argument that leaves two other issues for the court both of which relate to rule fifty one's a broader issue and that's the question of whether or not the way the a motion that was presented in this case was sufficient that the motion was sufficient was it proper was the evidence such that a reasonable juror could not have ruled on behalf of or cannot found them have mr kelso on his three breaches of contract cause of action or any of the elements of those three i'm going to spend a little bit of time on the sufficiency of the motion issue first however and then spend most of my time on the factual side with respect to these others because it may be of better help to the court this is a somewhat confusing record of a difficult trial  that's about all i can say there for starters rule fifty provides that a motion it doesn't say whether or not it needs to be written or oral and there's cases as i age and we all can be either one and i'm not arguing the the rule provides that the motion actual specified the judgment sought and the law and the facts on which the moving party and out the judgment and the question for this court here oral judge we move from judgment as a matter of all of that was it ma'am absent some kind of information about how to respond to that it's difficult for the litigant to court only each of the three elements of each of these causes of action may not be his own testimony but the examination of the hostile witness and the documents that were put on and stipulations that were entered into there's some evidence on each   didn't get paid the money but the money never got transferred or he all here is so if once he became aware that his ongoing discussions with the court during the during his questioning of other witnesses was not in fact evidence he could very easily say why i want to put on evidence of that and so he said that's a good this is not a hostile question all it's friendly question that that was not appropriate and that would be a reason that the motion should provide more information but even if the motion is the bare bones this i information in the record but information summary judgment record that was previously before the court that some of this information could have been provided had we known exactly what element of which cause of action were being attacked we treat this man as a pro an answer and i don't disagree with it but i really want to know whether we treat him as a lawyer or not if it was a lawyer it was in its own case i might look a little harder for some way around this i would  by others including the offender that bully in this case but to say from that that he is a courtroom advocate who should have understood the weaknesses the specificity of the weaknesses of his causes of action is i strong suit but but in this particular situation there i think the best thing to do is is if you grant on this one in the whole thing is to go back if not then you go back and you look at the other issue which is respect to the efficacy of the evidence with respect elements you're going to have to piecemeal that and decide which cause of action may or may not know that it is there any element it's necessary to his recovery on cause of action where the district court said you haven't produced enough evidence on x y or z and without that evidence the whole cause of that i haven't found your honor now i will say there are some arguments that are presented in that police brief with respect to certain issues those appear to be rehashes from some of the summary judgment proceedings that were had beforehand and the summary judgment were i hear some testimony then you wouldn't be here today ryan and i would agree with that except that that statement needs to be unless i hear some testimony on x issues and any could say all three of them i need evidence of contract i need evidence movement could have really that situation by making it clear him of all other motions and again i'm not saying that the judge could not take a broad motion and upon its own accord focus it into a particular issue and say you don't have information on damages on this cause of action or you don't have any evidence with respect to breach on this other cause of action but either way you're directing the party living in that in a case like this to say here's your problem and before we flush your case permanently you get a chance to try to put on that kind of evidence if you have it in this case there is some evidence on the record that he did in fact pass some based on some or gentleman from that at that juncture th that sort of push is to say that that the the movement or the court has to provide some kind of guidance to the hapless rules if the place be it ever so small that something has to be something more than a move for judgment as a matter of law and as all we have in this book even if we do not have a strict rule fifty assume argue window do you still win on your trade claim you should  terms of trade agreement join the terms of trade agreement yes should you still be able to reverse the district court's decision on the terms of trade agreement i'm not as i made the phrasing i'm slightly differently so i'm not sure i completely understand the still goes back there's some question about whether there was damage testimony on that particular issue however there was clear testimony that at least on that that the evidence that was presented including the documents the money agreement itself that they were going to pay thank you you're on a good morning thank you for your patience on stephen g durie oh and i represent this christine butler and we also i have with me mr philips we also represent several