major points this is about the attorney's fees awarded by the trial court the fish should have been denied entirely because the moving party failed to prove that there was a statute or a contract that awarded that allowed for fees even if there was a contract which mr do for denies he grima does not authorize in between the parties and even if the defendants were entitled to some fees the trial court abuse its discretion in a warning almost all of the fees for the entire litigation when practically none of the fees related to the so called written contract no court is so talking about whether there was a fee agreement that no court has ever found there was one in this case  in preventing your client from demonstrated and there was no agreement by operation of law it found that he had he was a party to the agreement isn't that how the case gets to the court of appeals the district court i'm sorry could you say that again if it were your client did not have an opportunity to present evidence that he had not he was not a party to the enrollment agreement he had never signed the enrollment agreement broke and that was a decision as a matter of law is the result a consequence of flows from that decision that the poor found and we must accept from that point of view that he to claim there wasn't an agreement and but that is a matter of law that is correct for a variety of really may be but as as a case a comes up he seems to me that well we have before us was a decision from the end it at the trial court level that he is a signatory to the to the agreement well ok if that if that's how you read what the district court said then why argument is that that is the flatly wrong  opportunity to prove that there was a written contract multiple times and they've never they haven't done it and they've just asserted that the there was that he signed the contract and they do it in their in their briefs on appeal but there's no record cites there because there is no such there is no such evidence that he ever signed it he's consistently denied it and they had their chance and i don't see why they get another they would get another chance said defendants right apparently so except they dismissed their their their counter claim on voluntarily dismissed it so you can't you don't get attorney's fees when you voluntarily dismiss you going to sue me on the agreement it's an alleged agreement and the and if i'm going to get held to an alleged agreement that i have claims to but but that's all he said that that's what his cross cross complaint was he what he never before dr before i have a question and for the purpose of this question i want you to assume that there was an agreement if the enrolment agreement states that it is governed by the laws of utah and if there is an agreement what effect does that choice of law provision have on our interpretation of the scope of roman agreement and it says if you when you go to arbitration the party shall pay their own fees so that's where you know that's kind of gets to get you to where where you want to be if you're suing on this contract  the parties pay their own and the indemnity clause ordinarily indemnity has to do with third party claims you hold us harmless if if we get sued by some third party ordinarily not between our attorneys fees and the damages that you get against us that would just that that would make any sense at all that those eight indemnity says all damages lab realty cost loss expenses it can be any broader than that well yeah but from what ok and the answer and after that is from a third party a lawsuit that's a natural understanding of indemnity and there's nothing in here that would suggest that the parties intended in attorney's fees i submit that's an abuse of discretion because it would hurt the cover virtually everything in the lawsuit from beginning to end and whatever there was that may have had something to do with the enrollment agreement let's assume that the cross cross complaint somehow raise the in the enrollment agreement that was a that was a side show in this and this lawsuit and for all the other ports and fraud understand the limited questions that are before the court i believe a brief review of the procedural history and the law of the case doc can be very helpful then i'd like to address the questions that perhaps were raised in the opening argument concerning the roman agreement honour's on november twenty first twenty fourteen and this is very important the district court dismissed the initial cross cross complaint finding that before it was equitably a stop from denying the enforceability of the enrollment agreement significantly mr before dr before appealed that dismissal of the cross across the white because he sought to maintain a breach of contract claim against the prosper defendants under the enrollment agreement for among other things his attorney's fees his initial appeal was therefore premised upon his belief that the wrong agreement existed and wasn't forcible indeed there would be no other reason for him to have appealed the dismissal of his cross cross detailed in this course feb twenty second twenty seventh memoranda decision the ninth circuit reviewed in affirmed the district court's dismissal of the cross cross complaint and implicitly recognized that the four had waived his claims against prospered under the interim agreement following that appeal and consistent with the law of the case was that was established by the court's ruling in the initial deal prosper petitioned the district court to review the subject indemnity clause and to award the attorney's fees which largely arose as a result of the fans of a fraud claim a tort claim rather than a contract claim before took the position which was different from the position that he had taken his cross cross complaint at that time and said no the and in roman agreement doesn't exist it's never been determined to be enforceable very importantly the district court in its  y twenty second twenty seventeen ruling granting attorney's fees reiterated its prior view and expressed that the unit expressed when it dismissed the cross cross complained initially and it stated very emphatically the court has already concluded that before is a stop from the ninety in force ability of the roman agreement because he attempted to enforce his rights under that agreement when he filed this cross cross complaint i would add that he has further stopped  denying the existence and force ability that agreement because he pursued an appeal on that precise issue therefore notwithstanding that the speculative fraud conspiracy theories were never prove it any asserted or on a issues relating to that cross cross complaint and his claim for breach of contract under the interim and woman agreement i cannot be properly reconsidered by this court under the law of the case doctrine in what is really a second and unrelated appeal it goes on to identify the breaches of his