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Good morning may it please the court I am 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 the lower court erred in finding the judgment void for lack of notice and whether the lower court erred in finding that Montaño 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 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 now 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 appealed 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 you received them it's whether 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 whether the court believed him whether they believed that he received them yes but whether that they were actually served is a whole other 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 Appeal an understanding what resume okay but that was denied by your opposition so the date you know that he got the papers the subpoena for demo and aid was March 12th yes a court has the lower court found that according to the testimony and the facts presented that that was...
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