in this case a key defense raised by mr irving was that he was acting within the scope of his employment and off already with regard to the conduct that is the issue that was tried below that is a defense is recognized and grounded in arizona statue and case law it was clear evidence in the record to support that defense that was substantial and relevant mr urban was consequently entitled to have that evidence submitted to the jury nevertheless the lower court declined to do so both by denying mr ervin a request that instruction on the issue and by refusing to submit to the jury a special verdict form in which the jury was asked to respond to that issue the issue is grounded in statute twelve dash eight twenty one point zero one of the arizona statute which requires a know what that is one of the grounds for it that statute requires  file a notice of claim against a state agency or a state employee within one hundred eighty days after the accrual of the cause of action in this case it is undisputed that no notice was ever submitted to  ninety six clearly addressed this issue in that case the court held that noticed is indeed unnecessary when a state employee is sued individually rather than in his or her capacity as a state employee however the court went on to say that if a plaintiff chooses not to serve notice it does so at its own risk and that it becomes a jury question at trial as to whether or not the individual in fact was acting within the scope already or employment and if the jury ultimately decides that the individual was then no judgment can be under against them it is the position of southern union that has the right by the way that it particularly its case to deprive the defendant of the rights that the state of arizona has given that defendant through the notice of claim statute that simply by choosing not to sue the state agency only the individual and choosing to characterize in its pleadings and a trial the conduct of the individual as being individual it has the right to eliminate what the state of arizona has granted to that individual that cannot be the law number one because it makes no sense if that was the intent of the arizona legislature it would have been no reason for it to have expressly included the right of the individual as well as the agency to restrain the notice but more importantly the state of arizona through the crime case has spoken that case was decided nine years ago in the nine years since that case was handed down it has not been receded from it has not been reversed the legislature has not amended the statute and the supreme court of arizona has passed no rule that changes the requirements for the noticed that being the case ervin absolutely had the right to submit to the jury the issue of whether or not he was acting within the scope of his employment and his golf cart yet the lower court refused to allow him to do so even beyond the issue of the notice of claim statute which itself would be dispositive in this case is the fact that the issue even if there had been no statute was one upon which mr irving was entitled to go to the jury indeed the jury had the right to conclude that mr ervin had acted beyond the scope of his employment and would have to have so included in order to determine that he acted torturously and therefore unlawfully interfered with the transaction that issue but the jury must have some criteria some benchmark upon which to determine upon whether or not to determine that he acted beyond the scope of his employment and the court refused to give it to  lower court committed reversible error by failing to submit to the jury or allowing mr irving to submit to the jury either through the requested instruction well requested special verdict form that issue you jump right in the su arguments what are you going to tell us why we have any jurisdiction i believe the court well the argument that the court has no jurisdiction here rests upon the suggestion that that my client failed to properly one the lower court entered the judgment the judgment below and the law is now quite clear that the judgment is not entered till it is finding it is submitted by the clerk and in this case what happened in this case the case law the council site is really an app is it to the to the law in this case the fact that the court entered an order in the lower court in which it denied it denied the requested relief is not a judgment under federal law and the reason that the law has been changed was was that in order to create a bright line determination for for appeal so that we would no longer have the questionable issue of wanting to feel a notice those that in the civil carries you can file within thirty days after the judgment order appealed from has enter judgement motion before there even is a judgement which you did then and then we count from the time the post taken in motion was decided that's what the rule namely says on its face how do you answer that if i may have the permission of the court although i a final judgment is entered suppose i'm not a advisory committee any notes person i'm just a plain reading of the rule kersti if you plainly read the rule on its face it doesn't say what you just  party need not file a notice of appeal until a separate judgment has been filed and third and i appreciate that the advisory committee knows you are not there not the law and not the rule is the law but one would suspect that if such a radical change had been the notice of appeal need not be filed within thirty days of the final judgment and i think we all understand that that's how we usually think about it and that's how i would normally in terms of common sense