How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask S. Huband, Esq. Your Own Question

S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 1200
Experience:  Experienced and knowledgeable criminal defense attorney.
70026054
Type Your Criminal Law Question Here...
S. Huband, Esq. is online now
A new question is answered every 9 seconds

Hello Shuband, Ive got yet another question for you. Hope

Customer Question

Hello Shuband,
I’ve got yet another question for you. Hope you don’t mind so many questions from me. This one concerns our lawsuit in Wisconsin. Another ex-wife of my husband’s is suing him for Breach of Contract for failing to pay a promissory note that he signed a couple of years ago. No benefit was given in return for his promise to pay her this money, so there was no consideration on the part of my husband. Therefore this lawsuit lacks merit to begin with. The problem though is that we reside in Wisconsin on a seasonal basis only, as my husband has a business up there, but we are residents of Florida. Even though my husband is engaged in substantial activities within the state of Wisconsin, these activities are isolated from the current claim of Breach of Contract. We therefore filed a Demand to Vacate for Lack of Personal Jurisdiction. I read somewhere that personal jurisdiction is not a right of the court and that it’s a right that is solely exercisable at the discretion of the defendant, therefore the court cannot waive it. The opposing party has already scheduled a deposition on November 13th in Wisconsin. We are now in Florida. As he has refused to put himself under the jurisdiction of the Wisconsin Courts, must he attend the deposition, if we don’t receive a decision from the judge before November 13th in response to his Demand to Vacate? Thanks again for your help.
Donna
Submitted: 1 year ago.
Category: Criminal Law
Expert:  S. Huband, Esq. replied 1 year ago.
Hello again! I'm sorry for the delay in responding to you. I've been in court most of yesterday, and ditto for today! So much for quitting the day job...

I will respond to you ASAP, hopefully by this afternoon/evening. Thanks for your patience.

Shuband
Expert:  S. Huband, Esq. replied 1 year ago.
Hello again. Thank you for your patience.

Q) Hope you don’t mind so many questions from me.

Not at all! It's why I'm here!

Q) No benefit was given in return for his promise to pay her this money, so there was no consideration on the part of my husband.

The benefit would legally be called "consideration." While it depends on the exact language of the note, consideration is generally not required for a promissory note. Consideration is implied by the nature of the instrument itself.

Q) The problem though is that we reside in Wisconsin on a seasonal basis only, as my husband has a business up there, but we are residents of Florida. Even though my husband is engaged in substantial activities within the state of Wisconsin, these activities are isolated from the current claim of Breach of Contract.

The legal issue you're raising is personal jurisdiction. The question is whether a court in Wisconsin has the authority to hear a case wherein your husband is a defendant. Constitutionally speaking, the only thing required for personal jurisdiction is "certain minimum contacts" with the state.

In Wisconsin, Civil Procedure Rule 801.05(1)(d) really answers the question. Since your husband runs a seasonal business there, a Wisconsin court has personal jurisdiction over him. Here's rule 801.08; it discusses raising a lack of personal jurisdiction.

Has he been served and filed an answer? If he did not raise lack of personal jurisdiction in his answer, this defense may have been waived (that's Rule 802.02(3)) or he might have essentially consented or acquiesced to jurisdiction in Wisconsin.

It doesn't really matter that the promissory note is not related in any way to the activity of the business located in Wisconsin.

Q) We therefore filed a Demand to Vacate for Lack of Personal Jurisdiction.

It would be a motion to dismiss, not to vacate. You vacate a judgment, or a finding made by a court. Vacating something keeps other legal stuff in place or the case "in motion". For example, I had a client who was found guilty of a crime. Some other issues came to light, and I filed a motion to vacate the finding of guilt. That didn't get rid of the entire case; it just took us back a step or two so the court could take into consideration the other issues I discovered.

If you are saying the court has no personal jurisdiction over your husband, then the entire lawsuit is void. That's a motion to dismiss: void = throw out everything, baby, bathwater, etc.

