developers filed a lawsuit seeking a declaratory judgment against archer western who was a general contractor who contracted with prince for a construction project as to whether archer western had met the procedural requirements of a performance bond claim or western fired back on that lawsuit and they fired back hard by arguing and suing developers saying yes we've we complied with the procedure or requirements and you have to pay us because prince breached the sub contract and we were required to supplement their work and the bond requires you to pay for that at that point prince moved to intervene in the case and though it seemed at the point at that point that everyone agreed to the intervention the district court denied that motion  and the district courts rationale was that theoretically prince's rights could be adjudicated in a separate case and not affected by the security general contractor case and then the parties mood for summ and in the summary judgment made remarks indicating that prince defaulted under the contract which is really an adjudication against prince under what why  that and adjudication against prince prince wasn't a party to the case that's correct number one and number two the case was dismissed so i don't help me on this why why does prince believe that it was prejudiced at all since once a case is dismissed i don't think it has any presidential value including all the rulings that preceded it so i'm just having trouble of how prince is saying now that it has an interest in a concern about this well for the record your honor i would agree with you that there should be no presidential value against france but there is as it stands right now france filed a separate lawsuit seeking terminations that archer western priestess of contract and in that separate that they're wrong there and it's before a separate set of judges to decide whether these rulings here make sense or not but from our point of view of a decision of whether there should have been intervention  i just still don't see for the two reasons that i mentioned that that prince wasn't a party at all and secondly the case was dismissed which dismisses all the rulings that preceded it i think from our point of view we we have no responsibility for what another course going to say about that there's a separate argument there your honor and this was for the record no one in the lower court ever reach the merits of princes renewed motion to intervene but it was in there as well and the argument is france as a separate agreement with the surety that any judgment or payment that the surety makes to satisfy a bond claim over prince's head is a claim for indemnification by developers for the total amount of the settlement agreement but that doesn't come from any ruling in the case and that's what intervention is about i want to be part of the case any risk th prince carries now is because of a private contract agreement between the other two people between dish can and in archer and that's not the stuff of which interventions are turning predicated i don't know that i agree with that your honor and so well is there any is there any legal ruling any significance as a matter of law from this ruling it don't you agree it has been dismissed right it was voluntary stipulated for dismissal and you're just using me when a case is voluntarily dismissed that that that the preliminary rulings in that case don't carry any legal weight anymore i don't know about that with it's a stipulation for dismiss with prejudice i think that there is some presidential effect there and you have some piece on there i don't in front of me but i do this is this is the issue that's brief and the rest you to try to claim in the new case but i don't want i don't want the residue that got a claim in the new face to be the sole basis for my for my discussions today i want to talk a little bit more about the indemnification well i'd like you to help me with jurisdiction and i want to get that i want you to tell me whether we have jurisdiction to entertain the appeal in the st place perhaps for is clear enough that the notice of appeal must be filed within thirty days after the entry of the judgment or the and this appeal was not taken from either of those orders it was taken from a denial of a subsequent application that looked to me as if it was substantively similar if not identical to the original motion and there had been no real change in  circumstances so the subsequent motion an order didn't give you another thirty days you can't just keep coming back here over and over seeking to intervene and never appeal the st of the nd or the rd of the th and then get a denial in around five seems to me if those motions to intervene are substantively same you are obliged to appeal when it was denied either on or around one around to do what am i missing well i don't know that the court is missing anything except that there's binding precedent and discussion and cases that we've cited in our briefs that say that when the change in circumstances a nd motion to intervene is warranted so we actually change and correct them stances or problem that i have i agree that if there were you'd be right but i'm not sure that there was a substantial change tell me what it was i think there was because the trial court at the at the st during the course of the st motion intervened seemed to think that there was still a possibility that the developers archer claim be resolved without any implication of princes liability under the subcontract i don't i find that possibility to have been remote but it was a possibility but after the summary judgment where the district court specifically said that prince defaulted under the sub contract there was no theoretical possibility anymore that princes rights would not be a were without prince and that's that and that's the the complaint to answer the jurisdictional question there's a couple ways to answer one we could say that under rule forty one a person who's filed a motion to intervene should be considered a party now i know that will forty one day says parties you already what you were not a party that's a tough argument but it is a it's not an organ this without support your honor because rule twenty four dollars itself talks about one of the requirements for intervention is the existing parties must not adequately represent the interveners interest so i don't know what existing needs and in that context that seems to imply that someone who's seeking to intervene is a party and i don't think that there would be any any problem and i actually think that it would be fair for the court to hold that the person seeking intervention is a part of the other way to get around the support the so called jurisdictional question and i just my light just turned red what i would like to answer is to hold that the case of the discussed jurisdiction in this context what they really surety the general contractor had discretion to decide whether there was a breach are you following what i'm saying i am going to so there is no finding in the summary judgment order that cho good morning may it please the court frank marsico on behalf of archer western contractors could you start with jurisdiction since that initial problem do we have jurisdiction to entertain the appeal you do not tell me why not well there's a couple of reasons and going in chronological order as the court has already pointed out there were two attempts at intervention by prince in tw them three separate grounds for intervention in the st motion to intervene which was disposed by the