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good morning morning may it please the court iam the che cough on behalf of the appellant I'd like to reserve two minutes for rebuttal okay the issues on appeal as you know from our briefs are whether or not the lower court erred in finding the judgment void for lack of notice and whether or not the lower court erred in finding that Montalvo showed it or the appellate showed excusable neglect and acted with due diligence in seeking relief from his default let me start by addressing the first issue the look first the appellate argued and the court found the lower court that he never knew that he was being sued personally he and this comes straight from the interview for the appellate he says he just never knew and this is hard to believe because within the record it clearly states that there was an attorney hired on his behalf individually in this in this case who goes and hires an attorney to represent them when they don't even know that they're being sued let me but the issue I have is that's a credibility determination that the trial court made correct and you agree that appellate courts don't make sure absolutely their credibility determinations yes I'm trying to get to my two points of law issues rather than facts no the fact issues are more to bring me to the issues of law and the first issue is the appellant sent the final judgment and the order requiring the appellant to fill out a fact information sheet and the fact information sheet to his home address to the appellate ease home address and this Court itself found in skate in the case stoppers Olson which is in my reply brief that certificate of services is the prima facie evidence of proof of service and these were sent back to the appellate back on September 28 2010 and it is clear on those documents that they were sent to his home address which is the address that he said that he was living at so in the appellee at the hearing they testified what as to those things as to those things he testified that he just never received them but the law isn't whether or not you received them it's whether or not they were mailed well but but but don't we go back to the same problem we have and I understand what you're saying maybe if I were a trial judge I might have decided differently sure but at the point we're at here even though you're talking facts doesn't that still boil down to a credibility issue as to whether the court believed him whether whether or not they believed that he received them yes but whether or not that they were actually served is a whole nother issue and that's the issue of law based on what the appellant did by mailing them out by having that certificate of service proof that it was served should be enough to make that date the date that the notice was put on to the Appel a understand what resume okay but that was denied by your opposition so the date you know that he got the papers the subpoena for depo and aid was March 12th yes a court has the the lower court found that according to the testimony and the facts presented that that was the date that he actually had noticed based on the date that the subpoena duces tecum in aid of execution then you make the statement in your brief that as a matter of law waiting until July 28th of 2011 which is a day for months yes it's too long absolutely yes yes and I'll get to that issue because that that goes to the three prong test on whether or not a default judgment can be overturned and that issue I think is secondary to the issue that the court found whether or not the final judgment was void as a matter of law simply because if it's void then then that doesn't become an issue and this this is my case in chief on my argument here and I had actually not found it until after I filed my reply brief I just filed this morning and II filed yesterday a notice of supplemental Authority with two more cases one of them being C outdoor advertising Inc versus Lachlan it's a 965 southern second 325 it's a first district case in which they basically what they're what they said was that judgment is not void when the sole reason for the notice having been sent to an Inc incorrect address was the defendants failure to notify the court and opposing counsel of the address and in this case what happened was there was a defendant and he was it sudden Kisa it was in the jurisdiction of the court he had an attorney who withdrew and after the withdrawal he didn't receive any anymore notice of anything none of the filings and he got defaulted and then he went to vacate the default and and the circuit court basically said the default cannot be vacated because it was your duty to give the court your new address to give opposing counsel in your new address to keep yourself informed of the litigation that you are in and I think that almost mirrors exactly what we have here it was the only case in point I didn't find in any of the districts which even covered this matter at all and basically what it said what it says and how I interpreted in this case is that the appellate here he submit himself to the jurisdiction of the court when mr. Sandberg filed his notice of appearance and filed the initial pleadings on his behalf at that point it became his duty to stay informed the litigation in this case to keep his address current with his attorney and with the court and with opposing counsel and he did not do that and yes his counsel withdrew and he said he didn't get notice it was found that he didn't get noticed but that doesn't matter in the end he stuck his head in the sand he ignored the litigation which he was a party to he himself said that when he saw the complaint he saw his name on it it confusion as to whether or not he's being sued personally is not an issue and that brings up the second case in my notice of supplemental authority which is John Crescent Inc versus Wirtz and what the Court stated in that case is that the failure of a party to take the required steps necessary to protect its own interests cannot standing alone be grounds to vacate judicially authorized acts to the detriment of innocent other innocent parties the law requires certain diligence to those subject to it and this diligence cannot be excused lightly the mirror' assertion by a party to a lawsuit that he does not comprehend the legal obligations attendance a service of process does not create a sufficient showing of mistake inadvertent surprise or