company your orders there are several issues that we've raised in our appellate brief i'm going to just try and focus on what i think are the most salient issues there this was originally a breach of contract action filed by a chinese company against my client who filed counter claims the court the trial court  entertained a partial motion for summary judgment dismissed all of my client's counter claims and awarded summary judgment to ho on its claim that my client had a contractual obligation to replace an elevator that was lost during transportation to china  transportation agreement executed between the parties in that amended transportation agreement there was a simple i referred to it as a gratuitous statement a statement by my client to the other side saying the insurance company has authorized me to begin rebuilding or looking to replace the elevator that was lost at se my argument is that that is not enough to constitute a contractual obligation the elevator there was testimony at trial that the elevator was shipped to china in about twenty different shipping containers only one of those containers of the twenty went overboard the other nineteen to prepare your brief in accordance with the court's orders yeah i mean if you want to get to the merits but i don't think we ever were able to get there that's not what the district court defied well but the that's correct your honor the district court did not get to the merits of my client's counterclaims because of an error that this attorney made with respect to the filing i had filed i think at that time argue about that how the district court abused its discretion well the district court's order struck our response of pleadings to this summary disposition motion and i looked at the electronic local electronic filing rules the records they permit an attorney to make the same mistake three times in six months and then there's a notice by the f clerk supposed to be notice hey you submitted this in twelve point five supposed to be in fourteen point five you can make the same mistake three times in six months and then you're sent to the chief judge here i had filed i think thirty two or thirty three pleadings prior to the summary just position motion all of them were in eleven or twelve point five i was never never notified that it was in permissible and when i followed the summary judgment brief it was stricken in large part due to the improper font size the local rules of the eastern district of michigan and the federal rules and maybe not admonish but but recommend to a trial court judge not to punish a litigant for work and attorneys mistake and to be sure that the punishment fits the crime so to speak i think here to strike response of pleadings that contain what i think are an absolute defense of the plaintiff's claims i think was an abuse of discretion case so the in the eastern district of michigan there is it you see you have electronic filing your clerk and there's procedural rules that apply to attorneys those roles are assigned by the chief judge at these industry or michigan and if you don't follow those rules you end up seeing the chief judge so you know as an attorney i assume if the local court is going to pass electronic filing rules on what's supposed to happen that it's going to work both ways and and we're going to try and follow them and if not we're going to get notified the way we're warned we're going to get notified and i think you cited the rule that i don't see an argument in consistent with that prevented in your brief abuse of discretion not to give me three chance but you were warned and i know that you did think that but i don't know you can proceed with your argument i ok i was trying to find it in my brief so if you are going to proceed with the are you married you want to make further response to that if you like me to find it in well i'll look for that kalf i don't want to detain you ok let me ask you a question about the argument that i think you've raised here you raising now the argument your argument b which is on page sixty eight of your brief as you said you were going to limit to certain arguments i'm trying to figure out which one you turn that down i don't want my voice to ring thank you can you still hear me yes you are ok here's what your opponent says are those purchased the line seven equipment which included a schuler cut to length the press and a person press and they entered into the dream and under that agreement your client assumed all risk of loss to the line seven the green equipment during transportation to china is that true that is true and was obligated to procure insurance to cover the risk is that it or that is true the elevator was part of the properly procured insurance correct and you received nine hundred seventy five thousand dollars correct your honor but then one who insured on his claim for the lost elevator right not correct my my client has suffered damages of his own in connection with that that see accident the elevator went overboard the ship was detained in denmark i believe my client was charged hundreds of thousands of dollars in detainees charges they had to offload all of those containers open them up inspect them reload them report them on my client he suffered damages far in excess of one hundred seventy five thousand dollars and at trial he testified that the resolution of all of his damages he agreed on one hundred seventy five thousand dollars and i think the we had an obligation to cover the loss of the equipment that was covered by the contract the elevator it did not include the elevator a trial and even prior to trial there was the hot type produced there invoice in purchase order for the line seven equipment and the line fifteen equipment no where you already agree that you assume the risk of loss to the line seven agreement during transportation to china correct that suggesting no i'm saying here is what i'm saying we assumed the risk of loss to the line seven equipment there was a material question of fact about whether or not the elevator which was manufactured by orchid a s r s not part of the horizon or sure was part of the line seven or if it was an additional piece that represent a high tide through and so the argument with my client