evidence to support either the fundamental of either of the two fundamental elements for stoppel are five never took any contrary positions that were clearly are mutually exclusive nor is there any evidence in the record that any court relied upon these clearly are we in this case is it still in your interest to invalidate the first mortgage to invalidate the restrictions imposed and get clear title you want to sell of the property but who then are you opposed to and why that will happen why i can answer that into two separate ways first your honor i don't think you would need to remit it for a trial reverse on his judicial and stop whining but we take him as having made a finding of fact that the mortgage was that invalid fairly to street issue right ok and the answer is whatever it is then that determines your title in the property that's correct and that was really the reason  brought the action in the first place to yes ok you want clear titles so you can sell us all for the two thousand and eleven action and subsequent two thousand and fourteen action we've been demanding is clear title ok various role quote unquote related tases but unlike the series of first circuit cases that have upheld judicial assata which they've identified the specificity author robert the original representation inconsistent representation and a finding that they were clearly inconsistent for example an alternative resources where the court found there was an original representation and a pleading that the claim was limited and then subsequently attempt to extend it on summary judgment there's no such finding here and absent from the record as any representation from this undoubtedly valid b d mortgage has priority and so on but neither in all of those representations did it simply say of record so isn't it open to the judge to in effect to to determine whether the representations which are on their face without qualification are in fact an assertion of an inconsistent position first i would say that the case all suggest otherwise everything clearly inconsistent i e mutually exclusive that was the alternate systems case and that you know what you're saying that in each case of the representation that the court relied upon to that something which is on the record use is a valid incumbrance don't don't we start with the assumption that recorded documents accomplish what they purport to accomplish in isn't it converse the burden to say only of record or allegedly or something like that to indicate in agreement a disagreement rather with with that normal assumption that  it was involved in judge billings findings which is the only judge that they've identified who has purportedly relied on these representations made an explicit finding that we're entitled to be easing costs associated with discharging the invalid eating mortgage and if you read his this season which is the only decision of record he expressed the fines and he makes the representation or unquote of record meaning he understands that there's a challenge in fact his face if it factual mean your argument is that the law in this area requires direct admissions that you may not imply and on is always an abuse of discretion to rely on so you've got to have some evidence of a contradictory statement that was  settled that there was one issue that was in dispute on count one in the two thousand and eleven case it was a declaratory judgment action to determine whether the landing mortgage was valid and that was that was  simply sahid nor did the court approve the settlement in any way so if you're relying on the settlement agreement rather than the state court action i'm relying on several factors that i think the most telling is the settlement agreement because i believe in the again the alternative systems concepts case the court said while holding a litigant to a stated intention not to pursue certain claims is different from the classic case of judicial stop such inconsistency may present an even stronger argument than do the classic cases for application of many but take a look at what you've got here you've got a settlement of the claims settlement by definition in the case that has been a compromise on the issue of validity at best it's not an indication that the parties agree that the mortgage is valid or invalid was whether the litigants were playing fast and loose with the with the with the court then essentially he's looking at it could be he has an intimate knowledge of the case so far yes there are several factors he considered and it was his subjective determination as to whether go against were playing fast and loose with the court this court has said that a your brother has said look are consistent objective has been to get a clear title we've never taken any other position and now we're being accused of doing something inconsistent with our interests all along and as a matter well the inconsistent positions would be that they they again they settle the case but they also took positions in the massachusetts appear in court but tom billings the judge in that case made exquisite statements why doesn't that they hear the issue i go back to the abuse of discretion standard in which when you're applying to judicial stop when when judge court was applying judicial stoppel he he's the one who's intimately familiar with the case the live against the warriors involved in the case law says that it's the trial or the trier trial court judge who draws upon his firsthand observations of the lawyers and their litigation strategies it's between are a fast and b the landing a settlement agreement between the landing in a lake which the parties predicated the settlement on the full video of the mortgage they could have reached a different settlement and which they said the mortgage is void instead it was the mortgage will stay as a matter of record tied on the title and will be discharged only upon payment counsel what is it half a million dollars at stake here roughly victory one dollar damages judge wharton applied all of the those five pretoria the case to say that in applying those criteria it's largely if not almost totally up to the discretion of the trial judge really has to be pretty severe to say to overturn it i would s factor that the judge took into consideration in his decision and you know the twin fires case specifically says the court is required to go through each bill and each item and and judge judge burton very careful decision a reasoned decision we would have you know we have to pay almost fifty thousand dollars an attorney's fees and we actually appealed ourselves but decided to withdraw our appeal because we felt that we would be procedural issue about rule fifty that judge sonia brought up that was something that we raised in our brief and i would submit that they didn't they didn't raise it at all in the fifty the motion and  because it was the contract in question was an agreement to settle a lawsuit and the only authority that they have to support that and i and i would think that this is an issue that is not such a states on that point where you think that this is an issue of it would have come out you know that they can make you can make the argument the same argument about any breach of contract because one party as you read you can't because the  difference and i think this is the week here is it's one thing to say the american rule applies when there is simply one contract action he sues b because he didn't before but when a a contract claim to enforce an early a contract and is it clear that the american rule would would apply in this second case in which the entire contract action i e enforcing the sum is necessitated only in effect by either the refusal good of bad faith refusal to perform an agreement to settle the first contract action it's got to stop somewhere doesn't well again there's no massachusetts larvae maybe even then maybe none but what do you say on the merits isn't there a strong equitable argument for saying that the american rule does not apply to a contract action which is brought to enforce an early a contract i e in this case the subtle oh it's lots lots of contract every contract entered into it resolves parties who have different interests and the purpose of a contract is to resolve the differences whether it's a settlement agreement or whether it's any other type of action even a lease that kind of doesn't want whole issue over again the only issue here is whether a night we perform the contract which is very simple thing and but every agreement has that common thread to it that that's the purpose of the you do that you know there was a supposed to be a formal written embodiment of that settlement agreement and the record will show that even though they settled it in the beginning november i mean mr arafat didn't send the draft i will use it all i just want to address your last issue to the extent it's in all relevant there was never an opportunity to negotiate the terms of the contract that was it was or representation back and forth and i think the record accurately depicts this which is even why it's more compelling to impose it of this and we i think we reconcile that with the american role the compensatory damages that we're seeking a form of attorney's fees for the breach settlement agreement that there was no negotiation of any specific terms that was never