him a two and a half percent equity ownership in ours the second distinct contract was approximately five years later and a less oral contract between himself and mr rosenthal one of the principals in the three minute it appears to me that on several occasions vista or downs attempted to do so and was worth it in his efforts by the actions of the fan he later around the same page says and i don't believe that it is fair and equitable defendant should reply relied upon their failure to supply downs with the information that he requested and rely on that as it basis to deny that he owns two and a half percent and then later round when he uses the i don't think there could be any clearer indication that he wasn't using the word possibility when he used it twice in the same sentence backed up by what he was talking about on the page before that he was saying that i'll execute the no at this amount and have collin say to him no no no that's not the right price or head down say here's how the note should be structured and holland saying to him no no no i don't like that structure according to don song testimony at these three conversations he never proposed that amount which is weak point out not really took them all of twenty seconds to figure out twelve years later by his version  is testimony the point this was mr downs is testimony because when he says i have three conversations and then he doesn't have any substance behind those conversations he doesn't propose question things bookless he doesn't propose the form of the note or as i just said he doesn't say love i say it's this you say it's that let's go see what it is let's go see what our c f o says it is let's go see what we tell our regulators what it is and by the way he's the c f o and a c p a and an attorney so we should have some pretty good idea of what heath fences but there's that conversation never took place according to of profit loss distribution or as he claims his own ship and this tab a day that's of no moment as the record is clear even in that early stage there are many many people at least three or four  interest was coming out of box allocation and i wanted to pay bob and i could write a check to buy that's totally consistent with everything we heard that the only owners rosenthal and  those people a profit in the last distribution either their shares or out of the combined shares whatever deal they want to cash that's consistent with what downstairs to my op was coming entirely consistent with everything that's a tell consistent with the people who got a share in ninety seven that's entirely consistent with the people who got a share in two thousand and four namely marine doubts and by the way just don't relation and rich work they work in for a profit in the last distribution they would get money if there was a loss in tribute a bow that went above their share they would that would be the to have percent was worth in two thousand and three year and what it was fire and say that's it here's what you get but he didn't do that he gave you a never ending stream of distributions after both the operating agreement a written opinion he spoke it out from the bench and i would submit that with the circumstances we understand that in some cases the choice of words may not have been for size i think it's clear from the substance of his opinion what he was ruling and  prevents performance and the book comes in and says well they were your fault whether your fault i'm going to put you back in restitution ery way where you were when this whole thing start and that's not what what what the judge should hear what he said was it was your was a contractual expectations from me which would be consistent with either way horizontal and frankly the case law talks of these type situations in both languages they can say with one partner hasa the other party to believe that strict performance on the contract is not  describes what he's talking about what wasn't waves i think that one can recently have heard that he was talking about as opposed to the provisions that were raised and moreover of course this court can affirm on this record clearly there's there's plenty the other factor that we can look at i'm in terms of seeing that this was that that the trial court's decision was based on solid evidence is just the fact that mr down suspicions of the conversations themselves established because that it says obsolete must perform all conditions precedent to his right to purchase not waived by the option or i'm just like any other contract you can waive a provision and that's clearly what happened here i just that one other thing i would mention this in this undisputed that there was a they came to an agreement that down to continue working r c t with expanded responsibilities that he had soon was exchanged for an additional four percent interest and of course faced with two completely contradictory versions of that conversation this 's no contract here which is one thing that neither the parties i had believed up until that point both of them agreed or been a contract it's just a question of what was good what was the nature of the interest that was get out and we submit that that the question of the circumstances if the course says you don't have to sign the promise but you still have to pay the money it's that way it is apparent from the ruling and apparent from vet structure that the current was hollow h fat it was it so there was a place to go find it if the guy says i don't really have an idea but i know somebody who knows a real good and will take his word that's out way the other questions at this equity the court came out clearly set it was only four percent profit loss therefore rosenthal was telling the truth that's what they agreed to an basically the same thing i heard the testimony i reviewed my notes i reviewed the exhibits we all sat through it and here's how i see that's a that's a credibility determination and i think they argue with  wasn't raised they can't come forward the first time and ask you that let them have a new shot at it out there it was never down there and i think the other thing is as your honor probably correctly pointed out that they seem to or maybe the court should have figured well i'll give three years of quantum maryland or something like that so was court that there was going argument to support that there's nothing more that we want another shot we lost on this one give us another shot i submit