the next case called on the docket is five million one hundred and forty thousand one hundred and seventy five white vs beelman river terminals inc mr barron welcome morning morning may it please the court my name is lee barron i'm here with craig jensen at the table with me morning this case is unique in that we have a dispute over a little more than a quarter million dollars worth of attorney's fees two hundred and fifty eight thousand worth of attorney's fees that were adjudicated by the trial judge and i use the term adjudicated loosely here because there was no sworn testimony no crossexamination no offering of exhibits the rules of evidence didn't appear at this adjudication the case settled the jesse white case settled in november in order to get jesse his money the case had been around since seven we're in uh two thousand and thirteen so in order to get mr white his money mr jensen attempted to work out something when he couldn't do that he filed a petition purpose of that hearing in december was to release the funds to jesse white the court and the parties all showed up and it's clear from the record the party showed up thinking that this was going to be a preliminary proceeding the purpose was to get the money to mr white and then there would be discovery and that's in mr schmieder's motions that's in mr jensen or meyerjensen in their motions that's how the court offers you know asks the parties well let's do some opening statements and there was never anything more than opening statements mr jensen made some comments and mr schmieder made some comments and what's remarkable in the record as it goes back and forth and unfortunately it was heated and there were some accusations by mr schmieder that uh mr jensen wasn't being truthful there was counter suggestions that mr schmieder wasn't being truthful well we have a tool for how to deal with issues when people you know say we're not being truthful we have crossexamination we have sworn testimony we have the rules of evidence but what were there specific objections to proceeding in the way that the court did i mean did anybody say wait a minute judge i want to put on evidence for example yeah mr jensen made that very specifically he did he made reference to wanting to put on evidence he did sin we have the record and then all of a sudden at page twenty seven of the transcript in the record page one hundred and seventy one the court asks the one third attorney fees is two hundred and fifty eight thousand mr jensen says of the gross amount yes your honor and then the court turns to mr schmieder and says is that is that is that what it is and mr schmieder says yes and mr jensen then says may i and the court cuts him off hold on a moment we keep doing this you're saying they deserve fifty one thousand six hundred mr schmieder mr schmieder says what i'm saying is i think we at least yes i'm saying that and i can deal with that and then the court goes i'm going to rule right now from the bench that the plaintiff gets fifty one thousand six hundred which happens to be twenty of the fee is that right that was the amount that they suggested but it comes out of it twenty fifteen twenty five fifty i mean what's the basis i'm not saying that's good or bad or anything i'm just saying mathematically yeah fifty one thousand six hundred is twenty of two hundred and fifty eight thousand do you agree with that i'm not going to dispute i'll verify that for you and i'm not going to argue with you all right mr barron let me ask you this i'm just curio i think you're right the judge did i saw that they cut your client off he cut your client off and yet there's some hint in the record about your client having a contract for eleven on this case this hat and that exactly a hint and that would be the record was developed you would be able to see that there was a agreement while he was in an of council arrangement to have a eleven and that's craig jensen of counsel to the schmieder lakin law firm but then in march of two thousand and thirteen that relationship terminates and then mr white is quite appropriately given his option and the record it we do have this here the letter in here that craig sent to mr white and he gave me him three options right following the ardc guidelines perfectly they claimed if they pushed mr white there's no evidence of that at all they said that you can stay with them and the letter is actually quite professional the original contract though in the briefs that were filed it's not clear to me whether mr white signed the contract with the lakin firm or whether it was with mr jensen i think mr jensen seems to say it was with me but i was with the lakin firm and mr lakin's brief says it's the lakin firm he was our employee the first contract so did i get that right yes the the first contract that was actually signed in two thousand and eleven two seventeen two thousand and eleven that's the first time they have a contract and that is with jesse white with the schmieder lakin firm whatever type name they go under at that time that that was that's right and he was their employee he's not seeking fees for that period of time well is he seeking fees for the period of time he was of counsel no he's seeking fees and he's entitled to fees there's only one party here that had a contract with mr white when the case settled that's the meyerjensen law firm it's not even craig jensen it's the meyerjensen law firm so that prior contract doesn't apply because that's the out counsel agreement between craig jensen and the schmieder lakin firm but all that disappears once mr white exercises his right as he is entitled to to