obligations his duties under the agreement and then it goes on and claims of injury or otherwise arising from the sales of any products or services pursuant to this in ro agreement ok that's on page four of that rather it's an electronic so you're saying that if he had triggered the arbitration agreement then there would be there wouldn't be any attorney cease but the fact that he this agreement this hypothetical agreement has and indemnification cause that if i see you for breaching the agreement and it's determined that you owe me interplay between the you know i mean it doesn't make any sense really of as if there's an arbitration initiated by dr the for he has the right not to have to pay attorney's fees if on the other hand he sues in civil court to focus on i think the questions from the panel on the fact that degree money that doesn't make any sense is legally ambiguous now you drafted the agreement why if is legally ambiguous should we construe that against your point is valid that it is construed against them to the extent of ambiguity i don't know that we can say that the contract is ambiguous in a sense but we can't can we can't make heads or tails out of it  as seem to overlap or the intention would you agree with that well i think there is some overlap but it's not a complete overlap and i don't think this is i don't think that i don't think that they're mutually exclusive we have a freestanding indemnity clause that also addresses attorney's fees in the event of a breach by doctor before or claims that arise and injuries and losses that arise independent that relate in any way to the sales of the products or services that is still valid in the forcible provision for the plain language of the agreement and it they can be reconciled in the way that the district court reconcile them there was no arbitration there was no mediation he elected not to pursue those claims we could get into the reasons for that but i don't think that's really before this panel the fact the matter is we still have a clear and pretty straightforward plain language that says if there are losses or damages between these parties pursuant to this agreement so it's not as big of a problem as it might initially appear but i don't i don't defend the contract is the greatest written document in the world certainly it's got some interesting you know inconsistences within it but if you look at it that way and you try to give meaning to the entirety of the document document i think that's how you can get there and there are any other sections of the enrollment agreement other than the arbitration clause that we shed some light on the interaction o these two provisions that we can look at us in some of the other california cases i think the the the place that i was able to find assistance as i as i looked through it was if you look at the obligations of doctor to four under the agreement those are specified in fairly good detail following the the core of the indemnity provision so for example he he made certain commitments he understood that he that prosper didn't guarantee his success he was responsible for all of the financial decisions that he made regarding any investment he understood that we that we prosper were making no recommendations whatsoever concerning his real estate investment practices following the rules that course that he also was responsible to seek legal and financial advice or professional advice in connection with investment decisions yet he sued us on those very issues he failed in the record to in fact make his own decisions that the district court's decision in dismissing the cross cross complaint involved implicitly a recognition of the existence in the enforceability  is due for could only wave arbitration rights and claims under the in roman agreement if that enrollment agreement existed and wasn't forcible so that's really my last point a lot of acquittal but the well in terry dismissal of the  be said to surrender contract claim related rights but not port related rights this is predominantly a fraud claim ninety nine percent of all the fees were attributable to the fraud claim and so on that basis  answers to the thirty minute complaint and the fourth minute complaint a request for speed specifically under that agreement so whether the cross complaint was a sure they were not the requests for fees this properly for four and the court had an issue the roman agreement which was a large part of the defense of prosper throughout the killings if i might refer the court just in the final minute that i have the record is very clear in terms of do four's admissions concerning the the signature execution if you he expressed lead me to he and his wife quote signed up for the process the program we now see for the first time i see my time is there yet you may wrap up briefly ok reading this if you see now for the first time in this case an argument that there's an implied in fact contract well that phrase never existed in the lower court proceedings they conveniently have argued back and forth over didn't exist it didn't it five years before this happened he admits in self that that they well with regard to the very last point we follow a request for a judicial notice which has been which has been granted and one of the things one of page p just doesn't recognize the farts too big i would've i would've recognized that if you know he's he's testifying in his deposition that i never thought of the roman agreement  counsel talks about the the indemnity clause and he says it's between the parties well you won't find the word between the parties the words between the parties in the in them in the clause you just won't and i don't understand what what point why would the defendant sue dr drew for on the enrollment agreement because we took as the money and gave him his course and then he didn't follow he didn't follow through what what kind of a lawsuit is that so they dismissed it and the only reason that there was a cross cross complaint in this is that that's what you do to preserve your rights when somebody sues you on a on a on a written contract at which point there's a four year statute of limitations and not a two or three years that you do it with limitations which is the earlier claims got this missed because it wasn't on a written contract he finding that was i thought is i thought his cross cross complain with thrown out because the district court thought that there was some kind of primary rights theory that he couldn't bring another lawsuit after reid already filed his original riginal lawsuit i point out that the defendants if the defendants if they thought they were in agreement immigration cause they could have arbitrat they wanted to but they didn't they chose not to they they filed a motion and then they couldn't prove there was an agreement so that was the end of it i think i've covered all those points to the court of any any more questions or anything that