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I'll addres your questions in order.
1. The document will be titled Amended Answer to Plaintiff's Amended Complaint.
2. Evidence not brought out in Discovery - This depends, if the other side asked for the evidence in discovery requests to which you did not object and to which you withheld the evidence, then you will face an objection to that evidence. If the other side simply did not request the documents which you want to use as evidence, then you can use those documents without an objection that they have not been produced previously.
3. Referring to the evidence - You need to attach the evidence as exhibits to the MSJ. You need a section in the MSJ called "Defendant's Summary Judgment Evidence" where you state "Defendant offers the following exhibits as evidence in support of its motion for summary judgment" then you list each exhibit and a title of it (i.e., "Exhibit A - Email from Plaintiff on July 10, 2010").
4. Your question is the point of the MSJ. A material breach by one party will excuse the performance of the other party and allow unilateral termination. You apparently are moving for SJ on the grounds that your performance was excused by the prior material breach by the plaintiff. In that case, the question will become whether you can present evidence that, when viewed in the light most favorable to the plaintiff, there is no dispute that the plaintiff's breach was material.
You will also need to argue that the language regarding notice prior to termination is excused when there is a prior material breach.
2. The evidence I am presenting in my MSJ was submitted at some point... (this civil suit has dragged on for FOUR years now...) ...as part of one of OUR counterclaims for unpaid commissions which the judge dismissed WITH prejudice... but the prior material breach was NEVER mentioned (which I have been saying all along it should have been argued and thus am preparing the MSJ to that end)... so I should be able to submit my evidence without objection?
5. Can you expand on HOW I need to argue the language regarding notice prior to termimation is excused when there is a prior material breach?
NEW: I want to research our circuit court judges historical decisions on MSJs... (Circuit Court of the twelfth judicial circuit; will county IL)... WHERE CAN I FIND HIS PAST RULINGS ON MSJs?
Presentation of the document in a prior proceeding does not excuse a failure to produce the document in the current proceeding should it be subject to an unobjected to discovery request from the other side. So, again, it doesn't matter if you've produced it in another proceeding if they asked for it in this proceeding and you did not give it to them. However, if they haven't asked for it, then you should be able to present it without an objection about it not having been produced. That does not mean that there won't be some other objection about it. You will have to address these objections when they are made. One other suggest is to make sure you file an exhibit that is your affidavit which states why the documents are authentic (i.e., they are business records).
I don't think you should argue the point regarding the notice of termination in your initial motion. That would be making the other side's argument for them. They have to bring up that point, and once they do, you would respond to their argument. So perhaps we should not address this issue until it comes up in their response.
In regard to researching the court's prior rulings, you can go to the court clerk and ask to look through the judge's past summary judgment rulings. However, most rulings from a circuit court are not written. It is only when it gets to the appellate level that the opinions on summary judgment are written down generally. Another way to get access to this information is to go to the local county law library and search in the case law regarding the judge's name.
A separate way would be to start another question thread here and provide the judge's name.
Since you have a subscription, for each new question, start a new post. This will allow us to have more than one attorney answering your question. Also, we only get paid on each credit, so if you keep asking questions in this one thread, I get paid for only answering one. I tell you this because you are likely going to have a lot of questions while writing your MSJ and it would only be fair to us that we receive separate credit for the different questions.
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