summary judgment correction which is adverse to your affirmative claim that which point there is a trial on damages on the counter claim which is in a sense a mirror image of your claim in the sense your honor so based upon other procedures that are similar to the case at hand where you have a granting a partial summary judgment and then in the interest of the fish so as to not clog this court up with the myriad of interlock atory appeal case if anyone wants to read the facts some point that there was a determination of liability at the summary judgment stage concerning the fact that there was a claim a copyright infringement copyright infringement had occurred however there are too many issues material fa testifying that they were always in constant contact because of the holistic nature of the relationship in order for dr wang to be able to perform any of that side of the contract had these lengthy lead times they had to advance a lot of money well from two three ten came in and liberate the parties never do that i mean that was a course of conduct and something quite for the course a kind of between the parties originally was at them at the most would be within eight days and then eventually over time contract the history was it would be between eight days and then thirty days and they would play upon the invoices that were provided and make those payments and drive line to have their employees in contact not only to know what order levels were going to be so that they could procure the it does your honor and not only does it get the thirty day period but it is that point of you know that relationship is like an organism constantly feeding on itself and then through each other and at the december point of two thousand and seven that's started capital for dr klein to be able to continue performing under the contract so it's not the payments are routinely late it's just that was the course of performance between the parties which changed before they would be able to call resolved payments would be made and they would longer use american products because they get a lower rate that is you know permissible we might not look favorably upon it but it is permissible and you know required to ensure the perpetual six dr line what they are required to do  and maybe decide that you know you get credit for a certain amount of this inventory but maybe this wasn't reasonable within your month or four month lead time to coming up on the par or they could evaluate that you know simply because you acquired new continue to buy other parts other than the half shaft from dr lot they were prevented from being able to do that because dr lyon essentially tried to extort a longer term contract on a part to cat by holding the parts just say i mean i think this is a question of how clearly judges need to do this because he wrote things down in the rules to order but then he has the clarification in that brief little material fact on what the contract status and who breached first i don't see how we can figure out who breached first without coming to some conclusion on what combination of agreed articles for a course of and reevaluating those same fact issues in a second trial whether it's a waiver because they didn't appeal the judgment on the counter claim whether it's collateral estoppel or whether the judge ultimately has to decide if the law of the case those  resolved and they have not been challenged on appeal i right i don't know about that i mean there's language in the district court's opinion the state very much seems to point to the trial as a limited trial on uncontested material facts that the summary judgment stage and then he reviewed and adopted those factual findings at the rule fifty two speak that's what i don't know if he did that's a precisely you've put your finger on it because if he just plugs in summary judgment facts and then says now part to the damages then we would review the summary judgment facts the way we always shoot you know vote taking them in the light most favorable to the opponent of this but anyway go ahead and if you look at our proposed findings of fact for the trial they include states that things happened they included facts about what when they could all those factual findings and he adopted those right out i believe that there was a fatal mistake that they did not appeal the judgment of the common plane because now that judgment stands it is not the subject of this court's review it is not appropriate to review the factual findings that were made and those factual findings that were made are critical to count two absolutely critical for example the court found on the trial of the papers that in december two thousand and seven article that rejected dr rice proposal and express heard what you wanted to hear and maybe you didn't know we need at least to get a clarification from the district court judge what i heard was what i heard what it was the facts were treated one way in summary judgment in a different way judgment and if it was going to be challenging the judgment on our counterclaim a different standard of review was going up particularly running a standard because factual findings were made  twice so the court used a lot of that material and used it at that stage it was free to make determinations or credibility it was free to review the evidence and weigh the evidence which you couldn't do on summary judgment so think of that if you're the district  you've got these facts and you're limited in using that separate judgment to construe them in the light most favorable to the movement then you've already decided those issues the fact one way and now you're going to trial and you nothing to do with them when did they get notice of determination when did they first you know cut off shipments none of that has anything to do with them but those are factual findings in the judge's order they're also factual suggestions of fact or proposed findings of fact that we put in our trial briefs in order to get the judge to find all the elements of our cause of action the counterclaim liability damages breach that still a to be proven we did not get a p on proving any of those elements we had to prove that at trial and we did that's why they should not be reviewed again that's why it's not before you now because they didn't appeal the decision on the counter claim they for whatever reason chose on liability who breached the contract first then he gets into the reason why would you damage the car do you think you could have come to a different discussions about who breached the contract first on the parcel summary judgment on the main claim and trial on the counter claim i don't think you could based on the record because i believe the record supports the fact that dr landry first that's i think why this is kind of a muddled record and you're struggling with it a little bit maybe because he had already decided giving them the benefit of the doubt a summary judgment you know better and then you had a kind of put that aside and say ok based on what i already know about this space who's in title that the amazon account of like what are the damages there liability of course there's liability i already went through this kind of monster record and decided these issues so i'm going to decide again the drive by breached first and now i'm going to get into the more detail that i didn't have a summary judgment and explain why that the liability issue basically had been resolved by partial summary judgment that's what use our summary judgment for you can have one on my ability and have a partial trial and damages they wouldn't have needed to file a separate appeal on the issue a partial summary judgment markets favor the judge summary judgment is the matter are counterclaims was still out there and in need of proving which is what we did at trial we didn't get a way so they breached first so summary judgment never should have been granted you talked about that a lot with my opposing counsel a while ago that the issue was never pled in count two of their complaint their complaint had two claim there was a breach by arctic cat because they gave us unreasonably short notice of terminations when they terminated and after terminations they failed to buy up the remaining inventory work in process that's it all this business about should have told us about china sooner and should have paid on time timeliness of payment that's all red herring because it wasn't in their complaint and it wasn't an affirmative defense to our counterclaim we raised that issue in our motion not an element of their proof it comes to the market paid late i think he got that wrong and for that reason all this time we're spending talking about late payment and arquette paid late i don't think that and i don't think it matters at all because it wasn't a part of their firm one point four million dollars of inventory the only orders they received in january two thousand and eight were one hundred fifty four thousand dollars that's a loss for a small business and one point two of working capital when you have no certainty going that had to be resolved before we could appeal everything you have the right to appeal a summary judgment ruling at any time you don't have to do it at the time that it was entered and the fact that you know we had to go in we had to resolve count to and the summary judgment rulings and the finding of liability so i don't believe that that's fatal i believe we followed what would be a procedurally proper situation in order to get to the efficient resolution this matter i believe my