of what we consider to be gamesmanship advancing inconsistent arguments in the first case and second case and it being able to completely ignore the additional nine hundred twenty three pages of documents supplied to their accountant during the the first case as well as access to thousands of pages more that the accountant didn't want copied the critical operative date in this case was not the dismissal of the first case it was when the first case was filed it is clear that they argument of state farm in the first case was a plaintiff failed to comply with a condition precedent prior to filing suit they were entitled to have all of these documents tax returns and so forth so that they could complete their yes we have been getting in all these documents during this case but it doesn't make a difference because the operative date the important date which rights are but it was the date the case was filed that's the day you have to look at that was their argument it was the argument in the motion that was the argument in the in the oral argument and it is what judge clearly and clearly stated had to be done before the case so you are giving an opportunity even this or said yes you should have done it in the first place but the dismissal without prejudice was within discretion to a for further opportunity so the pages have to be counted somewhere it was a condition precedent argument that it was done that it was dismissed the first time it was with into the square sion because they said we didn't have an opportunity to go ahead and do and complete our investigation and we needed this investigation and the forensic accounting in order to determine the financial condition of the plaintiff whether there was a motive for arson whether there was misrepresentation as to income and they couldn't afford the personal property that they were claiming in that case i should question why in the first appeal did you not say you know this is first appeal  because we didn't give that to them before those other tax returns weren't given to them before the case was started all these other documents or after the case was started it is a discretionary matter for him to say i can do with a can do without substantial compliance there was partial compliance was it substantial or not but again it's before the first case was started and at this point it doesn't make a difference because you have t dismissal without prejudice we've given him another thousand pages of documents we've given a mansion of ten thousand other pages of documents now they're going to complete their investigation and under smithson under other cases you can deny or decide to pay we can deal with them at their time we just did not keep referring to the number of pages giving somebody a lot of pages necessarily means that you gave them what they asked for is there any place in the record first case were we're talking we're talking the detail the affidavit of plaintiff's accountant on the motion for rehearing i think it's pages two fifty five plus  he tells them what he gave them he gives a list there oh those were his notes for the meeting the two accountants got together they went through all these documents is what do you what do you really need i'm just fascinated why someplace you don't tell us together and say this is what they asked for this is what we gave at best you can point me to an affidavit of an account that says this is what we gave so then we would have to find what they asked for and see if it does or doesn't match up that the deal well your honor he has down there he says and a very minimum we have the tax returns this shows the tax returns it also includes a number of pages given for the tax returns you have personal tax returns you have one hundred ten pages you have eleven twenty s he puts one hundred twenty pages he marks now on the notes when the accountants got together and decided what was what did you really want copied and  out of everything that he took a look at there were certain documents that didn't exist there are things marked on there for example for the produce square plaza and the accountant said nothing is done no no activity so those weren't done but these were done contemporaneously with the two accountants got together went through everything and he got what whatever he wanted i would note your honor th that second case there is no affidavit from their accountant or anyone else denying that they got all these matters there is a statement that's because they already won that issue though that could put it already ruled on that so where do i go to find this comparison and if it isn't there just tell me it's up there your honor i think the comparison is there in the end it's there in the pleading showing that he didn't get it so the place i should look is the affidavit the did not express the state in their response or at the hearing that they were unable to deliver the requested documents instead some disputed the plaintiffs agreed on several occasions to provide the documents but there's no evidence presented that would permit a jury to find that they in fact still produce although plaintive subdues the luminous materials for defendant review they were contractually obligated to produce all documents reasonably requested by defendant substantial performance of the contract required them to cooperate with defendants reasonable investigation for which the tax documents among others were necessary so isn't he looking at what happened since the case was filed and praying that no one no reasonable jury could find that he produced the don evans absolutely not your honor that was in reference to the  facts pled and argued that there were a number of letters to private counsel duncan szymanski who promised to produce those documents and also at the examination under oath that he was going to produce them and didn't produce them at that time the other parts of the opinion pages but let me just go to that in a second if and of the judge cleveland who would know what he ruled what this means i mean didn't he find or say in the second case that book i found that you haven't produced the documents so you're stuck with that in other words don't we have to give some deference to judge cleveland's interpretation of his own opinion i don't think so because we will look at the opinion itself and we look at what what is argued and he talks about again in two places before the s condition precedent before the suit was commenced and these were produced