underlying case is if we had gone to trial in the case originally and the question then is for me and that i'm presenting to you is why on earth would we have agreed to a settlement where all we had was the right to go to trial in the question indeed and the language is that if i had to write it differently i would certainly write it differently then what appears what i thought we were doing was writing entitlement language as opposed to anything else but  that they can oppose the application to take that to be a given as well of course and the question is what is it they oppose the amount or the entitlement we have both those questions before but the provision doesn't say any basis doesn't provide any basis i look at that my argument is that if all i'm entitled to is a petition then what i'm entitle to as part of that petition is a trial of the underlying case the procedural posture of the case in the district court was such that we had brought a motion for summary judgment on the contempt on the violation of the automatic stay just the court judge denied the summary judgment motion finding that there were material facts that issue made a reference of the case at that point in time to the bankruptcy court because the bankruptcy court was better acquainted with its own probation as opposed to simply the right to petition but when we came back to the district court and we made our petition for attorney's fees the district court then did a complete about face from what it had done on the summary judgment motion and made find deny summary judgment on that very issue and so at that point the district court judge referred the matter to the bankruptcy court for a full trial on the question and so if damages for a violation of the d like to say two minutes i believe that at the time we got the summary judgment motion we had a complete record to succeed on summary judgment for reasons that i don't understand did not then and do not today the district court found a trial was necessary a trial was necessary at that point in the district court's mind then the trial was necessary before the bankruptcy court on reference at the time that the the petition was heard as well you know that district court was right on i mean now can find that on this record well when i brought the summary judgment motion your honor i candidly thought the court could find it on the record but we did not argue this the petition from the perspective of needing to find a violation of the state or finding a violation of the destruction generally going to hold on any ground that's present in record why should we get hung up on whether or not there should have been a trial so that's not really an issue we have to decide because now what you have are two competing findings by the district court one in which there is a finding that there is a material fact in question and one in which that the district court in fact makes findings of fact in the context of an argument where those tracks were not argued were not presented and were not squarely before the court because what we thought we were arguing on the the petition was a matter of reasonable fees not entitlement that's that's how we got here obviously the language in the settlement agreement if we could write it over again simple we have the last brief i don't have much to add on that subject the words simply provide for the the opportunity to make the application for these and for my client to telling the court that there are no material questions of fact and that they're entitled to judgment as a matter of law and it's not wholly unusual for a party to bring a motion for summary judgment and have the court grant summary judgment against that's not really a material issue that this court needs to deal with or grapple with because in the motion for attorneys fees the plaintiffs did not argue by my opposing counsel so that from the perspective of the trial judge the question which was presented in the opening brief there was in the opening brief on the motion for attorneys fees there was an assumption of a right to the fees under the bankruptcy code our opposition said no you have no right under the bankruptcy code because you were not litigating these issues of contempt or violation of this day you don't get there if you really need to find you're right in the contract and that's and the reply brief again focused on the contract the question of whether we were going to they would be entitled to feed permits means if there's an intentional violation of the united state correct yes your honor so in the scheme of attorneys fees statutes if you think it's contemplated that that determination in a case where there hasn't already been a release of the underlying claim that the issue that therefore i believe under the automatic state provision the attorneys fees are any sense you do have to construe the kind that i have to be construed against the drafter but it has to have some meaning so what would they be fishing for if they couldn't get any feed is there under the statute or my contract there may well be contracts where the settlement agreement where the plaintiff is fully compensated as he was in this case and the and as part of that waives the rights which are in the speech now mr gold sir or that is true right here it may not have been the most straightforward request but there certainly wasn't a waiver you would you will see that there is one point on earth would you on behalf of your client agree to a settlement agreement where your position was that they had waited three days well perhaps the client's been my client's position is a sort of a hotel california of attorneys speech positions right check out anytime you want it you can never leave this this is a situation where my client did under this agreement  so you're saying an alternate legal ground for firming is simply to look at the language that's your own ok thank you thank you for your human rebuttal i think they're never simple  it's a situation where language isn't construed against one party or the other i'd like to argue that but i don't think that would be fair thank you candor thank you thank you also for their arguments the case just argued will be submitted for decision