pick his attorney and then he signs a contract with a different entity the entity meyerjensen law firm that's the agreement and that's the only contingency agreement that's in effect when the case settles the case settled though just months after the contract was signed with mr jensen right march to november right it was it right it was yes it was settled he he signed the contract in march and in november 8th is when the settlement contract and that is exactly the type of issue and i think if i can anticipate i have and if i'm wrong tell me i'm wrong if i could anticipate where the question's going the question is what happened during that period of march and november right that is my question and that is exactly the appropriate question is thank you i wish we had been able to develop it just kidding so is mr jensen then seeking his quantum meruit for what work he did for those months no he has a contract he is entitled to the contingency a group agreement that he has with the client the party that is entitled under illinois law to quantum meruit would be the schmieder lakin law firm they're entitled to quantum merit he's entitled to the contract that he has with mr white i mean part of your argument here is as i understand it that the trial court got this backwards yes that the trial court should have honored the pending contingent fee contract with meyerjensen and then determined quantum meruit to for the lakin firm maybe he would have ended up with the same numbers but it it should have been done that way is what you're and evidence should have been presented and it's their burden of proof on that issue there all the case law says it's their burden of proof and there's some interesting reference to that baker case the fifth district baker case on attorney's fees and it's just entertaining for me to read that and see who was called as witnesses i mean william beatty is called as a witness in that case bruce cook is called an expert witness in that case i think i referred to it as a who's who of the plains bar and that's how you prove up cases you don't have fifteen minutes of argument and then the court just sort of pulls the plug and says here's what i'm going to do and then for mr schmieder to represent to the court later on the motion to reconsider and represent to this court that evidence was presented that's that's not evidence we have rules of evidence witnesses are called they're sworn and i can't pull the quote out of it directly but cross examination is the greatest truth telling truth finding tool that we have and if they're disagreeing and unfortunately there's clearly some rancor you can't read that transcript without knowing that unfortunately there's some rancor both parties are representing themselves which violates another rule that we're all familiar with and that doesn't help and therefore the way we resolve that is we have a trial we do discovery both parties asked for discovery they asked for discovery craig asked for discovery we'd get ready for trial and we do cross examination we find out where the truth lies we found out we find out how much time they put in they meet their burden of proof to show how much time they put into this case cause that's the quantum meruit none of that's in the record and they also get the benefit of whatever time mr jensen put into it when he was working there right and i i agree with that and even during the period of time that he was of council mmhm they could bill for that now their objection to that is we you know he's going to be disingenuous he's going to minimize his time i can anticipate that argument that argument was made in the record that's fine they've got records and they you know they well typically in a contingency fee contract especially a jones act or an fela it's fine records are not kept i i cause it puts a plaintiff's firm at a disadvantage you agree i i mean being an employment lawyer you're very used to keeping records to the tenth of a minute i'll bet you're sitting there reading my mind you're scaring me it would be a good practice for all plaintiffs firms to do that of course it would but but they don't but the reality is plaintiffs firms who do jones act and fela or whatever don't really do or anticipate a lone star argument right and that's absolutely true and so then they can come in and they can go through their pleadings they s file the motion for summary judgment here it is here we estimate it took this much time we sent this discoveries we estimate it took this much time we filed an amended complaint we estimated that this much time that can be done there has to be just like the baker case they came in and they developed a record and there that's their burden they have to develop that record tell us something about their jurisdictional argument yes okay craig filed the notice of appeal it complies in every aspect with rule three hundred and three well it names white as the appellant though right right and and rule three hundred and three says you have to do that rule three hundred and three says that you that the notice of appeal must list the parties in the same way that they are listed in the trial court and two things one we think jesse white does have an interest and is an appropriate party to the appeal he has s interest under the illinois rules to choose his own attorney and he has an interest to see that the attorney that he selected is paid secondly there in the case law they cite that nussbaum case the nussbaum case goes exactly the opposite way and as long as the notice of appeal complies with rule three hundred and three jurisdiction is vested in this court and this