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TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I have signed up for monthly plan option at JustAnswer since

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I have signed up for monthly plan option at JustAnswer since I realize I will need further assistance preparing my Motion for Summary Judgment. Since I started with you I thought I would direct my next question to you but if you are unable to answer can you throw it out to the rest of the legal experts? (I don't really know how this all works yet... sorry)...

So based on our last conversation I am going to submit a "Reply to Amended Complaint" (is that what it is called?)

Additionally, I want to prepare a Motion for SJ on the grounds of a Prior Material Breach of the contract in question.

Question: Am I allowed to submit evidence NOT brought out in Discovery on my Motion for SJ? and Do I refer to and attach all supporting documentation as "Exhibits" to the Motion for SJ itself?

SECOND Question: The contract in question has the following language, "If the provisions of this Agreement are breached by either party, the Agreement may be terminated by the other party on thirty (30) days written notice." THEY BREACHED FIRST... BUT... we did NOT terminate the contract on 30 days written notice but rather we breached a contract we felt was no longer valid due to their prior material breach... so do I even have a shot at winning a Motion for Summary Judgment here or does this contractual language preclude my Motion? And if you have any additional comments or advice on this I would appreciate it.

Thank You so much!

Hi,

Thanks for subscribing. We look forward to serving you.

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.

-ZDN

TexLaw and 8 other Legal Specialists are ready to help you
Customer: replied 4 years ago.

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.

-ZDN

TexLaw and 8 other Legal Specialists are ready to help you