continuously operate or engage in continuous operations with exceptions however the evidence in this case did not prove any breach of that provision there was no a fascinating position on your part because it sounds as though in your view this lease could start and there could never be in operation no operation the day the leases signed no operations six months later default and so forth if the tenant sales to continuously operate its premises within its business within the premises that's the st part of the sentence exact then there's an exception but you have in why not because the only thing you had to do to postpone a continuous operation would be to sit down with the tenant and get and give the landlords written approval to be not operating and that's exactly what happened to your oh there's no written approval there is the signing of the lease itself with the understanding of both sides to that lease that they were not going to start operations for last night on that on the language of  gutting the restaurant so that they can remodel it that is the actual historical events of this case they continue to fail and the every other obligation under the least both sides except for operations because they both knew and they both objectively demonstrated their understanding of the at least that they were going to dismantle it and rebuild that as a hard piece i don't see why that isn't still from the rd party's point of view and inventive t ht because the rd party is a stranger to the contract we're talking about whether we had actually a rd party however is investing on the strength of that contract in the compliance with it and the warranty that there are no events of default and if i understand you correctly mr brand and you're arguing to us the least money and the us lee allowed the tenant never to operate the conduct of the parties to the lease not to some understanding of a stranger to know how was the jury instructed on this question of default they were instructed that they had to show a breach of this particular provision i don't think there was any question was basically given to the jury correct as to whether the tenant was in default and whether the defense knew about that right right but whether we knew about it require saying it's an incentive to fall if you fail to continuously operate you read that is something that says you actually never have to operate continuously or otherwise but the jury is given these questions and the jury obligation to operate it and then a few minutes ago you said well that doesn't really have to be written approval of everybody is performing in a certain way except maybe there does have to be written approval sometime i'm not sure what your position is i think you've read this paragraph entirely out of the lease or disagree because we also have moving out of the language in there that they can take at least ninety days to remodel and they can get more than ninety days with the approval of the landlord and they got that approval and under the law they have approval did not have to be in writing the parties to the lease  that they only can make oral approvals st of all there was written a profile because of the signing the lease with that understanding of both parties that they were not going to began operations for nine months to a year i think the position you're taking now is that the warranty of no bridge is essentially meaningless because if i understand you correctly the ready landlord for example could excuse payment of six month there any gas between the parties that's perfectly allowable later than that but but my concern is that your theory then that's the warrant but the purchase agreement the warranty end there requires that we believe and have actual knowledge that there is a default there the one set imposed question ok would it be correct that under your view that the land that the landlord could decide to excuse or waive breaches therefore meaning there's no default and there and at the same time warranty to the buyer there's no default even though the landlord is just  jury found well but i let me finish the point about the ninety days and the extensions those were all given all those approvals for given there's no dispute about that that we agreed to extend it beyond wel ninety days by the way it was ninety days within a calendar year so it could extend up to six months even without our crew vault if it a lapdog or through december then any of that we didn't give those approvals the law does not require that those approvals be in writing so based again on our knowledge there was no default because we gave approval for the full amount of time that they took i mean you have to when you say that the law doesn't require this to be in writing i still think you're conflating what the parties can do and how they can censure you're saying they amended the provisions of the lease that required writing to delete the writing requirement and to substitute an oral approval requirement and then the parties moved on with performance by conduct or whatever but this is a lease that was assigned to an investor mr avalon who has no way of knowing anything but what the written documents say and so to bind him to all of the understandings between the parties and frankly mr chore news right in the middle of all of th amendment i don't know it's not a mandate because we can always enforce it later if we believe that we wouldn't be able to ever require our written approval in the future but under the law we can we can resurrect a judge hamilton's question how much else can you weigh if you can that whether it's even assuming your arguments in the plaintiff's arguments about