think about it i'm talking about what the rules however i understand you not say that doesn't it doesn't it doesn't say that it does not say it does not say this it likely that except as provided you count from the day of the judgment and one of the exceptions is this down here which they don't count in the day of the judgment and it doesn't say after a judgment and file you know we understand this case there was actually no judgment filed whatsoever until after these things were ruled on correct and the district court had it under sort of under advisement forms a judgment she had earlier suggested she was going to make it a twenty percent think she wound up making it look forty percent i guess and what it says on its face isn't what you're telling me you think good sense are you saying that the observer to read it on its face that way is that your position i'm saying it would be it would make bankers trust debt better it would it would go contrary to the language  advisory committee notes and if i might be struck them on page two and what that what the what the advisory committee notes to the new rule fifty eight say there's a two thousand two advisory notes the exemption of the order disposing of the motion does not excuse the excuse the obligation to set forth the judgment itself on a separate document nope nope no court has ever held and we search just as thoroughly as we could that there's ever a requirement to file a notice of appeal before there is a final judgment on wh question it carries a lot of trade with it no court has addressed the situation that is before this court now in which the order of disposing of the posts trial motions is entered before the judgement and no court has held ever that a notice of appeal must be filed before there is an entry of the final judgment speaking to of course or all the provisions of the rules for what happens after the note after the judgment is entered you know you're quite right guide to interpret in the rule and of course the law of the law has always been the better the rule and bankers trust that a final judgment is the starts the time running for an appeal now but the rule doesn't make sense or honor is what it says that if there is a final judgment and there is a post trauma ocean that was either pending or or comes after the final judgment that there need not be a separate order and we think that's what the rule was intended to do it eliminated the separate order requirement that only eliminated a separate water requirement for post since the intent to require a limbo notice of appeal and as i said one would suspect that such a radical change in federal  notice of appeal let's take the advisory notes out of our brief let's take speculation as to what was intended out of the courtroom and let us interpret the rule in and conformity with what has been federal appellate practice for a good many years and what united states and to rule four and the exceptions that appear in federal rule of this tell a procedure for is that we are to read the plain language of the rule and then where the exception applies to it applies as an exception to the general rule stated elsewhere and that is exactly where we find we will appeal followed thirty days following the entry of the final judgment or the order so this final judgment order except as provided for and then it cites to subsection four of that rule and what subsection four of that rule says is that in cases rights timely post trial motions filed then the parties appeal time all of the parties appeal time runs from the disposition of the last such motion that's exactly what happened here the jury was entered timely post trial motions were filed because either fifty nine ve been filed and before the final judgment the court decided the first trial motions under rule seventy nine entered those judgments on july twenty eighth two thousand and three thirty three days later the notice of appeal filed well let's see counsel i mean what you say you're reading the plain language of the rule that seems correct was not intending to amend the statute so if you're if you're reading is correct then what it means is that under rule for a person mu file a notice of appeal with us at a time when there is no final decision in the district court so they must their time filing a notice of with us he guinn's to run and indeed may run out before there is even a final decision of the district court to be appealed  that is slightly jarring and maybe you can cushion the jar but let me attempt to question the jar on how that works because i believe and we can see that in the circumstances of what happened here there isn't fact a final determination and a final decision from which an appeal can occur in the circumstances the jury returned a verdict the court had under consideration post trial decision motion tonight it said whatever the jury did is exactly what we're going to enter as a final judgment which serves other purpose now that's not what it's before it ever said that the court said let's see some forms of judgment and i'll tell you one thing that the court i think was about january sixth sometime like that said the court i think that the way we ought to do this judgment is to take the forty percent from count one and the twenty percent from count to an average him and come out with a thirty percent result that's what i think we should do so that the court at that time  to give me some forms of judgment inside and presumably a former judge room was filed a few days after that and then nothing happened the court doesn't enter that doesn't do anything with  we get our final judgment ultimately and lo and behold there's a