type of hypertechnical argument has been rejected on multiple occasions as we cite in our brief and what's interesting to me is in no place do they claim any remote prejudice they have no doubt what the issues were cause there's what the notes appeal says is what we're appealing from are the two orders the december order and the march order they're on notice what the issues are they're here they filed their brief it's not as if we showed up here with a default well we didn't know because we didn't show up because we didn't know what we were arguing about they knew right from the get go they've known throughout this exactly what the issues are cause craig complied with exactly what three hundred and three requires him to comply with i think this i'm sorry i'm sorry it seems that the case law though that is even cited the touhy case for example lists the parties even though it's an attorney fee fight the actual name of the ca i'm sorry it wasn't the touhy case it was delapaz versus select build construction and that was an attorney fee fight and yet the names of the parties in the lawsuit were the ones named in the litigation i think in that case there was a count i might be wrong on this but i my recollection of reading that case is that there was a complaint for tortious interference with contract that was part of that okay and the other case like as you said was the other case just referred to the parties just as they were at the trial court does the lien statute doesn't the lien statute itself indicate that you have to serve it in the name of the client the attorney lien statute i believe it does i believe that's correct and one on the lien issue and i want to be clear on this it's simply their burden of proof to because of the statutory cause of action the lien a the lien statute they have to prove that they've complied what we have in the record is an affidavit from somebody at the insurance company or appeal that says what went through the record and the only lien that i find is march of or march of two thousand and thirteen after lakin chapman was filed now i'm not sure i wasn't in this case until the appeal what the record will be once it's fully developed but those are the type of evidentiary issues that must be developed and if they can meet that burden power to them then we'll move on to the other issues but that's the reason we have a trial that's the reason we use the rules of evidence to resolve this and i think if they had if schmieder lakin had gone to the judge we wouldn't have to be here if craig files a motion to reconsider he says judge i don't know what happened you were having a bad day whatever you know you you brought the hammer down too soon we need discovery they say we need discovery we need to put on evidence and if schmieder lakin had come forward and said you know what judge i think craig's right we have to put on evidence instead they filed a motion that suggests to the judge you heard evidence they had an opportunity to present all the evidence they wanted to present and they push the judge to continue the error that he made at that point we're here now and they're still telling you that there was evidence and that's just implausible at that point we think the proper result is that they've given up their opportunity they shouldn't be remanded for retrial that the full fee the full contract should be awarded to craig because they've put us on the trip here to mount vernon i love coming to mount vernon but you know maybe not in this type of weather but yes they i have to be here you have to be here i checked the website last night to see whether or not it should we weren't all gonna be here but it so i don't blame how can that be fair that mr jensen received the entirety i and that's why i think that's probably right i agree i think there typically should be a quantum meruit on this they should have to meet their burden of quantum meruit i agree with that and that's why so if the judge makes an error they should wave their quantum meruit if the judge makes an error that they continue the judge makes a mistake and instead of as an officer of the court coming to the judge to say judge you know what i think we really need to do discovery and we need to hear evidence on this instead they go yeah atta boy let's we pulled this one off let's hold on to it and let's do everything we can to hold on to something that we don't deserve that's at least th that's at least that i think that then they gotta live with that punish that a lot of the mistakes judges make are at the behest of some attorney you know if someone was making an argument i'm not gonna you're asking me to go to a place i don't want to go to somebody's making an argument and right ah but alternatively if you're not persuaded by that then alternatively it needs to be remanded and there needs to be a full trial thank you all right thank you mr barron mr schmieder may it please the court i'm rob schmieder from sl chapman and i'd like to respond to a couple of things that mr barron has said first of all there is evidence in the record there mr jensen filed seven exhibits and submitted his distribution statement to the court at the hearing is there any point at which anybody stipulated that into evidence or it was offered and admitted or you know well i did not object to any of the exhibits that he submitted to the court with our exhibits we submitted six exhibits that were attached to the and had sworn testimony of brad lakin an affidavit which authenticated those exhibits and they were provided to the court when we approached the court on that date the court heard arguments we were not