the jury in the lower court trial heard mr powers expert mr barbera testify that mr powers had legs that age been diminished to a point where their receptive range of illumination is not sufficient to light up the road ahead of him at a speed exceeding twenty five mph the paramedics called to the scene rode in their report that the driver could not verify how patient hit the vehicle the accident reconstruction police officer powers gave a reported statements of their insurance company that i that quote i saw the person when the accident happened didn't say she jumped out at one just that he didn't see or mr tester i'm in the southbound driver do it at this point given the the jury's verdict will judge despite all this clear evidence the jury's verdict was that she was solely negligent and this isn't a reasonable verdict and yes the court weigh the jury's verdict as it was so clearly and reasonable and not based on the facts it was based on the fact put forward by one side and they didn't by the facts put forward by the other side in that what happen judge what happened is i believe this is a verdict based on juror bias and that they didn't believe she should be out there was no real sacks that she had done well sure they  testimony contrary to your expert testimony and contrary to your client's testimony you know we don't go away be evident and we don't go on a new at this point check the jury for  think or judge i would just ask that if when you look at what their evidence was which was that she jumped out of sight of her and it doesn't make that none of their evidence makes sense and was contradicted by all of the  dissenters of parties and you have to look at that verdict and then say well why is it that they would come to this conclusion now i i believe the reason they came to this conclusion is they didn't feel that a blind woman to be out walking and i think that's what the evidence shows that that the weight of this evidence assumes strongly that she did nothing wrong other than happened to walk well and other than she became confused and came out in the road and was walking in all unconstitutional he brought his case in front of the jury they found him guilty then he went to the louisiana's supreme court they up else went to the united states court and shocking as it was a seventy one majority opinion and they and they made very shocking findings and there was only one dissenter as as you know justice harlan and any clearly was the fact that this man was no evidence of that you just have to look at this body or ask why is it you raise the players claim in the district court i raised it in my yes in my motion for a new immunity as waived by the c g i a that's the immunity statute so dangerous conditions and sidewalks and this has been the law for thirty one years since the color of the supreme court's decision in city of aston versus mr or which i cited in my great i also want to join in and address the argument on the cross appeal as well though as to the jurisdictional issue this is kind of the elephant in the room when it failed to reference any order in her notice of appeal other than the order on the motion for new trial she filed her notice of appeal twenty seven dollars days after the entry of judgment on the motion for new trial not denying motion for a new trial and she found nothing else within the thirty day period for the notice of appeal now i acknowledge that there is a functional equivalent test that can be used to pull other documents into the equation as to what was ten we filed but there were no other documents filed within thirty day period in those in some cases an opening brief is filed within thirty days or a petition for hideous corpus might be filed and the court can examine whether those documents would suffice as a functional equivalent but what there is no equivalent for is a timely five document and in this case because the notice of appeal references only the order in the motion for new trial and there's no clear intent to appeal any other border plaintiffs appeal  decide any other issue on appeal except for the motion the really won the motion for new trial docketing statement was filed fifty two days later i'm happy to address that if the court would like but because it's beyond the thirty days it's a moot point it doesn't serve to preserve those orders  we also have rulings on five parties motions for summary judgment sometimes dismissals on claims under the american disabilities act rehabilitation act and also claims of orders but we welcome your questions at this time of no question of be interested in him in littleton response to mr stern's position on thank you your honor the issue here is the clear are you met with respect to the clearly are in colorado with respect to all c g i issues being twelve the one issues and therefore mandatory attorneys yes the cases are universal and it's not limited to the issue of whether there's a timely notice of quite the issue of whether any particular claim falls within a waiver area under the colorado government unity act is also decided under colorado law as of twelve the one issue the issue here is that what happened was the district court the magistrate judge decided the negligence issue by determining that it wasn't within a waived area and the specific waived area related to the operation maintenance of sidewalks under the governmental munity and as a result of that decision it's mandatory under colorado law under trinity broadcasting the case that mr stern cited and its progeny as cited in our  error your honor and the reason that that is error as under the rubric set up by the supreme court for these kind of decisions a current a supreme court it requires it to be a twelve b one decision if the court thought that there were facts that needed to be found on the negligence issue and on the waiver issue that is a fact issue for the court what happens in these cases as the court is allowed to allow discovery on the twelve the one issue and of what after the case that mr stern cited is called a trinity hearing and make a determination the court held the trinity hearing