forty percent in the final judgment and finally enters so as far as i can see from the record of these whole record that docketing it looks like all this time we've got all the stuff up in the air and under consideration we don't even know what the percentage is going to be i don't think any of those orders you've cited is to decide what the percentage is going to be one of them seems to reflect what it's going to be but nobody no place in the course even decid that let me first first address the record and describe what happened at the trial court and then i want to point out of specific provision of rule for that deals precisely with this question of amended judgment here's what happened in the record what i'm in your judgment there's only one judgment that's right but there's an amended there's an amended judgement provision in rule for that says even after you decide it goes trial motion if it immense the judgment it doesn't matter the time still runs from the order that you enter january there is a hearing held on the proposed motions or proposed final judgments that were submitted by mr irvine and by southern union company and i want you people want to intervene that's right and people wanted to intervene not because there was a dispute between mr urban and southern union company about the content of the judgment but because we wanted to put in the judgment both of us the percentages that were allocated other folks felt the court said we're not going to do that we want a plain judgment neither mr urban nor southern union company ever offered a judgment to the court that adopted this this averaging instead we both recognized that there was a twenty percent liability fighting a one cause for the same damages a forty percent liability finding on the second cause of action but the same damages and therefore the appropriate judgment was forty percent still what the judge thought it should be thirty percent in writing that one point that's that's what she asked about that's well she didn't ask about it she just plain put in her and that minute order on january sixth is reflective of the hearing that we had and within a week of that we submit a joint judgment acceptable mr urban except for the southern union happening it says forty percent as the one that was submitted and by agreement in january of two thousand and three ok so those orders now in a circumstance under rule for where you have a post trial motion filed and the court grants listed in for a for ike or a judgment altered or amended upon such motion so that applies not only to our circumstance but to a circumstance where the order is granted and it amends the motion and that rule goes on and it says you must the notice of appeal or an amended notice of appeal if you've been premature and here is the operative language within the time prescribed by this rule measured from the entry of the order disposing of the last such remaining motion so what the rule plainly says is even if they were granted relief and even if there wasn't a final judgment or a final decision about the nature of really really should take you still count the appeal time from the very same disposition and that's the disposition of the post trial motion and that's because of the plain language of the rule and the supreme court says follow that plainly which if if the rule is going to read as mr urban suggested it should the rule would have to say this the rule would say that you run the appeal time from the disposition of the motion or the entry of the judgement which ever comes later rule doesn't say that but if you take a look at the second half of the rule for ideals of civil appeals for b deals with criminal appeals and if you look at for being three here's what it says it says  but it goes on or within ten days after entry of the judgment of conviction whichever period and later that is the language the mr urban is asking this co to graft onto the first half of the rule for a the language is not there the language has never been there and this language is equally plain that on the criminal side you do wait until the later the two occurrences you don't do it based upon the first address that quickly rule fifty eight is the source of the advisory committee language that is cited in the briefs recall however that rule fifty eight is the federal rule of civil procedure addition to simply in some circumstances setting the time that we begin our appeal i think mr shirky gave some of those examples whenever you want to go and collect a final judgment you need a final judgment and so even if the appeal time is running otherwise we still have to have that separate entry in the docket so that we can take it to another jurisdiction and in force is the best example i can give the court you know and both sides of the score this issue which is fundamental gore and campbell's reaffirmation of what he exercises it's not the actual damages that you determine whether or not the ratio was acceptable or unacceptable it's the harm i mean from the defendant's conduct it's the potential harm coming from the  conduct and in this case there is admissible evidence below of the following first and this is not the expert report which you may have seen in the in the brief but this is testimony that was admitted and objected to first southern union would have made seventy million dollars a year on the transaction according to john cavalier there donaldson lufkin and jenrette investment banker one know who was the competing suitor for the company their chairman of the board who was a former investment banker doug like testified that one zero could determine it would make over one hundred million dollars