excusable neglect to warrant the vacating of a final judgment and here that's exactly what happened he had an obligation to keep his address up to date so that the appellant could in fact get him notice of the final judgment of the trial date of everything going on and he stuck his head in the sand he pleads confusion and the court believed them but confusion as a matter of law as this case states is not an excuse for doing that but there's we have cases it's a confusion but it's confusion where they've received notice and they actually have received the pleadings and they do nothing with it and then they try to vacate it the question I have is the standard of review here is abusive discretion correct yes and again even though perhaps this Court or speaking for myself would not have done the same thing how can we say that what the trial court did was an abuse of discretion given the findings of fact that he made well it's clear as a matter of law that he submit himself to the jurisdiction of the court and it's that point entirely that I base my argument around because he would submit himself for the jurisdiction because he put himself into the case that right there put the Duty on him to stay informed of the case he could have spoken to his attorney which he says he didn't do that's not an excuse he could have spoken to his co-defendant who was a friend at the beginning of this case the address that he gave was a good address at the beginning of the case in 2009 yet somehow it became not a good address when he stopped receiving notice when his attorney withdrew and how can that not be reasonable when that's the only address that the court was given to the appellant to send all his notices out to that address when that was the address that was specifically left with the court and with opposing counsel it was it was reasonable for the appellant to send all the the notices to that address it was reasonable for him if it isn't isn't one of the findings that the judge the trial court made was that he did not want a ville do not actually receive any notices of the motion to withdraw by counsel yes and that that also goes to an tablo's duty to stay informed with the case when he went a whole year without ever hearing anything about the case and his attorney who withdrew also from the record it's it shows he was his attorney on a few other matters as well and it is also in the record for mr. samberg's testimony at the trot or at the evidentiary hearing to vacate that he did in fact speak with his client and whether or not the issue of this case actually came up is hard to determine because of conflicting testimony between Sandberg and Montalvo and previous affidavits and if you want to keep your rebuttal time you need to wrap up the space okay thank you your honor Thank You counsel it please the court my name is Howard stone I'm here for the appellant Oskar Pelle I'm sorry Oscar Montalvo in this case as the court has addressed appellant counsel we have a situation here where whether the appellant likes the trial court's factual findings or not that's not the issue before the court as the court certainly recognizes judge Thornton the trial judge heard the testimony of via Pelle he heard the testimony of the appellant he heard the testimony mr. Sandberg he reviewed a number of documents he made very specific and clear-cut factual findings he made a very specific credibility determination in this case that he believed and accepted the defendants are the appellant Hailey's testimony excuse me in all respects and that testimony was not refuted or contradicted or impeached we're dealing with a situation where the policy is favoring a trial on the merits and one of the reasons I did not accept the appellant statement of facts is because they overlooked the statement of facts they look overlooked what brought this case to issue in this case you have an two page agreement not with the appellant but with Mario's subpoena a co-defendant mr. subpoena and mr. term anello had a financial agreement they had a credit card arrangement it did not involve her concern my client he had no part of that and yet he's included in this lawsuit the appellant did stipulate to a meritorious defense but clearly it's far beyond that my client should not have been in witness lawsuit from the start and that gets the point of public policy in the court in this court as well as the fourth district other courts favoring trials on the merits and resolving reasonable doubts in favor of granting a motion for default which the trial court point to any case that has a delay that long between actual notice and appearing again in the case to defend or to move to vacate I do I have that do I know it's good about there's 100 lag there I'd like to address that point because your honor mentioned that it took my and his council myself till July to respond that's not accurate my client was reserved with the subpoena duces tecum for deposition in aid of execution on March 12 2011 he and his girlfriend the final judgment was not attached to that that was simply the subpoena that brought the matter to a head when he realized hey what's going on here as he testified at the court and the judge accepted his testimony he went to the court to this courts clerk's office as well as the clerk's office downtown at the Circuit Court Civil Division to see what's going on here and because mr. subpoena had appealed the judgment part of the file was here part of file was downtown and he was a pinball being bounced back and forth that was his testimony the initial motion that was filed was filed on April 26th of 2011 six weeks that was based initially on some of the documentation that we were able to obtain the appellant contends that we should have filed the motion without documentation with all due respect to the appellant if mr. Montalvo and counsel had filed a motion to vacate a default without knowing what judgment was entered how it was entered the data was entered any circumstances number one he couldn't have signed an affidavit that motion would have been struck as legally insufficient so the July motion as an amended and more deed right exactly what happened was the initial motion was withdrawn in May approximately two months later after additional documents became available the second motion was filed he basically supplemented the first and as I've argued in my brief and the record confirms there's no prejudice to the appellant because