specifically star and their paragraph one point nine and paragraph three point two and that's factual events that occurred one month to six weeks prior to the execution of that contract are crucial heating system that when the patient it wasn't efficient in fact it leaked and in that case the buyer sued for damages on that misrepresentation the buyer didn't have to give the house back the buyer got to keep the house the buyer got to keep the benefit of that bargain but even though the buyer signed an integration class contract it says you can't rely on prior representations of the other party the nevada supreme court says that california courts say and this court has said because you challenge that one provision herzog case a california decision discussed at length in ron greenspan volkswagen versus ford motor company which challenged the fisher decision which was in part the basis multiple facets in this case one month before that global settlement agreement was signed my client got a written contract from montreaux that is no obligation to newton the record seems to suggest though within fairly short order after that your client at least was alerted that that may not have been told and then waited i and those three parties agreed that knutson got a lot from dr simpson now one of the mistakes that were made back then was that there wasn't a follow up to determine whether or not montreaux ever signed that document which they did not and then later contended they were not bound by that settlement even though they were in open court when it was put on the record and never objected issue about double payment and that's resolved there's no double payment dr knutson gets a lot what's behind all this is where's the line now it was to the doctor simpson action but a pearl s actions file a completely fruitless action do you think you need him under the circumstances with your client be required to learn to understand even though the action was completely frivolous misrepresentation by anybody about those claims yes absolutely and i do believe so i don't think i was that analytically any different from a case where you have a reasonable assurance that you think that there are new clients which you agree independently two in ten or five regardless b you agreed to defend that whether or not there was a justifiable claim or not right sure absolutely so why don't you have the obligation to defend it at this juncture because this provision all if it were procured by pride and that the the victim of that false representations can stand on a contract and can pursue his or her rights on on the project misrepresentation why would we not defend we would not defend against the newton claim because we were told by montreaux that there was no claim that it was taken of that it had been involved in a settlement proceeding or a bankruptcy court and there are certain arguments can be made that that the fans waves the right perhaps to challenge we're not going to do that when then and then it was granted montreaux sued in state court to have the settlement agreement interpreted and of course in state court for two years discovery went on in state court where month i was asking the state court to interpret and enforce the settlement agreement within sixty days before a trial apparently not liking the lay of the land micro then moved for federal court exclusive jurisdiction over the settlement agreement and when we oppose that we're tempted to show the district court that this is hotly litigated in the state court the form that montreaux chose to interpret enforce the settlement agreement and has asked for a declaratory judgment that they're entitled to  that the district court it is is not valid because you waited two years to come to this court we didn't select a court they did they selected the state court to the the district court said what about the nine point five million dollars that you get well we have some real issues with that number it's been a very effective number but it's not a correct number and we said to the district court applets than hers are these cases allow you to challenge that specific provision that's nevada law and they don't exactly allow you to challenge the provision what they allow you to do is to file a damages for the fans theme and that we had to pay what we did you are doing is you're saying i want this part of the contract voided and there's a difference between tort damages and a contract with a certain remedy wouldn't you agree oh those those challenges resulted in an evidentiary hearing now we're not saying that we are carving out a burden we are saying that that's a two hundred forty three thousand know across claims or counterclaims should this gentleman agreement be enforced what you can you can argue the district court judge it shouldn't be enforced because there was fraud involved in the i understand where you're coming from and yes you're right that the drop in the inducement part of our claim taints the enforceability of those two provisions i'm just kidding because there's a contract claim but the court has enjoyed the state court well i would assume that if they just report that i'm not in force in this agreement you would allow the proceedings to go forward in state court it here's the scenario we said in our opposition we have this raging war going on a state court and if you want to exercise your exclusive jurisdiction would you consider allowing us to prosecute the attached complaint ruth and we said well could you reconsider that and we're going to file a motion to invoke your jurisdiction with a motion for reconsideration and with a motion to invoke the court's jurisdiction we laid jury trial or a court trial we don't care we just want to be heard on these issues and the court said you just rehashing old stuff tonight and didn't look at the kind of fact with intense facts and disputes about how that document got signed and where it came from and so the district court against your question a little shorter was very well aware of the fact that we had pending litigation too even if the statement had been made it's directly contradicted by the terms of the written agreement can't say you're relying on an oral statement that says there's no claims to indemnify when you turn around in writing specifically agree t what happened in