before you take a look at the argument mr hare on mr heron admits yeah we now have most of the documents that were  but i don't know what the make of them and it doesn't make a difference because we didn't have them at that time mr heron says he doesn't even know what documents he had because he got them the accountant out of the month before oral argument they haven't looked at them to reverse a lot of district court judges for misconstruing are many and it's not very often that we reverse them for misconstruing their own opinions it may be your honor but in this case in context in looking at all the arguments and what's done it was clearly representative of the trial court at that time the defense counsel didn't know he said we got most of the documents in but we didn't have them before suit was commenced to take a look at the pleadings oral argument that's exactly what mr heron said so there wasn't a question that there was not substantial compliance at the time that the motion was heard the substantial compliance was to a condition precedent which only occurs when the case is commenced and after this well we do have all these humans we don't have anything from them saying i'm still missing any documents we have correspondents in for correspondence  greenwood to the french council saying in light of the fact the accountants got together you went through all these things you have all these documents please tell us is there anything else you are missing we stand ready to cooperate and we have nothing and in light of all those other documents and it would have been rather silly to give them the documents all over again after the case was dismissed and then smith them says you need a denial you need a formal denial you're getting reconsideration of your of state farm i first want to just clean clear up a couple of things i do think that judge cleveland was looking at the documents that came in during the case and in fact we were here the first time for this court judge dorothy asked me because i argued that it should be on the data suit and she asked me tell me a case that says and i said unfortunately judge i do not have one and so that was part of the argument was that the document that came in after litigation were being considered which is why when judge clearly was looking at it he looked at state farm's experts f a david saying the documents he still did not have and there was a discussion about and it's in judge cleveland's ruling that they're saying that they that  when this affidavit came in two thousand and twelve that the first time we were ever told that they gave us these documents and that was after that was in the motion for reconsideration in front of judge  that point we were so in the impression that we did not have these and that's why i said look at what the trial court said you didn't produce produce that at a minimum however by the time we got to those letters in my view the statute already run so i didn't want to start saying give me this business to enlarge the statute by reopening the investigation of the claim it as a court recalls during my first appeal to this court i argued that at that point the statute already run and so we were kind of in a academic discussion but because i wasn't sure i you know asked for a ruling on the case and got one that wasn't favorable but so we did go through that argument back at that point and i think the important part is that's free in if if they're saying that they gave us these documents and november third two thousand and ten and the affidavit does say that had they produce it at the first hearing from i understand my reading of judge clunes order is that he would have denied our motion and he is not ambiguous i mean in other parts he says like in your motion for rehearing he makes it clear they didn't they had not produced the required documents at the time they filed their action correct correct but then he also discusses more that was ahead and he does and that's i think what he found that it wasn't a dismissal with prejudice because they had been giving doc they had been cooperating to some extent he said these other documents are the ones that are crucial and had we had them and had we been had this affidavit it would have at least create a question of fact as to not they had substantially applied at least that's the way i read his his ruling but i think this question about the states because saying that this these arguments are clearing this up is probably an exaggeration the argument the mr pros making as i understand it is everything judge clearly was saying related back to whether or not the documents had been properly provided at the time that the action have been filed so that your understanding of his argument yes now i'm looking at the order issued by judge clean linen connection with a motion for reconsideration and he says the court's finding that plaintiffs had not as of december thirteenth two thousand and ten provided plaintiff with the requested documents became the law of the case when the court issued its order on that date december thirteenth two thousand and ten is not the date as of when the complaint was filed that's the date when he granted summary judgment it looks to me like there's no ambiguity that judge clearly was saying at least by the time he got to reconsideration that he looked to see what had been filed exchange not only at the time the complaint was filed but that ends and that's wonderful but if it there is also this issue of even if you want to give them mr posner's other argument that it was kind of brought up during the or during the reconsideration was that while they had the dogs and they had to read deny th claim in order to start the statute running again i think by state farm's actions after november third two thousand and ten arguing a motion in front of judge clear when filing reconsideration motion filing an appeal with this court telling them numerous times we don't have these documents was denying that they had complied and still didn't even address the other defenses that you know under the decision it says they have to know under no uncertain terms that their claim is not going to be paid and that's and that the statute  restarted at a minimum one of these one of these issues must of told them that state farm was going to pay their claim at the statue had restarted and at least when i told in my brief to this court that the statute had already run surely we should have i think given someone an indication