one to this argument i wish we could be together in person and hope that someday soon again we we've been hear cases that way i have on a personal note i grew up in macon georgia and  i thought that when you looked up the definition of a federal judge in the dictionary you saw a picture of when you're anderson so it's my privilege to be would judge anderson this mornin and judge innocent and i together are very grateful to mark we we this panel is going to hear one case this morning i believe we have promised the lawyers that the st two minutes of their argument will be uninterrupted so we'll try to keep track of that and otherwise move get us is going to try to help us keep up with the time by announcing when you have two minutes remaining for your argument and she will announce as well when your time has expired does it does that cover everything this get us yes judge right all right then i'll call the case of the center for individual rights versus this case she who represents herself has a fool for a client and although the law regarding pro se litigants thankfully does not characterize them as fools it does acknowledge in this court has said specifically are not held to the same standard as lawyers there are to be given more latitude and leeway along the same lines is the principle of law that says that any ambiguit contract are to be construed against the drafter of a contract and this is particularly so when the drafter is an attorney the final judgment in this breach of contract clay case in favor r should be overturned the basis for that is that summary judgment was improperly granted and also there are public policy grounds that dictate that this particular agreement retainer a pro bono agreement should be voided on public policy grounds one of which prohibits the charging  a fee for pro bono representation and also the manner of solicitation of legal services i would like to start my argument by addressing summary judgment the district courts granting of summary judgment against this pro se litigant whom i'm representing now without any prior notice or meaningful reconsideration was highly prejudicial in fact her opponent c r did not seek summary judgment on the breach of contract claim instead taking the position that what it calls the assignment clause or the settlement clause of the contract withdraw its motion for approximately one hundred and fourteen thousand dollars in attorney's fees based on the terms of a favorable resolution that mr chappell dina reached in her state court litigation interestingly docket entry twenty five is cited in the order granting summary judgment specifically page ten to support that the  at the docket however docket entry twenty five dollars does not seem to reflect that so i would ask this court to and because it is a summary judgment the standard for review is de no i would respectfully request that this court choose to review that docket entry and that supports the position that the district court's ruling was eroni as in that it wasn't based on an accurate recitation of what's in the record now in terms of the rules of civil procedure i will acknowledge behalf of my client that the district court may grant summary judgment on grounds that are not raised by a party but only after giving notice and a reasonable time to respond and that's rule fifty six dollars here instead of notifying miss chappell deano that the court was considering granting summary judgment on the grounds that she conceded that the ten dollars to ten thousand dollars payment was sensible or reasonable fee under the contract the district court simply acted and granted summary judgment diena been afforded a reasonable opportunity to present evidence to the contrary per rule fifty six dollars she would have been able to present evidence that showed that ongoing negotiations between a multitude of parties including miss chappell dina's attorneys mr katz his attorneys who was involved in other state court litigation with c r itself and mr rosman was ongoing so there was you know a multitude of parties and negotiations that were going on and there is evidence in the record to district court judge's ruling which appears to again have been premised on this idea that mr temple diena somehow had represented that ten thousand dollars was a sensible or reasonable amount to c i r to be paid again as i point out that is not reflected in the record as so reflected in the in the order granting summary judgment but also in terms of the prejudice t would have had an opportunity had she been afforded that to put that statement alleged a man in context in terms of any kind and this would have contradicted the court's finding that the statement was somehow a concession that this pro bono agreement contemplated the payment of attorney's fees also the agreement called for c r to fund the case through outside funding  the rules of professional conduct rules regulating the bar for florida specifically defined a pro bono agreement as one that does not contemplate a fee  and so that was the basis for that position your honor thank you thank you five points for the court i'd like to point out the absence of prejudice from any procedural error i'd like to point out that there has been waiver various legality defenses and i'd like to discuss this issues of material fact that mr had raised in his argument judge martin this is judge tallman our phone lines went down after three minutes and at the point where you were explaining that to somebody you know would have been able to present evidence in opposition to summary judgment but i don't know what evidence you that they're after outline thank you thank you judge tom and may it please the court if i may proceed i will try to pick up from that exact point so in addressing the arguments that to the district significant in this case and and warrants the summary judgment being overturned so instead i pointed out initially that in the judge's district court judges  thousand dollars and attorney's fees based on the terms of a favorable resolution that ms chappell diena had reached in her state court litigation and there's a reference to docket entry twenty five  court look at that issue and then also i was pointing out that by mr chappell diena instead of notifying her that and she  been afforded a reasonable opportunity to present evidence to the contrary she would have been able to present evidence showing the ongoing negotiations between a multitude of parties including  essential saying i've spoken to my boss if c r can get seventy five thousand dollars that would satisfy so he's authorizing the negotiations to go on and also  had she been afforded the opportunity to present evidence in opposition to summary judgment that would have given her the opportunity to place the alleged date