whether they were in the fault whether there is a default that is a breach of the warranty or a breach of some duty we had to disclose to them the facts the undisputed are that they knew everything that we knew and i'm not sure those aren't disputed facts the jury didn't find that mr bennett on that point could i ask you a procedural question sure  critical well i'm looking at it and i don't see it i think that the under the sea i'm sorry one of the cases that we cited is that when we raise an argument  about the lack of deficiency of proof that we can even under fifty be motion we can add additional arguments about the lack of proof a deficiency of such a plaintiff failed to prove his case that's enough for you to bring up any issue in fifty b is that the theory any argument about the fact that they failed to prove their case what case that i've started i don't have i can look it up for rebuttal but it's i don't think you have a case i'm looking at the portion of the cite but i'm not sure that's consistent with the advisory committee no i'd be very surprised if sometimes you may have made a complaint about the sufficiency of the evidence and that's enough to alert that but then if you do double check you cannot rely on it anymore and that's exactly what happened here he not he didn't say it was on ice but he sent john chaney the inspector out there and that guy sent him back photographs so he did see with his own eyes exactly what the condition was he knew from the environmental report that he was getting he's getting a warranty from your client that tenet is not in breach he's getting a warranty that they were in continuous operations except for maybe a period of ninety days that's his claim that's his argument but the fact is that he knew that they had not been in operations for two years they knew from the environmental report that we gave them that that restaurant was vacant they knew from  gutted shell without any operational equipment without a kitchen without electrical and yet they want to head and made the decision to buy it they navigated themselves based on their own conduct and what we told them they told we told them everything that we knew about that operations they knew everything about it themselves they knew more because they sent john cheney we want to know and i we didn't send anybody there they did they knew more about that building than we did they knew more about the lack of operations here than we did good morning my name is robert mann i represent ricardo avalon please the court i would like to address the st issue that was raised by the appellant regarding the issue of whether lavelle had he and i cannot read and that was in fact the argument that was made that the jury the jury did not believe that the jury could read the lease and they understood what a continuous operations why all of the things that mr brant was saying just before he set down about the amount of notice that mr avalon had that things were not running well your your what what the record reflects is that mister avalon and his lawyer sent mr cheney to do a very very brief inspection you can read mr cheney's testimony all he was even capable of doing was analyzing was there a building there what did the roof look like what did what did the the brick look like one of the parking lot of the gleick that was that he did not get inside he did go inside and he said that there were workers inside and he was not there to analyze whether or not a franchisee had  operating that was not what he was asked to do it was say a quality of the building in terms of are there going to be repairs that need to be made to the roof to the air conditioning system that kind of thing that's what the evidence reflects as to so you should you think the jury could have thought that that from his pictures that the bill that the thing could be up and running within a couple of months that that argument was made directly to the jury the photographs were before the jury everyone saw that there was testimony by mr cheney by mr cain who reviewed the report and she's a lawyer she's not a construction expert and the jury believed that it was not sufficient notice to overcome  the the the the fact that there had been a direct representation that there was a continuous operations costs now i think the argument that was made  suggests that mr avalon thought that iran mage reimaging which was the word that was used had ceased operations at the restaurant and they should have known that it lasted for more than ninety days that is what i believe the argument was that was being made now i think that argument actually misses the point that the default alleged as we've noted in eighteen one point four was that the tenet ever operated and and and rick the reality is when you read that the record you read banker you retain and you read avalon it was inconceivable to them representations that this tenet was a great tenet that they had no problems with the tenet which of course the jury found not to be credible or not to be true it was just a tenant while these operations whil rent we don't there wasn't a lot of other information about that was the only evidence that was before the court we didn't know we didn't we didn't go take depositions to determine that and we offered no evidence on that point  only suggestion would be that that was offered by mr turner and mr turner whatever he said the jury did not delete so at st i think the evidence is conflicted avalon knew about the condition of the property so for some of us it seems rather remarkable to make such an investment on this scale without without at least putting eyes on the site but i understand that's