without any explanation as to its basis and either in the original order as requested in a subsequent status hearing or in ruling on the motion to reconsider five best oral and sanders reversals wanted in this case for either one or both of the separate issues advanced one that's prone sanders were proper claimants to be in or pleader because they were still only a portion of the underlying judgement or two that leave to file in reach of contract counterclaim should have been allowed as a bullish use it's important to know that sperling sanders were not required to prove their claims on the merits at this stage instead so long as possible claims can be assert really runs entirely contrary to the point of an inner plea the whole purpose of an inner pleader is to bring all potential claimants together rule on the merits of each claim and prevent the stakeholder in motions they never challenged the jury's verdict in any way and so the first best of them was already locked in so to speak it was the final verdict once thirty days elapsed and they had not filed that post from motion they could then how would it ever possibly stand on the other two and them ere go obviously has no interest in anything and and that's why you were dismissed out of the interviewer there was no interest in any any money because there was no evidence  and i think the problem your honor is that it dragged klein and really i think for good reason chose to never challenge any portion of the jury's verdict so i understand that but but if you've got a finding by the trial how could that how could any judgments applying an over standard isn't it not new or standard on i don't think it's i don't think the issue of whether it's a unit or not is the true issue i think the question is did they have to defendants as vacated as to one of them would not for that reason alone be vacated as to any of the others and should not be vacated as to any of the others unless it appears that because of the interdependence of the rights of the defendants or because of other special factors it would be prejudicial in that we're going to leave the judgment standing against now and you know in this case we've received there is a finding that there is no evidence to support that judgment and that there was no evidence of a special factor which would render it prejudicial in their group to leave the judgement standing if it's not in this case because they chose not to challenge that evidence themselves so civil judgment would longer after any post probably motion has been granted in that this fact still offering without applications payment i don't think they can then claim that they are being prejudiced by the fact that there was entered against twentieth the court found that there was potentially a contract for settlement available because the offer was was on all five and never revolved and in this case was a good faith factor debate military as to whether that claim is out there is that dragonflies so even if the court determines that that planning you know ultimately wasn't successful i think there's still enough information in there to create a before dispositive motion and that those instances the trial court as the discretion to determine basically what moshe my going to rule on first i'm not aware of any authority in in this sort of circumstance where a voluntary dismissals  including after being given a couple of options to do so that discretion would not be appropriate because we don't know what discretion the trial court by so i think has to really both issues do no good reviews appropriate in this case and certainly to the stand that you know questions of law are raised as to whether that survival of the word is still valid against dragon fly and that they're all there's no case low clearly from motion we will not appeal let me know how you want this money divided up and that was subsequently accepted in writing with instructions as to how that the payments it there was a question asked about you know essentially a form over substance situation and i think you know there's probably areas in civil procedure that are that are kind of sacred that why waste the the expense of defending any aspect of it right right i mean the gross  i want to emphasize again you know the procedural posture of this matter when the trial court granted the voluntary dismissal and denied leave to file i think those rooms were premature that was shortly after the catastrophic on the one trucking accident carolyn recognized there were several claimants injury wrongful death property damage and so forth over the course of the ten years now that the nuclear has been pending complaints been amended from time to time to conform that changing the pleadings to the changing proves for instance the satisfaction of the judgment which i'll talk about in a moment but one of the in the policy and so i point that out just to understand this this issue has been ripe and didn't been present in this part of the pleading for some time from carolina's standpoint with all due respect the pain and suffering awards remained against dragon fly post judgment as it was clear just curious in september two thousand and nine memorandum opinion and order that spurred sanders did not meet their burden of proof and th directly from the denial to leave the file on her claims of the voluntary dismissal your honour's was the vehicle in which they could be dismissed from the case it's also important to note at the outset on standards this falls out position obviously and briefing an argument that's part of the record there was discretional line this is the context of this inner player and this may be an issue of first impression however there clearly was discretion used on the part of the underlying court thank you  what about the offers that were made yeah i'll trust that quickly your honor it really would be attempt to advance a breach of contract claim is really never to circumvent this judgment that being reduced generally the offers that were made were made subject of the interplay or tell us how you want to pay this at the time there were millions of dollars you know that the judgment the constitution and then again later on after the trial court ruled in the post trial mo briefs the arguments counsel and all these arguments were made in the lower court in the court in the exercise of her discretion said they can never get off the ground they can never gain traction with these claims we need to move the case forward and addressed the other claimants that have been waiting for ten years to have to some of the defendants was because those defendants did not also move for substitution of the trial judge the court found that because they'd never filed a motion they could not appeal that error and i also think it's important some of those defendants had already filed a substitution motions and so we're not out of to them the one who filed it was no longer in federal that motion and the other defendants never filed a motion there is no authority  assuming the judge hears it did still have jurisdiction to reduce the judgment there's no indication in the order that he reduced it generally instead the indication is that he's talking about c h robins b and the judgment as to c h robinson so there's been no nothing in the record that shows that the judgment was reduced generally that there was a decision made to not fight a jury verdict all by dragging by and that means they were working fully and finally fixed in their rights that they were going to years possible for that entire judgment and again the second offering came from and it's clear from from the very roots off and from the letters what c c i see want it is we've got a million dollars policy that's not enough if you guys can agree on how much you're going to accept accept it and we'll pay you and that's what was done and it's done based on a valid claim for four cops and suffering that they never chose to attack by way of think number one those are all factual questions for the trier of fact resolve number two and all three that's been around for for seven plus years and that i think counsel would agree if on the day before c s robinson had made their payment if it was accepted then it would have been valid that is accepted on the same day or a few days later i think at minimum is a factual question that that trial effect test resolve as to bring  terms again i think on the merits that fails but because the only terms were don't ask me for more than a million dollars and that was not done and again as council own authority in the briefs demonstrates that's a factual question as to whether there was a variance in the terms or not but once the jury the jury found specifically for both sprawl and sanders that there was conscious pain suffering and dragon fly and henry chose to never challenge those fi to pay it to the extent that they could with their insurance proceeds and so without ever filing a motion they should not be titled to relief and again this is kind of been some questions as whether or not that was a gun the attorneys are and i don't know that it was i think it's a recognition that they're going to be there they're on the boat for the million dollars and now i think they're this carrier that insured the driver that that caused massive injuries to many families is kind of trying to get out of this without ever having to pay that policy that that supposedly for many many years and they were trying to do that unless there's any