then no it would not be covered so you were shipping this elevator as part of your contract to ship stuff to china and the contract to ship stuff to china said you would bear the risk of loss but you're saying it wasn't part of that contract sort of judge what i'm saying is the representative of heart who is the same individual that we said was complicit in this extortion scheme asked my client to take this a s r s elevator that was an add on could be added on to any type of machine and put it on the boat and ship it to china too he did not know the how to represent what they were going to do with it and so i had a question about whether or not that elevator that was subject of this idea was part of the line seven when i talk produced the invoice and shipping stuff that you didn't have in place to ship you know my client testified that the represent of ha who is here in the united states said to my client i don't know what we're going to do with this a s r s system but why don't we for now just throw it in we'll worry about doing a contract for it later the other significant part of our of added something on it just agreed to ship something that wasn't covered by your contract to ship stuff informally yes ok the other significant part of that lost the elevator was the party's contract said that force majeure events there would be no liability for there was testimony and reports that this was a very unexpected storm in the north sea an act of god the survey report indicated that the captain of the ship reported to the insurer that he was afraid because of the storm and listing of the ship that the elevator was going to pull the ship over order mates to cut and jettison that elevator so it wasn't intentional cutting by the ship's captain and crew to try and save his ship i understand it but that's not something that mike or some argument about whether force majeure was was adequately play well the argument was that and the because if you didn't plead for some of your or timely compliance with contractual provisions as an affirmative defense i'm not going to permit you to question any witness we'll have to examine their briefs on that issue ok i can address that briefly if you'd like i think your time is up and ok thank you thank you counsel morning or honors daniel ruskin appearing on behalf of the plaintiff's hot tie at a body in there michael you i think that i'll just respond to some of the issues that were raised and then if the panel has any question i'd be useful that the elevator is a large portion of the damages yes your or than half of the damages are just this elevator items well it's an item that was specifically awarded by the jury so in terms of the judgment amount it's a significant portion of the that it was just a portion of the claim the jury didn't allow quite a bit of time as there are so what they did allow it's a pretty substantial portion correct your honor and it was specific and in the amount that the jury found was nine hundred seventy five thousand dollars specific to the loss of all of it or because the trial judge had addressed the mere it's of this claim in his summary judgment order and as your honor pointed out he found specifically that the defendant had assumed risk of loss to the line seven equipment at the elevator was part of the line seven equipment that he had procured insurance and that he had been as that i guess the bottom line of his argument is that it wasn't part of the line seven equipment is that you're interpreting his argument today that's what he's arguing your honor and that's responded that well he also argue that to the jury it was a significant portion of this testimony of the parties before the jury what was or what wasn't part of the equipment over by the jury verdict i believe so your honor the jury determined that the elevator that he was paid one hundred seventy five thousand for the insurance company for the elevator it was never even under his argument it wasn't his equip it whether it was part of the line seven or not it was lost at sea he was paid one hundred seventy five thousand and the nine hundred seventy five thousand dollar amount although he's argued well it was to compensate me for other damages which was argued before the jury the quote that he made to replace the elevator to the insurance company which was a detailed construction type quote was in the amount of nine hundred seventy five thousand dollars and the insurance company paid him and the paperwork specifically said in the back up was to replace the elevator so the r and the jury didn't buy the argument that the payment from the insurance company was for something else it was for the replacement of the elevator  that it was covered by the contract and the contract the amended contract very specifically addresses the replacement of the elevator and says you're building the elevator so there was an additional contractual obligation that response to his argument about the elevator what about the other argument he was making this morning about judges sanction the judge's order not yes your honor what he was discussing the judge but i think it's the significant point that i'd like to know it came as a result of the untimely death that's correct your honor it really wasn't that he didn't the issue wasn't whether or not he complied with the local rules in the first instance it was that he failed to comply with a court order the corps allowed him to file a tardy response to the summary judgment motion and in that order very specifically said and you shall follow our local rules in my practice guidelines or i will not consider your brief giving him ample notice to mentioned that he didn't follow the type face rules which also changes the pagination of course the more significant shortcoming was that he didn't file a counter statement of disputed material facts in which he addressed each to each fact allege my motion with specific references to the record he provided really he came in with a counter motion and some other issues that were really pertinent and he never really never in his stricken papers even if they had been considered didn't refute the facts that were pertinent to each of the judge's rulings so as we pointed out in our brief your honor it was well