including the shipping provisions and liquidated damages for failing to proceed in accordance with written bargain for agreements this should not million dollars in real estate four million dollars but before the transaction owes the most land in the mission stand all iraq to the assets that were subject to liquidated damages or and has liquidated damages there wasn't this demand for the liquidated damages i'm sorry i don't understand your question that that there was an additional fifty thousand dollars  he was first to incur attorney's fees and in cost over the course of that of a year he was forced to go any other investment opportunities that he may have had during that course of litigation while t sally conceded that salary wasn't intitled to be earnest money and then after conceding now then the salary he had behind the back judgment action and sat and use that as as a shield to protect itself from the liquidated damages provisions within the contract as well as the attorney's fees provision within the agreed to and the court wrote those expectations the court really wrote the provision and made a determination outside of the contract that says if there is situation room or where they agree that the contract has terminated but now they just know there's a dispute over earnest that performance never came to this doesn't talk about performance this talks about proceeding in accordance with the agreement so to your honor's question certainly what it's worth the agreement not necessarily to close because to win parties hunchbacked on these types of agreements these agreements don't just focus time getting to the closing rate if it's not going to close what if something happens with the agreement terminate these ingredients talk about how to unwind the transaction as well so it's not just proceeding to the closing so if you choose not to close you can die that's what happens if these conditions aren't m then what do we do then we still have to follow the agreement in the when we follow the agreement is in this case we were turning the earnest money to the buyer so this isn't just talking about proceeding to close is talking up the entire agreement and  proceeding with you green mint and the seller feel to proceed with the agreement with respect to the attorney the provision similarly the port and the  businesses many things into account and that really never was going to but it was recognised by us what expense would have been involved in doing that and so finally we conceded on that issue but we didn't believe the fifty thousand dollars was in still do not believe it because it really talks about what happens under three different scenarios when there is no fall in this fall by fire when there's fog myself here short but if the tone arm and then when you got into was this fifty thousand dollars is women with a happy to do or under what circumstances here you've got one hundred fifty thousand dollars that goes to what hundred you don't want to spend two hundred thousand dollars a  action that seems appropriate because in and when counsel talked about sort of using a declaratory judgment actually to hide behind something that's not what they're for they're doesn't provide the means of making those determinations that's really on your body i think part of what is available i think that if we go to the case wasn't or i guess you should say was unique because the original complaint that was filed the original declaratory judgment action that was filed by the seller sought a declaration provision under which mr rat the buyer seeks attorneys fees to be sure parties in contracts as we previously discussed they generally speaking in these types of contracts is the risk of litigation in this case that risk of litigation was to be heartened by the non per bailing part in other words the prevailing party rose to free given their attorneys fees and costs in this particular case the buyer was the prevailing party the criminal investigation this was huge he was worldwide and eighty percent of the purchase price were bad assets of the of the dealership were based upon the blue sky and franchise fee and franchise value that the value of the books backing me that's what the buyer was bonnie and that name was apologize i don't have the page cite but the quotes were under regarding the motion to dismiss the couric expressly stated that it was not reasonable to determine that the value of these assets titled to the word charm of its earnest money now the question becomes when where and what did you want with me as much as contracts try to allocate risk and avoid surprising and make things definite  work with me doesn't mean within twenty four hours doesn't mean within forty eight hours doesn't mean within six months it doesn't say but forthwith certainly doesn't mean file a lawsuit instead so it will certainly our terminated for a failure of a condition proceed and that condition proceeding did not require notice it did not require intent to hear it it wasn't one of those like evergreen highs where you have to say no this in order to make it  did not do anything with respect to the buyers proceeding in accordance with the agreement have at this hour had this out what is the honest money and then at that point free of any means or investigations those types of things so it was those conditions proceed and that failed and those conditions precede it if a condition christine fails under those under those itself doesn't determine the agreement terminate with respect to closing on the dealership right but it doesn't the agreement still has to be followed to unwind the transaction you still ha earnest money out there there is money has to be returned so the agreement isn't terminated according to twenty four point two but the is if it's terminated right without the fault of either party milk in that point that would require that the buyer is the prevailing party at least with respect to the declaratory judgment action to be strictly construed and in for