trial the court found that there was a the munition of business and the court found that there were beaches representations warranties and allowed to set off on the full amount that it quested six hundred twelve thousand the closing the store white became the vice president and employee of pro leaves at the same time he continued to operate some other companies one of which was polled white cloud personnel which pro least did not a his duties was workman's compensation insurance and has there there is no question that mr white did a number of things that led to this payment by liberty mutual what would happen after that if you complained of or liberty mutual sued mr white and white cloud consulting and there was settlement of about twenty thousand dollars consisted mostly of white collar employees whereas white cloud personality blue collar and he didn't want to mix the two because that would increase the food hollar would include increase the and in this case one of our points of appeal is that the court never considered negligence lower court never considered the negligence aspect and only looked at it from an intentional aspect and made absolutely no findings even though we raised i correct and that was where this slip up her heard all that is right now the court below also indicated that there was confusion about whether prolix would provide this workman's i think one of the points one on our field is that even if one does not presume the mr white didn't even know about the hopkins claim and that he put in motion the actions that  would have been recently foreseeable from and that was just negligence perspective that this would have happened by not carrying insurance by telling the somerset to act it's in you doing business so she had before the court also relied on we brought in mr pfeifer who testified as to the methodology that insurance company uses to premiums based on prior lawsuits and lost touch as mr hopkins which occurred in one thousand nine hundred nine has an effect on and on and insured like pro least for a three year period starting with the first full year after the accident so in this case it would have been that it will affect croesus premiums in two thousand and one two thousand and two and two thousand and three and she did a calculation which was that complicated based on something called the model and experience into ninety nine thousand dollars additional premium ice three years two hundred ninety five thousand dollars question of if that was was their testimony from that you're your actual insurance carrier that and there's no testimony from the carrier the only testimony that there was what it was again or from mr maher began the describable former employee who said that he spoke to liberty mutual and they told him that they would not take it into a the promissory note and purchase contract promissory note provides that the prevailing party in any litigation would be entitled to legal fees and we submit that based on the fact that we were provided every single penny of the set off against a promissory note that we were the prevailing party in this case what would be collateral for the know would be for example the fact that we didn't prevail on the breach of fishery duty kline we could also find a claim for fraud on which we didn't prevail that would be collateral because that was not covered by the now but the logically might presume that it's unlikely that a claim of forty seven thousand dollars would result in some two hundred ninety five thousand dollars damages but that's what the expert indicated that the insurance companies ten that an area needs technical testimony and qualify someone as an expert the court doesn't have to accept the expert without question but when you have an expert memorandum opinion of the first thing that's wrong with that is that while mr pfeiffer just testified that in certain cases imprimis premiums can be increased there was no testimony in this case that they were in fact increased and the court noted that in  memorandum opinion and said that since there wasn't any testimony or any evidence that the premiums were in fact increased then where the damages the other problem is that if if there w the insurance company actually did intend to raise the premiums then why didn't her lease provide testimony from the insurance carrier that's where you would get the actual proof that probably not breach his duty or his fiduciary duty we don't really need to even get to that issue because the question is so when there's no damages and there has been no proof of damages that are but if we do have to get to that has presented are basically quite questions over the evidence that the court heard the court heard evidence that mr y didn't know about was the mistake can't claim that he had no reason to know about it and that he did not intend for it to be reported as it was reported and there was evidence that maybe he should have known about it or testimony not evidence scuse me but the problem is that it does not get us even yes there was some believable evidence that mr white knew about it or should have known about it the issue there's evidence in the record to show that there was no reason for mr white's to know that this was going on or that he was careless because it was his understanding from pro least that  probably it was going to continue to provide the internet it's now again there's evidence or it's probably he's has pointed to testimony that says that the should have known well again we get to the issue clearly erroneous the judge in this case can look at all the testimony and all the evidence and draw inferences and conclusions and come up with his own decision he was basically the jury in this case you did with the jury would have done so even if there were inferences or testimony that mr white should have known what was going on didn't believe it was enough to rise to the level of negligence and because the standard is clearly erroneous erroneous and because the district court was free to draw inferences and conclusions or judge the credibility of i have one other question  decision not to awarded attorney fees arguing that it was the prevailing party in this case because of it received the set out that it asked for our response is that yes they received the set up but we were able to enforce the out which they were trying for arguing is should not be enforced and also they lost on all of the down the counter claims that they brought and also we were in fact able to recover entitle to attorney fees and so i think if you look at the entire opinion of the court regarding attorney fees the court is looking at other factors that he's looking at it isn't the whole case not just the fact that we were able to enforce the but again even if we were able to even if it was just based on the fact that we were able to enforce a promissory note probably says arguments that they never argued that the promissory note was