that at a minimum the statute had started running if not already run out and all they had to do at any point is refile their second suit and said here's what judge clinton told us we had to give him we gave it to him and said such a date here's our second lawsuit within the forty nine days after he dismissed their first case without prejudice and we wouldn't be here that's what that's what smith i'm in the statute in the policy require is that you have and when a case is dismissed without prejudice i don't think he disputes this anymore that no longer occurs for the one year period limitations and they miss that not a few days or few weeks but about eight months give or take a month depending on when you say the tolling in six hundred three days whatever that equates equates to i don't get that i thought the statute of limitations tolling ended either on december thirteenth two thousand and ten or january fifteenth two thousand and eleven so i'd say right around january first two thousand two thousand and eleven so that in vile august of already run out so if i was going to be cautious and i thought i still had time i would have filed it within that that within time there seventy three days after this court dismissed the upheld the dismissal without prejudice and even fifty nine days after the july second two  thousand and twelve letter saying we consider this matter closed you know we don't have the documents and they're allowed to say that our defenses are wrong and i believe they would without with all of our defenses the arson the fraud so just because we have a defense and in denying their claim based on something they don't have to accept it they can say you're wrong and here's our lawsuit challenging it but they didn't do that within the forty nine days either they continue to delay for whatever reason and then they think they right this second letter saying that if we don't hear from you and this is like end of july we're to consider this the date of denial for the i guess to start the toing and that's a complete clever kind of transparent what they were doing but it made sense so i just i think that we i think that judge clearly and understood what was going on and the motion for rehearing in the first case the order that's where it said that you have to go we gave them after repeated requests no assertion that they were prior a provider prior to the commencement have and what you have understood with them is that you have an opportunity in this court so they have an opportunity to continue the investigation they hid they said they needed this investigation they were given all these other documents to do it when we take a look at the respond to what i asked mr berlin and that is in the motion for reconsideration and in the second case judge clearly and then explains what happened previously it's assumed it's in the first case and he says the court's finding that plaintiffs had not as of december thirteenth two thousand and ten provided defendant with the request to documents became the law of the case now there's no ambiguity about that no your honor bit we believe that's dead wrong when you take a look at the record itself you take a look at the opinion itself you take a look at when she say fairness that the initial opinions the best you can say is they speak in both directions in other words it's ambiguous i really wouldn't agree with that your honor because of histo taken not some statements that hurt you how can you say that because you has to be taken in context of the motion itself and the argument and everyone is pressed was the condition precedent and they do speak to the and precedent is before you bring the suit and when you start taking a look at dates and we take a look at dates when the motions filed when they were accountant gave the as a day that the list that he gave was actually prepared  september it was october that they have a david says we have the list of things not produced produced and not produced and mr heron says we formulated our request for production of documents based upon that list so what happened in an earlier time the accountants met together it or in october and they were given documents in november you put those things together it's just that we're not talking about what's given to date that you've given this  heroes documents an argument and admission of the time of argument is yes we just got most of these things in during the pendency of the action and continued argument it doesn't make a difference you can see the time period you have to look at is and here we did everything we could to give them the additional matters all they had to say and even under him and as what's mr smith unquote since entirely reasonable to require a formal denial in order to retriggering the running of the one year period there's no forty nine day period history stand on your rights i get that but you knew there was a limited period of time in the statute left you know no your honor that's there is it's a misstatement law you kidding you thought you just said for every file in oak what you have your honor going in the rest there is no forty nine day period you have what you have is you give the documents they give a denial when they give  denial then the period sits and starts to wrong the statement that they were they've made some other forty nine days for you to submit documents based upon you know two is wrong when you look at the yield to opinion it doesn't say that or another way you at least knew that they claimed you had a limited period of time within which to act right not until they filed them of their brief in this court saying ha ha it's moot your time is gone that answers the question that's yes you did know there were they were making the argument there were limits on how long you could wait to file i just figure out trying to figure out why you waited twenty months day that you would provided all these documents i don't think it's departed dispositive i'm just curious look if we do file the case the next day he dismisses the case we filed the case the next day we're going to get those same arguments on a motion for summary judgment answer the question i'm just curious if there's no answer tell me is no answer well i do a twenty months because we were sitting and waiting for the terminations for them to complete their investigation if we start trip here to the court on this case probably everyone hopes that's true so we'll work through what the case will be submitted and the