during the course of these motions as it was an effort of protective order was filed to stop the depositions proceeding stop the interrogatories the trial judge said no I'm not going to stop the appellant for pursuing his collection and those depositions those interrogatives went forward but this was not a situation where the Appel D waited for months as soon as he got the initial documents the first motion was filed when he finally received the remaining documents through counsel a more detailed motion was filed explaining further as to what took place here he didn't know for him to spell insisted the appellate stuck his head in the sand he was never personally Sood that's clear that's not disputed mr. Sandberg did filed paperwork on his behalf which the trial court did acknowledge obviously brought in within the jurisdiction of the court mr. Sandberg never meant the Appel D during the course of this case in regard to this case while he did represent him on unrelated foreclosure case he had no contact it was missed a subpoena that met with mr. Sandberg it was missed a subpoena that retained mr. Sandberg it was missed a subpoena the promise to pay him and when mr. subpoena did not pay him that's when mr. Sandberg withdrew the facts in this case were not that mr. subpoena and mr. Montalvo were close friends at the time of this lawsuit years earlier they had a very close relationship they certainly had no agency relationship the contact was limited subpoena tolling the Appellate II I'll take care of it because it was his problem he's the one that brought this case to a head mister subpoena by not paying mr. terminal oh not mr. Montalvo the cases that the appellant cites for the court they both were provided yes D say as well as present they're clearly distinguishable this is not a situation where the appellate gave his address to anybody the motion for withdrawal that mr. Sandberg filed in the record is filed on behalf of Mario subpoena in the body of the motion it states Mario's subpoena it provides the defendants address in a singular form as Mario subpoenas and it was served on mr. subpoena there's no indication and mr. Sandberg testified at the hearing that mr. Montalvo never gave this address on 18th Street in Miami - mr. Sandberg or anyone in connection to this case saying that's my address obviously if mr. Montalvo said this is my address and he submitted himself to the court and then he moved yes you'd have some duty to notify his counsel of the court but the person who filed who filled out the address on the order of withdrawal was not mr. Sandberg my client was not even present it was the appellant who submitted the order and the appellant who knew where mr. Montalvo lived and it's curious the only time the appellant used and directed any correspondence to the appellate address was before suit and after judgment the entire time this case was pending he's sending everything to mr. subpoenas address but beforehand and afterwards then he serves allegedly on mr. Montalvo's home address and as far as the certificate of service on the fact information sheet and the final judgment being basically dispositive according to the appellant that's not true they strike to this court the Scott V Johnson case they forget to cite to this court the Bank of America versus Evans case which I submitted to the court in my brief which basically says when you have a certificate of service and the individual denies receiving the documentation which he did in this case it becomes a question of fact for the trial court to resolve trial court did resolve that mr. Montalvo did testify before the trial court that he did fill out a fact information she got it from mr. subpoena that I need this with my case did you fill it out for me gave it to subpoena and subpoena did something with it presumably filed it with the court clearly the trial court's factual findings are not erroneous they're fully supported by the record there's been no abuse much less a gross abuse of discretion the trial court made the proper finding I'd ask the court to affirm this in all respects thank you in rebuttal yes regarding the delay of filing the only excuse he gave and the Court did find that notice was on the appellate on March 12 2011 once again the only reason for this is a pinballing of having to go between the circuit court and the district court to get the file six weeks to get enough of the file to file an int there to file a motion is absurd and the fact that he says that his second motion after the first one was withdrawn was to supplement the first motion is also absurd they were completely different the first affidavit on the first motion that was withdrawn said that he went although never had an attorney was never represented yet in his motion to vacate that we're here on now said oh yeah that attorney he was representing me and then he would through and I never knew about it because it all went through subpoena on top of that he filled out a fact information sheet he says that yes it was subpoena that gave it to him and he gave it back to subpoena but who files a fact information sheet with specific financial information and gives it to somebody you're not even friends with anymore or has no business relationship with to find that he didn't have notice or didn't even have a duty to find out why he was filling this out or why he would need to fill this out individually makes no sense to me and to say that he wasn't personally sued as incorrect he was personally sued his name was on there individually as a member of the the business and that is a reason that is a proper basis for suing him individually and he is supposed to be in this case because he was part of the company that got the loan on the credit card as far as the address being put on the order of withdrawal yes it was the appellant who wrote it onto the address but that's because mr. Sandberg only appeared telephonically and directed him to write that address and he was asked do you have any other address no that is the only address I have for all defendants that that's what he testified and that's that's what's in the record and that's why that address was written by the appellant because the appellant was the only one in the courtroom with the judge and didn't conclusion in conclusion the judgment should not be found void and it was a group of gross abuse of discretion for the trial court to find as it did thank you thank you catchy thank you