district court on may th the only grounds that archer had asserted at that point in time was to pursue it affirmative claims against archer western in other words prince wanted to use intervention as a sword if you will to pursue its affirmative claims for damages against archer blaster the court denied that motion to intervene  basically finding that prince had not asserted sufficient interest to intervene in the litigation as a matter of right under rule twenty four dollars a the court also found that under twenty four dollars b it was not going to exercise its russian allowing for a permissive intervention the problem that prince has that they have not addressed sufficiently is why they never filed a notice of appeal within thirty days after that may t seventeen order we still don't have an explanation for that as we sit here today prince then after the may th order instead of filing a timely notice of appeal filed a motion to reconsider which the  h circuit court of appeals has described as improperly pestering the district court with motions for reconsideration prince raised the new arguments while the newly stated arguments i should say that it now need to intervene archer western directly against prince the district court then denied that motion to reconsider as well basically holding that surely prince knew of these concerns about having to defend against claims by d s i c or archer western  because it failed i'm sorry because it failed to do that the extraordinary remedy of reconsideration was not available prints then her reasons that we still have not heard as of today did not file a notice of cross motions for summary judgment on liability and prints then filed in june of two thousand and eighteen it's essentially a rd motion to intervene the problem is that before the court ruled on that eighteen order it was clear that the district court was saying that the so called final order was the stipulation filed on june nd and thus the thirty day clock for prince to file any appeal would have been no later than monday july rd two thousand and eighteen i am not aware of any precedent in the united states whether in this circuit or elsewhere that would allow for this court to have jurisdiction more than thirty days after the stipulation to dismiss was filed namely the notice of appeal being suppose there had been no stipulation would have been timely or would have been out because the the rd effort w substantially the same as the st and the nd i believe it would be the latter situation your honor the fact that the this court forever lost jurisdiction to decide the merits of the grounds for prince intervention unless they had something new or different correct correct here anything new or different he says there was i would disagree with counsel i think as this court has suggested there was nothing new the for rd motion intervene  and eighteen essentially asserted the same three grounds for intervention as had been previously raised right now so i really i'm asking is does it matter whether the parties filed a stipulation or not and the district court ruled that that so and that's the effective date and the time ran from there wholly independent of that there still would have been no jurisdiction i would if i hear what you're saying you know you don't need the stipulation and what flows from that to make the argument i would argue that we do not need that stipulation this court had already lost jurisdiction before prince even filed that rd motion to intervene but that rule forty one stipulation if you will would be the so called final nail in the coffin thank you thank you so unless this court has any further questions i think that pretty much summarizes archer western's position thanks very much thank you i think the suggestion is being made that the decision of whether there was a change in circumstances is somehow turning on the timeliness of the appeal of the motion intervene and i'd like to say that i don't agree with that the the decision of whether there was a change in circumstances i would submit is a substantive decision on the motion to intervene he would say the motion to intervene is denied there has been no change in circumstances but here the district court didn't make a merits determination on the motion to intervene so if this court were to say we believe there is no change in circumstances this would be the st court to say that in this case and i don't think that's the appropriate the appropriate result if you think that there's some to some doubt as to whether there was a change in circumstances it would be remand to the trial court for them to consider that for the st time actually what exactly it already happened that's that's why we always want interventions is to address theoretical things and if the rendering of something from theoretical to actual is a change then everybody would have a right to intervene as soon as the court says i'm ruling against you i'm ruling in any kind of a way against you and then they could make a post judgment request to intervene so they could appeal it well i would be it would  true that your argument would lead to the conclusion that everyone would have a right to intervene after a final judgment that turns out to be adverse on the grounds that you had feared a nationally i think as i hear that result seems ok to me but we don't and it wouldn't i mean wouldn't our case law be just littered with interventions if that were the law no i think the appropriate i mean it would be it would be reduced by an appropriate initial decision on intervention and i think even the initial decision might have been wrong about you can't i mean the st ruling of it you can't intervene because you don't have a right to intervene just to get a pot of gold that clearly was a correct decision the rehearing petition intervene might have been wrong except that the reasoning was true that you're trying to raise new issues on rehearing that you didn't raise on  it was your client not bringing the proper request to intervene in the st place i don't know that that still allows the court to later adjudicate its rights and i think well we don't the question is whether is it change if you if if if in fact you might have one had to pursue the proper claim st to simply suppress you that same claim later isn't a result of a change in circumstances just a result of maybe getting better lawyer and i don't know about that because i think like i said the trial court may have had some idea in his mind that he was going to do to create this case without determining default under the subcontract and i think that could have been possible there could have been a determination in developers favor that archer didn't satisfy the bonds procedural requirements which would not have impaired princes interest at all and i think the real fear that i that this case presents is the fear that parties or people's rights are going to be adjudicated in their absence and i would submit to you that that is the thing that we should try to avoid the most because that isn't that is that appeal just a fundamental fairness if you if i'm going to decide your rights so just really quickly that the appeal was timely it was from within thirty days of the order that denied the renewed motion to intervene and i don't think that there can be a different deadline to hold otherwise  to allow we could be on appeal now i'm sorry we could be on appeal now and a stipulation for dismissal be filed and the appeal and as i stand here otherwise it there thirty days plus from the date the order was that i thank you very much thank you