family corporations they called humble family corporations but they referred to in the in the record as the little old ladies that's the way they're referred to constantly by both sides so what i'd like to do today we've asked that we be allowed to split our time not so much as the parties but as to the facts on the one hand and the legal issues the two legal issues one was the continuance the other was rule fifty procedure mr philips is prepared to do a much better job on that than i am what i'd like to do is start out with the facts and then you have the floor to him and i think you hit it on the head judging bottom when you talk about the painfully obvious maybe that's an exception to the room i don't think it needs to be an exception but that is definitely what we have here we didn't have a situation where some element some or cain legal knowledge some element had been a minute the case was fully tried when he was cross examined my client for two and a half on day and a half at least of the three hundred pages of transcript pages forty four to three hundred eight  f three nineteen are cross examination my client and what he actually did was disprove all of his claims he disprove them he disprove them out of my client mouth and he argued with erin or get within or you with the but the jury got her testimony on each of the claims that was at issue and it was it was painfully obvious that he could not prove in fact that he had disproved his claims and i go over the three claims with humanity to show you that this is not a situation oh well before i leave the room fifty thing this is not a situation where that last sentence is designed to make sure everybody understands what's missing before a judge rules this was a situation which nothing was missing and everything pointed against this man's claims he made a conscious decision in view to avoid cross examination in this case in chief i mean this is a man that supposedly for twenty five years has advised fortune five hundred companies had a little getting all the discovery had been conducted by as long as a deposition been taken mr may who presumably would have been called to testify that my client breached the agreement the other party his deposition was never taken and schedule several times but never taken obviously because they didn't get the information they needed and that was before counsel with through the first counsel withdrew but to go to the three cause of action i want to point out to you in the record where each of them it's painfully obvious they disapprove the first one is a breach of a consulting fee agreement and the testimony was that it was a four hundred dollars an hour deal at the beginning no six period just at will that when he hit the maximum in the first month or two they went to a twenty thousand dollars maximum deal and she was paying him twenty thousand dollars a month and yes she did pay seven hundred sixty six thousand dollars over the course of three plus years before mr kelso went to prison and of course that i'll get to that later created some problems with his on the cause of action but just on the consulting fee claim we don't have a statement we don't have an  she also wrote in letters that explained clearly that she had been mistaken about that and reevaluated the situation ad nauseum as she did again in the record when he cross examined about those both of those letters what happens is we have nothing in this record to differentiate what he claims he did that he wasn't paid for as opposed to what he claims that he did that he was pay point there is nothing in the  differentiate that there's questions related to this about being paid or not couldn't the jury say that they believed her first letter not her explanation of the confusion i mean why doesn't that create a fact issue in my second question is if that doesn't create a fact issue why shouldn't he have been told that he needs to say she he hasn't been paid for all the work he's done and that's what he needs to to that's the root missing link well th was no issue as to whether he had been paid seven hundred sixty six thousand dollars the only issue was as to whether or not he was on any more than right so he can i'm sorry it seems like either either there is some evidence in the record that he might be more than that because she's she has some difference in the letters or else there's not evidence in the record but he could cure that if you've been told that that's a deficiency if you testified he might not be able to because you might not be able to truly truthfully be with you on the cases about but i do want to get to the facts let me see on this first thing there is nothing that crystallizes what he's claiming that he's old and for why and she posit he did rely on the letters and she positively showed how she had recalculated incentive detailed letters of the offsets the recalculations the things that he did for his own account most of this you have to understand is the time period in which she was in prison he'd already been sent to prison for tax evasion and yet he claimed he still consulting or doing whatever she didn't pay him for things that he did for his own family's interest i have to require this point five percent interest what she said anything and look at it two hundred eighty six to two ninety one she goes over ad nauseum i did not all of these qualifications and how she counted for i did not owe you anything else and the top it off this is your point judge was there any evidence to the contrary he emitted in the course of the colloquy with her that she kept track of what he did he didn't keep any records he didn't kee any she based on her involvement