on the record the court heard arguments there was some scuttle back and forth there was arguments between brad and craig and then he said after a while we handed him a copy of the our exhibits the affidavit some case law that we were referring to the wegner and delapaz cases and the rhodes opinion we then at that point in time he said i've got too long of a line here you guys go work this out and if you can't work it out come back we went tried to work it out came back so he'd already heard he'd already been provided with exhibits with the affidavit he'd asked questions and we'd argue some of the law we then came back so this was a regular motion he called this wasn't a special setting correct this was a regular motion call it is as a matter of fact i believe it may have been the day or two after christmas and for some reason the courthouse was packed after after the courthouse clears and the judge had the judge had had this he also had the court file and the docket sheet we then he then proceeds and craig says i want a court reporter he says that's fine get a court reporter and then we proceed and and you'll see on there's examples throughout the the argument where craig is actually testifying pages five through seven of the transcript craig is actually talking about the work that he did at meyerjensen after the fact but not under oath he's not been he's not under oath but he's an officer of the court and i was an objectee i mean he's going to say what he's going to say and we're going to we presented our arguments we had i mean just as an example we had this is a print out exhibit f of our court our computer records of this file and the court this was attached to mr lakin's affidavit and the court was reviewing this we were talking about a lot of things and at some point in time the court and that's why this is the second time around that the courts have heard a lot of this and i think that was sort of the what mr barron is talking about the court appears to be impatient when he's heard it all already there's nothing new coming out of anybody's mouth and as much as i like to talk he shut me down as well and because none of us were raising anything new no one ever said judge i have one more piece of evidence or i need to either state this for the record or take the stand or put somebody on the witness stand he had all the evidence and there were certain times and mr barron characterizes me as accusing mr jensen of things all i was doing was pointing out that credibility maps because mr jensen had walked in the court that morning and said we had no need period we get nothing nada i and this was off the record the first time around he made the same argument a little in when we were on the record i then handed the court the lien letters showing that we had submitted valid lien letters during the representation and they were actually signed by mr jensen back in two thousand and eleven and this case didn't start in two thousand and eleven that was another that was another statement that mr jensen kept arguing the case actually st our involvement actually started back in two thousand and nine because the case was originally filed by lance mallon who then worked on a relationship with us charlie assigned the case to craig and we went from there and the court shows that he had reviewed the court file because at one point in time during the hearing i said judge if you look at the docket sheet and he cut me off he goes i did look and my point was that craig said he didn't touch this case until two thousand and eleven he had already entered his appearance back in two thousand and ten so the court was taking into account everything that mr jensen had said whether he was under oath or not i didn't object he's an officer of the court the court had mr lakin's affidavit and all the exhibits attached to it right there on his bench as a matter of fact you'll see in the record there's an actual extra copy in the record of mr lakin's affidavit with all the exhibits that's because that was the court's courtesy copy then he must've handed it to the clerk and he filed it a second time and so he did hear evidence he did hear arguments now as far as my request for discovery i want to be very clear i didn't know going into this i thought the proper thing for the court to do the court had a couple options here the court could say sl chapman you're gonna you're gonna prove quantum meruit or the case settled i'm going to follow the line of cases that file the statement in rows like delapaz and and the web interface that says if the prior firm does much of the work and the case settled shortly thereafter you will award the whole fee to the prodecessor attorneys and then the subsequent attorneys get quantum meruit and i was arguing that's what should apply here and it avoids the whole hassle of us having to show a quantum meruit of us conducting discovery going down that line we can disperse the funds because if we couldn't this case has been dragging on for we'd been involved for forty six months approximately and depending upon how many hours and there was quite a bit of work done the court may not have been able to disperse any funds to the plaintiff if he was going to award us based on quantum meruit because we until we figure out what that lien amount is we're not captive to the contingency but if he follows the wegner delapaz line of cases we're captive to the contingency and then out of that comes whatever meyerjensen proves on a quantum meruit basis he elected to go with that approach yes i encouraged him to go to that approach i think it was appropriate i don't think it's an abuse of