officer of the court knew when they signed the release that we're here for today that the request for equitable adjustment for fis delayed damages with was worthless because dick us on two years previously had already released the court from pain of any claims for the really damage so i ask a question the name of this thing a request for equitable adjustment and it has a kind of a quality just in the sound of it may be completely different in practice that if you've been done in and some way you can come in and request an equitable adjustment that how the thing works yes as you said and when you were mentioning your description is this a practical thing it's very practical it's done in all court jobs particularly in one you know this is katrina situation one day this changes the next day this changes so there was four hundred sixty four days of delay so that's when the sub contractors get to provide the evidence of their delayed damages but the subcontractors can't deal directly with the government that's an important point that's exactly can only deal with canada and that's general deals with the government that's right that's what the miller act is there and your honor you know we can talk about federal and state law but for fraud it's pretty much what you learned in kindergarten in oracle one nine hundred fifty four things in a civil code basically says is that if you are in a relationship of confidence and that's where we are here because we cannot talk directly to the court it's not a fight to sherry duty i don't believe for the general went into the word sophistication is fisk sophisticated enough that they cannot be lied to the question is b court found deepwater horizon you know the foolishness of the plaintiff is not to be judged and that's why we believe that the essence of this case is that  victim of fraud it was an error for the court not to follow the deepwater horizon case which this court i'm sure struggle through many of these situations because it's right on point and what deepwater horizon teaches is that this whole concept of sophistication on the part of a victim is to be looked at on the basis of justifiable reliance and in deepwater horizon this court was confronted with shrimpers from obelix who put in their application for four phones under the b p that most of their business was  shrimping and they got paid and then later on i guess it was at that point mr freeze committee looks at the tax returns and f that no dredging was eighty percent of their income in this court said that mr freeze committee did not have the affirmative obligation to go look at those tax returns that it could rely on their application that in fact they were eighty percent of the business was sure and that is what we have here we have a situation where we have evidence in the record against the motion for summary judgment from an attorney and from an engine ear with this that says we relied on mr madden telling us that we could still go forward because they had not relinquished our rights and this gets to another important point on the sophistication situation because my client did it's just take their word for it which seems to be part of just the miles rulings we follow for your requests to the corps because our general contractor wouldn't give us documents that allowed the the project to get extended for the sixty four days and all of those documents that we received doing our investigation work  the contract so what does that tell us we got a draft and i think up put in my reply i go on is that this is part of the situation where a lot of pork gives you are you telling this is what i want this is what i think we've talked it over i've with some kind of an adjustment for delayed had already been negotiated and and resolved and you would have been able to go in and and found another claim for an adjustment based on the delay if their signature been on it you would have known it over exactly right art and in discovery guess what we got out of the thirty four thousand pages in discovery after the second lawsuit e q s side gives us a bilateral modification and it's signed by miss stops in twenty twelve to thirty years before she executed the release that stole the money from  counsel i have a question about how we see and a lot are you taking the position that even if louisiana law applies you still could prevail or is your are all is all your hope in the  to me that louisiana law does not allow for even in the face of affirmative misrepresentations that that you did that you could still prevail enter fraud that in fact louisiana you know agrees with what i'm saying is that you just don't get away with from what that's what i believe louisiana law so even if louisiana law applies you think you still should have won here absolutely and not only that your honor but this whole concept that we did no investigation is is absurd we did the for your requests we talk warrior to warrior but more importantly look other thing is it would be against false claims act if gz us i submitted something that they knew they shouldn't be getting paid for so we're thinking if you look at the whole ball of wax that there is no reason that these people would be lying to us there and then the other thing is they're not going to pay us the money the court's going to pay us the money for reasons unknown to us twenty eleven twenty twelve cash flow whatever they decided to get all their money and just you know make life miserable for the subcontractors and see what they can get away with reliance does not mean a plaintiff must discover every aspect of a defendant's capacity for truth telling mr medlin who on the day his clients signed the release that it was fraudulent because she had already signed away release the the pay off the government so the release was dead or alive and they knew it and that's what judge lamell found and to get into a credibility issue he says there is clear and convincing evidence of fraud which you know i don't think anybody is disputing no one's disputing here that d q assad got paid it's two hundred sixty four days and we were there the whole time as the electrician and we didn't get the i mean most basic concepts of law or here and the at the end of the day we would ask that this court reverse the summary judgment and render on the trial