been murdered her mother and so she was then prevented from any recovery on this but regardless so it is the written agreement with prejudice and that right yes and it's pertains to the the rd amended complaint that we filed which we believe factually sets forth the agreement between peggy schroeder and her niece cynthia denied by the court and we believe there is a valid basis for it in there well let me ask you this did the court dismiss the compliant that issue also involves the other daughter who had killed her mother and that there was a protective order preventing the disclosure of any of the text messages to anyone because the they had a murder case going on and they couldn't have that open to the public so there was an order entered preventing the attorneys  was under seal and so that's where the order came out of that we were not allowed to publish this to any one publicly and so that prevented me from publishing these represents that reference that under seal in the court in your complaint it was referenced to the court the chorus fully aware of it and it was part of beyond that then i suggest that i would do that but only with the court's blessing and an order and so i was prepared to do that i had sent in the proposed a hartson and peggy shorter the deceased mother which are our clients would recover for so what was under seal any any conversations recited their own right but because we're still under the order of the criminal case we could attach anything until that got you know cleared up and a court that the yeah and what motions really just want to make sure we weren't by a lading the criminal court order on us and you know be sanctioned for disclosing that what the judge in this case was well that point when the i understand that now if it is ok thank you and so one of the arguments i make about this is that the court wanted us to plead the ultimate evidence in the form of these text messages rather than just going with my  amended complaint which set forth what these were and what they would say so in pleading these types of actions we don't plead evidence we plead you  this is not a typical case i guess just because of the nature of the how the messages were set up in the contract was set up  but i think what i was required to plead were sufficient factual and that there was an agreement and who was involved in those rather than all of the minute details of the of the  they had the same packs messages themselves there was no surprise or anything to them  so at the end the court stated that since we didn't played those that she was dismissing the cause of action you know i could have easily  were you not simoleons filing this part of the problem in with this was the fact that the client that we had was not very consistent in getting back to us and she delayed the matter on several occasions but i think what's important even though she did delay it there was no prejudice whatsoever to the other party they didn't suffer any prejudice whatsoever because of my was it was a pension that she had and there was a roughly one hundred and seventy seven thousand dollars in that it was it and then clearly the beneficiary was was opposing counsel's client for that's proceed thanks your honor good morning your honor my name's matt cole i represent the respondent appellee cynthia hartson as kind of what's been alluded to by opposing counsel i think there are generally two issues that are before the court today one being whether the circuit court erred when it denied the appellant's motion for leave to file a rd amended petition and nd whether or not she erred adopted by the circuit court your honor i believe that that's inconsistent with the facts that were laid before the circuit court when she ruled on the motion for  alluded to in our brief your honor our state supreme court in the oil academy case has set forth a four factor test in order to determine whether or not a motion for leave to file an amended station should be granted  think it's worth noting that all four of these factors must favor amendment in order for d that leap to be proper very simply your honor the four factors that are considered one whether the proposed amendment which cure the defective pleading to whether the nonmoving party would suffer any prejudice three whether the there were previous opportunities to amend and for whether the amendment is timely now as opposing counsel is alluded to motion for leave is an exact replica of the nd edition that was dismissed the only difference between the two is the exclusion of i believe three paragraphs meaning that there's less facts pleaded in the proposed amended petition which is intended to cure the defects meaning that no written agreement was attached and no affidavit was provided to the court it simply can't be said that this petition this rd amended petition would operate to cure those defects again with the same set of facts that the court had already previously dismissed the only thing that would occur if the motion was granted would be followed up immediately by in another motion to dismiss be said that you know an exact replica of the same complaint that was d already dismissed with no real attempt to cure any of those deficiencies which the appellant was very well aware of having already filed two previous honor again the point being we need to see the agreement if it exists at all you know it goes without saying your honor certainly there were text messages that were exchanged between  client and miswrote or i'm sorry i gave her owner prior to her death but the substance of those text messages you know we have no idea what that written agreement may be unless it's actually attached to the complaint  setting forth whatever this agreement was well let me ask another question let's suppose because counsel opposing counsel seems to play early and are made no doubt in my mind what he's saying is is the written agreement as those text messages the so my question to you is assuming that he had attached the text messages would that those text messages you're the mean really i think you're right when you when you mention i don't think that's properly b s you before the court today clearly i think at a minimum if the rd amended petition were to attempts to cure that the facts that were existing from the nd one they would have attached something right and clearly you know the effort here is that these agreements exist with and