court erred when instructed the jury that the city agreed to truth of certain facts when it did not and whether the district court erred when instructed the jury that it was required to consider the facts that were decided by the court as proven court party excuse me authorized the court to force a part through nine cancel previously submitted a separate joint statement that was not signed by the citizen tourney in which he's requested the court incorporate into his final pretrial order the undisputed facts language from the court's order following the city's summary judgment motion let me ask you a question about that you know there is a procedure under the rule fifty that it wasn't i think you have you know you have a stronger argument that wasn't done in this case and will fifty six d provides in part that a fine a motion under this rule judgement is not rendered upon the whole case the court shall ascertain what material facts without such exists without substantial controversy in those facts or there after deemed established a trial will section of rules fifty six must be read in conjunction with that the proposed statement of undisputed facts and a statement of just spewed attacks shall be limited to the facts which the moving party asserts are without substantial controversy and the opposing party contends are in just spewed therefore in this case the court could only find the facts propounded by the moving party or the city where without substantial c a motion for summary judgment the court would make certain findings of fact against the moving party by making findings of fact against the city the city was deprived of the fine of the substantial right of notice she would not have if she did read all of these under speeded to facts to the jury and place them on an overhead projector during her closing argument if she did not believe they were material to the jury's  decision the court also instructed the jury that these taxes to which the city actually disputed were undisputed that both parties agreed to them that the jury had to accept the undisputed facts this proven and when in doubt as to the facts case the jury followed the court's instructions and decided this case by considering what it had been told was the undisputed truth during a still liberations the jury requested a pounds whether his job quired him to do so and whether he was terminated i have to tell you so that you can respond to it that is a fairly long serving district judge what spondee and then compounding that problem by reading undisputed facts which i never did and i know no district judge who's ever done this reading undisputed facts to a jury under an instruction that says they have to be taken as proof so i see that in a fairly extreme weight for purposes of telling you what i would like to hear from you in terms of saying why that's not a problem specifically the defendants filed a motion for summary judgment in opposition plaintiff filed their own separate statement of undisputed fact that there's judge had a fair procedure that can be sustained and my concern is that normally stipulated facts come about in three ways that come about by the parties agreeing they come by the rule fifty six procedure that establishes the fact whether someone likes it or not it's not really stipulated then but it's determined for purposes of trial and they come about by requests for admissions under rule thirty six that are either admitted or that there's no response to a time so i don't really understand what the trial judge it hearing and i agree with judge writers comment specifically in this case plaintiffs submitted a statement of undisputed facts that the defendants had due notice on due process and actually dispute it but they failed to dispute with then he had miscible evidence  reading of fifty six d does not state that to be it's only for the moving party for there to be established facts in fifty six determination by the judge the judge's order on summary judgment goes to the merits and has no word whatsoever fifty sixty judge didn't make a rule fifty sixty determination he submitted a very lengthy order that in it over and over again stated that plaintiff had been terminated for a period of four interpreted him made a full fifty six days the plaintiff provided evidence of undisputed facts defendants were given due process to submit evidence they disputed it but and they had adequate opportunity but they didn't utilize any reconsider what specifically is the defendant's did not agree to the order or any of the information in the order it had the opportunity again to file a motion to reconsider  specifically in the order itself it specifically identifies the facts that have been determined based on the undisputed facts both sides were given the opportunity why is it that the opposing party if there are determined u be made that's what that was supposed to do so that this would never happen now was there was rule sixteen found in this case it was john of the court was very frustrated with the parties because we missed our deadline the parties could not get together and agree upon anything as you can policy by the record it was very aggressively litigated and the court had to continue the pretrial conference because initially the parties couldn't agree to anything except that michael asbury had one time worked for the city and so the court after working with us and somewhat babysitting us came to the to determination of its pretrial order may i say that i understand that the entered in order so it took the facts from there but may i say it's very very important for the court i understand the court's position that it is taking but i think that it's very very important to realize that if the court were to determine that  judge carlton abused his discretion in any way in this regard it is still harmless error and the reason why as appellants put on a wealth of evidence that mr asper was not terminated they put on evidence claiming that even though he was not allowed on the jobsite he was not receiving a paycheck he was told that he can't even come on the job site but they said that that's still not terminations but the problem of course is that's just confusing because was presented all of that information that the statements and objections counsel are not evidence so the judge over woolsey objection but it's clear that that's not evidence if a jury is  to decide the wrong issues how can it be harmless here they were not sent to decide the the wrong issue is the jury was specifically given in all of the jury instructions it was told that it was to determine the credibility of the witnesses weigh the evidence that argument of cash that it was told but there were certain issues that were undisputed is now right yes i'm one of the one of the two of them actually were based on facts that the defendants did not just did not provide sixteen procedure wanted to set out what the judge thought were facts that should be considered and give everybody notice that if those facts aren't challenged with evidence then i'm going to turn it on you know maybe the jets could do that but there are a lot of things the judge can do but none of that was done it wasn't a rule fifty six the declaration there wasn't a motion and a rule fifty six d that these will be determined the judge didn't give the city notice that if you don't put in evidence now this is going to be determined for trial purposes not just that if the facts are stablished in a motion for summary judgment that they cannot be utilized it's not supposed to be again where a moving party puts on a motion and then hides part of its evidence so that maybe then we get to for summary judgment they put in what they think is evidence of a now the defendant if they want to i think the way the rules are written the defendant could just not respond money and being just declaration identified that he was walked off the job by his supervisor told he cannot come back to work he can't work in this position you can't set foot on the job site the defendants to combat that they put on a personal action request form they don't have anybody explain what it is or anything else but they say that says that it wasn't terminated the defendants had due process they were given the opportunity under rule fifty six d the statu specifically says that he is making a determination on the pleadings papers oral arguments that were filed just specifically filed a statement of undisputed facts the defendant had adequate opportunity to provide admissible evidence to dispute the terminations why would you hold back on your evidence on that issue it makes no sense to me they could have filed a motion to reconsider if they felt as though the court's order by putting down  that he was terminated or that he worked in a modified position was inaccurate there is so much evidence in this case mr as a very was put through a very lengthy trial and there was a wealth of evidence that the jury received if you go through that the record time and time again the defendants kept putting on evidence to show that mr as i wasn't terminated and showed that that he didn't work in a modified position even though all the evidence object that he was he had a performance evaluation that it was given to him the less than a month before he was walked off the job you're saying that the defendants put in evidence that he wasn't terminated even though the judge that the only stipulated facts the defendants would agree to was this date of hire and that he was working in the position then and that he had a back injury ok i think we're well thank you very much for your time not employ the harmless error analysis of rule sixty one it may be but it may be that your your client is going to get the benefit of a chance to do this all over again in a case where the jury certainly thought that mr x ray had a very strong claim so i mean has this case been mediated before with the circuit i don't know what ha regarding whether or not the facts as undisputed facts in the court's order following judgment summary judgment were actually understated facts the court never held that i think that it must be