our next case is water versus health international corporation papers at that time with well or well because it was it was arguable both ways because the that the agreement had things to be completed the agreement said had three steps you have said you want to have the case continue or this missile would be entered the payment so all of those those are those conditions precedent existed and there were complied with correct correct so you delivered the release correct was paid what was the money paid it was paid after about almost three weeks after the first payment was over the money was paid yes and immediately after payment and you delivered the release a acknowledgement that there's two ways that they could have been seen how can the settlement agreement ever have dismissed the case because it wasn't a stipulation in fact contemplated in its plain terms that other things that happened had happened before the parties stipulate yes this is a stipulation so the question means that well what's the difference between a stipulation in an agreement i mean there's not much of a stiff the difference idea as if that can be argued so the thing is well if agreement were met you supplied the release very very so well let me ask you the truth even if we agree with you but i don't but even if we do doesn't the district court still retain jurisdiction issue of of whether there's a mistake or what have you so not until at least they performed at least one part of it the plaintiff had to keep the case moving so so let's let's let's go from t even though i made the list you didn't reserve any of those rights in your settlement agreement you didn't set forth timetables or anything like that that would say litigation is going to continue or the like i mean you agreed to settle the case you agree to payment terms you agreed when you would submit a dismissal i mean when somebody another party settles a case they assume that that's all you need to do is comply with the terms that settlement agreement correct and one of the truck continue to respond to discovery and the like  we did not respond to discovery or require that they respond for the search in fact things that were filed by plaintiff required no no basically no action until they paid i mean after that the terms of the agreement opinion quoting the petitioners view of what prevailing party should be which the court explicitly rejected isn't that right have you read that case and then i read the quoted a portion of the can and said it's the holding and it's exactly not the holding but i didn't need to do that as well but your friend pointed it out in this thread brief and you didn't even bother to acknowledge that mistake in your great rejection of an argument that was presented was was that there was a difference in terms of exactly the issue being a prevailing party is intitled to  thought believed there was it isn't that your problem here why you're not the prevailing party you didn't get a judgment on the merits from a court changing the relationship your lawsuit product out of voluntary change in the defendant's conduct which is the catalyst theory which has been rejected by the supreme court and this court as the basis for prevailing party status is but that i think there were other other than me a just i think the catalyst theory i mean there was there were some nuances there that that i saw that that's why there's a nuance in terms of this because sometimes parties can change their positions for different reasons and so but in this is that there was moving things keeping things moving along for the schedule while there was no clear signal that this thing would be would actually hold or be dismissed and especially at a time when we had no sign that that they were going to perform and we did things that the plaintiff did things in a misunderstanding of what the facts are you left out significant information factual information that that's necessary to this court it's not that you blended or you argued the facts in your favor sat you you mistake the facts all together and you leave out the important aspects of the case that that almost start arguing the lack of jurisdiction and and the issue dealing that you're a prevailing party and in response to judge hughes's questions you acknowledge that now maybe the prevailing party theory doesn't apply here notice with the district court that the case settled and asked for a thirty day tension of time for all the pending deadlines giving our climax time to time to make its payments the settlement agreement clearly states and we had thirty days to make paper that was our obligation that was our notification we sat there on may sixth we represented that payment would be made that's the notification that we gave that was our only obligation a thirty day time period did you was there ever any indication on  twelfth after appellant groat submitted his notice to court laying out the reasons why he opposed our motion to stay the deadlines he said that there were issues to be resolved and that he was eager to keep the case moving forward that was a friday  friday i may twelfth that monday i reached out to two opponents counsel and i asked her what were these outstanding issues i never heard a response i had no idea what the outstanding issue was the next day may thirteenth he f a motion to amend the complaint adding additional claims and in there he again told the position that all the issues in the second amended complaint we were working towards resolving those but everything was a result that was on may thirteenth our response to that motion was due prior to june fifth prior to the date june fifth is the day that our payment was due so the representation that nothing had to be done is incorrect because we had to respond to that motion from to amend litigation for our purposes was continuing to go forward i may ninth the court the district court denied our motion to extend the deadline to specifically explain that the reason was because your appears to be a disagreement over whether or not the settlement agreement res and that's why the case will force another was no representation in fact shortly after that in mind there was no obligation on our part to be given i'm going representation of whether or not we were going to have thirty days that was not part of the agreement that regardless of we didn't give fortification shortly after that last payment was made on may twenty second i may twenty eighth i reached out to co counsel of the appellate co counsel and i notified him that yes we have the payments in hand i have that mind you i may nineteenth that same program and so represented that he agreed and this is on the record represented that he agreed that the case was settled so it was confusing to me why the case was continuing doing it  what the final judgment was in the final judgment was in the twenty thousand dollars range you see the briefing there were a number of misstatements inaccuracy is that we had to address a number of tangent issues throughout the  to brief that we had to address it the court was fully advised we didn't know we were going to have oral argument so we wanted to make sure that everything was identified in our briefing so i think i could get it in national number but i would say it's in excess probably between twenty and thirty thousand dollar range would be my my guess as we sit here today and that is one of the things that we would ask of in addition to rejecting the appeal in that for me in the judgment we would ask that the court also worst before this or p s we believe that that rule applies between counsel and his client opponent is trying to bring that rule as an obligation on my part to a power point clearly opponent is not my client the rule is going to play football i just would there were still a lot of issues and which required work and then the the payments were it was done on june second that we found out any of that we would that would have completely changed everything because the key thing was the payments and i think that that's at the core of any kind of a settlement agreement and and so  terms of the also in terms of the the catalyst theory i don't think that i mean i didn't i missed out on the reply but the the catalyst theory that it was not really it was not the catalyst theory approach it was that the rule every time that it had interest is awarded the other definition of a prevailing party was it was was not the catalyst theory he was seeking then he would be revealing party but that's exactly opposite of the law i mean how can you actually say that after having brief this case presumably read these cases that everybody citing and having even at cursory knowledge would prevail and party status is under a bucket what you're arguing is that because he sued and got a favorable settlement without any involvement of the court that he's a prevailing party that's the catalyst theory that's been rejected yes and many of the other cases just just say prevailing party and we consider that being thinking kind of followed by what the question this court that they were troubled by this so i hereby order you to show cause of the thirty days as to why this court should not issue sanctions both order to show cause and give the aptly twenty days to follow response to that we thank you very much