what happened here  i wonder if you could address the case law that was st raised in the the defendant's reply brief addressing your reliance on the intent case in the series of illinois cases about form agreement with respect to the can change with respect to the default under the lease for the very reason that we can rely upon it and then further and the last of paragraph ten of the purchase agreement it makes it abundantly clear that the parties understood that that the buyer and this case mr avalon was in fact relying upon these representations should look if we're looking for evidence of actual reliance we should look to avalon's testimony kane's testimony and the police itself or the movies or you would look at avalon kane and banker and there is absolutely some kind there's a confusing e mail that i would like to address that is probably the best evidence of what counsel is talking about and that's an email to dank or when you read danker testimony it it's evident particularly where and i you know i can cite you a reference but this concept that it was and conceivable to them that it was not operating so had they been told maybe there's evidence that that danger may have been told she certainly didn't tell our it didn't register on them well they did i just kind of fast food restaurants in that building right there i'm sorry there had been a number of fast food restaurants in that building up to the point that this transaction takes place right your honor my understanding and the held it if you look at exhibit forty which is the summary of everything that mr turner i knew he knew no construction was going on he in fact  you know i knew that there was indeed i think assessor moneywise he had no reason to even believe that there was construction going on so your theory has to be that the jury found this fraudulent from the get go and even though maybe two years later mr avalon finds out that the building is under construction that doesn't tell him what was happening two years earlier for all he notes exactly as a restaurant you have the environmental report the environmental make one thing that troubles me about this case was that the district court in dealing with post trial motions denies motion for judgment as a matter of law to the defense but then says the motion for a new trial is moot at least in part right that's troubling to me the district judge has discretion in deciding whether to grant a new trial or not but what's the best evidence that he actually did exercises yeah and so my and my impression of it was that he was saying look i address all of these issues in my opinion and i think i was worried about that too but you're saying the best you can make of that is that his discussion to which he much more difficult standard and he had already determined that that's the problem it's a lower standard to get a new trial so even so i mean it just for judges all the time will say i'm not going to grant fifty b motion but this really just already admitted in its pleadings that it would be liable you know if plaintiff was able to establish its case against the actual selling entity i was wondering if you could be a little more specific to and what happened to it i don't know i believe that it went to h r d as the technical owner at the time i don't recall what the record was at trial with respect to w look you can read the hearing that we had on that issue it's part of the transcript and he says he said you know look i i believe that this has been admitted and it would be unfair to mr avalon to not go forward with that trial at this time and eighty's well in his ninety's and he's not in good health so that those issues were talked about and  the wyoming statute and wyoming statute seven hundred and twenty nine thousand seven hundred and four is referring to claims against the dissolved l l c when there's a certain notice that's filed well the more truck center versus all the trucks it's sixty nine f three thousand five hundred and ninety eight what was missing from the plaintiff's response here is any facts to refute the fact undisputed fact that he knew that there had been a restaurant operations for two years what's unclear to me is why that's relevant in a contract case this is not a tort case true but it's a breach of warranty counter case which under illinois law they're required to show that they actually relied on that warranty they could and they cannot show under illinois law you cannot show that you relied on it if you found out that that warranty was false and i know what evidence is there in the record that he knew that at no moment from the time his agent there had been no operations they had never commenced operations terry not been a single sale of food in that restaurant since the purchase date or degree that he had been told what to drink or degree that he had been told yes absolutely and she testified at trial that she told tabbouleh so he knew that it can't rely on a warranty claim that that's the reason you bought something when you know it's not true and that's the fact here this is a risk calculation on his part dating the issue of fraud here or there were all sorts of representations that there was going to be an operation here and indeed there there was at least that ha provision in it saying that operations would be continuous and none of that was true so it's ok if you lie absolutely not your honor but the fact is the jury ruled on that and said he had incurred no damages and zero dollars in no reliance they knew the truth they made a risk out as they knew that they had a known liability if they did not go through with the purchase they knew that they had fast faced real