text messages exchanged between our client and the schroeder prior to her death but that didn't le the instrument is not assessment to him or her is that correct that's correct your honor and this pleading that was dismissed had neither had neither now this nd amended petition did have an affidavit from mr older although the affidavit i believe was struck because it wasn't based on her personal now it's the rd amended petition which i believe is the focus here your hon didn't include either one of those it didn't include any written agreement attached as an exhibit or an affidavit from miswrote or let me ask you another one at the time this case was dismissed with prejudice but at the time this case was dismissed with prejudice or at least i guess we're talking that complaint that was dismissed was with prejudice was the nd and complaint in my right yes your honor ok now at that counsel was never raised at all at any point during the attempted motion for leave to amend for a rd amended ition so not only was the protective order and the substance of that addressed in their motion it wasn't addressed after our written objection to the motion it wasn't addressed at oral arguments in front of the circuit court the only time that the protective order was raised was on their motion for reconsideration so again if you're looking at the facts that were before the circuit court clearly if there was no written agreement attached and there was no affidavit setting forth the facts as to why the written attached but it doesn't specify whether it needs to be made publicly available or whether that can be done under seal with the potential of this protective order being out there again though i'm not nor have to have you read two  the delay isn't what caused the prejudice here the issue is that our client would be prejudiced by continually having to defend a case in which the proposed pleading is clearly going to be dismissed the next time it's around again the rd amended but titian here is an exact copy of what was dismissed before it still doesn't include the written agreement the protective order wasn't even alleged at the time that the motion was requested and not only that your honor it's clear and again going back to the reasoning from the leo the loyola court is that prejudice isn't the only factor here right when the course to sit when the circuit court is deciding whether or not to allow a motion for leave to amend a pleading you also have to show that it has to plausibly cure that the facts that were in the previous pleading we know that's not the case so again you know to allege that there is no prejudice existing here i i think just isn't the case because again if this were to go forward and the motion for leave two men to submit a rd amended petition were granted it again be followed up by in another motion to dismiss plausibly it would be dismissed because it's on it's an x in exact copy of what was already dismissed by the circuit court and we'd be here again on it for a request for an amended defended three separate pleadings and now defending a th year on appeal over what at this time is her right to those proceeds again i don't think the expectation when she was given these funds from peggy schroeder upon her death that she would spend the majority of it defending and fighting in court over whether or not this was actually her money the this i'll grant you this question is totally irrelevant but i payable on death for the millions of people that are listening to this but so outside of that and her estate what she have your honor i'm not aware of the have a question too i think i can extend your time was my question do you agree that the text messages were before the court that they had been given to the court and i believe the text messages were d before the court your honor i say that again that they had not been submitted by mr got to the know and again the expectation would be that those  attached to the pleadings again you know even if the protective order were to cause an issue it certainly could have been requested to be submitted under seal but those were not before the court i'm saying nothing is stopping her from you know she can't claim any kind of credit is this that she was while she was well aware of the text message agreement because it was between her and peggy schroeder you have that without a constructive cress trust that ms hartson would spend all this money on ourselves the only thing we have are the text messages between peggy schroeder and cynthia harts n stating that fact that she was supposed to hold bets for the daughter's well and so my question is what did you play that she's not doing that that requires a was allowed to lead the protected information protected by the criminal court case in the civil court case but i pled factually what the basis of the contract was the agreement submitted those text messages to the court and mr cole says that you had not were they submitted or were they not basis of the agreement you know that i think because that's that's not the question now is my question is the text messages that you received in discovery did you turn those into the court as the documents that you wanted to be able to use to substantiate your complaint you know the court order in the criminal case prohibited me from publishing those text messages to anyone and so that included this case so no if those were not specifically included in there they were referenced but as far as an agreement so now the criminal case is done though now i would have the right to publish and you know you know put that information before the courts so they have a you know a good chance now to look at it and make a decision on it but it it's been you know up to that point that they're in my complaint i couldn't do that but now i can and this would give me that relief to do so and  action and establish a good chance of recovery damages against some of the arcs she's not been prejudiced in any way because of these delays none so this would clear up the whole conflict now if i can do that and i'm asking the court for one last chance to do that you so please but i think it you know we've established that there was there was a contractual arrangement between  we thank you both for your arguments this morning will take the matter under advisement and will issue a written decision the court will stand in very very sess for a panel chair and thank you