreasonably.
-: Sure, that's what I'm getting at.
Though, it was only allowed
for the limited purpose of mitigation.
So it was never fully litigated based on full discovery.
It was just never done.
So again, I'm getting back to the fairness of it.
How could that possibly be fully litigated
when there's never been any discovery?
-: Because Mr. Mullins, who's the one who's precluded here
didn't want discovery on it.
Didn't think he needed discovery on it, submitted the issues
to the court for decision believing that he was going to win
that he'd had a full and fair opportunity to litigate them
and invited the very decisions that now--
-: If that's in the record,
that as the fight about this in front of Judge Salinger,
where if Mr. Mullins made some representation
that he didn't need discovery, does that bind us
from finding that this was fully litigated?
-: Well, the issue before the court,
is did he have a full and fair opportunity?
And so in deciding that,
certainly whether Mr. Mullins, himself, concluded
that he'd had a fair and full opportunity
is completely relevant.
And he'd obviously did
because he asked the court to decide the issue
not just of mitigation, but on the merits.
And the court made the detailed findings
that preclude his claims.
And I do wanna note that Mr. Mullins claims
in this case only go through the date
of the filing of his complaint, which was July, 2017.
And the only post October, 2016 conduct
that he talks about is the June, 2017 letter.
And that's in paragraphs 91 and 92 of his complaint.
And those were addressed by the court
because, as the complaint alleges in paragraph 91,
what that letter did was analyze the PQA
and the DPZ studies.
And those were the ones that the court expressly found
were not feasible.
And that letter also endorsed two phases of the project
which the court found was also not feasible
'cause only one building was allowed on the site.
And again, the evidence which Mr. Mullins presented,
in which we presented as well,
was concerned that the feasibility,
and that issue was fully litigated.
And he had a full and fair opportunity to litigate it.
And he had every incentive to respond to you,
Justice George, as to why it's fair.
He had every incentive to prove
that these projects were feasible
because that would mitigate his damages.
And he attempted to do that.
And he lost, and he doesn't get to do over in this case,
having made a strategic choice to introduce these issues
into the case, by opposing our motion in limine
and seeking and introduce evidence of them.
And then not only asking for mitigation rulings
but figuring that he'd done well enough
that he could win on these claims.
He made the strategic choice
in his proposed findings to actually ask
for rulings on the merits and the court ruled
on the merits as to many of the claims.
And as to the rest, he made findings on mitigation
that Mr. Mullins requests that are contrary
to the core allegations of the claim and of his claims
and mean they cannot succeed.
What our position does not mean
that Mr. Mullins is forever barred
from complaining about Cobble Hill two.
We are precluded, or he is precluded,
rather, from bringing this lawsuit
because all of the issues,
in this case, were actually litigated
and, not all of the issues,
but there were findings on issues in Cobble Hill one
that make it impossible
here for him to succeed on his claims.
But we agree that he's not precluded
from bringing a new lawsuit based on events occurring
after the May, 2018 trial in Cobble Hill one,
which was a year after the complaint in this case.
Contrary to Mr. Albinos argument,
applying issue preclusion
in this case isn't gonna grant us a perpetual license
that immunizes our conduct forevermore.
But it does preclude all claims
of breach based on conduct through at least 2017
which is the only claims that are asserted in this case.
We actually know from the fact
that Mr. Mullins is in bankruptcy and there's litigation
there where his attorney's invoices
are a matter of public record, that he's planning
Cobble Hill three to sue having to do with the taking.
And that's not precluded because--
-: I'm sorry, we're gonna just stop it there.
I don't think that's part of the record.
-: Thank you very much.
-: That's fine, thank you,
your Honor. -: For your arguments.
-: Thank you, your Honor.