approximately fourteen hundred acres or proximate to square miles of land split over two particles that spread along fifteen miles of the arkansas river around public colorado the central problem presented by this appeal is the d calculations so when you say non disclosure that seems to run counter to that fact so too to unprotect question but your honor there were two reserve estimate that issue one was what your mobile the point eight billion which i was what you're referring to the second reserve it was about his own internal response to that nineteen point eight we're just talking twenty five million there is no evidence in the record that the twenty five million with it at any point in time close to  continental did its own investigation it hired a song experts so it would be it when even matter whether or not that was disclosed continental was doing its own work what's wrong with that analysis agreement make clear that any investigation that cottle would have provided does not abrogate or exclude or modify the representation obligation now there is a question for the materiality itself of whether those reserve negotiation but even within the transaction between continental and valko there is a there's a fundamental disagreement as to what it was mr i was attempting to calculate and then secondarily what the parties were green  now we happen to think that our reading is the more credible reading because the parties would not interim to a one hundred your lease to pay a fixed minimum royalty if there's nothing in the ground other than say and but nevertheless allowing for the possibility that one can that would be sold or used and we knowledge that some of the language is less than clear but again because the evidence points in multiple directions the question of fact that should've been written john was all running low on time and i want to talk about statu limitations because it east side of the river the thirteen hundred is disputed portion or supposedly not economically a local suppliers are to meet the royalty obligation  was determined based on the facts of mere shortfall but you cruel rule is more than that is more than just the discovery of the injury if the discovery when you have elements of the claim which includes in some articulation from this order the wrongful conduct of the scupper in the fake even furley or than that but but not by much with the discovery of the difference of opinion interpretation of the meaning of the term it retained gravel river which was not known to continental until the state what cardinal filed the case on with the mere shortfall and at that time it argued mutual mistake and it wasn't aware of that given the complexity and by the property until approximately a year before it filed suit and we started to a doctor with lower we recognize that we th not why didn't you have some obligation to move quicker in terms of even it was to make your major mistake argument to do some kind of due diligence to say well if there's a problem here well in terms of the mutual mistake argument it w with the record shows and the reason that judge matsch entered summary judgment for multiple reasons including an statute of limitations as he said the record is clear and he cited the testimony of  mr get which is that they knew in two thousand and two and what happened is they had another sand and gravel site in colorado springs that was shut down because of the landslide so they wanted to keep the and wait the appeal in our judgment is fraught with a number of problems both legal get back to the sat and waited because i think or sounds like there's a question of fact about whether what they did was sat and waited using the western mobile data that there was forty eight over forty eight million tons of property on the entire property on the east side and that's one of the fallacies in the argument continental has stipulated that that the g s a calculation is correct they've also stipulated that the methodology is correct and so what mr i did is he calculated using what were you initially required a lot of material reserve information concerning the property and is their definition of reserve or what would be real well information re says if anything you have from third parties that we pertain to i can tell you that that reserve is stated in the contract as the calculation by g s a in section four point two of the acquisition agreement to remember yeah i understand that yeah ok i guess one of the term reserves is defined as what's calculated by g s a we gave them everything we haven't used if you give them everything you had from third part gave them that because it was on a notation on a page that wasn't identified as anything in particular assuming we don't agree how did you give them that really important number which was a quantity which was much lower than any other calculation point i want to explain is the one thousand million the twenty five million is not a reserve calculation for the entire property it's only for certain portions of the property and the fifty million tons that was agree to is based upon the entire property so what we do with them is all the data that western mobile used that was then the basis of the calculation of the forty eight million we also gave them the map we gave them up we had from a third party everything that western mobile has we gave them and when judge mate said there is nothing material with respect to either a failure to disclose or information pertaining to the warranty is analysis was was this number one just a two calculated using western mobile that for the entire property gets forty eight million times number two they stipulated that it was a correct calculation number three they didn't challenge that stipulation and i'd like to  that the g s a calculations were correct g s a made a calculation as to what western mobile concluded if you look on page ten of our brief you you actually have a screenshot of the western mobile  summary judgment ought to be affirmed is that continental has failed to challenge rulings with respect to each of the claims one of them is judge mage's finding that based upon the stipulation the information from western mobile was not material they didn't raise the stipulation at all in the opening brief and someone's let me talk for a minute as to how that applies on the then the appellant doesn't challenge each of those independent grounds there's a waiver that must be solved in a firm it's of the decision that's exactly what's happened in this case if you look first at what the remedies and relief are that is requested in each of the claims it's the same for each of the claims and so what continental has done is they've said we want to prospectively receive in we want to reform and we want damages as to the difference between the production royalty and the minimum or pick and judge made in his summary judgment at pages seventeen through  rejected each one of those the amaj or remedies requests there is absolutely no challenge no comment either in the opening brief or in the reply brief  about the fact the judge made has said for all six of your claims you lose with respect to the remedies endearments and there's never been a challenge to them now when you look at each of the  brief and they they claim it's irrelevant in the reply brief disregarding the fact that i'm a page here and you have jesse's calculation when you say forty eight million are you talking about economically my noble and does not matter noted they didn't use it again when they wanted economically my novel they used the term then when you look in the letter of intent judge made says they didn't use economically my novel in there but if you look at paragraph royalty regardless of whether they mine the property now that's a clear indication that they knew they may not be able to economically mine it clear language the same thing is true in paragraph five where the