permitted i'd like to reserve three minutes for rebuttal you would in this case the tenant fifty eight dollars swann's he was looking to take a loan that would be secured by a mortgage on its lease old interest in the property lender united bank wanted to share and so that it would have st priority rights to insurance proceeds under the properties casualty insurance policy united bank insist that agreement on the other hand gator did not and would not sign that agreement because those rights are already belong to gator on the ground lease fifty eight  suit trying to force gator to sign the three and they remember that the united bank had proposed after trial the court found for gator that it was not obligated to sign three and proposed by appeal first aider should be awarded its fees because of the fee shifting provision in the ground least their nd fifty eight swansea's cross appeal is without merit because the district court's findings were well supported by the evidence and rd the district court should not dismiss counter claims based on fifty eight swansea's unauthorized use of a p claims against it in fact both parties fifty x y and z and gator argue to the district court different times in this litigation that article thirteen entitles a successful defendant su under the lease to recover its attorneys fees the district court found gator was not obligated to sign an agreement that might affirm that united bank had st priority to the insurance proceeds the gator itself won it so that's a finding the gator didn't breach well it defining the gator was not into fall and but you don't have a traditional prevailing party the but ours but what article thirteen includes a defense it says if you if you do any it's the party that successfully defends the action instituted by reason a default can get their attorneys fees the  defense must mean something as indeed giovanni which the massive pile of court decided three separate times also that when when there's a successful defense under article thirteen they're entitled to cherry's fees so in this particular case because the action was instituted by reason of default and gator successfully defended but how was interpretation as a sheer prevailing party provision in this context that the to the the fact that it allows for a successful defense a successful defendant to obtain attorneys fees must must be you know considered and when the lease and as a whole is considered the issue here is that that a party cannot sue another party and lose and not be liable for the attorneys fees otherwise sort of what happened here is it will continue to happen which is there's no disincentive to claim the other party is in default and tried to get the other party against the threat and risk a fees you don't know the purpose of the provision like any other fee shifting provision is the same as both the purpose with the same as other fee shifting provisions of the parties would have put i would that would make it simpler to be a traditional prevailing party provision but but actually by using the following priority it was less than it's it's even broader than prevailing party because it allows the allows the court jester to decide that the party who the party who wins the dispute instituted by reason a default i'm not in attorneys fees without having to prove and a prevailing party provision you get into all those other issues there is did you prove a zero because you were you said you was a default on the lease and you wanted me to pay eight hundred dollars but at trial you won six hundred dollars here the issue is that the prevailing party is defaulting parties more generic it's whatever party claimed the other party was in if you successfully defend you could win but the the other important issue is fifty eight swanzy was in default there the key the reason that the court found th gator did not have to sign the three an agreement was because gator learned during the entire relevant time which is september two thousand and fifteen to the end of october when was he was saying gator you need to sign this three an agreement during that entire time they had not put gators name on the insurance agreement as the court found that was  if landlord shall incur any reasonable attorney's fees in defending that's the point you stress and defending any action instituted by reason of the fault of the other then you get attorney's fees but you're saying that this was instituted by reason of an allegation of default by the landlord in the landlord want so that would be a prevailing party clause but this wasn't instituted by reason of the fault of the other you've got a problem there with your own language and that was the way i would read that as it's instituted by the plaintive reason of the fall of the policy as required by article four section two that's why that and that defense they basically prove the default and that's why they were in to follow the judge comes along he doesn't disagree they were going t fall during that time when he says is in article twelve we cured the default and therefore having cured the default in article twell we housed a lawsuit instituted by reason of that but the the lawsuit was instituted by reason haters claimed to fall but the but the defaulting party at the end of the litigation turned out to be fifty eight dollars swanzy because other side or at least often enough to earn a good living from lawyers with this isn't entirely clear either way so judge don't seem to lay the brunt of practical determinations this could look like a appeals this week with him of the old but he was taking a sensually a consistent approach in saying the tolling thing has a technicality some other courts disagreed so what and he's taking the same position here this isn't doesn't and share that he found he does not dispute that the fifty eight swann's that he whines he was in default but he says they don't get attorney's fees because after the fact i took over thirty years after this after the dispute that we've been really focus on the late privilege waiver because that that affected the judgment oh the inception article thirteen the reference to defaulting party i think sense to fault instead detail maintenance requests without use of the notice of default and then notice of default about insurance proceeds was never issued by gator under article twelve even under the st sentence of b two to rome in that i the definition of the four requires notice and a failure to cure within ten days it's only the next sentence of paragraph one b two of article twelve that somehow it was not pursuing a theory that it paid some extra making in scott's trial or otherwise what it was saying was that it shall upon request in article three and men shall upon request as the court found below at the summary judgment stage so the th and final day of trial and this is was result determinative the court of alligator to waive attorney client privilege on the stand not the night before the notice not the week before trial but literally on the th and last day of trial not only in an implied way but an expressway for most of the cases that come to this and other appellate courts regarding a week waiver with a failure to give discovery that's required due to the waiver simultaneously not allow you to go back and do the discovery you might have done had to i think i don't read all the testimony that the lawyer gave and i had trouble finding in that anything that he said that met t criteria one is it was privileged so therefore it wouldn't have been in but for the waiver and secondly it made a difference in his opinion so can you point to me anything in the lawyers testimony th absolutely even through it it's important to compare this to what occurred during discovery as well but mr sharon with their depositions as i pointed out to the court when that last day of trial when mr sharon litigator waived attorney client privilege express that's right your honor because what someone's understanding is who's the general counsel of a company is informed by his legal knowledge the advice he's given to the outside counsel is good advice might be it might not be no one asked him if it was understood