leaves that it is clear and that's what he told the court i think what happened here is that the judge fundamentally misunderstood the settlement agreement the settlement agreement provided that mr game star check defendants were to return the supposedly offending cartridges found on april second but he didn't write he says he not return the precise cartridges that were found by the inspector look at the entire inventory correct wrote a written report right you know he made handwritten notes are not nothing surfaced later until the contempt motion four years later was there any ev before the court as to what the inspector found no sir other than in the affidavit to support the contempt motion and that was the whole issue in the case that what sites found in april of two thousand and two was never conceded to by the defendant and that was the whole issue in the case that's why the settlement agreement says he's going to stand the carcass back but it doesn't say what carcasses they are so when the trial court said you're in contempt for not sending back the cartridges found on violate the lanthanum act and secondly the court retains jurisdiction to enforce the terms of the settlement agreement the settlement agreement is not incorporated into the consent decree there is no order that's been violated insists that he comply that he sent back to cartridges that were there that day the problem is that we never got a hearing on what those cartridges were that's what he wanted to do the judge assumed that absence declaration about what happened on april second two thousand and two was correct without cross examination valid and was prepared to challenge that so you end up with being found  contempt for an alleged reach of a settlement agreement which is the contract and then the problems cascaded from that he was given a choice either send back the cartridges which he said he had already sent back or pay thirty eight thousand dollars in damages well and if you don't do either one within five days it's going to be five hundred dollars a day until you do well he couldn't send back the cartridges because he said he already did it there was no evidence to the contrary so he had to pay the fine but he couldn't pay the fine and he studied couldn't pay the fine fine correct the thirty eight thousand dollars well that's a money judgment for the value of the product is  contempt correct finding would be correct if if the settlement agreement spelled out what cartridges were found on april second ballot cam signed and said i will send those cartridges back to you it didn't it just said declaration was what the serial numbers the instructor says he found on april second which ones are counterfeit is wrong and he wanted to cross we wanted to cross examine the inspector we didn't get a chance to do that there were that that was the a political standard at the time your honor specially since the settlement agreement provided for reinstatement of the action where we could have explored what the inspector found in two thousand and two  the settlement agreement a contract provided for reinstatement of the action in the event there was a factual dispute and that's what bally game was relying on that the action would be reinstated beyond that issue the game is lying because he didn't come he didn't submit his own receipts his own proof of purchase of what these cartridges were at that time he had submitted in accordance with the settlement agreement all of his accounting records they didn't put those in evidence he just was relying on the fact that he put these things aside and when it came time to send him back he'd get and then as a by the time of the order there was nothing more to send back so if you can't send anything back then some back that weren't on the inspectors list that's what that's what epson claims correct so he had no choice and he has no choice up until today he's to pay this course of fine with money that he does not have and i don't think that it's consistent with the cases are on contempt i think it's a flat fine yes it's not stone so you still have a chance settlement agreement which appellant did not even a post so that was the time to come forward and say hey wait a second we don't have those cartridges or we can't comply or your mistake in something nothing they did not  we had to go to court and we had to get the order that you know his declaration went there in april of two thousand and two he explained to the defendant what he found and what was counterfeit and offered to take possession he then served them with a t r l telling them to hold it and not do anything with it and i think it's important in your honor touched on it i'm looking for the following cartridges were determined to be counterfeit and there is the list model numbers and the numbers of cartridges and it was this declaration that was before the a palance and before the court when they was seen in april two thousand and two and another an important point that your honor touched on at the beginning was now that we know that there was an order that was in fact violated and that's really what the court was finding content  idea of the ability to comply now where and when that ability to comply comes into play we probably disagree but the bottom line was there was no evidence of true inability to comply and there was no evidence that they were bankrupt insolvent all we start was a belated attempt to say i work part time i don't have a house none of those things mean your company doesn't have money and as a matter of fact in the record there was significant evidence that they were a viable business because they were turned to have been what was supposed to be the counterfeit