judge's finding the fraud that we moved  this matter on to determine the damages in the attorneys fees because the court has already found the truck was already found that there was fraud in our opinion once the court finds that there was fraud the release is rescinded and the parties stay in their respective shoes and we go to trial and because they filed some in judgment i didn't  flawed he did not make a factual finding as to whether ford was a was not committed by dick us on or counsel what he was trying to do if you read the opinion was trying to say it doesn't matter whether fraud was or was not committed because the plaintiff that's a different if you want to say it doesn't matter you would say put that to one side or assume argue window even if even if there was for i read write these things all the time you don't say in light of the clear in convincing fraud that's been demonstrated he said evidence or evidence in your honour's i recognized how he phrased it and it was very disturbing why is that the contract interpretation is a matter of the law judge lamell found that with respect to this particular contract a settlement agreement which is a favored form of resolving disputes that settlement agreements have to be interpreted just like every other contract in that we need to have  integration clause or a merger clause as this court has always found you can not justifiably lead lawyer a pawn purported misrepresentations ported fraud there we're not justifiable in relying upon it with respect to the settlement agreement because there is this court has says simply stated in hobbs versus alcoa which is a per curiam decision can was a member of the panel this court explained this argument fails however because any alleged misrepresentation is bored by the settlement agreements integration particular settlement agreement the parties included several provisions in it one of which said this agreement is the entire agreement between the parties they  a nother provision in it and said each party has had an opportunity to consult with their own attorney and understand the facts and circumstances and they went one step further and said nothing no promise no inducement or no other agreement that's not contained within the four corners of that settlement agreement was part of the agreement that means necessarily by placing your integration clause into a settlement agreement you are affirmatively stating that you're not relying on any representations promises inducements by any other party it would turn to settle the whole purpose of  it agreed to make a payment to fess which it did it agreed to make a supplemental payment to fiscal in an additional twenty five thousand dollars which it did it agreed to dismiss its coining against fits that or a properly supported request for equitable adjustment why is that everyone knew that the four hundred sixty four day claim had been way everyone knew that the four  modifications in agreements had been entered into with the core fiske in fact had signed off saying we're entitled to these additional monies but we're not asking for any more time the to submit the same four hundred sixty four day requests for equitable adjustment it would have said not submit a request for equitable adjustment not submit a properly support request agree to it is the parties knew the four hundred sixty four days had been waived and that's why if you go back to the settlement agreement and what were you agreeing to submit we were we were mean it could have been you telling me that with both sides knew what you were talking about that i'm asking you what it was the poor had already agreed or it or had indicated that it could be for additional equipment it could have been for reasons extensions  what the core what might have agreed to pay but i'm asking you what the two parties here were agreeing that's the mission would be about that's all i'm asking and that's where i thought i was answering not to and this is what we had agree we didn't know what we had no idea what fish wanted to do and it's r e i we were telling them if you properly supported whether it's for additional equipment whether it's for additional man hours whether it's for additional days it was up to them we didn't know fisk's business or you were just agreeing on categories of potential us and that's why it's exactly right we agreed that it's a properly support request for equitable adjustment and that's why when they resubmit the same already and that had already been submitted in february of two thousand and thirteen we said we can't sh now that is a very important point because the settlement agreement is not signed for two months afterwards the request to equitable adjustment you have to have an understanding of the timeline here just tells us in december two thousand and ten excuse me december tenth to two thousand and thirteen we've done a four your request to the core it appears that the four hundred sixty four days have been waived we go to mediation in april of two thousand and fourteen we say we will submit it when they tell you it appears that it's been way do you think yet we agreed with what we do contrary to what fisk said we said call us we'll discuss with you this failed to follow up with us we reached out the record establishes this fiske actually states they never it they knew they had to go back to the district court to enforce the memorandum of understanding that had to come from the mediation in the settlement agreement isn't signed for two months later because we're going back and forth to say  we can't certify the four hundred sixty four days so if they wanted to change it and put a recitation in the agreement that said hey we're really whining on you saying the four hundred sixty four day that's not what they did the settlement agreement actually states we will submit a properly supported arianne and in fact when the poor thing jack said the course they were still willing to consider other quaint because a request for equitable adjustment if it's different days or caused by something different each had they had dis presented evidence that they were delayed or had damages or had extra materials or needed different equipment whether it be for different site conditions whatever the case may be the court was saying give us the information we