in this case affectively by reviewing the rates on summary judgment there wasn't you know the briefs that were filed in the case there wasn't an issue with respect to holding a hearing but it's still at the at the root of it it's a twelve b issue it's not a rule fifty six dollars summary judgment contacts and as a result the fees are mandatory under the crandell case and cases such as that at the supreme court of colorado's you know all the claims to be twelve b why are twelve be dismissed or is it enough for one not to be so the the issue is judge phillips colorado has a rule that if the action and the argument that we're making as the federal claim shouldn't count within the context of the action because of the preemptive ability of forty two dollars united states code section one hundred and eighty eight dollars related to whether anybody gets these on a federal question and the analysis that i would argue  this your honor if there is federal claims and state law claims the court needs to look at the state law of colorado as the rule of decision in the state law claims because this court while the  district court of colorado in cases that are cited in the brief suggests that this is part of the substantive law of the state of colorado and because it's part of the substance of a lot of the state of colorado it shouldn't be that the fact of adding the federal claims to it disrupts the substance of law at the state of colorado is a matter of st impression and you have the authority saying there is no case that decide that issue specifically that would be a matter of st impression for this court your theory versus online railroad well i mean there is maybe area versus long island way out i mean it is clear that the court of colorado the district court in colorado has decided this is a matter of studds of colorado law and because it's a matter of substance of colorado law it's our contention that the rule of decision for the b s the negligence claim has to be colorado law and you shouldn't be allowed court instead of exercising its supplemental interest action and its discretion in deciding to decide the negligence case ruled on all the federal claims in this case and then dismiss the state law claims under supplemental jurisdiction principles then they're refiled in state court then the same thing happens and the twelve b one motion gets ruled upon in state court then it there'd be no question that attorneys fees would be ordered in that context it doesn't make sense to not have the same rule just because the federal court decided to exercise its jurisdiction over the supplemental claims because remember it is not the defendant that decided that we would be in federal court here it is a  i don't believe that for forfeit and the reason it's not for for that is we're very clear in the motion for fees and costs that we were speaking fees and costs under colorado law and we specifically as an alternative have asked the district court to say to either rule that if it disagreed with the analysis under colorado law that we were entitled to fees under nine hundred and twenty dollars and therefore would get fees as awarded by the district court or to give us seven days as would ordinarily be done after that decision with respect to the issue you know having a go before the court under rule fifty four dollars the district court did neither in this case and mr stern is wrong under this court's of forty suggest that we have some requirement to move for reconsideration or anything like that as an error from the district court there is no requirement to move from a consideration and if this court believes that the district court committed error it's itemization and let the court did you know later the reason your honor is because the way that it works on in colorado is if you filed an item is asian you go to a hearing before the clerk of the district court and then there's a review  a motion for costs under colorado law given the fact that the costs under colorado law are broader demonstrably and what costs would be under section at night far from any crosswalk there are just too many jury decision points to credibly argue under an abuse of discretion standard that the evidence points to just one way and the trial court agrees with that don't know i'm not going to say more than what's in the grave it was clearly an error in the in following the court's for seizures and i understand that if you find that the court lacks jurisdiction based on this then you wouldn't be able to hear the in their community and when the disabled are segregated by inaccessibility they are for an unknown in the broader community whose leads to ignorance and misunderstanding in the broad community and injuries this failure contrary to our constitution and our declaration of independence  at the core of this court's mission is the constitutional rights equal justice under the law which includes the right to a fair trial by jury the right of the people to a jury as if we did three times and there were fights the th amendment grand jury right jackson the virginia jury's verdict must be reasonable and based on the law on the facts and it was the duty of the district court to ensure a fair trial to all parties and ensure that a party is not a victim of a miscarriage of justice as stated in  to imagine a jury finding a police officer construction worker to be the negligent party into the saxons that is the answer to the question of how the jury place full blame on mrs lewis a simple blind woman does not have the same right to travel she should not have been out walking if you can imagine that a five foot seven walking orange traffic cone was not a blind student returning to her student housing but instead was a water department worker wearing a construction orange while doing his job working in a construction zone with flashing lights and traffic cones or a police officer doing his job at the scene jumped out in front of them but the disinterested witnesses or witness said she did not she was always continuously walking now yet mrs lewis was found fully responsible and i see that my time is