because he was par someone told him he was just asked what's your understanding discovered he was asked questions and he readily non vote i'm asking you to focus on the trial testimony because i i i looked pretty hard to see if there was anything that met those two criteria but you understand the ca with the other party and his own understanding and so just telling me that the judge listened to his testimony doesn't get you anywhere you've got to really point us to some testimony that he gave that he couldn't give in but for the given but for the waiver and was outcome of that is the lawyers keep the chief negotiators understanding of the language i believe he also testified to an interaction with mr goldsmith the c e o and how they interacted together on this issue to share their belief which which in essence reveals privileged information which forgives mr goldsmith for positions he would take so many would against with like to go into court whether in front of a bench trial or after this general stuff again so ultimate findings when the court reaches of this issue and the gator reasonably believe that it would face future litigation if that were the standard to begin with and gator defended itself that way which it did not it did not actually raise that pretrial fifty eight swann's united bank exceeded to all demands about insurance proceeds in a three m letter fifteenth's one of the ship had discovery of communications with outside counsel mr shamal regarding those issues because our part reasonable belief that's based in part even in part on the general counsel's view or outside counsel's view or even if i tried to say my client has a reasonable belief in this issue that could impl privilege here or there was an express waiver of privilege so we are deprived of discovery that inherently prejudiced us once there was an express waiver we're entitle to see w that discovery how that would change the case it isn't his inherent prejudice because we were not able to assess that pretrial we were not able to develop our response to whether or not peter reasonably believed in the prospect of future litigation i read the not entirely correct your honor if i can correct that st there was a certificate of insurance issued by a whopping broker bad named gator as an additional maybe insured it turns out the way the evidence looked at trial and i think this is what the court end up with co equal rights in many jurisdictions and under many policies of course this is policy specific and this was in the one thousand nine hundred and eighty s when this lease was written but what minister there were communications that went back and forth about the difference between additional insured or not about the difference but they used those terms as if they were interchangeable when they were not the e mail that followed that followed the court's finding imperator sixty five dollars the findings of fact was that united back  happen instead this this comes up in every one of gaiters proposed three any agreements they tack on subordination rights beyond that which they're entitled to prevailing party rights as if there would be a full fee shifting provision with the bank not with what he thousand and thirty nine under article thirty four dollars the buildings were owned by fifty eight dollars swanzy the fact it oracle for says insurance a gator must be named on insurance policies as an additional named insured its interest may appear is pretty slim in terms of any rights or would have any proceeds for any destruction to the building that's being insured because it wouldn't have those buildings until two thousand and thirty nine it's not  realistic effort through this and what we say is the corner wrongfully created a standard about what reasonably could be believed about future litigation which is why every contract that's the language the court used that's what every contract is created for every part of it would like to walk into court and say i'm right because my attorney says so or here's my attorney he's going to testify which is what mr shambler did and say this is why our review thinks i'm a lawyer this is how we do things and by the way i entitled to discovery which we were a trial when there was an express waiver and we would actually see well we would suspect based on some other discovery of mr shanley was a business person which was only through repeated motions practice getting instructions from m say here's something that looks to the court like it might change that but we do have that in the sense that we see early on the court finds this that at least initially gator was trying to get this out parcel was holding fifty eight dollars swanzy hostage by say you know i understand the relevance of that is the nature of the relationship in what mr sharon was trying to accomplish for gator into it group of documents that have been withheld during those weeks about what peter really thought about three n and how much it wanted that out partial what how much it was really just trying to get something else from fifty eight swans into which it was not entitle we suspected that we knew it based on timing before even getting that e mail between mr goldsmith and and mr shand letter which was withhe testify and found no lawyer did what lawyers do and that's unfair without giving fifty eight swann's the access to what was really being communicated by the parties that would inform a court's proper finding about whether or not gave a reason to believe the prospects of future the case turned on the fact that gator and united bank both wanted both quired st priority it's of the insurance proceeds that for tax under the lease gaiters collateral is protected in the because the building exists that's how it gets upset do you agree that the judge vindicated your party on the other side's claim based on a sense that it was a subjective good faith worried about the insurance proceeds and that was what he would say was an object of good faith where it was so i think his point then if i understood it was a little bit more refined than what i was getting out of what you're saying i think his point is that that given that that's the way the case came out after hearing the boyer it's putting at issue the subjective good faith of your client and that the best place to look to see what was really going it could be but the judge did the judge did say that those those documents could be produced and and fifty it's and gaiters lawyers said there are no such documents exist and judge stern so there you go there's no documents and he did say they could be produced but still it because it's a it was still an object that the judge and find subjectively he didn't care whether gator was actually worried about it he just said i've jeb bush objective lee it reasonable when they found out when they found out that especially when they found out they weren't the named insured as to the article thirteen interpretation yes it could be decided both ways but but the word defending must mean something and in this case we have both parties fifty eight dollars swanzy in the claim that the counter claim that gator brought on the they prevail they won there was no claim that gator had defaulted at all but they said that wasn't that was a that they were entitled to tourney fees and they they've maintained that throughout the case that they're entitled to tourney's fees for having prevail as the defendant against the claim that they were in default the judge found they were not in default because under the lease he said maybe common law but it's not the lease he was incorrect in that and we've appealed that because the anything reserved in the lease would be under that but but where your interpretation lease where both parties agree with the interpretation that where that the defendant is entitled to attorney's fees  to interpret it i i don't hear good argument but the i've been watching this stuff for about sixty years and judges are constantly disagree with both parties and i would just urge that is that this is a cut if that's true in general but it's a contract if it's what parties to the contract thing as something some of the right thank you