case of jerry's payments jelly versus happen is here for arguments welcome back i should say we're from we're quite familiar with the case not as familiar as you chance and what happened during the process was that the auditor never contacted me or my client to try to actually get to the bottom of these adjustments that he was planning on making and get to the bottom of his perception that  from a practical point of view that's what we got to the place we're at right now there's i recognize no requirement for there to be oral argument in a concern terry but the fact that there was that resulted in questions being raised by the district court that we never got a chance to to what he had originally done he changed by now taking a quote sampling of one hundred eighty one of approximately four thousand miscellaneous  right and then we made the argument the auditor comes back with another report trying to answer seventeen questions posed by the district court raising new points that the auditor had made before and then we were quiet about and without a hearing  district court issues its order now raising new issues that have not been presented before that we tried to address through the motion for reconsideration and then we were blamed for not having addressed these issues before that had never been raised with us either by the court or by the auditor  faulty conclusions have to do with accounting errors as you've suggested that on the tax issue it really is primarily a legal issue and others approximately fifty six thousand dollars in taxes that were not accounted for it's important to  breakdown into two categories one is federal and state income taxes of approximately thirty five thousand four hundred nineteen dollars and the rest are self employment taxes paid for social security and medicare and that component is twenty two thousand the things along with that but the auditor having made that judgment i mean not having made that judgment in the district court having adopted it that principle is not incorrect that taxes ordinarily should not be determinations of the menu in the logo creating customer confusion which is the problem as they can is and i understood that the contempt was affirmed but still it was vague to begin with my client a number of respects was not found acted in contempt of the injunction he had done many things to try to comply with it and he ended up getting caught and violating an injunction that was void i understand that has been affirmed but there were mitigating circumstances and if you look at the prior work pinioned it reflects complain that my client had violated the injunction and we pointed out in the reply brief that juries overstated that and it's this open in brief and a number of ways my client was found not to have done anything wrong and where he was found to have done something wrong  dollar deduction if you end up paying dischord profits and so the the factual statement and actually it's a legal conclusion by the district court in that regard is simply wrong there's not a dollar for dollar deduction and it speculative on clearly erroneous standard but as i point out in the reply brief that standard is applied in different contexts in different ways when you don't have a credibility determination deference ordinarily or just a court's determination is not as high also as a district court judge as you know can't simply ignore uncontradicted evidence without good reason to do so and the question is whether reasonable minds could differ on whether the district court thought that there was a good reason for ignoring and contradicted evidence in many respects young contradicted evidence was simply ignored it wasn't explained away it was simply ignored the interest expense for example on the twenty thousand dollars that was not to  questionable but then contradicted evidence was this wasn't payment of a jet that was owed to gloria paris and we have similar circumstances on the twenty one thousand dollar adjustment for supplies and expenses the background was that the auditor had changed the adjustment from five percent of his original report to twenty percent and his new report and he did it based upon a sampling of one hundred eighty one expenses from approximately four records provided by people who made the purchases that the time they were made their the criticism for using and we point out exactly the items that the judge pointed out as backing up the expenses that this and you others should have done that if you write the quest is the advocate for one side you have any responsibility to go to the auditor and say now when you go through these things i want to make some arguments you can have you considered before you around please don't do it again if you have questions or need for documents can you please contact us as you do your job over these many months because we're happy to meet with you give you documents and that's out of tune as i can do it on my own what the problem with accounting when you're doing  and you do have a responsibility to talk to the people involved as the auditor to make sure you're doing it right and he just didn't do that and that's the practical reason that we're here is i started out explaining i also pointed out in the brief the issues with respect to the credit card expenses there was simply an error made by the court as well as myself and not seen something buried at the very end of the updated report where the auditor without any reason changed the the deduction for credit card expenses from about eighteen thousand dollars to thirty eight thousand dollars without any explanation at all and so when we filed our motion for reconsideration we provided the explanation for all the credit card expenses and showed how about twenty seven thousand of it my client really lost money during this period he didn't have profited discords and if you take into account the taxes in these other items you would reach the same conclusion unfortunately with the way this campout we didn't have