a year the shareholders of southwest gas before jim urban's intervention stood to make a hundred and eight was negotiated the parties that signed the contract the terms were in black and white and it's simply awaiting closing after the fact my client came and offered one hundred eight million dollars more so what a baseline the southwest gas shareholders because there's never been a denial of regulatory approval in the history of the country for this kind of transaction at a minimum they were going to sell their stocks and make about two hundred fifty to two hundred eighty million dollars on the difference between the trading price and the one  well i mean so is there any evidence of personal gain he derived from it in terms of money or something else and if so where is the evidence of personal gain and i recall that this is a circumstantial conspiracy case i will tell the court and we told the jury below we do not have a document where everyone's today on inside it and as conspiratorial members here's what we do have though jack rose who was the second defende trial and who took the fifth amendment at trial had negotiated a substantial deal with credentials securities that he would have made i believe it's two thirds of three million dollars on the first three million dollars of the transaction and eighty political he wanted to run for a higher public office and to do that he says to the jury you have to have money to do it that's the immediate evidence the jury saw the other thing the jury saw i still understand yes to run prior o from this evidence every time that jack rose called credential to negotiate his contract every time that jack rose called one to father the conspiracy that we prove to the trial court and to the jury he also called on that very same day jim irvin and had substantial conversations we've submitted this evidence of the record and we submitted to the jury there is a tremendous pattern throughout this course of wrongdoing where every time there's an advantage of wrongdoing there's contact in the phone records with jim irving ok that help with jim urban's absolute denial that he did anything wrong his opening statement to the jury was we don't deny there was wrongdoing our defense is i wasn't involved in it after a two month trial showed that was false the very last question i asked jim urban on the stand is do you think you would have done anything different he says no i wouldn't have the jury here was confronted with a defendant that they found and p r legitimately find was untruthful concealed evidence covered up the entire conspiracy and once they find that once they find he's willing to shred documents in response to that jury's entitle to determine on these circumstances that there's circumstantial evidence that gemer been would not have done this but for some substantial reason whether it was simply selling out his office for grants or with it was because he determined that the damages that counsel now suggest that this court on the basis for potential damages were on duty speculative and refused to permit them to be entered into the into the trial consequently the issue of those damages was never litigated by either party in my client never had the opportunity to introduce that conflict in evidence second this court only last month and baynes the arco held that the that the the t x zero decision with regard to potential damages was not applicable in a case such as this because the united states supreme court pointed out the potential damages issue only arises when the so called scheme is unsuccessful and as this court pointed out and as the united states supreme court has pointed out when you have substantial compensatory damages there is no basis for considering potential damages in the bains case this court held that fifty thousand dollars was substantial damages i this urban was a public official that somehow all of the criteria set forth by the supreme court was not applicable in the first place while indeed being a public official is a significant issue it is in this case the only issue mere fact that one of the public official doesn't mean that the heinousness rises to the level that it justifies one hundred thirty five to one sixty million dollars is unprecedented in the annals of american jurisprudence against an individual if we're going to say that based upon the evidence of mr ervin's conduct in this case the sixty million dollars is permissible where do we go from there in a case involving a public official that engages in far more heinous conduct a public official who actually receives a bribe a public official who receives a bribe to close his eyes to industrial activity that he knows is going to result in severe health injuries to large segments of the public or death there is no place to go from sixty million dollars essentially what happened in this case is that the court below decided that as long as you're a public official the cap is off and the last thing that i'd like to note for the court is that the very foundation for all of what the united states supreme court has said here by his own words is the due process requirement for fair notice there must be fair notice not only of the elements of the wrongdoing itself but of the magnitude of the potential penalty in this case if there is to be a sixty million dollar punitive damages judgment against an individual there is no fair notice there is no precedent in american law by which mr ervin or anyone else in his position could conceivably have anticipated that he would be subject to that magnitude of punishment for the for the conduct that he was alleged to have committed not in the civil law of the