will process it the core wants people properly paid compensated for the work they do but what they're not going to do is pay twice for and that's why this concept of who gets paid paid other sup on trucks based upon what the the way was and who was impacted the poor made the determination all monies that teach us i received that were based upon  delayed because they found a specificity in this wall any contractor who was potentially delayed because the project for example a specialist was found and it was a changing conditions on the project some requests for equitable adjustment it then has to pay its sub contractors based on what was paid to us so fisk was involved in this process all along it what's important here it's a judge will now found it's a question of law this there's no dispute in this case that the aria and excuse me the settlement agreement there's no allegations that it's ambiguous there's no insinuation that this isn't a sophisticated corporation it's not disputed that they had three separate lawyers it's not disputed that their general counsel who signed an affidavit he says he has thirty seven years of experience n a again because i said he was reassured that he could do it he could submit it and so did gregory thomas this experience council or the in house counsel that said he was specifically told by representatives of d q with the deep q s i had not received payment were done for the by fisk and therefore fisk could present a request for r e a to obtain payment for these delayed damages it's linked up as being specifically told in the negotiations that the delay damages had not been submitted to its minimum so why is it that at least a fact issue on this point that you said was well known to the contrary because the interpretation of a contract is a question of law if this court has several decisions on i could cite the court to it so you're saying it doesn't matter what they say they were told you just went and told us though for some length of time that they actually understood something different and i was just pointing out that there's evidence to the contrary in the record i would agree that there is evidence to the factual evidence to the versus man's the us supreme court says if you if it is heavenly obvious that the information is false or you discover evidence that you can't  deepwater horizon adopts the field versus man's case in fields versus man's indeed there's another very important reason why so one there was a duty to ready to accept that field is the correct law that we should apply in this context yes or no i would say that outing from it i would say that fields versus man supports our argument but what i would tell this court is the second reason conscious misrepresentation cannot offer as a defense the plaintiff's failure to make the investigation or examination to verify the same field says that explicitly and i agree field says that field also says it is only where under the circumstances the fact should be apparent to the one of his knowledge and intelligence from a cursory glance or he has discovered something that should sure as a warning that he is being deceived that he is required to investigate and that what i'm saying to the court is the hobbs the alcoa case which relied upon decision of this court which we live upon armstrong versus american shield which also relies upon cites u s quest versus salman's each state that if there is an integration or merger clause whether it's in a contract that as a matter of law all if you include such a provision in your contract that it is not a justifiable reliance this court and the decision hobbs meal cohen armstrong in us quest as well as the buffet at case there are so litany of cases where this court has said that with a merger or integration clause that says this is the entire agreement and i apologize i see the lights off if i could finish this point you answer to the question that if there is a merger integration clause in a contract or a settlement agreement that any reliance on statements or promises or that are not part of that agreement are not justifiable and that the settlement agreement must prevail and that is exactly what judge lamell file thank you statement it is further understood and agreed that this adjustment constitutes compensation in full on behalf of the contractor its contractors and supplies for all costs or more cups directly or indirectly attributable to the changes ordered this was a done deal and they know it and for them to say that my client knew it it's just it's we don't know you know all of the things that we know in this case so it's it's it's very distinguishable and the the case that we cite what you did here is you signed up a settlement agreement i these two parties and it has an integration closet and so what he's basically saying is when you sign they're not it was church was out no matter what you did i think that's the argument we  merger clause and or an integration clause is void because they want it they argue integration clause in the district court or in their brief  they they are giving merger clause all they have to what they're talking about i think well today he's brought up the cop case from two thousand and seven which is an integration clause case people make mistakes all the time you could have gone to the court they made a mistake let's get fiske paid because they were sitting right there next to us did everything we did they decided not to do it i propose it but it's the integration clauses properly before us the answer is that it's the face of the the dr the settlement agreement itself the consideration is fraudulent on its face salut you know that's the that's your total answer otherwise would you be bam by the integration clause and not allowed to say they told us this x y and z while we were negotiating the the settlement agreement we have a document we were selling the mule in the mule was there i would agree that the that the you know it immigration i'm sorry you know gratian the merger clause would be adequate but if the mule isn't there that we're dealing with then that merger clause i tell you what i mean it's probably better not to sign a contract with something like that in a mine and less you're prepared to live with it i mean i'm not i hear your argument and it's very powerful