russell that's what a reasonable party would do instead they did nothing why not a few weeks after that when we're back in front of the court at the interfere hearing asking the court to interfere the funds that were required to pay for the enforcement agreement when the court turns to them  claims they never did that why not when you can subsequently amends the state court action to name montreaux specifically don't they run to court and complain about fraud why not when we demand that they indemnifies they never get anything until conveniently years later actually were drug into the state court action we're forced to defend ourselves because they won't force to defend ourselves against hammer claims by them we prevail on those claims we turn to them and say ok inde counsel and the newton indemnity claim was right at the heart of this agreement everybody knew newton had a claim this isn't something that you know flew under the radar and only came up after the fact everybody knew about it it was the subject of pending litigation central issue in montreaux in the settlement negotiations we wanted to be done with us and i was the consideration we wanted simpson former partner had created a whole bunch of problems for us and we just wanted to be done we were willing to pay a price of a pretty high price nine point five million dollars we just want to peace of mind we wanted to be done forever and always that was the heart of the settlement and that's exactly what we got there was no surprises there that's exactly why we named s time proceed in reliance of the settlement agreement is valid and enforceable now years later when they're finally called upon to perform what they're required to do they block as the district court recognized it simply isn't credible that's not my characterization you don't have that in this case and the credibility of their claim is belied by the remedy that you brought up a good point your honor they're not seeking to rescind the contract they want to rescind parts they want to keep the nine point five million dollars they want to keep the benefit of us having dismissed all the litigation against them they just want to carve out two sections one point nine and three point two because that's the one that we've come to ask them to indemnify us for under nevada law you have an option  argument or argument there were no affidavits no documents no testimonies proffered all of this all of that evidence that you see in the record came out on the motion reconsideration all that was offered at the to the district court at the time the they're in the midst of litigation with nukes and fighting newton over his claim to the law they turn around and sue asked for and actually were the ones responsible for that claim both the suits are pending when they signed startlement agreement and now they're coming back years later and saying well gosh i didn't know newton had a claim it's just not credible and the district court specifically references that third party complaint in its order and you tell me under nevada law whether or not that a court's in force agreements  this matter and i know that this is a good deal even if you're misrepresenting something to me even if you're hiding something from me that's ok i'm getting one point five million dollars and i accept and i assume the risk of something being out there is that i don't know this says that a party has an affirmative duty to conduct an investigation when it has quote information which would serve as a danger signal and red light to any normal person that's exactly the circumstances that you have in this case they know initially introduced to the bankruptcy court in ninety nine it's unfortunate billeted was conditional upon all four parties agreeing to it montreaux never signed off and there's findings of fact in the record from the bankruptcy court in writing i'm relying on your representation that there's no other property out there so one or representation turned out to be false and they sued the father sitting on was actually a fraud in the written agreement as well that's completely distinguishable from the case you have here also in lanter you don't have circumstances like you do here where they knew had that statement been made they knew it was false you don't have to make sure where you have the dilatory conduct that you see in this case you don't have a circumstance where you have a rod re challenging a settlement agreement if they fail to timely raise it at their first available opportunity clearly they fail to do that in this case i would ask you as you're looking at this case to also consider the policy underlying settlement agreements policy of to analyse parties have to know especially when you're talking about contentious complex litigation like this one have to know when they sign a settlement agreement it means that at the end of the day after denying the relief the defendants were seeking or that even a hearing on that that the attorneys for the submitted by your side were too high and determined that they ought to be a hundred thirty two thousand rather than the one eighty nine based on district courts knowledge of the case and the complexities when you cross a field and claim that that terminations which i have and i think the distinction is being is because of your drug in a state court there was a lot of litigation from the state court that the district court while being aware of the litigation wasn't aware of the extent of nature of the disputes that we had to get involved in the discovery the change of counsel that kept coming in and out that required more motions there's a lot of more activity sixth two thousand and four and we cited a case answering that question trans america premier insurance vs nelson age seventy eight percent the second three fourteen and they cannot thousand the global settlement agreement was signed and finally we have hashed transcript of the state court pursuit list in our motion for an evidentiary hearing the motion to enforce well i overestimated the fact that this was set for trial what then five weeks in state court clearly bad judgment on my part exclusive jurisdiction and in the exhibits that were attached to micro motion there was the letters exchanged between counsel accusing each other of misconduct and pride and the briefer mont