on the calendar today is spire to commercial services versus d c bank numbers sixteen for thirty two and for ninety four we made to the carvel carvel case that had been decided by this court with regard to whether or not a breach of the duty of good faith and fair dealing could be found against a defendant that acted  even within the bounds of its discretion but would be in breach of it acted on reasonably the defendants did not respond to that citation and i would hope that this court would with final in that regard could you point out which specific findings of the district court were clearly erroneous with respect to that particular claim for the breach of the covenant the court did not do the other point of this appeal is that the court did not make a finding that i had requested with regard to the thirty day extension request which was submitted purportedly on behalf of sparta commercial services inc which i ready to do a full extension they might be willing to do thirty days in during which time you could do other things how can that  point of our appeal is that we needed to know about it not knowing about it why why if somebody who is your account person on the other side thinks that what you would normally be getting is not going to be gone and assume that you don't have a right to know if they are inclined not to give it you that's a different issue then comes up with something that might s they were very much inclined not to give you the one year extension whether in good faith people who are dealing with each other and we you have a right to an extension if certain things are done they have a right to tell you you have a right to have them tell you hey we're inclined to do it i'm not sure that i've found any new york good faith but that's a different argument from the one you were making before that you somehow had a right to know that they were thinking about thirty days the reason we needed to know about the thirty days was had we been informed that that that's where they were going we would have moved the money into the firm from mr little who had ten million dollars in his wealth account and was prepared to fund that if you could do that in any event n v or by automatically have a right to exchange and in a way all that seems to me is going on in this case is that you were gambling that they would give you an extension even if you didn't exercise due for things which would have given you to me good in an absolute right to an extension and you have a right to make that gamble but why do you have a right to say that you should have thought they should have told you and of time that that gamble was abandon your honor there's one misperception there if the sparta had taken down let's say two hundred fifty thousand or more  of the thirty day period that had just with a twenty day period and still been left they would have had an automatic extension after that the bank could have automatically terminated the agreement had run out period over time and spotted would have of the reasons when you're running near the end of the road and there's a cliff there's some of the geisha on the back in order to help us not go off the cliff which when that thing terminated without being taken down sparta suffered very serious damages the problem was knowing that it's about to expire knowing that you're not going to give a one year extension not telling that's part of that not allowing them the opportunity to drop down something on the credit line not telling them even when the thirty day was withdrawn until just shortly before the doubtful moment that you were injured yes i don't doubt for a moment that you were injured that the fact that this happened cause you great trouble right my problem is we here is very duty on the air part to tell you what the a bureaucratic communication from one division to another about it was apparently trying to seek flexibility on sparta's behalf now that the bank is under no obligation to give so it's internal communication  extension still no telling of sparta until just a few days before the ex the terminations duty to tell you before the that no extension would be given was your contract with them something we said you must tell us thirty days before if you decided not to give an extension you must tell us sixty days before we get your inclined not to was any of that in the contract readable into a contract at a level we're not doing it would be breaching good faith there's nothing written in the contract that requires an answer from the bank but once it makes it decision it would be good faith to tell the borrower why do you have to tell the borrower ahead of time when conditions may change so that they change their mind and especially when they are him do them a favor and give him an extra thirty days during which time i can come up with other reasons were you given the argument i would make is that there was lolling there were conversations we're going to try and get you the one year there was no telling of and we were never informed until is a mail from tucker that's in the record on november twenty fifth a five forty six point one four and one five in which he says that he says the company has said despite its its financial conditions was ready to satisfy its financial conditions the whole point here was there was a waiting by sparta and that waiting was known by the bank and that was was based on communications that the bank found it terribly made they didn't have to but once they all sing it instead of having and a s g group and a k r y group the bank had simply had one guy a loan officer who was the person the point man on this long and as the point was approaching where the name of the bank would be would be within its in title meant under the agreement to cut notice that that he was willing to do what we want him so why is it different just because they may just because in this bank it's broken down into two groups one of which advocates within the bank on behalf of the potential lender and the makes the final decision as opposed to just having one person who's debating the thing in his head the difference here is that the bank had made a decision not i'm going to wait in addition to which one part of the bank is telling them wait no decision's been made so they'll  made with respect to the three issues that are on appeal by appellant the first is that there was that the district court improperly denied a motion under rule fifteen b to  restate reinstate a claim for negligent misrepresentation that claim would not have been procedurally proper fifteen the only applies to unplug claims they've been negligent misrepresentation claim was pled was dismissed that being said judge stanton although not explicitly clearly implicitly considered the negligent misrepresentation claim not clear whether it was under fifteen be under or under some other rule where he made explicit finding that there was no negligence of any sort by the bank in its dealings with sparta words processing of the thirty of any extension request with respect to the exclusion of plaintiff expert mr gak it is fundamentally incorrect the representation that is made on appeal that mr jackson testimony was and somehow in some way relevant to the issue of the thirty extension requests to the internal deliberations mr jacks expert report did not address that at all the issues and facts around the internal deliberations around the thirty day extension request were disclosed to plaintiffs months  before trial dock relevant internal documents were produced i think nine months prior to trial it was the subject of questioning at deposition of the d z bank witnesses it only became an issue in the midst of trial when the the prior allegations the factual predicate of the claims were shown to be completely false there was the allegation that there had been a promise of an extension an instruction not to draw down and a detrimental reliance on that the sworn testimony in support of those claims was disproven prior to trial and abandon a trial the final issue on appeal with respect to the principal claim is the standard of review as to judge stanton's findings of fact appellant would have this court undertake a de novo review of judge stanton's determinations of credibility his review of the documents submitted in this case judge stanton in every instance where sparta's witness testified and the z banks witnesses testified he found the z bank witness is credible the sport of witness is not credible the w the evidence was clearly in favor of the defense with respect to the counter claim we respectfully submit that judge stanton was mistaken as a matter of law that with respect to our claim for  all liability which so far as to cover your litigation cost to matter what the outcome of litigation but between the two and i wondered if that is correct or why or from incorrect feared party that comes in because it is in readable as broad closes that way but when it is between the parties they want very specific  requests requirements of indemnification which visit clause doesn't seem to give your honor with respect to the point i think the same point could be made even for a third party a third party claim if some conduct of d z bank  instigated a third party claim against sparta and then d c bank was somehow brought into that maybe true but never the less in we've respected third parties new york is said there may be reason to allow indemnification even victorious but we don't like that when it is between the parties because the american rule is generally you know big pay for your own council and any deviations of it as to be specific your honor i would submit that the court always has the the right now brooke ation to read out an absurd result but i think in this instance you can still preserve the   that apparently they're citing for indemnification which talks about a breach of an applicable law with respect to the collateral whatever that means it's rather vague whereas in the clause that preceded it that referred to the specialty funding the entity sparta funding the special purpose special purposes corporation that was set up that never was operational that eleven point one a sub sixteen talks about any investigation litigation are proceeding related to this agreement so with regard to the other entity that wasn't involved in that in this  funding they were trying to say that if there was an action based on this agreement they were in going to be indemnified but with regard to spot a commercial eleven point two which is the section that referred to sparta they didn't use that same wording in all they talked about anything that with regard to applicable law whatever that means thank you i think we have the arguments i think we have the arguments that clips our calendar for today we ha