will call case number sixteen dash three of three three nine norris first is kasi and i would ask him with no disrespect to the parties involved that we use first names so we know if we're talking about  is whether kerry tacitly accepted the joint venture agreement at issue and number two is whether the norse's lack standing to assert their claims into the joint venture agreement due to their bankruptcy filing and the failure to properly schedule  is legally matters in this case the claims could not be abandoned by the trustee because they were never properly scheduled so the fact that it was reopened that think with would judge bar be a state it is essentially used as evidence to look at what that court and what the trustee thought about whether the norse's work can did it fully disclosed the value of the claim to the trustees so i think it goes to and should we wait for that because a bankruptcy court could reopen ingo while they did disclose it even though they didn't quite fill out the ri form and it was a band in fairly well or they could go oh my gosh this was a major fraud this is terrible we need to re undo a bunch of stuff and wouldn't those two situations have an effect on us or that was certainly a situation that we were in or we followed the motions for relief from judgment with the district court not really knowing what the bankruptcy court intend to do and i don't believe that they've moved any further since then but i sed by operation of law under five fifty four see if the claim was not properly scheduled in that case it could not be revert back to the debtor as it remains a property that bankruptcy estate so we know anything about where that thousand dollars valu court how that came about but that would have to be supplied i think with opposing counsel suggest as i was supplied at a meeting of the creditors possibly or supplied by the bankruptcy counsel to the trustee at some point after they've already filed their schedules  and that gets lost by the court and yet another coup or not a review in court of the bankruptcy a separate court i mean we're talking about a quarter louisiana the bankruptcies in michigan says oh no we think because of things that were said that that a nment was improper i think that i think that it has happened but i'll say you don't have to give a case and i don't believe we've cited a case on that point that would but i would likely be under a five fifty for a scenario i believe i mean the laws is very clear and i think our opponents of have tried to change the law is very clear you can misrepresent things to the bankruptcy court but i don't think the law's clear at all that another  are they what do they tell the trustee about the case claimant where the value could be a consideration but the if it's under five fifty four but it's under five fifty four c the only question is whether it was properly listed in their bankruptcy schedule i think all of this can come up but it comes up under the rubric of judicial stoppel which you mentioned in your reply brief the love the tyson food kane's sort of line of cases and it doesn't look like that was at all asserted in the district court so can we consider this line of cases that said even if you're the wrong doing toward fees or if the plaintiff didn't disclose to the bankruptcy court then the wrongdoing tortfeasor can still win as against the plaintiffs maybe not against the trustee  if that wasn't raised in the district court i didn't see that it was then can we even consider that while i believe it could be considered but it is very similar to the standing argument that was the reason this record and the standing argument goes to the ability to even bring the case and to me it's a real party in interest question if if i'm seventeen years old my i was injured in a car accident i have standing to sue but not the right party to sue because my parents have to bring it and so on but i'm still the injured party so i have standing because i was grievously injured in a car and i'm just not old enough to bring suit in my own name so that's the difference between standing in a real party and interest the norris's were and i believe one of those holdings that can be raised now so you only read this whole issue of the bankruptcy right it comes up and i know your client unlike the other defendant was there at trial but the issue of the norris's bankruptcy court conduct comes up in the rule sixty motion correct that is correct your honor and ok so if it's real party in interest with the district court found the rules say a real party in interest is waive a ball so that can't go to subject matter jurisdiction right the real i think this is analyzed under i mean all of the courts have addresses of analyzed this type of issue i don't believe that any distinction between standing a real party and interest would preclude my client from raising this argument for the first time on appeal and i wanted out of it awful you don't is there any argument to judicial and a complete denial of due process we're with these fit into that those limited categories well your honor i see that a lot of time but i'll save some time for a bottle but i mean the way that we view this is district court in this case is the court that issued the judgment and has to have the authority to determine whether the parties to the judgments in favor of is the proper party or not and in courts all the time look at a bankruptcy situation from another court just like the district court did here in your honors in my limited time i'm going to address one issue which is that my client gary with a g was not properly served he wasn't personally served they attempted substituted service and they violated the rules for two reasons first they did not serve where he currently lived and instead served at the new mexico house he had not lived with his wife for almost five years and second that they did not deliver to a person who lived with kerry who was of suitable age on the first error that he had not lived in the house in five years and isn't that kind of factual because there is some evidence of him signing stuff that says i live in albuquerque and then there's some evidence that he only lived in denver and if it's factual don't we have to defer to the district court it's only if there's no evidence whatsoever to support the albuquerque address that we can't that we don't affirm i specifically addressed that very argument in a reply brief there is no finding by the district court that as a matter of fact gary lived in new mexico and stead with the opinion says is you can treat it as if he lived in new mexico because the district court decided to apply what it called this brand new exception that made up the outward appearances exception which it took from an old case from one thousand nine hundred two from this court and so it was purely a legal error or do we need to remain for factual findings because it would seem like if we're going to imply findings we imply them in support of the judgment not against the judgment there's no factual findings that he did in fact live in new mexico the only evidence on the record in fact is his affidavit saying he didn't live there his wife agreeing i thought there was all this stuff about he filled out these tax forms and whatever that said that and his former employer southwest still something to hold address and i mean so there's still and i mean you know it doesn't of