Now to the motion.
And this is where it gets tricky. The point of the motion is to have the Plaintiff’s claim summarily dismissed without a trial on the basis that it is clear he has no case and there is “no genuine issue requiring a trial”.
If the motion does not succeed it does not mean the Judge thinks the Plaintiff’s case will succeed, only that a trial is required. And we, in effect, have the same battle all over again.
My sense of the argument before the Judge was that on the substantive issue he was more accepting of my arguments than that of the lawyer for the Plaintiff. The hang up, I fear, is on whether there was enough to raise a genuine issue for trial (no matter how weak)
The way the motion was presented was to have the Judge accept the Plaintiff’s evidence at its highest and best (this way we avoid a credibility argument which always equals a genuine issue for trial) as to the terms of the alleged contract, and that the Plaintiff relied on it to continue to act for the son. But that is all the Plaintiff had. He could point to no actions on the part of my client after the entering of the alleged contract that could be considered as part of the “Part Performance” aspect of the test. It was my submission that the Plaintiff cannot rely solely on his own conduct, but must also show conduct on the part of my client that was consistent with the existence of such an agreement. There was none.
As I explained to the Judge, if the Plaintiff had at least written a letter to my client saying “I confirm our agreement” my client could have responded at that time, saying that there was no such agreement. On the flip side, if such a letter was sent, and a person in the shoes of my client took no steps to deny or correct the issue, that silence could be seen as enough to allow the Plaintiff to succeed.
The conclusion to this saga is now in the hands of the Judge.