exactly the same things a track we had before i mean there's a picture they rely on there's a invoice of mr quite right who built the wall and i think when you look at those things primarily and consider the state it was when this problem with discovered as far as whether or not they should give the benefit of the way to the equities so when they because they knew on that somewhere in late october there was a problem right at that who i think they're on notice that there's a problem with this i'm answering questions i don't believe that it was intended to apply to a situation where nobody can attempt to get a permit when there's no wasn't even an attempt in this case yet the court procure much found not pretty much expressed it found that it was not the yard it isn't i don't think it's obvious as you might think that there are things like this that could go on without people seeing specially when it's in october or some november you know it's a seasonal place and a lot of people live other part  time there's always a not ton of construction going on that time so i don't think that it it's as unlikely as you might believe that somebody could in this area where there's lots of trees and hills and ravines build something in that time of year and people  writing these qualms with since it's in the cases cited in the case we believe that when you go backwards and look at the history of what happened in the firing of permit with landscaping that clearly did not show this wall the failure to act at any point once you knew there was a problem shows intention or willful in this case because of because the acts there's little doubt that the cover that's what followed in that they never even tried to follow them after they came to their completion as it applies to what happened in this case and i don't believe that as the e c rules were written i do believe there is some vagueness to what you hear this means and i don't believe it was intended that language was intended to apply different to a situation where they didn't even try to get a permit in we know they didn't try to kill him in this case in the court found that and so for those reasons we believe th we can rather than try and go to parse everything i just want to say things that the appeal in this case is built on five specific false premises the st false balance the equities and found that the cost of remediation somewhere between one hundred dollars to four hundred and fifty seven thousand dollars outweighed the damage the bosses are rd or false legal guardo say they have no duty to mitigate their damages appraisers testified that the damage to the their value of their car b was ten thousand dollars with the wall there but it would be totally mitigated with landscaping in that regard the last two things that are not supportable here are issues of fact the date of completion judge may jury didn't find substantial completion he said that the that based on the evidence there was completion by its specific date that's the date in this is a garden hose or a graph that photograph shows and you'll find the findings in detail and judge me injuries order when the forms were off the wall was standing it was structurally complete there were some other things that got done later but that is a fact finding of the trial judge of the date of completion it's not against the manifest weight of the oven it's discussed at some length in our brief the last disputed issue of fact is whether there was any intentional action on behalf of anyone there's no finding by the trial court of any intentional action on my my reading there you'll find if you get into the evidence and if you get into the weeds you'll find a lot of things there was somebody from that committee you testified bottom line is no one knows how they were voted on the committee because i think the record is replete with the evidence that the wall was completed at the time that nest is a guardo took the photograph and discovered that she had this problem with the retaining wall itself  something about this wall the thing here is that oprah doesn't have to do that they cannot be forced to enforce their own covenants for lack of a better way to phrase that as a government owes in their own brief state that anybody can file a suit way shape or form they seem to argue that oak rented nothing and oakland should be held liable for that money in fact mr cardoza did have the ability to file that suit themselves and have her restraining order to stop the progression a permanent injunction the pastas or override and remove those wall simply because mr gardner is not a big fan of how it looks it's not on her property and she has no ascertainable property right in that particular afternoon or she or they do not have anything in need of protection in this case but to play devil's advocate let's assume they did have something in need of protection they are not suffering any irreparable harm here they absolutely have an adequate remedy at law which is your honor they could've specifically proven monetary damages as mr everson said the appraisers in the piece did testify believe miss dagon testified that the value might have lowered by ten thousand two hundred and fifty dollars and mr daly testified that it was ten thousand dollars and may have that switched but is there any testimony about remedy any diminished value in this regard is property whatsoever and that the other issue there is that mr guardo let her guard kind of go to the weeds small any additional additional diminished value by that is on her she clearly testified at trial that she did not believe that she was part of the solution and she did not participate in any way in mitigating any of these issues she would allow the pastas or their contractors on their land in order to landscape this landscaping your honor we would simply conclude by saying that the trial court in this case did not abuse its discretion in finding the date of completion and the trial court did not abuse its discretion in failing bad might be a bit of a slippery slope it is a bit it can be yes i think that it encourages the herman i think this situation we have here is that these contractors believed based on their conversations with dean russell that they did have her mission to construct not wall that it's common for the small walls in these easements meaning two or three feet tall walls are common this is a ten foot pole wall is not at all common to something that exceeds greatly the scope of what they