to give a full and complete disclosure of the facts and the theories that support and this report has wide latitude to force those requirements or dealing with here the situation where we can and the appellate court of uses discretion by failing to exercise its discretion to enforce the rules of civil procedure and that occurred unfortunately throughout th and in the summary judgment motion disregarded the parties answers to discovery and deny the motion and finally when it came time for trial where the party had for the plaintiff had failed to supplement their admittedly they didn't have a claim their claim was barred by the statute of frauds that was in our claim for the sale of goods more than five hundred dollars they only had two witnesses and we had one document so we made a decision to to go ahead and accept that shortly before trial the plaintiff came forward gave us their witness list they listed a number of individuals who had never been identified before they had a new theory of what their claim was going to be which was not part of the statute of frauds they put forward thirty or forty documents which we've never seen before time saying look what are you claiming for explain to us how you arrive at your number what's the basis for your claim what amounts are you claiming for how do you calculate them etc etc and we got back this very very limited response saying this is where our claim this and this is what it's based on and here's all that it's based on and here's the only evidence we're going to present a trial to support and so you have you saying there's kind of a detrimental reliance you settle for less for less than you otherwise will settle for because you thought that the district judge point of saying this is where the plane is we took discovery we went to a mediation you know we had a fairly large and complicated counterclaim which would have required us to bring a number of experts up to alaska a number of witnesses saw and so forth and we i don't want to go in all the discussions that took place between us our clients and also at the mediation but we've we've made a decision that given what they were arguing as far as their claim goes it made sense for us to  counter claim take money from the insurance company and then go to trial on their claim which again but how your counter claim worth more or less depending on what their plan was worth are you telling me that there was a difference there was a relationship in terms of what you claim was worth your counterclaim was wor i'm not saying that there's a relationship other than another was you might have sold out too cheap no matter what and if you're saying you sold out too cheap maybe your honor maybe we did or maybe we didn't but i think you are making the same mistake th introduce evidence once you introduce facts that they have not disclosed in response to discovered they made no attempt to meet that burden in fact even in their responding brief they say essentially well the burdens unpick re when and they did meet their burden of proof well we don't have the burden of proof we didn't want the information admitted they did they must prove harmlessness or justification they made no attempt to prove either so the court error in placing that burden upon what the court did require them to do which is most at issue in this appeal is to fully sample mentors for every responses so we go forward court is seen as a trial date we send them another forty one thousand dollars for a lot more the judge this record judge for a parent was as frustrated as i want it as a hearing because you said two to counsel from our home why can't you give a straight answer like can't you tell them what you're claiming for in this lawsuit why can't you explain to them how much you're asking for your cause of action council didn't have a have an answer for that however the district judge didn't go one step further he didn't sanction y we don't really know why he denied it because it was his order was fairly cryptic saying essentially i want to leave all this for trial and resolve that so now we have a situation where we've had the original sanctions order more now we have a trial even weeks away in the in the in the period between the summary judgment hearing and the actual file they've markham's fansub and nothing twenty six days they have an obligation to supplement discovery responses that they know to be incorrect and this is leading the sanctions or to require them to fully and completely supplement their discovery responses to give us complete and accurate answers they've already admitted if the summary judgement hearing their answers are wrong but they do nothing so before the trial date we file another motion limiting so your honor they told you the summary judgment hearing that their answers were wrong we've been waiting for some supplementation now his come in and so you are unlikely to limit them a trial to these eight claim fifteen it's a true fifteen plus six and sixty so the weekend we prepared for the case and those eight items plus the additional two we get through last monday morning we walk into court in front of the judge since you said in response to this coverage this is not and what they even said in response to the motion in limine filed three days ago and the court at that point said pretty much look i want to get on with this case we're going to try it and if you don't like it  the court and he let them go to trial on all of the claim items which had not been previously disclosed in response to discovery and bottom line is we were not prepared to try that taste as it turns out where we really got hammered by the by the district court was that we had not brought one of one of our principals implementing venis cox who had been involved in this project and the court in his findings said that he found that the mr cox was notably absent for trial for from trial and that had he been there obviously he would among the eight or ten claims and it's rough the big eight or ten claims we're dealing with here year are we knew what their claim was for we know what the dollar amount was for and we didn't need mr cops to fight over those eight or ten items those reported straightforward they were pretty much mathematical what did you do how much work did you perform what was the cost and they were agreed to and so when it became apparent