with him kept track of what he was doing and how much time was involved it's not evidence or yes it is it absolutely you know him admitting things during the it just like we had earlier today what the what the person says during the questioning is not evidence well i mean that's the quality of the colloquy got it from her she testified to that she kept all the records he's the one that kept the records and and you got to you remember in august to the jury i think that he got my point that he had taken advantage of this lady in every way that a man can take advantage of a woman during the course of this three years and i really in my opening statement when we started the case said this is a case about an abused woman this is a case about seven years of somebody taking every advantage she can one of prison and then having the nerve get paid a seven hundred sixty six thousand dollars for basically the unauthorized practice of law which is a crime to to sue her for another hundred twenty thousand dollars now that that the evidence of that's that came out of summary judgment was an  affidavit from him she owes me a hundred seventy thousand dollars it was an affidavit from him do you really need to tell a guy who's only evidence to survive summary judgment with his own affidavit that he needs to testify when he comes to trial already put in her hands in her testimony that she was the master of the documents and had made the decisions and she said as i said i'm doing sixty to ninety one i did not tell you anything else over and over again the second problem was a specific performance klein and what he said was i was owed a twenty five percent minimal interest which he was and i didn't get it there was a document it's p forty one it's an assignment o twenty five percent no on interest it's in the record it's there it's pages two fourteen to eighteen of a record document two for one it's translated of title it's an assignment is everything about it is valid  on louisiana law what happened is during the discourse of this discovery dispute we had an extensive discovery dispute we made a mistake i guess of saying fine take of the records from this mineral title lawyer and he found a letter we said you know you got this assignment and it probably could be attacked on some technicalities about the signatures whether they're an authentic form of this of that plea each of your two minutes  morning on is daniel phillips for the defense christine butler and all the rest of them you know i'm here to talk to you about why the rule fifty motion that was granted by the trial court was proper as a matter of law  identified the facts and the law but in this didn't do that that the circuit has interpret that rule to mean that whenever the purposes of the rule are satisfied even outside of the motion and it's acceptable and that's what happened in this case i can we start i want to start if it's ok with you with the text of the rule then do the advisory committee notes and then go to the case law because i think that would be the logical progression so do you agree that this does not satisfy the rule is not necessary and if we ever said that in the context of the initial rule fifty motion and that it is not been followed at the end of the actual close by detailed robust one that does satisfy but again i think that that's an important point because when the rule comes up a lot of times and what the purpose of the rules were designed for in the first place is not a situation we have here where the motion is granted after the plans you know they don't want a defendant to not make a motion after the plaintiff's case in chief when they know that they could because it would identify and then just hang on to it until after the case has been submitted to the jury and then that point  of judgment is a matter all right but if the court didn't allow the point of to remain open to cure deficiencies that could be abuse of discretion so they actually do have a right to say i want to reopen and and if and if there's no did that then they have a right to cure those deficiencies at that point but they have to know that there are deficiencies to be able to do that first of all mr kelso didn't ask for that and that he didn't know what the deficiencies were because nothing was ever specified the judge did say mr kelso you didn't testify you didn't put on any evidence for yourself at that point he did not say judge will make can i have an opportunity to do so well but i mean he didn't say you don't have damages testimony or you don't no but it's to force the party to articulate the basis on which the judgment as a matter of law might be rendered ness in that's necessary to achieve the purpose of the climate motion be made the case may be to the juries of the responding party where in this instance the plaintiff was a sheriff's department deputy and he made some comments to the media about the case and then and he was eventually fired and he found after he was fired he was sued saying that he made those statements in his capacity as an individual not in his capacity as a staff and after his case in chief the defendant moved for judgment as a matter of law and it was general in nature the case doesn't really get into a lot of the details as far as the judge made says it made it he made a judgment as a matter of law and it was granted because the court found that the evidence that was presented  although he advised him of anything and one of the what the what one of the panel of our courts about that circuit affirmed yes what did they say about it and they said that it was it was the court went back and reviewed all of the evidence and found exactly