by her and she lighted a number of credits that there was evidence of throughout the court all the documentation the trial just at the end of the trial after a year i think it started in i find that there was no meant to do with time a five day notice and that was it and in the plane of the defense case they set up dining areas that  other cases it's clear from that case that what the touchstones what you look at is the determination of whether prevailing parties entitle to attorney fees and of so the calculation of those these are determinations independent of the underlying judgment that's we have in this situation counsel sort of gave short shrift to judge carney who i point to my praise to the court was very engaged very involved in this trial i've got parts that i've cited in the brief where he asked questions where he broke down to get the issues where you hold both parties accountable for the evidence and the things that were stated and his specific finding was and it wasn't just he doesn't owe anything he went through i don't buy item and he says and this is does the defendant all anything at the time of the five day notice if the defendant does not or anything at the time of the five day notice you don't have a forcible action you can't get possession you can't take on for rent evan what this case was about is that we were able to show even though it's the plaintiff's burden and what happened in this case the the argument was to say that well judge kearney was  is there's a legal difference between what you say you paid and what you can prove you say that's what this case was a pile of they couldn't prove it we also showed that there were almost thirty thousand dollars of charges that should never been made and she didn't already think at the time that was his ruling as of november eighteenth two thousand and ten that she didn't all anything and he granted judge will for her that clearly falls within serbia on the other cases i did not come in on behalf of the defendant and did not ask for any relief which is the other punch thrown in the in the statute did not ask for any relief from that judgment in fact the cases are clear if you're in there to enforce the judgment that is clearly we were there to enforce the judgment and to get the attorney fees as a prevailing part the clock started to tick on nov eighteenth twenty ten what happened was no post from ocean got filed by the plaintiff in the i believe we have in the record that the plaintiff by now this core to say oh i want to file a late notice of appeal play to filed a response and said here are the reasons why not this court denied the motion for them to final late notice of appeal by that time we have filed our motion for attorney's fees as the prevailing party to enforce the judgment they then came along and when judge party did not grant their motion to strike petition for the attorney fees if they are arguing that the that the lease provided for the attorney fees that's there that's not an issue they then filed the second notice of appeal on that responded that this court struck it for no jurisdiction so then they come back six months later after the judge rules on the attorney fees and says ok let's take a third bite at the apple let's try this again they've clearly indicated throughout this whole process that they knew plaintiff or these arguments pile of by the filing of these multiple notices of the first motion to appeal late the second time they came in and say ok now we want to appeal back to that one that everybody knows you can't file a doing that because they couldn't state given the time and the other issue on this is that the standards of review were walking out and your auditors are well aware of that  also on the issue of the the standard of review for the prevailing party on the attorney fees under public accounting vs mcgivern saying this was not set out by the apple that's it seventy three northeast second ninety nine so we've got a situation here it is you go through this record one of the things is that and i've cited to parts of the record and everything else we have a to stop this did you know to not allow rebuttal and things of that nature judge carney allowed it i believe he wanted to give played at every opportunity to try and prove his case but you'll see from the citations the record in  kearney kept saying it even the plaintiffs third counsel at that time is on the record is acknowledging to the judge we understand if this situation that there you will see that what they did is they're citing to the to the transcript of one of the trial they're making yet another argument based out and spreadsheets that were in the record prepared by the the credibility of the witnesses the evidence the sufficiency of the evidence we spent nine days and multiple motion times with those who was there observed all the witnesses in fact i cited the parts of the record  as are all their paychecks for what they claim to be expenses the in two thousand and seven and two thousand and ten and then said all well really that's not our you know you should hold that against this yet in the lease it specifically says every year they were supposed to do an accounting and they didn't there are also two other grounds that did not get reached by the trial court but this can be sustained one is that the lease wasn't valid and we've put in there we showed the evidence that the only time the play to follow the lease is what it suited its needs otherwise it was just fair game and there's admissions after admissions after pages in the brief of  again we are we believe that the court could also uphold that at the judgment because the least obviously was not why he changed it or didn't change it and a lot of the things that they're claiming were not even put to the plate you know it told days before they served the five day notice they're trying to claim that three to four thousand  moment other miles that had never been raised before and clearly certain things had to be done on the elites the third thing is that this was clearly retaliatory and that was another defense  interact we showed that out should never been served with a five day notice over the years they claimed she was in arrears she didn't know any money at the time of the five day notice the plaintiff made no attempt  pursuant to the forcible statute to mitigate damages that clearly requires him to mitigate he was allowed by the lease to take the five thousand some dollars security deposit apply that and then say give me another one didn't do it  out of business we tendered the place back to him in january of two thousand and eleven they didn't take it in effect you'll see in the brief this is what their counsel said we don't have to accept that as a judgment she can leave anytime she wants that's at the record into eighty three it didn't want a judge on a possession by tender they said we want to go through and get a judgment on this finally in july my client says i can't pay more i can't do this you further me out of business should been paying to use an occupancy order by the court the court said you know to the plaintiff want to let her go so it was agreed that was an order rendered as to what they she would be out you have to prevail in the litigation nap outside the litigation by driving someone out of their business to be a prevailing part my client because nothing was old at the time of the five day notice could be the only prevailing party because that meant that the ice or the defendant my client was the