cartridges turned out to be mostly genuine cartridges that the court found or that the talents claimed was worth between twenty five and twenty nine did not get i think it was over thirteen hundred cartridges that had been seen in april two thousand and two were not returned to us with no explanation i'll counter for yes absolutely and there was no explanation for example i think i'm when you are as pointed out you know the declaration could have said we kept him in a corner and they were locked up these are the ones i sense you here's my proof here's my record keeping nothing other then i believe i spent she what i was supposed to send you a court certainly was reasonable and either not believing then or just having not enough evidence in front of them to determine whether or not they could or couldn't  lose their trademark it makes customers unhappy when they buy what they think is a genuine cartridge it's counterfeit it doesn't work right it doesn't work as well as they want it to all of those things harm ashton's so they judge that i'm not going to well the declaration by mr sites had foundation for his training in how to tell the difference it's detailed and there was nothing contrary to it there was no declaration there was from appellant saying that nobody challenge their evidence they put forth the best evidence they have they laid their foundations step by step gave less than model numbers but if nobody raises their hand and says wait a minute we disagree what else is someone supposed to do what else is the party supposed to do and that evidence was before the judge and certainly he must have looked at it and said you know what let's make spends all the foundations they're all the evidence i need and nobody's saying anything on the other side nobody even tried instead i've got a both he didn't his declaration which was submitted only at the time of the motion for reconsideration addressing and his finances it doesn't say he's destitute at all as a matter of fact it says i only work part time i have health problems i don't own a home and i have children he doesn't say my business is operating at last he goes i don't i don't have a diamond mine in the backyard i mean it's possibly won the lottery and that's why he doesn't have to work full time it's possible he's got  is a little more difficult because then we do agree that ability to comply and you have to be able to purge that in order to have the daily coercive fine and so that would be a problem the problem is here for appellants there's no evidence and certainly every opportunity to present there's no evidence that they could not pay thirty eight thousand dollars to train them over and in fact there's contrary evidence evidence of stock on hand for several thousand dollars evidence of an ongoing business could have sold them and they're out in the public which is why the judge gave them two options either turn it over in which case there's no damage that's done because you still have them or if you don't have them i'm going to assume damage because now they're out in the retail world and absence being harmed you have to compensate for it was  he sees a workable out yes and that was a contempt order coming out of the fact that we made a motion under the settlement agreement everybody agreed in the consent decree we can go back to court and get this in forced what do you make  shuffle yes and i think that stuff for there are two different aspects and one is whether we think of this is a typical money judgment of thirty eight thousand dollars if you can't turn it over  i believe determines that it didn't have enough to go under the unless the court directs otherwise whereas judge jones in our case did believe that there was enough that the history of not answering discovery of not respond motions of not obeying the court's t r o clear injunction consent decree that all this history and then the contempt was enough and the lack of evidence about what happened to those cartridges and whether or not they could pay rid of execution is the appropriate method unless the court direct otherwise and there has that sentence has to mean something that phrase has to mean something so that a district court has an option when they think they have exceptional circumstances and judge j here did that they can go beyond that rate of execution not force absent a chase again to start all over but to say you know what we had a motion to enforce a settlement agreement i ordered court ordered you to do something you didn't do it you didn't give me good reason why you didn't explain that you couldn't do it and i'm going to make you do it and that this is the appropriate use of my contempt powers with my discretion even under f r c p sixty nine today that these are the appropriate exceptional money he does say in his declaration and with respect to the inability of pay that he can't pay within five days that's what he was ordered to do he had to pay it within five days he said i can't pay within five days i just had a heart attack i got three kids i don't own a home let you answer the question i'm sorry your honor it has changed from i can't to i want i don't know that there's any evidence of that mr i mean i could tell you about conversations i've had with mr bally game this week but i don't know that that's appropriate i think that there should have been hearing judge should have inquired that's the best that we can do this distraction dischargeable in bankruptcy i don't believe it is your honor a money judgment i think what happened is that the trial court just didn't like it and i thought he was lying and use the course of find a position and that's not what it's for i think it was punishment and i think