discretion the case and the case didn't settle in november case settled in september and it settled in september after after it had been set for mediation in march while we were representing mr white the mediation was canceled mr jensen acted as of counsel to us agreed to continue the trial date until the fall then he sent out a selection letter now complicating this whole matter and i hate this because i don't like argues between attorneys but we had an arbitration with mr jensen because he breached his of counsel agreement with us he went he was paid a set amount of money to finish a bunch of cases including this one the arbitrator found he breached his agreement to with us that arbitration award came down in october we didn't find out about this settlement until a little later and so we had that going on was that introduced before judgment it was it was it wasn't in argue but was the i haven't seen the arbitration award no we we had it with us we i don't i don't know if we didn't we certainly didn't put it as exhibit we did reference in our in our pleadings that the court had access to the other file because they had appealed the arbitrators award accusing the arbitrator of not paying attention during the arbitration not filing the evidence and doing a bunch of other things that was before judge pryor and i in the cause number is referenced in it was cause number 13l1800 and so we specifically pointed out to judge matoesian if you know you need more information about that however i was concerned about we have an arbitration award i'm not asking this judge to do anything with that arbitration award i didn't want him exercising jurisdiction over it that was probably before judge pryor at that time but the fact is there was a finding that he breached his agreement and my whole point in bringing it up to judge matoesian was i was telling him that the firm's expectation under that agreement with mr jensen was that we would receive eighty nine of the fee so after considering that considering the statements of mr jensen and what transcripts of course never show is judge matoesian told us all to be quiet and he sat there and was presumably calculating whatever percentage or i you know looking over his notes and he was doing these calculations and that's when he awarded he made his findings at that point in time he decided to file the wegner and delapaz cases which i think is perfectly within his discretion to do i don't think he could he didn't abuse his discretion and at that point in time the only question before him was how much should meyerjensen receive and it was their burden not mine at that moment the burden shifts to them to prove their case now quite honestly what happens at that point in time i'm the aggrieved party i'm awarded less than what i think i'm entitled to i did not appeal it partly because i can go right back into arbitration i've already got a judgment it's res judicata against craig that he breached the agreement and i can collect the difference from him if i really wanted to do that but i did an appeal so because you can live with that well well i think quoting the record well yeah i think i was in this case in this case yeah well i think i think that was then quite i think i said i guess i can live with that and i was trying to just he clearly didn't want to hear it he wanted to rule and he didn't want to hear any more arguments cause he had heard em over and over again at that point in time so i think that was obvious in the record that was obvious right and at one point in time where craig pounded his fist on the thing on the on the table and the judge the judge chastised him and it was for some reason things were very heated at that point in time but that doesn't take away from the fact to say that there was no evidence there's there's thirteen fourteen exhibits there was a sworn testimony of mr lakin there was the statements on the record by mr jensen there was an aff this affidavit of christopher parr that he was referring to that they don't that the defendant didn't wasn't aware of a lien that's nonsense what that affidavit says is i am christopher parr i am the new attorney that just was hired and the only the only letter i received was this this one for mr lakin after they were fired which paul had said was hey remember we have a lien cause it was a new attorney we didn't want it getting lost in translation that we we had a proper lien so we met our burden we walked into court we provided the lien letters those lien letters were provided during the representation they were actually signed on behalf of the firm by mr jensen they stated our interest we met every single element of asserting a proper lien and then the court decided to follow the rhodes statement it was a couple of short months the only thing in the court file and that this was the other thing was the only thing that was after we withdrew the only other thing that happened that was in the court file before the case settled in september was the filing of an evidence deposition and we pointed that out to the court now the court obviously took into consideration some of the things that mr jensen said about his time and efforts in the case and came up with a decision and so i think i think you know the the question for this court is did the trial court abuse his discretion having heard it twice once off the record and then on the record i don't think the court can reach that conclusion that no reasonable person would take the view adopted by the trial court in this in this situation which is what the standard is now on as far as the the motion to dismiss for lack of standing but