within the course discretion to strike the brief but even if they're assuming argu though that had been improper summary judgment order still was proper because there was an adequate base it was harmless error there was an adequate basis for even if the court had considered that everything that was in the ok well that's that deals with the two issues that your opponent focused on he raised a number of other issues that he was unable to get to any of those that you feel a need to respond to in particular i'm not asking you to do so i'm just well the only issue that i  believe are brief cover the issues adequately the only issue that i would raise in addition which may be since he didn't raise it but in his reply brief he talked about the excluded evidence of the alleged  extortion scheme and he said well i wasn't allowed to enter this evidence even for other purposes besides the stricken claim which had not been identified as an affirmative defense and for the other reasons that the court disallowed it and i studied the transcript last night because i was looking at that and i noticed that this argument did start to come before the court he had this motion for clarification of the court's ruling in excluding this evidence and he said well i might be introducing the evidence for other purposes than the excluded claim such as for example to impeach the witness or for some other purpose and he's mentioned that in his reply brief when we argued before the court in this was on in the transcript on november thirteenth so it is it's on the docket one ninety seven page four of the transcript on november thirteenth i started in open court to address that argument i started to discuss the eviden argument that well what you're really trying to do is i've been introduced character evidence which wouldn't be improper it wouldn't be proper impeachment anyways and i was going to talk about it started talk about rule six so if the judge cut me off and said you don't need to argue that right now we'll have to wait and see when he tries to introduce evidence make your objection then and i'll rule on the admissibility of this thereafter he never attempted to introduce any of the evidence it was never offered he never asked a question about it so it never came up again so this question of exclusion of the evidence that i was the argument that i was excluded and prejudice by not being allowed to do this is really incorrect because he was allowed possibly for some other purpose he just never to be here thank you less than five minutes you know i'd like to clarify that our position on the elevator that that the liability for the loss of the  decided by the trial court judge in summary judgment my argument is that was improper that there was an up facts and questions in circumstances where a factual issue it should've went to the jury the jury should have been able to hear or get to decide how much damage resulted from right i mean i was sort of behind the eight ball on that we judge already i mean didn't did a good job tell a jury the judge already started that they breached this and they breached you know it was a difficult trial of course but i just wanted you to know i'm not saying nothing to do with the elevator i'm saying that's the liability portion should have been should have gone to the jury and even if it was part of the line seven they could say that there was no liability whatsoever or they could say there's no proof that you suffered any loss because there's no invoice where you spent money to buy that orchid elevator system to add it to the lines it seems like something that would be in the jury's province right that they would decide one of the other and the other thing that i wanted to be able to put in from the jury was on the elevator issue was we stipulated to the interview of an exhibit of this transportation agreement the transportation agreement had three different provisions that would have exculpated my client third to timely file a claim for some of your there was a cap on damages of what they the contract said the damages that my client would be responsible for are what they paid for the equipment and since they didn't have an invoice for that elevator that became an issue for me that the problem is is the trial court let opposing counsel cross examine witnesses about every single provision in the contract when i tried to cross examine a witness on what about this force majeure what about the cap on damages what about you know the act of god there was an objection that i was required to plead those contractual provisions as a separate affirmative defense and they are negating defenses is what the case law indicates and the reason that i didn't go further on these excluded provisions or go into these extortion is it's in the trial court record i was warned that i would be fined a substantial sum of money immediately i was the only trial counsel that if i got remotely close to any of those contractual provisions or ventured on to some sort of character assassination because extortion content five figure penalty and trial over because i was the only attorney of record it was careful not to do that to my class each or myself  on the kickbacks it's a violation of public policy that makes the contract void at the new shield in the summary judgment the trial court judge said my claims for return of that hundred thirty thousand dollars got no evidence to support it but i can also use that same conduct to defend hard ties claims for breach of contract because if it's a contract that grounded on illegality or a violation of public policy it's a complete defense the contracts are void aves you're fine the judge said you can't proceed to litigate any claims on your behalf based on that so i don't want to hear anything about you want the one thirty back but i can also use it to defend their claim and he permitted neither know the questions i'm happy to answer just as an aside counsel why is it you chose to use roman numerals for almost half your brief before switching over to arabic that is you include your summary of arguments standard of review statement of facts all in roman before you start on arabic which i seen before for your own i've done that most of my career i thought to try and do