as the district court there was no evidence to show that the district or the the deputy was acting in his capacity satisfied or i'm sorry when when technical compliance with the rule is not made but the purposes of the requirement have been satisfied  had been satisfied and then he goes on to say that the purposes are met when the court in plaintiff or alerted to the grounds on which the defendant contends the evidence is insufficient but how was the plaintiff alerted to the grounds in this case on which that they were insufficient and actually that's a post post close of all the evidence fifty but how was the plaintiff apprised of the grounds i can tell you from being there it was painfully obvious to everyone in the courtroom that his case was decision to route just motion in hurst they filed a motion so if you're filing a motion rule fifty then you certainly are going to discuss grounds and things in it one one big key point in her it could have been one hundred pages long it could have been two paragraphs we don't know but nobody was complaining about that so we don't know so it's not it doesn't help us decide when a rule fifty a motion is deficient or not but all the requires and the person says this is that the plaintiff has to be full and then at that point in motion for judgment the matter was right and if we are to articulate a standard word says that a plaintiff must always have an opportunity to you can't put on the evidence or else it's legally prescribed because the statute of limitations is run or something so there are lots of cases that will fifty could still be granted even if you're given a chance to cure defects as the rule specifically con that could be fatal but if these curable what you were dating earlier and you got off of it with the question of the situations where we say we do not literally read them formally whatever whatever in the word that they contemplate that there are that would require litigants to detail every aspect of a case where a general all encompassing statement would suffice and that's what we have in this case like just just like if you're going to rule fifty be motions for a new judgment as a matter of  relaxed rule i don't believe any of the cases that you cited or fifty eight cases where it was just a general statement that it fails and therefore you therefore we win if you have such a case that would be very interesting to me because i don't believe you've cited a single case bits that says that in rule fifty anyway we have it we allow we have ever allowed a just the general synod to be anough where it was the only responded to the first case which was the case that else was taught by other men to go answers i don't know what was in the hearse motion was a motion filed the opinion doesn't talk about what was in it i can't tell you that's number one get everything i'll suggest to you that the evidence that supports our elements that you would you would you go through quickly on each cause of action and say where you've met you there is evidence in the record on each call of action i don't have a specific record size for all of them but they're in the pellets opening brief on pages twenty one twenty two opening brief pages twenty three twenty four in opening brief page twenty seven they're also in the reply brief on pages two three four  five and i believe seven would we be that's what that evidence is now let me only say one other item in response to what we've heard today the standard that the court applies and standard that the supreme court says is that you don't feel you are you discount the evidence that the jury wasn't required to believe and that includes evidence from a interested contradicted and impeached at least there's the part that was left out at least to the extent that the evidence comes from a disinterested party ms butler was not a disinterested party the jury didn't have to believe her when she said a lot of them in the county don't have any papers to support it cars the option agreement i'll mention quickly yes there was an option that's on the speed it was exercised there was a transfer but at least made or attempted to be made the question is whether or not it was affected admitted there was some problems with that with the title i believe that's on pages twenty four the appellant's brief record forty four eighty five and eighty six forty four ninety one and ninety three there's no question that there are problems with the title and she even said i will fix those problems that would be a legal issue then you'd also complain about the mortgage on them twenty five percent you complain about the mortgage on the twenty mortgage on the twenty five percent evidence on that is a little bit sketchier there was a five hundred thousand our mortgage that was placed on the property miss butler testified she wasn't clear couldn't remember what it was placed before after kelso obtained that the option of before or after could also exercise the option but again looking at that lie than in the light most favorable to kelso there is some evidence to support that the mortgage was put on by the parties and that the parties or the family trust and family holding company here if we were to hold that the fifty aim motion was satisfactory would we be creating circuit split with the ninth circuit i think you would be a left i'll check on the circuit you know the waters case that you've cited isn't it if we were to say that this because you'd be saying for the first time that this is this bear thing is enough would be created circuit split or and that's always there already a circuit split so we wouldn't be creating like nobody i don't think is told is that