obviously the only party the only party appellant is jesse white so jesse white his contract was enforced he paid a third of the fee he wasn't aggrieved in any way those funds were dispersed last year immediately after it after the court issued its ruling he hasn't been aggrieved in any way and there's nothing no no injury to any recognizable les legal interest and so he doesn't have standing to a surplus now the question can you point me to a case that exactly says that that the that says just what you said that the there's no standing of the plaintiff employee yeah the plaintiff in this case i cannot i cannot i mean it just because all of the cases seem to be brought when there's a dispute even rhodes when there's a dispute it seems like the plaintiff or the party's litigation are really just nominal parties and perhaps they do have an interest making sure that their lawyers are paid well i albeit nominal but perhaps mr barron's on to something here yeah no no i don't think so because they i don't think they have the right i mean we have we have the lien statute which dictates that the trial court will adjudicate that lien but that lien arises out of your employment correct or past employment right some employment you have to have an employment in order to have a lien correct right so it seems to me that the clients whether they're plaintiff or defendant are really the nominal parties and i think the lien statute does say that notice has to be given client as well if you look at it it states that it shall be upon the party against whom their clients may have suits claims or causes of action so it's not it's not notice to the client the client obviously receives a copy of the written contract but all it says it and then it says on petition filed by any attorney or their clients any court that's the part i'm looking for right okay on the petition filed by the attorney or their client right so it seems to be in the alternative in other words it's like suing a corporation the corporation has to be named but it's a nominal party i understand what you're saying i couldn't find a case that exactly says what you say well except that the lawyer has to bring in how would that happen would it be brought i mean once the case is dismissed with prejudice because it's been settled how would would you open a new mr case how would you envision that happening if not part of the original case i'm not saying it can't be part of the original case what i'm saying is but you're not a party in the original case no but we've had but once the lien is adjudicated and if meyerjensen is upset with the result meyerjensen as a party affected by that order has an appellate right their name doesn't matter their name doesn't appear in the caption i agree with you i mean most of the what he's talking about is it's not in the caption but had they filed you know meyerjensen hereby appeals from this that they would have been identified as a party so your biggest complaint is that their name is not in the right line on the notice of appeal their name's not anywhere on the notice of appeal other than in the signature block as the attorney as an attorney for the plaintiff and then when you get to the court's document statement it says identify all of the appellants identify everyone that supposedly has an interest in this appeal and the only person they identify is jesse white so what would you have us do then are you saying that we have no jurisdiction what i'm saying you have no jurisdiction over meyerjensen or any of their claims or how this impacts them that's what the nussbaum case talks about in nussbaum the plaintiff actually omitted actually said defendants but then said hyphen appellee and only namely one of the defendants and they said we don't have jurisdiction over the other defendants and so while this court may have jurisdiction over jesse white the next question as to jesse white then is well does he have standing well i see i don't understand why he wouldn't have standing i mean this was his injury claim to begin with he's gone through various attorneys here you know why couldn't he appeal to this court and say i don't like the way the judge divided the attorney's fees i think jensen should've got more why couldn't he do that because the question about standing is whether jesse white would benefit from any relief brand he would he would be more satisfied maybe if the division was different and so why i mean i think that's a that well i mean if that's the standard for standing this court's gonna be troubled by that that new definition of standing because if it's just about satisfaction everybody will always have standing but well this is this was his money that's getting divided up he his claim is paid but then he has obligations with attorneys for a third or whatever that comes out of his money right you know and and why why couldn't he say i i think jensen didn't get enough here or why can't he say that he wasn't satisfied with your representation and you've got too much well first of all he never raised any of those issues below but from a standing point of view why couldn't he ask any well if he had raised specific issues below that he was advancing to this court that may be a different issue but what he this wasn't the moment the court enforced the onethird agreement he paid exactly in attorney's fees what he had agreed to no more no less but his contract for a third was with mr jensen so the courts enforcement of a third was before you all joint him right correct that's not what he anticipated when he signed his contract with mr jensen he anticipated paying mr jensen a third not