and regarding ten thousand dollars as a sensible reasonable amount in proper context this would have contradicted the district court's finding that the statement was somehow a concession that the agreement contemplated the payment of the  in terms of the context of the statement and the intent behind any statements that she would have made regarding you know the settlement and the authorization to settle so  in you know from our perspective improperly granted and prejudicial and also i failed to note only i just briefly stated the motion for reconsideration that was filed which i believe and the order that was entered on the motion for reconsideration did not go to the substance of any of the issues and summary judgment and simply just made the finding that  may please the court my name is michael rosman i represent the appellate center for individual rights this case has been extensively briefed i'd like to highlight three or four points and then respond to a few of mr her dogs argument st i'd like to discuss whether there's been prejudiced nd whether there's waiver of any of these various illegality defenses and rd whether there are any issues of  fact that were raised in the lower court so as to prejudice under rule sixty one dollars it is appellant burden to show that any procedural error was prejudicial mr dodd says in his argument that it was highly prejudicial for the court to grant summary judgment without notice but if you look at the most recent brief that he filed their reply brief and do a word search for the word prejudice it doesn't appear and that's because he makes no argument none whatsoever in his brief as to how any procedure will ever was prejudicial and i should be under the procedures of this quality as the argument that it was prejudicial as to illegality rule eight c of the federal rules of civil procedure requires that all affirmative defenses be played in the answer c doesn't appear anywhere in it and there is no mention of the fact in the shape of the simply did not assert it in her answer now as to whether or not there were issues of disputed dollars the argument that we did not say specifically is that the ten thought that there is an issue of fact it's just not material because you don't have to tell the other party that there breaching a contract a breach is a breach if they breach the contract that's a breach there's no obligation to give them notice that we did not advise miss have all the you know  not to take the settlement have all dina was being represented by lawyers in state court the whole negotiation was a negotiation of a settlement in another lawsuit we had no obligation to advise or about whether to enter into that agreement or not it wasn't our case the specifics of the telephone calls are specific words your honor have with respect to the amount of attorneys for your case in the th circuit you'll have to give me the language because i don't think it says that at all i'm quoting that obligation kicks in that's not what happened here if she refuses a reasonable settlement she wasn't refusing a settlement she was on the advice of a different  y going into a settlement that that provision that you're just describing kicks in if there's a settlement offer on the table and she says no i don't want to settle this has nothing to do with our set  seventeen e mails after the fact your honor i don't have it in front of me but under the agreement take a look at the agreement that you have all the state court attorneys entered into under the agreement this is what we were obligated to do and we were instructed that we were going to follow that agreement so we provided the information that that agreement required us to  court on her motion to reconsider and again in mr dodge most recent brief she does not dispute this at all you can look at part three of her argument the st sentence part three points out that we do say that she waived this argument and then says nothing at all thereafter about it never any explanation of why she did not waive it and thirty five where case was dismissed because a pro se litigant failed to appear for a deposition and then failed to pay the sanctions that was imposed as a consequence opportunity to put in any evidence she wanted in her motion to reconsider that's where she had an opportunity to put any evidence she wanted any argument i'd be happy to answer any of the court's questions either about the cross appeal or the d p p a argument but other than that i have no additional things to say of your honor st of all there was two sets of briefs here and we were told by the clerk's office that we didn't have to repeat the same arguments that we made in our st set of briefs in the nd set of briefs so i and i'm not sure what rule you're referring to when you said that it's a violation of your rules i know i didn't refer to any brief in the lower court i referred to another brief that we had filed in this court and so far and if you honor we made a motion and the court claiming that opposition to our motion for summary judgment on the driver protection driver's privacy protection act so that's the background of it if you review it discussed at great length in the st principle brief that we've submitted in this case i'm not sure what other pieces of it that's sort of the  that was adequately raised previously in fact in looking at the motion for reconsideration that was filed by miss chappell dnipro saying at the time she did raise the question of the one hundred and fourteen thousand dollars and the fact that c r had authorized the negotiations regarding that amount and that the outside counsel was being used in that and also the question of the reasonableness of the feast of the ten thousand dollars and as as we have already been pointed out mr ross him in terms of other issues relating to summary judgment i don't know if the court as any other questions if not i would move on to the public policy argument in terms of the public there is i believe it does yes your honor however it would be our position that this organization is not operating as a legal aid organization salary basis and do pro bono cases throughout the state this solicitation i mean there are cases that talk about contracts being voided as a result   fact that c r reached out to her st but but if she approached balik asking for representation and the professor for whatever reason said well i can't do it but let me  somebody and what's improper about that i'm having a hard time understanding why that's an illegal solicitation maybe i don't understand ford or a professional well there's nothing improper about that your hon making a cold call on the client because she had an interest in case he was interested i know your honor it is not and i would concede that that was not a cold call sort of