that the district judge wanted to go to trial for the remaining trial how much i would need mr cox to be there because i didn't know what their claims were and whether it was you've heard them put on their case in chief and did you make any attempt to say you know i now realize given what you allow them to put on that mr carter is a very important testimony can we make arrangements for him to testify by telephone by some other mechanism is after finishing your army did you make any such attempts i did not ask for a continuance of that point your honor or some other arrangement by which you might provide  gain i still i didn't even know until i received the judge's findings how much weight he put on the absence of mr cox he certainly didn't say anything during the course of the hearing to the fact that you know i know mr cox isn't here it's very courtney should have been here whatever they got on their case we did the best we could to revive it and when the when the findings came out i found out how much emphasis in hindsight the court attached to mr costin's absence the point being i shouldn't have been in that boat left the ard after a great amount of last minute hurry last minute details because the owners were very worried that they weren't making their fishing season so the boat leaves it in the bank see how it falls off they've got a claim against mark it's a involved point it's it's difficult it's going to require a lot of analysis of what they did and it didn't lose in their fishing season why the propeller fell off it was involved when you look at the initial disclosure your initial reaction must be they can't be serious about this the first comment and his initial disclosure is since we believe that there is no or we understand there's no dispute about but they were responded to and i believe that counsel's belief was everything that describes in detail what happened to increase the job loss from three hundred forty nine thousand to four hundred five thousand is laid out in the job cost summaries there's examples in the supplemental excerpts of record at ten and thirteen if you look down as you see each item you see the over the straight time over time  items at issue number fifteen to twenty three but counsel always understood and appreciated that this claim was for the growth of this job from re was a hearing on why this had been late produced and there's a full description of what the claim is about there and the court appropriately delayed the trial until the following february transcripts you'll see it's very small mr brown testified in the supplement in the deposition of mr brown september the only questions that were asked went to the motion for summary judgment it was just items completely inadequate rule twenty six the initial disclosures that to demonstrate that they knew exactly what was at issue would be fatal they didn't have a defense minister cox who but knew that the work was done the labor was done the value had been added into dispute the bill and didn't come to trial and coun the sanction was eighteen thousand dollars plus a whole thing of the interest that was due under the contract for the period from the initial disclosure of well i think was from actually  forgotten that sanctions were appropriate and not forgotten that the council had blown it and he made sure that there was a remedy and he made sure throughout that there was room he bent over backwards to try to be fair to both sides and make sure that this case was tried on merits and i'd like to say case and if you look at the actual language of thirty seven city the in lieu of the language is there for a reason and the reason is the trial court is the appropriate place to look at the context to look at the lawyers in the eye to hear defense counsel say i like mr murphy i can sorry for mr murphy the trial court has the discretion to get to and the trial court didn't agree with that the trial court said you know what we can't tell that you would have mediated this case differently i mean in every case where there's a discovery summaries the arrows point to zero where the numbers were taken out and summary judgment motion counsel for mark apparently misunderstood what was actually the dispute in a way that's just trying to get me to understand the substance of what i want to get far on that's wrong answers questions at what point are these things produced for the other side so they can see everything they have these from the no documents that are handed over to no relevant documents that are handed over them after that another period i'm sorry or yes there were relevant documents that were handed over later but i believe the record of this shows that they were handed over in december and what those items were as i understand the record are supports for these numbers in other words exhibit twenty three i believe material requisition sheets that  you several times counsel said that they were surprised with the new theory i submit that they were not surprised with the new theory the problem of they were struggling with was they had been handed  performed or see it was performed properly to put it in context now it was that and i was not your defense from the beginning well our defense from the ones well are depressed change depending on what sort of claims are putting forward to us there some of the work you're billing for we did not authorize wasn't wasn't authorized wasn't done correctly and was that basically your defense from the from the get go was our defense well from the get go once the court said we're going to counsel said you know they gave us this final invoice in february of two thousand two thousand we were already out fishing in alaska in february of two thousand mr cox we left the site in the middle of january so this final invoice for about four hundred five thousand  we've scored those in detail we didn't i didn't take the deposition of mr brown their contract manager and i went through those like a plane lines and i had to understand with force how much money are you claiming for these eight items it came up to forty one thousand dollars important ones these are the critical ones and one of them was show me your math show me every item on this original scope of work that was deleted and how much money was taken out from that show me every item that was put back in and show me how much you're