the final argument this morning before this panel is in an appeal number zero five fifteen thirty three magnum vision inc versus the no company parties really are owned by the same people i believe they are not your honor and that's why they're disputing this because the two million go to a different set of shareholders if your honor would like because i did not realize that being issued today i'd be happy to address defendant was commonly own along with the plane surely there are many isn't that the case we have here yes you're the no one suggesting that by not is commonly own with the magna being absolutely not so this is at least one proper party on the other side not commonly oh yes sure with that answer as i say if it's important the court would be happy to address book i think it is important to trace it all the way through because basically there is a precise matter judge michele is clearly correct that there's at least one defendant that does not have common ownership and that's enough for adversity as indicated by the extremely hard fought battle that you see in the papers the merits and the judgment clearly says that quote the parties evergrey to settle for eighteen having a present cash value of eleven million dollars to an entity to be designated by the plaintiffs  the settlement says it's for eleven million the judgment says it's for eleven million on when the only evidence in the record that's on the rolls is to anything that happened before that mr newman's declaration says he was and sheet of paper saying are you willing to settle this case for eleven million dollars present cancer value and he checked that their words nine million dollars are not referred to in the judgment they're not referred to in the settlement it's on the record in the settlement that's on the record in accordance with and only with the stipulation that was reported on the record yes robert your your opponent points to a confidential agreement which he says indicates that the two million dollars was to be offset against the recovery right and that's wrong in two respects your one one doesn't even turn to the confidential agreement because the settlement agreement in this case says there in northern material day the judge comes back on the record and says this is a free for one to the plaintiff is to quote prepare a judgment in accordance with and only with the stipulation that was reported on the record yesterday and and they do not believe that there are any other material terms which will be difficult to work out that's not the same thing as saying there will be no law there are no other materials grew up what you're with this saying is that material of two million dollars based on a prior six page contract six page single spaced contract and it was being incorporated that would be material term and there would be mention of it and if there were any down the judge would not say the next day if you would turn to a three zero one two short i'm going to order at this time the plaintiff to prepare a judgment in accordance with and only in accordance with the stipulation that was reported on the record yesterday and we will take it a rule sixty be adjudication by a district judge correct we have to review that deferential we don't have any choice and i'm having a very hard time with your argument because you sound as if you're in the trial court making the argument preceding adjudication by the district judge on the sixty b motion that but the sixty version has already been by judge costner and we're reviewing deferential your honor so i just don't follow your argument at all here i do not believe you're reviewing it deferentially because the meaning of a judgment that we have a bunch of absolutely you want but if we don't agree that twelve million in the judgment has to be read as if it was followed by the word more twelve million more or twelve million a new money if we're not persuaded by that argument then what do you say what's your fallback position the fallback at that point would be we asked for discovery we asked for a minute entry here and we got neither and they would have to be a million dollars the payment connection with the sanction the court made no finding a sanctus to the parties negotiations or what they understood in the judgment which is i think the critical point because i think there should be no because the judgment is plain judgment doesn't just say eleven construction if it gets you off the track of what really happened in v t killer case to deal with some abstraction what would your honor it's not just what's in the judgment it's what's in the settlement on the record the court said on the record don't care where it appears you're attaching magical significance to the word present value in the context of this case i don't see how it carries your preferred meaning what it's not only what were present value because when the  recovery is referring to twenty two million which is conferred by the sentence which is the limit set forth in this agreement is a political settlement and then also paragraph twelve specifically says if there was eventually a final settlement of the patent litigation other terms are to be greeted by the parties and in the final settlement there's no reference to this agreement the final settlement on the record says i believe problem turpitude there are no other material terms and the judge says the next day the judgement is to be in accord only with the stipulation in the record why didn't why shouldn't the trial judge look at the confidential agreement with all the language judge freeman quot because the contention being made is that the phrase eleven million in the judgment should be interpreted in a certain way and the confidential agreement provides some guidance about what the parties intended by it and perfectly proper and sensible to look at that confidential agreement to try to understand what the eleven million dollars refers to new money only or a combination of prior payment and new money here i would say two things one trial judge did not look to confidential agreement he said the judgment is clear and speaks for itself there is not one work in any order where the trial judge says i'm relying on the confiden second instead with the trial judge said on your record your position was eleven million means eleven million in new money yet to be paid for it so in order to result whether he's persuaded by your  judge the interpretation of the judgment is a question of law decided by its four corners but if one is going to go beyond the four corners then i do believe you need to have a trier of fact decide as one would with with witnesses and with judge says if the only thing he says about two million is that two million was a prior payment in connection with this case which doesn't address much less answer the question whether eleven million present cash value refers to a future payment along with the other think to should go on who we are we should remain and and know have a further decision and then that will be appealed and then and then we'll all keep going around and we will spend more than two million dollars in lawyers fees not to mention taxpayer money and  the litigation all over a two million dollars your honor i think that's exactly one of the rule is that a judgment is a question of law that you don't have a living creation about what judgments made and you interpret them on the face of their language and if you do th eleven million present value with the dictionary definition this is the best we have in the other statements by the mediator and the judge on the record why or why under the meaning of present value obviously plainly and slowly to take account for the fact that some of the payments would be instalments paid in future years so you have to define the value of money in a particular year or the whole thing doesn't make sense and that's what was  some later payments and therefore present value was to cover up how much would be owed in view of payments made in subsequent years your honor late in simple because the judgment refers to a pig having a present cash value of eleven million which with respect we would submit is not what i just referred to if you had the dichotomy you suggest between a past payment and a future payment and it's not just the judgment that the first of that