Q) The opposing party has already scheduled a deposition on November 13th in Wisconsin. We are now in Florida. As he has refused to put himself under the jurisdiction of the Wisconsin Courts, must he attend the deposition, if we don’t receive a decision from the judge before November 13th in response to his Demand to Vacate?

I think this issue is now moot. In my view, the Wisconsin court has personal jurisdiction. If the lack of P.J. was not raised in his answer, any assertion or defense of lack of P.J. is probably waived at this point.

If you still want to pursue the P.J. issue, you need to file a motion to dismiss the suit for lack of personal jurisdiction along with a request to stay further proceedings pending the court ruling on the motion to dismiss. If the court doesn't decide on the motion to dismiss or stay the proceedings, hubby should probably go to the deposition unless the other side is willing to postpone.

Nonetheless, I don't blame him. I wouldn't want to travel from the Sunshine State to Wisconsin in November, either! Pack your mittens!

Take care,
Shuband
Customer: replied 1 year ago.
Thank you again for your help, Shuband. This lawsuit is actually a Breach of Contract suit. For Breach of Contract, don't they have to prove all 4 elements, which would be: formation, performance, breach and damages? To prove formation, you must have consideration or its not a valid contract, isn't that correct? Thanks again, Donna
Customer: replied 1 year ago.
Also, Shuband, we did address lack of personal jurisdiction in our Answer . We used it as an Affirmative Response. Thanks.
Expert:  S. Huband, Esq. replied 1 year ago.
Q) Also, Shuband, we did address lack of personal jurisdiction in our Answer . We used it as an Affirmative Response.

Very good! Then the defense is not waived. You need a ruling on the defense before your husband's deposition, otherwise he needs to go. I think, however, that Wisconsin has personal jurisdiction over him, according to the rules I cited above.

Shuband
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 1200
Experience: Experienced and knowledgeable criminal defense attorney.
S. Huband, Esq. and 6 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.
Shuband, Did you read the part of my reply about Breach of Contract?What do you think about that? Thanks.
Expert:  S. Huband, Esq. replied 1 year ago.
Hello again!

I did read the post about breach of contract, and I replied, although I do not see my own reply! Here's a rehash:

The standard language in any promissory note is usually enough to pass the formation/consideration test. The best way for me to tell is to review the actual note.

Can you scan and post the actual note here? Or type it in, if it's not too long? I probably just need the preamble part, not all the particular terms and conditions.

Thanks!
Shaun
Customer: replied 1 year ago.
Hello again, Shuband. I can't scan that to you now, as we're out of town and won't be back home until Tuesday, but when we return, I'll do that. By the way, we're attending a very interesting seminar on representing yourself in court. We're really enjoying it and learning a lot. Thank you again and I'll get back with you on Tuesday.
Donna
Expert:  S. Huband, Esq. replied 1 year ago.
Q) By the way, we're attending a very interesting seminar on representing yourself in court.

Awesome! Have fun and I'll talk to you Tuesday!

Shuband

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
< Last | Next >
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
 
 
 

Meet The Experts:

 
 
 
  • Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/RE/retiredlawyer/2012-6-6_19326_franL.64x64.jpg Fran L.'s Avatar

    Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    2079
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/NA/nathanmoorelaw/2011-5-31_21375_headshotbig.64x64.jpg Nate's Avatar

    Nate

    Lawyer

    Satisfied Customers:

    1625
    Over 10 years of criminal defense practice.
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Lawyer

    Satisfied Customers:

    1434
    30 years legal experience
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Lawyer

    Satisfied Customers:

    1418
    16 yrs. of experience including criminal law.
  • http://ww2.justanswer.com/uploads/marshadjd/2009-6-1_194320_marshajd.jpg Marsha411JD's Avatar

    Marsha411JD

    Lawyer

    Satisfied Customers:

    1380
    Licensed attorney with 27 yrs. exp. in criminal law
  • http://ww2.justanswer.com/uploads/RO/RobertJDFL/2012-6-6_175352_7538220120606.64x64.jpg RobertJDFL's Avatar

    RobertJDFL

    Lawyer

    Satisfied Customers:

    1300
    Experienced in multiple areas of the law.