his arguments on the briefs thank you your honor my name is jacqueline herring and i represent standard insurance company and minnesota life insurance company eight years ago the parties settle entered into a here the district court issued its opinion in march of two thousand and thirteen and following that opinion actually the same day as that opinion the clerk appropriately issued a docket entry that said the civil case is now terminated and that docket entry satisfies what this court has said should be the mechanical application of the rule fifty eight which is essentially three requirements has to be a separate docket it is centered in a separate document separate document any different from the court docket so listen to that suggests that you need a separate document and that was not done in this case i think it does  ggest that to a certain extent however electronic documents these days are recognized as actual orders this court certainly has rules i think i would disagree with there are moments and that's that's  from the order that the judge entered the memorandum and opinion of the court so it is separate from that and there is an electronic document that's associated with that docket entry even but it in this case that's what the relief why this was a motion to dismiss the judge granted the motion to dismiss and dismiss the case that the case was terminated there wasn't you know a judgment  entered for any type of monetary award for anybody one way or the other the end result the judgment was that the case was terminated i just read you the line which i will read it again but you would agree that civil case fifty nine motion asking for the court to alter actually they asked for a new trial but asking the court to alter or amend the judgment that had been entered and the judge ruled on that was a motion for reconsideration electronic docket entry it civil case terminated if the court determines that that it does not satisfy rule fifty eight then at the time the witness six by all did the contingent notice of appeal there was a rule fifty nine motion that was tending and when a rule fifty nine motion is handing an appeal can be filed during that that then becomes effective when that decision is is reached although that would of brief that they filed the contingent notice of appeal specifies only that they are appealing the judgment from march or the order from march of two thousand and thirteen which was the initial order granting the defendant's motion to dismiss in this case never amended that notice of appeal to say and we want to appeal the subsequent order denying our motion for reconsideration and we want or denying our rule fifty nine motion or the order denying our motion for leave to have met none of those orders were ever appealed by the way to say we are limited to just the arguments that were raised by the way that six and the decision that was reached by district judge sit with those arguments or yes your honor there outlined in our brief specifically and it's the argument that the settlement is unconscionable their argument that they obtained quote new evidence from their former attorney frank parks and that evidence of course was simply paragraphs typed into their brief and paragraphs typed into a motion that they filed and also their argument that they're entitled to a good faith finding under arizona law so all of those arguments were not raised in the and michelle briefing on the motion to dismiss what was  not played here and is in fact negated the would a six decision negate several elements that they would need to prove in order to establish right on the inducement one of the primary elements is a factual misrepresentation and they don't know not only do they not allege a factual misrepresentation they specify that the only disagreement that remained between the parties was the legal interpretation of the policy term incur so according to the complaint the only distribute the only misrepresentations were what does the word income mean in this policy and that's an opinion a statement of law it's not a misrepresentation of a fact so they completely negated one of the elements that they need to establish they also would need to establish that they were quote oh yes during the settlement agreement back in two thousand and seven his lawyer a nishi did the settlement discussions at that time and his lawyer there was the negotiat over a year before that settlement agreement was entered into its lawyer signed off on that settlement agreement and in fact the lawyer that represented him in this case at the district court level was the lawyer that signed as the notary witnessing the way to six signatures on that sound from two thousand and seven so yes the settlement itself was negotiated by counsel mr wittekind counsel at the district court level counsel signed off on this complaint filed this complaint and just come and the argument that the malicious prosecution claim falls outside of the  release yes and i think the there's two primary reasons why it does not one is this release the five is that it was intended to fully and finally settle this between the parties everybody knew at the time this release was signed in two thousand and seven and this is again these are the facts that they allege in the complaint everybody knew this complaint is replete with facts about how they knew standard was involved in testifying in front of a grand jury they knew about this federal criminal prosecution they knew it was ongoing had been ongoing for year were actively involved in trying to dissuade the government from that criminal investigation and yet there's nothing in the settlements the reason that reserves any right to assert any claims based on standards involvement in that content that that leads to the motion and there is a language that they are covenanting not to sue based on any conduct that has occurred before the date that the settlement is enter into there is language that releases any intentional or negligent torts so tort claims are so explicitly released and it explicitly addresses conduct that occurred prior to the signing of that settlement and all of that would encompass that malicious prosecution clan and the criminal investigation is also it's mentioned a couple times in the settlement and it's still there but not in a reservation way it is carved out of the confidentiality provision the confidentiality provision specifies that it doesn't apply to the ongoing criminal investigation in virginia so again it's very clear that everybody was well aware of that i'm going prosecution and yet it was not carved out of the settlement in any way it was conduct that occurred before the settlement happened and only a federal prosecutor can initiate a federal grand jury indictment so that's an additional problem with the malicious prosecution claim standard can't go get a federal criminal indictment or the u s attorney can do that and the u s attorney is the one that initiated that prosecut