All questions concerning the determination of fact are for the jury,
though a judge may determine the facts if a jury trial is waived or
is not permitted under the law.
WHICH IS WHY YOU NEED TO MAKE SURE THAT YOU STATE
IN YOUR INITIAL PAPERWORK THAT
A JURY TRIAL IS DEMANDED FOR ALL ISSUES SO TRIABLE;
OTHERWISE YOU WAIVE IT; SO DON'T FORGET TO ADD THE WORD
"JURY" BEFORE "TRIAL"
MAKE THESE EARLY; RIGHT AWAY
THEY BECOME A GUIDE TO
THE WHOLE CASE
ARE THE FACTS
- ON THE MERITS
on the merits.(Of a judgment) delivered after the court has heard and evaluated the evidence
and the parties' substantive arguments. [Cases: Judgment 217, 563(2), 649. C.J.S. Judgments §§
11, 272–273, 727–728, 733–734, 745–746, 787–788, 801–802.]
- ON THE PLEADINGS
on the pleadings.(Of a judgment) rendered for reasons that are apparent from the faces of the
complaint and answer, without hearing or evaluating the evidence or the substantive arguments.
See SUMMARY JUDGMENT.
summary judgment n.
a court order ruling that no factual issues remain to be tried and
therefore a cause of action or all causes of action in a complaint
can be decided upon certain facts without trial.
A summary judgment is based upon a motion by one of the parties
that contends that all necessary factual issues are settled, and
therefore need not be tried.
The motion is supported by declarations under oath, excerpts
from depositions which are under oath, admissions of fact, and
other discovery, as well as a legal argument (points and authorities),
that argue that there are no triable issues of fact and that the settled
facts require a summary judgment for the moving party.
The opposing party will respond by counter-declarations and legal
arguments attempting to show that there are "triable issues of fact."
If it is unclear whether there is a triable issue of fact in any cause of
action, then summary judgment must be denied as to that cause of
The theory behind the summary judgment process is cut down on
unnecessary litigation by eliminating without trial one or more
causes of action in the complaint.
The pleading procedures are extremely technical and complicated,
and are particularly dangerous to the party against whom the
motion is made.
(See: summary adjudication of issues, cause of action)
- Summary judgment is purely a matter of law;
the court accepts the relevant facts as presented
by the party opposing summary judgment and
renders a decision based on the applicable
- A matter of law can be the basis for an appeal,
but generally a matter of fact cannot.
- An appeals court can reverse a decision because of a
mistaken matter of law, it will not reverse if the mistake
did not affect the verdict.
This "harmless error" rule developed, in part, from the
recognition that during a trial the court often must make
hundreds of decisions based on matters of law.
- “Summary judgment is proper when there is no
genuine issue of material fact and the movant
is entitled to judgment as a matter of law.
Two criteria must be met
before summary judgment
may be properly granted:
- (1) there must be no genuine issues of material fact, and
- (2) the Movant must be entitled to judgment as a matter of law.
- Rule 56 SUMMARY JUDGMENT.pdf
- MN RCP 56 Summary Judgment.pdf
- A genuine issue implies that certain facts are disputed.
Usually a party opposing summary judgment must
introduce evidence that contradicts the moving
party's version of the facts. Moreover, the facts in
dispute must be central to the case; irrelevant or
minor factual disputes will not defeat a motion for
summary judgment. Finally, the law as applied to the
undisputed facts of the case must mandate judgment
for the moving party. Summary judgment does not
mean that a judge decides which side would prevail at
trial, nor does a judge determine the credibility of
witnesses. Rather, it is used when no factual questions
exist for a judge or jury to decide.
WHAT IS TO
WHAT IS THE
- COURT DECISIONS ARE
- RULES OF EVIDENCE
- RELEVANT CASE LAW
The cause of action is the heart of the complaint,
which is the Pleading that initiates a lawsuit.
Without an adequately stated cause of action the
plaintiff's case can be dismissed at the outset.
It is not sufficient merely to state that certain
events occurred that entitle the plaintiff to relief.
All the elements of each cause of action must be
detailed in the complaint.
The claims must be supported by the facts, the law,
and a conclusion that flows from the application
of the law to those facts.
[The plaintiff must expressly show his “title” to whatever relief is requested. I.e., the
plaintiff must show that it’s possible for him to prove a “set of facts” in court (and probably
to a jury) that proves he has “title” to the relief requested.
- “The general rule in appraising the sufficiency of a complaint for failure to state a claim is
that a complaint should not be dismissed ‘***unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.‘
CONLEY VS. GIBSON (1957), 355 U.S. 41, 45, 46, 78 S.Ct. 99, 102, 2LEd 2d 80; SEYMOUR VS.
UNION NEWS COMPANY, 7 Cir., 1954, 217 F.2d 168; and see rule 54c, demand for judgment,
FEDERAL RULES OF CIVIL PROCEDURE, 28 USCA: “***every final judgment shall grant the
relief to which the party in whose favor it is rendered is entitled, even if the party has not
demanded such relief in his pleadings.” U.S. V. WHITE COUNTY BRIDGE COMMISSION
(1960), 2 Fr Serv 2d 107, 275 F2d 529, 535
The fact or combination of facts that gives a person
the right to seek judicial redress or relief against
another. Also, the legal theory forming the basis
of a lawsuit.
