the the the statement by the judge that said you didn't give me everything that's in the record and you've given me this additional material that you're now presenting to me the decision might have been different i know it's a harsh decision but it's a decision i'm going to stick with that quotation being that i believe there were several places out the transcript where she said it was i'm just a quick wish i had for because here's the here's my concern seems to me that if you're going on a summary judgment motion the entire record  available for consideration and it cannot be that a client at that a party has them is it that that's the judgment is free and clear on behalf of a party based on a different perspective of the theory of the complaint that is put forth by the plate the judge has one theory and the plaintiff has another each response thought was necessary it wasn't an absence of of support in the record it was simply too divergent views of what the theory was in the compl and of course reading your petition and really reading the initial brief is looking one and at the point this response to the post office summary judgment when they saw the summary judgment motion was on an issue of notice in reading the transcript i never read the plaintiff's lawyer saying now if you notice there's not an issue but we have actual destructive notice and  separate they responded both other notice they said no just did not matter because there was never an inspection that was actually done within the pool they said noticed not matter because the person who actually inspected it for  the it's just clear that the court did not understand that she wouldn't look at the complaint which away here's the more fundamental problem that i was trying to explain is that seems to me the summary judgment motion should not be driven by the party seeking summary judgment as a defendant that it shouldn't be triggered by his response putting shifting the burden onto you that has nothing to do with your complaint which is what i thought your position was before the circuit court if you're saying we don't care we're not addressing the notice in our complaint because notice was an issue they can't drive the they can't force i don't think they should at least i don't i'm unaware of a case that take into consideration the complaint before the court they can we characterize that they can't change the nature of it in their motion and then say you lose because you didn't address i absolutely agree with that but  is that what they were doing that is what were they were doing because there's four elements of negligence that are that everybody knows we learn in school what they are every is what's the difference between negligence upon this liability was very well explains  damage or you create the dangerous conditions if some this mentality is in your control it's almost transitory if for example you leave something in an in a position where your workers are going to be visibility found that without getting that which instruction the plaintiff was extremely prejudiced that's exactly what's happening here to argue otherwise it's actually it's completely at odds with what although it is on summary judgment car and if you have if you find out that the car isn't properly it has that the fact that the rental company doesn't have a right to say well we did notice of it  when does noticed become an issue in a in a complaint such as that one which was filed when does that become an issue i interpret their complaint as one of promises liability and what they should have done before the trial court when they respond in their as a trial judge to determine whether trying to bring this should be a first and we kept the entire record to review we don't the motions that were filed in the course of the summary judgment proceedings that we could the entire record and if we come to the conclusion what what why should we simply say  the trial judge was too narrow in her focus as to the issue that she entered judgment that we're going to say based on our review of the rock the complain alleges general negligence and not premises liability well if they can we can't can't we under our under are going over review you can look at anything which is probably in the record to make a decision and i would argue t kid the record that only that record that was before the judge and in the course of summary judgment motion attached i don't think that's the rule off and if we have to know review why don't following something and requiring to quick to go rummage through a file in order to just decide if one party has a question of fact it's would be an advocate for one party and it wouldn't be proper proper for the plaintiff or the party that needs that evidence presented for the job case so that the so you say a judge should only look back which is presented to them on the motion even though they have the filing from home it's no should look for justice but there's a long standing a precedent how we address these cases and how the court addresses evidence of presented before them and if the information presented for the court what for the court to consider and they can consider that but they shouldn't be charged for searching for stuff or searching for it i would say don't have to do i'm not saying they have to do a good lawyer should should point it out but not everybody's a good lawyer specially today and  and what i think my job is my job is to try to get it right and not only that they give in this case given the procedural history dow there's a serious question as to whether or not we made a mistake the first time around and it's no different it's no different then if the trial judge made a mistake the first time that's the point noble review and in a petition for rehearing we could to revisit it and the question is whether we're going to come out differently than the trial judge did although the traps judge intimated that she would have come out differently  had she been given more material that was readily available turin and going back to justice gordon's point you know there was no women what she could review and that's that it plaintiff responded by saying there is no notice either actual or constructive and even if there is a notice read it does not require because this is a negligence attached whenever they thought they was relevant to that motion and the judge ruled on what was given to the judge whether they were interacting tori's available or depositions that were available i mean in this case are probably like that money but they could get a hundred interactive tori's and depositions because they could have been more parties the judge is required to refute what the judge is giving to review what the judge make hopefully reconsider because they're not really discover things therefore cannot be considered part of the trial judge even if it is a harsh position and even if those documents may or may not have made the judge have a different decision if the judge follows the law the judge is not supposed to allow evidence that is not dilute discovery a newly riska discovered to be presented to it on a motion to reconsider it is struck that supposition let me stop you right there because i think the only way you could win in that position is if the judge was right on the premises liability question did she was were wrong that in fact the complaint sacked states hey negligence theory of liability then and which is a question that was raised during the course of the motion for reconsideration then she should have said you know what my ruling was limited to the premises liability theory now that you pointing out to me that your complaint also states a negligence theory of liability then i should've then then you would have given me more information so if it's a