the very same criteria or criteria that the trial court would use in deciding such a motion so this appellate decision really should bar any further consideration if you argue that in the district court i remained in the district for it on three now and you know i did should that be a waiver well i don't think so because the decision made by the court of appeal is and i don't know that that is something that can be weighed i think it's something that is not by operational law that would be our position i guess what my concern is case control what's the point isn't it doesn't make that just a useless effort on their part why didn't they just says done it's over nothing more to talk about i thought about that this is good i to know the answer to why they wouldn't say that but it's very possible that the business of the court is such that you don't anticipate every possible argument you do agree do you not counsel that a case can be can can be non frivolous and so on at the appeal level and be that at the trial all right yes under price yes well and in exactly what but when the court says on appeal that we're denying this motion on the basis of the very same case that's below it's like tacitly saying and this is got nothing to do with the fact that we're carving out th you that was before they made the determination later back christianson right know that the decision to award fees oh you mean the court of appeals yes the panel here yes exactly that's correct but failing all of the thomas versus viable argument just going back to the merits of whether it was reasonable to see beyond the discovery and go through the summary judgment this situation your clients argued that they were discriminated against and yet they're in a city where a good part of the employees the city council the mayor are the same ethnicity moreover there were at least two whites that they thought might have been discriminatory and at the time of the action had life going on he was still there mr fraser was there throughout it perhaps i read incorrectly that you know are they they terminated a caucasian ploy out there you know whether to fire the two white guys well that doesn't matter that doesn't end the discussion that's an argument you're absolutely right that's an argument the defendant's going to make before the trial court hey we fired some white guys too we brought mr royle said is he has to be involved in the decision but i had better than that i had mr frazier himself saying and i repeated this perhaps too many times in papers but i show him saying like that i might have take taken a look at them that were those were his words i might have taken a look at that but they never gave me that opportunity in my questioning of him was why didn't you consider some less allegation that erik fraser made the decision to terminate them but by the close of just got very they had no evidence establishing that frazier made the decision to terminate them or was the moving force in their germination plaintiffs rehash the issues that the district court already disposed of in summary judgment and that this court affirmed on appeal during argument on the motion for summary judgment plaintiff's counsel admitted that their entire case hinged on frazier and pointed specifically to mr fraser's deposition testimony the district court ordered the deposition to script at the deposition produced and read it in its entirety and rejected the plaintiff's argument was implicated or was the moving force in their germination in affirming the summary judgment on appeal this court concluded that cleans this discrimination claim is so entirely based on speculation that no fair minded jury could return a verdict for them on the evidence presented to say we agree with you about all of that why aren't we still bound by thomas to hold otherwise in thomas the district court abused its discretion for not  following the law of the keys but there was no similar abuse of discretion here this court expressly in affirming the summary judgment this court expressly dismissed a that portion of the appeal pertaining to the attorneys and then indicated that the district court would have to determine the amount of the fees before it could decide the issue and that is precisely what the district court did as your honor pointed after that there was a motion for attorney's fees in this court for the fees on appeal and this court said that the appeal wasn't frivolous and that's exactly what thomas says means that that's a lot of the case and we're bound in the next appeal we can extrapolate from thomas the rule that so long as there was an issue on appeal that potentially had merit then that means that the entire underlying action was not thomas said the opposite that there may be cases in which a non frivolous or even a meritorious appeal could be taken in the order granting ignored that issue or did not decide that issue so perhaps that that issue but again the court's decision this court's decision declining toward appellate attorneys did not provide a reason for why the appeal w not entirely groundless without foundation and again feel whether fees are appropriate on appeal this is a separate issue from whether fees are appropriate in the underlying action and as your honor that's not what i mean not according to thomas i'm sorry so thomas says that if the merits of the case were on the issue on appeal and the pellet court says that the appeal was not frivolous then that means the case is not frivolous and you can award fees and maybe you think we should reconsider thomas or take thomas take this issue on bank but i'm not sure how we get around that maybe and thomas the issues were so intertwined and also in thomas the court in affirming the motion for s in the defendant's favor at the same time decided that the appellate attorneys fees attorney's fees were not warranted on appeal and during that while this court was deciding the summary judgment issued the order or rather th honor there would be no purpose in sending it back to the district court to determine the award of the amount of the award again this court expressly declined to decide any issue pertaining to the to the attorney's fees and express issue from whether attorneys fees are appropriate on appeal and again at the district court has discretion to determine whether fees are appropriate for the underlying case as this court has discretion to determine whether fees are appropriate on appeal and what the so that wasn't really a determination that fees would be appropriate it was just saying we don't have jurisdiction to think about this at all right that is correct so the court could not be the case because the court did not know what the law of the case decision came after it was then when they asked for a fees on appeal and then there was a second order from this court that's when this court said this case is not frivolous and that's the opinion that is a problem for you not the first one did you argue in the district court that they had waived or have you had have you ever argued that they waive this love the case argument i didn't see in your briefs anything saying that in the district court they never mention law the case and they waived it well we present it in the in the court implicitly right that's a different waiver issue that i'm just wondering it seems like their strongest argument at this point is love the case under thomas but i don't see where they argued that in the district court on remand and it doesn't seem like you have said to us that correct i'm not sure i understand the word is the law of the case from your perspective the only defense that the plaintiffs have at this point of the balance it sounds to me from from conceded he also got the latest information about their financial situation he found what their monthly television and other expenditures were on and he made a conclusion or she rather that action that this was a fair approach what what's wrong with that because of the reasons i gave the court earlier they presented evidence that they were over their heads already and and what the court did was focused on a few items that the court thought were guys are living pretty high life leaders now decides that isn't it the judge yes she gets to decide and i concede that but what i'm suggesting to the court is that can be an abuse of discretion where the facts are on their face show people and then the standard as i understand it is you can't put them in financial ruin if they're in the condition they were already in and you add another four hundred bucks a month