- The cause of action is often stated in the form of a syllogism, a form of deductive reasoning
that begins with a major premise (the applicable Rule of Law), proceeds to a minor premise
(the facts that gave rise to the claim), and ends with a conclusion.
In a cause of action for Battery, the rule of law is that any intentional, unpermitted act that
causes a harmful or offensive touching of another is a battery. This is the major premise and
is stated first. Supporting facts, constituting the minor premise, appear after the rule of law.
For example, a statement of facts for a case of battery might be "The plaintiff, while walking
through ABC Store on the afternoon of March 11, 1998, was tackled by the defendant, a
security guard for the store, who knocked the plaintiff to the floor and held her there by
kneeling on her back and holding her arms behind her, while screaming in her ear to open
her shopping bag. These actions caused the plaintiff to suffer injuries to her head, chest,
shoulders, neck, and back." The cause of action concludes with a statement that the
defendant is responsible for the plaintiff's injuries and that the plaintiff is entitled to
compensation from the defendant.
The facts or circumstances that entitle a person to seek judicial relief may create more than
one cause of action. For example, in the preceding example, the plaintiff might assert claims
for assault, battery, intentional infliction of emotional distress, and violation of Civil Rights.
She might also bring claims for negligent hiring (if the guard had a history of violent behavior
which the store failed to discover) or negligent supervision. (When damages are caused by an
employee it is common to sue both the employee and the employer.) All these causes of action
arise from the same set of facts and circumstances but are supported by different rules of law
and constitute separate claims for relief.
A cause of action can arise from an act, a failure to perform a legal obligation, a breach of duty,
or a violation or invasion of a right. The importance of the act, failure, breach, or violation lies in
its legal effect or characterization and in how the facts and circumstances, considered as a whole,
relate to applicable law. A set of facts may have no legal effect in one situation, whereas the same
or similar facts may have significant legal implications in another situation. For example, tackling
a shoplifting suspect who is brandishing a gun is a legitimate action by a security guard and
probably would not support a claim for relief if the suspect were injured in the fracas.
On the other hand, tackling a shopper who merely acts in a suspicious manner while carrying a
shopping bag is a questionable exercise of a guard's duty and may well give rise to Justiciable
causes of action.
Now WRAP your MIND around THAT...
by Lisa Stinocher O'Hanlon
using XMind Software
For More of my Maps:
- For More of my Musings:
FACTS ARE ON THE MOON;
THE TRUTH IS WHATEVER
WE SAY IT IS;
FACTS AT ISSUE;
THE ONLY LAW IS
LAW OF AGENCY
THERE IS NO DARK SIDE OF THE MOON.
IT'S ALL DARK, REALLY.
NO FACTS AT ISSUE;
MOTION FOR DISMISSAL;
Rule 56 Motion
for Summary Judgment
Nothing to try.
LAW OF AGENCY
- The designation of matters of law to the judge and
matters of fact to the jury did not develop, however,
until the late eighteenth century. Until that time a jury
could exercise its judgment over matters of fact
and law. Jury instructions, which in modern law are
technical and specific about which law to apply, were
informal and general. A jury was free to accept the
instructions, modify them, or ignore them completely.
By the middle of the nineteenth century, courts had
acquired authority over matters of law and confined
juries to matters of fact. Commercial lawyers were
particularly influential in bringing about this change,
as greater judicial control over matters of law helped
produce a stable legal system in which business
THE TRUTH IS
WE SAY IT IS
- Facts are conclusive
once they are
SEE APPENDIX X;
- 8.04 Effect of Failure to Deny
Averments in a pleading to which a responsive
pleading is required, other than those as to
amount of damage, are admitted when not
denied in the responsive pleading. Averments
in a pleading to which no responsive pleading
is required or permitted shall be taken as
denied or avoided.
- IF YOU DON'T REBUT IT STANDS
- Averments in a pleading to which no responsive
pleading is requred or permitted?? shall be taken
as denied or avoided.
- Definition of AVER
a : to verify or prove to be true in pleading a cause
b : to allege or assert in pleading
: to declare positively
Examples of AVER
He averred that he was innocent.
“I am innocent,” he averred.
- MN RCP Rule 9.Pleading Special Matters.xmind
- RULE 8; GENERAL RULES OF PLEADING.xmind
- 8.05 Pleading to be Concise and Direct; Consistency
(a) Each averment of a pleading shall be simple, concise,
and direct. No technical forms of pleading or motions
(b) A party may set forth two or more statements of a
claim or defense alternatively or hypothetically, either
in one count or defense or in separate counts or
defenses. When two or more statements are made in
the alternative and one of them if made independently
would be sufficient, the pleading is not made insufficient
by the insufficiency of one or more of the alternative
statements. A party may also state as many separate
claims or defenses as the party has regardless of
consistency and whether based on legal or equitable
grounds or both.
All statements shall be made subject to the obligations
set forth in Rule 11.
- RULE 11;
- You can say anything you want;
the LESS you say the better;
You SHOULD say SOMETHING; but
You CAN'T SAY ANYTHING
WITHOUT FILING A
RULE 11 ACKNOWLEDGMENT
- SHORT PLAIN
MATTER OF LAW
- RESPONSIBILITY OF THE COURT
MATTER OF FACT
- RESPONSIBILITY OF THE JURY