a chance to talk to the judge to explain how he was on the infringing issues was ninety nine to any case joy great my i'm sorry around here in those days in any event this is an interesting appeal in that it really gives lip service to the appropriate standard of review by this court which is abuse of process or query or then proceeds to ask this court to delve deeply into the district  week years so that's what this appeal is really about so that's kept to we argue things that have led to a monetary sanction in the form of discourse profits this the auditor failed to do that what the record shows i have respectfully submit is that the appellant had an enormous virtually years of opportunity to present to the auditor to present to the district court every single piece of paper that it wanted the auditor and the district court to consider determining whether there were any and if so the amount of net profits to be discoursed in an almost became like watching a tennis match yarrow or make a report the district court would engage in certain findings if the auditors report relied upon the absence of certain information lo and behold all of a sudden the documents miraculously appeared the information was all of a sudden provided notwithstanding the years of fire opportunity for that to be put into the record well what i mean is the point is that  take is sure you want i think a record is very clear or that in every instance where the auditor issued a report or supplemental report or after the series of questions that the district court  auditor there was an opportunity given by the district court and utilized by the appellant to respond even when the district court essentially said i don't want to hear anything in response to the october or for stop and start over a five supplemental report by the auditor even then and very zealous representation even then a response was given and it's very clear in looking at the court's ruling on november twenty ninth which relates to the judgment of the same date that the court considered all of those things so it isn't like there wasn't an opportunity for these things to be considered it may not have been the exactly the opportunity the opponents counsel would have desired which was an oral argument before the court but there was an opportunity to to address the issue it was addressed and this court's responsibility is in and it's a weighty one is to see whether the district court committed clear here or an abus discretion and i think respectfully that this court's burdens are great enough without trying to having to reach in and essentially supplant the district court and trying to review evidence and determine whether or not unaffected by any further review in the underlying supreme court case the martian case was somehow in principle and that is not at all the circumstance there is a principle there was a principle there and that is that paid twenty thousand dollars of that to the i r s so when he went home at the end of the year to get that saddam so he said he'll be to pay a hundred thousand dollars because of the principle involved what is the principle involved that he should pay more money how is it possible for the auditor to say well they're going to get that money back or it's going to be a washed up accessory you know i don't think an auditor could say that they would definitely get the money back but i think what the auditor could say  seems to me that's the basis for the district court's decision as well you know i have to say that i'm not sure exactly what the basis was i think the real question is was there a basis that supportable whether it was you know elucidated in the district court's decision or or not was that the proper decision on review by this court and using the standard of review that's a political and i believe that it was and i believe that it was very simply because of the wolf case and because of the underlying larsen case and i think that really ends the issue i think it almost of the auditor's remarks were perhaps unnecessary but not incorrect in terms of availability for potential deduction and i don't think it's an issue that is squarely and properly before this court although i'm i'm that the you know appellate would clearly like it to  gained profits you know taxable or not aside from any tax issues the results from that become the problem of the person or the energy that violates the law with respect to how they got those profits in the first place and so i think it really isn't an issue it's very interesting academically and i'm sure we could probably debate about it informally for hours about what should be shouldn't be and so forth but i just don't think that's an issue that needs to be determined here because there is a legal basis for what the district court did not which the ending perhaps a better articulated the desirability of a better articulated decision on that point  expenses those are all a few if you look at the briefing on this particularly reply brief it is nothing but an intense set of factual arguments as to why the district court made factual errors in the termination try to support him in his effort to first resist any of my ability second to resist being found in contempt third being found to have profits to be discord for a very very long time dating back to the first lawsuit in on contradicted unquote it is worthy of being credited and to what extent so i don't think again under duplicable standards of review before this court that the issue of whether the determination of the district court in those factual matters other than the taxes was correct or not is something that should be reviewed by this court in any kind of detail other than was there a clear abuse of process or was there a chance to now issue a new report it came up with new criticism which we addressed again in the end is the tedious to issue for you to review it to the sister for me to draft on the terms of briefs and to talk about that you have to get down to the detail to see