paying you all anything now he may have not known the law obviously but that was his anticipation so why can't he feel injured or be injured well i don't i don't i mean the court has not interpreted the contract the way he has interpreted well he's had three contracts with mr mallon with us and with meyerjensen i'm not leaving i'm just standing okay and so those three contracts you could say that for each one of them what he was he was agreeing to give a third a third and a third well then he'd be that's a hundred percent if you if you go with that logic no we're just talking about standing which is what i'm doing which is what you're doing thank you mr schmieder thank you and i did not announce this morning but i had back surgery and so every once in a while i stand so i'm not leaving so please don't don't even think about it i'm listening mr barron yes that's fine i've got in my office one of those electronic desks this go get goes up maybe you could figure out how to install it here yeah right or when maybe a chair that moves you up don't take that from his spot i'm sorry go ahead the petition the initial petition about attorney's fees was filed by craig jensen on november i believe it was november 26th and mr schmieder does acknowledge that on december 27th at the regular docket call he hands to the judge and he hands to mr schmieder i mean to mr jensen this entire thing and this is the evidence that he's talking about and he's saying that in the at hearing that this entire document runs in the record from forty one to one hundred and forty four that that somehow judge matoesian absorbed all of this and treated it as evidence but your claim had also submitted exhibits he did on november twenty six he submitted something but those when somebody files an affidavit brad lakin files an affidavit and in some cases you know both the parties agreed because we're not going to fight about this your affidavit's your affidavit that's okay then i think justice as you suggested it gets stipulated into the record and the judge says are you objecting in any way to their affidavit they go no your honor we accept their affidavit then at that point it's a stipulation and that's one of the ways that evidence is created but simply filing if we got to a world where whatever somebody attaches to their pleading is evidence and is admissible evidence the rules of evidence disappear so mr jensen had no objection or he did object he wanted he expected to have a hearing and he expected to but did he object to mr schmieder's exhibits he was handed these he didn't even did he object he asked to hear evidence no he did not ever say i object to what's attached he expected until the moment the judge ruled craig anticipated that we were still in opening statements he expected that he was that there was going to be a subsequent hearing there was going to be discovery and he would have an opportunity and hopefully at that point he would hire the how would he expect that if it's a motion here he's got his exhibits and he's got his exhibits and nobody's saying let's continue the case the purpose of that motion was to get the money to jesse white the motion that purpose of that motion was not to resolve finally in fact he's how do we know that from the record because in craig jensen's motion he asked to put the attorney's fees in escrow that is exactly the relief he was expecting okay but mr schmieder's motion i think went beyond that craig saw that motion as it was handed to him at the bar he didn't have opportunity to read this or go through this or challenge any of this to your question did he object to it he didn't even see it he got sandbagged at the hearing when he gets handed this thing and says here's our here's all of our how can he even make an objection at the hearing and how could the judge base his ruling on this that was handed to him on the morning of the hearing but then there was a break right no there was break while other while the judge was dealing with other things on his docket other motions there was but and i assume everybody not everybody but the two parties spoke they had a brief they tried to resolve the dispute and they were unable to do that but the judge is up there dealing with other matters you heard mr schmieder say to you that the judge paused and said wait let me read this you won't find that in the record in fact much of what mr schmieder's told you is just not in the record he was testifying representing to you certain facts that's why we have the rules of evidence and they're just this thing completely deviated from the rules of evidence and at the very least has to be remanded for the issue to take evidence the way evidence is supposed to be taken so we're you want us to tell judge matoesian that he had evidence before everybody didn't really do it right i well there's a couple of things i don't know that he had evidence before him i think evidence is when affidavits and exhibits are stipulated but when put simply just having pleadings in front of him and then he ruled and we don't know there's no findings of facts there's no conclusions of law i was sitting here when you were talking with ms buckley about the you know that makes your job easier when the trial judge does findings of facts and conclusions of law even if they dictate them or something but there's nothing in this record that tells you what judge matoesian was thinking except that reading inferring he got frustrated with everybody and he said this is over and this is what we're doing okay and this is over thank you mr barron thank you have a good trip back all right we're going to take a brief recess