subsequent to the entry of judgment in which he was the prevailing party in a breach of contract action of this case as the as your honour's will now be decided under illinois law based upon the terms and provisions of the entire there for attorney's fees and the original complaint there was your honor however i submit with pretrial conference when i would have superseded that in the complaint i thought there was a strategic judgment of counsel that didn't and th was some stuff on the record on this that the counsel for taylor did not want to claim attorney's fees because it would be a double edged sword and he wasn't sure he was going over it on the merits and he made a strategic judgment i'm not  up on the table oh yes your honor and then after after a jury verdict then presented it by motion in the courts that too like well i believe late because you didn't have it in the  determination that there would be a right to attorney's fees and i believe what your honor three frying to was a decision made to wait a period of time and at that point when the application was made for attorney's  wouldn't mean that it in every contract for each case where there was a prevailing party provision that a plaintiff could hold off and not present the issue of  there could be a second law student in fact i've cited in the briefs the white versus new hampshire department of employment security a us supreme court action i knowledge that had to do with the statute is really significant that the supreme court did  talk about the fact that because this is a whole separate inquiry inquiry that doesn't arise until until the judgment creditor if you will becomes the prevailing party well maybe i got it wrong but i was thinking that the ill continue to believe that that provision was not likable in any event they represented to the court that there was no attorney's fees provision and then in fact the pretrial conference order indicated that that was not an issue in the case  subsequent to the judgment being entered they did in fact in that case request attorney's fees they were denied and significantly there was no appeal from the judgment the judgment to pay your client's fees if they lost so maybe that was smart and you know you can't blame them for doing that and then trying to get fees afterwards but then the question is when the court shut them in the court denied it does taylor's theory work to say that case that court made it very clear that why fifty four d should not be followed and in some rights action cases because those attorneys fees would be completely discretionary with a court under that statute there's a number of things that need to be down that road and that's what we've found and there's one important point that i'd like to make is well if you look at the attorneys fees provision that they're relying on in the asset purchase agreement it is not a prevailing party attorney's fees for vision it is a i an attorney's fees are described as part of the remedy for a breach of warranties it's an indemnification provision so in fact it would have been a remedy which would have flowed from the breach which was the subject of the original determination really really what we're talking about first of all taylor did not become the prevailing party until judgment was entered in his favor against illinois tool works for seven hundred forty three thousand dollars and the refused the demand to pay them and it's a and in so far as the prior determination this court has to has to determine whether there was a substantive determination of the issue on the merits in the district court or whether it was purely procedural file so that sounds procedural in somewhat the same way that that is arguably the case here i think your honor has very appropriately pointed out the confusion that can arise sometimes you can proceed from substantive