it's the i'd like to go back to the issue of article three court jurisdiction believe mr nine and others are the owner of making a vision but your honor and i have never done this before or i am not as prepared on this as i should be and i would respectfully request that we be allowed to make a one page submission on this one we need more than one page submission i think we need an understanding as to which parties are real parties and interest in the action to determine whether or not the parties are represented on both and putting money from one pocket from one party to the other i know that is not the case your honor i cannot as i stand here give you the particulars but i can promise the court that if you'll give me a day or two i'll give you the particulars i doubt this is a subject on which downer and i will disagree as to what the particulars are oh my understanding is there is a separation ownership and there are entities that have an interest on one side that don't have an interest on the other side and that's why they're fighting so hard  controversy if there is a controversy yes but then i believe what this ties back to is the statement made in the prior page that nine is the representative of the former shareholders make the vision that they retain the exclusive right to prosecute dismiss compromise or settle and i believe that it is the former shareholders who have benefited from this judgment and would benefit if the judgment were forced according to a standard caption is wrong eleven you know the caption is with the caption wasn't made in the trial court and i do not represent this party or nobody ever corrected it nobody ever corrected i believe there are i may be wrong about this but i believe there are some that will at least in  submit that certainly by the end of this week we'll said well mr downer confidential agreement mr ninan carved out a piece of the action when he was talking about the purchase of magnificent by the group that is involved with the defendants in this case  is my client and there are other entities associated with that client i am technically representing all of these parties even though some of those parties are parties before some of those parties  separate legal proceedings and this let me deal with the merits if i may the fact is that mr byrd seems reading of the confidential agreement is exactly one hundred eighty degrees wrong  and let me start with that he said that recovery is defined as only the maximum amount of damages twenty two million dollars not only does that make no sense because i cannot imagine mr bernstein is looking at if uses the word recovery for two million as well and if you look at the bottom of paragraph seventy five zero zero two you will see that it says in  the six line from the bottom notwithstanding the forgoing the nine and shareholders shall retain the full two million dollar payment if the recovery is two million dollars or less so the agreement doesn't define the recovery as twenty two million dollars it defines it as any recovery the words or any recovery it didn't say the recovery meaning the max it said any recovery i think a fair reading of this agreement is that the parties were providing for a two million dollar offset for any recovery that took place and the resettlement recovery of a present cash value is a recovery and it is clear that klausner understood what was going on because in his final judgment he actually said on page eighty two he recognized that too when dollars had been paid he recognized that parties didn't dispute that it had not been refunded he recognized that there was no other explanation for that to me and our payment he said he had read the entire record and he said that to award two million dollars more would result in  enrichment to the plaintiff he knew exactly what was going on this he was he participated in the me in the mediation he was one of the mediators and he knew exactly that this confidential agreement provided that two million dollar offset now mr bernstein is say that we're reading language into the final judgment we're not reading any language into the judgment that judgment could be clear or unclear it's a paper standing alone in fact it offset it becomes eleven minus two that's what the gross means and there are we cite several cases there are several cases which basically say which have california cases in which  held that there was an ambiguity trimmers case and the know it cases california court of appeals the words were retirement pay and proceeds to the court said it was ambiguous they had to decide whether it was gross or net and the fact is that had been discussed ad nauseum in the presence of judge closer klausner mr marx mentioned it he mentioned it to the parties in the presence of judge klausner everybody knew that it except apparently gross numbers if and if the arithmetic is eleven minus two that sounds like a net number not a gross number ninety nine is the number you're on the gross number means that it's a number which could have been offset against it which would reduce i think eleven when that night and that's exactly what happened in this case we are not amending the final order if there is a mediator he said nothing in this case and the mediator obviously without any prompting from us he gratuitously sent those e mails if he had said nothing you still would look at the final judgment and then as the cases make clear is there is there a partial satisfaction which is what  five and you can look to another document to see whether there is a partial satisfaction that is exactly what happened in this case this case actually has become a very complicated case i think the legal fees undo but they have raised other questions they talked about a future payment a present cash value judgment shall hit it right on the nose what it basically means is there's money paid over time it needs to equal eleven million dollars as of today and it does to me and was paid nine million is paid with six percent interest by the time the payments are all through you will have eleven million dollars present cash value and the record makes absolutely clear even without mr marks comments that that is so and with mr marks comments it becomes even more so the question why should we be man the case if in fact  to get further findings judge klausner made findings he made findings in this case if he found the two million paid it was not refunded there was no other explanation and would be on i'm just to avoid them another two million dollars everybody knew what was going on to remain and will merely convert a nightmare into a further nightmare by prolonging the agony in this case my suggestion is subject the sentence after my colleague read says they did this quote the limit unquote there is a pleasurable to a settlement which is not the terms you would use if you wanted to make the credit a plea but i don't understand so by your argument and intend well your honor and this is well established we cite the cases in consent decrees that which is a judgment following up after a settlement the meaning of a consent decree is determined from the four corners of the d understood where it's i understand what the case most said i understand that you have a arguable foundation for your argument i am asking a different question what is the logic what is the common sense of a court of appeals that wasn't there didn't participate has little snippets of this and that substituting its guess of what was intended by the words in the judgment for the conclusion of the trial judge of what he did intend when background stuff particularly when the on the record settlement says we've put all the material terms on the record and the judge says it again the next day that the judgment is going to be only in accordance with what was on the record neither of those that's an because because i think the judge made an error of law rather than interpret in the language of the judgment or the language of the on the record so that he just simply by the argument that you heard from is dumber than the rule sixty five any prior payment can be used against a judgment and then begs the question of whether a judgment for eleven million present cash value as the court said means eleven more because we believe for all the reasons i will keep it means eleven million more if