here that he's divorced from his wife or there are separate and so the fact that his wife still lives there he's living in denver because he's apparently a southwest employee and that's a better place to be based i mean this doesn't seem like the typical i sold my house and joe blow that i don't even know is now living there and you're still trying to send me stuff there because once in a while somebody does send me something there and it gets forwarded this is this is a little closer case you would agree well with the wife and kids are still in albuquerque and still filling out forms that say albuquerque but he's living in denver there were there were two things that my opponent found where an attorney in new orleans had said that he was still there but remember there's a rich body of case law on spouses separating and cases where you serve the husband but if the wife is the defendant and she's moved or vice versa and we've cited those cases they have not been able to cite any case that said that you served the spouse when there's a separation and that's  enough separation and you're using a term that i think has a legal man are they not together anymore they don't live together with the recordset i went through everything in the record and what the record said is they have not lived together in almost five years ok but i know of married couples that are very much in love they don't live together and i know married couples that live together are not in love and then there are people that separate but don't get a divorce and it's a legal separation where they are not together anymore which one is this we were on facebook your honor they might say it's  complicated they're not legally divorced if that's what you're asking have they lived together in five years in fact more than five years now no they haven't and that's that's the ranchman that they have whenever and there is a body and there's a number of cases that deal with this very situation and the district court got around it by saying that you can use the outward appearance test but when this court adopted that test not for a service rule but for the national labor relations act there were three things that relied upon which don't exist here you had a defendant trying to elude service which there is no evidence of that here you had the exception applying when all were possible appearances were that the person was still at the house and here that's not true i mean there are some things like the w two still going to the former address but there is so much evidence there was a sign in the house saying he's not here the plaintiff's themselves represented to the magistrate judge he's not add new mexico any more would you please let us take a deposition to find out where he is and the magistrate judge said you haven't done enough investigation to find where he is and in fact they did find him they found his condo in denver they knew he was based out of denver they just didn't happen to have a process server go there he was there so even if the district court was right on the all outward appearances test these facts don't match that and then finally in the car case the fifth circuit said that the exception was justified because you read union you read the national labor relations act statute in a way to help unions which is not the all here in fact the laws the opposite substituted service statutes are read strictly or read strictly but then there is this issue of actual notice and so the question to me i can understand and you say that it's complicated you could have a not yet ex who knowingly doesn't tell you about stuff you need to know i can see that but here everybody seems to be assuming gary actually knew about this case and was just ignoring it what is the record show on when and how gear he personally became aware of the case not served but became now that he's yet been himself personally handed a summons or a citation when what does the record show about when he personally became aware of the case there's only one thing on the record draw about a page from the trial testimony where kerry is asked in fact it was the trial judge who interrupted the counsel to the trial judge could ask kerry and said does gary know about this suit and he says well you know is about it and he tried to ask you  talked about it and he says well it's a sour subject we don't really get into it so there is that one there's a few questions that says he knows about it but the settled law is that notice is not enough we cited the case entering a settled law is that we're too broadly construe rule for when there is actual notice but broadly construed does not mean break in fact most of the cases applying it deal with a defendant who's trying to hide from service and to the court says you know if you drop it at its feet that's close enough to handing it to him in his hand but here they they pasted it to the front door without following the rule that anyone was home that it was a person who lived with the defendant and it was a person of suitable age you know the trial court a lot upon an old statute that has been abolished for ten years so we no one defen reasoning on that part of it but the opposing counsel tries to argue where pasting to a front door is close enough to handing to the wife if you pretend you used to live there and there's no case we know the why exotic the she mailed it back to the lawyer right  right no i mean i do not like it was nailed to the or glued to the front door and blew away it was glued at the front door and she got it and if there was a rule that says if your wife knows about it that's enough i wouldn't be having an argument today but the rules say that you have to have service and that notice is not enough that's what this court held in the mcguire versus sigma case forty eight f third nine o two ok thank you sa participate in this case directly your honor he did not and since we're going on the service issues i'll address those arguments first but get what the testimony says and there were several times when kerry cause he was questioned during trial does your brother know about this lawsuit essentially the answer is yes he's he's aware of this lawsuit and as to the service it's not like this is the first time and only time that we attempted to make service that the process server attempted make service we for the record shows through affidavits that we file that we first tried to serve him and in mexico then we went to colorado and i think that we tried to serve him seven or eight times at that denver address that gives no success never there the gentleman's a flight attendant he's based out of denver ok but then i mean i did this as a trial judge a lot i was a state trial judge and we had a lot of people that were hard to serve and there was a very specific process a people went through they didn't just do self help they had me order something and then that order had to be exactly followed and then that was good enough and to the point that sometimes we allowed service by publication even which you know how many people are reading the back page of x newspaper so but that would be authorized but i didn't allow the lawyers to do self help and i didn't grant default judgments based on self help so the fact that this is hard and frustrating and you're really irritated with somebody who peripatetic potential defendant because he's never around doesn't justify completely dismay can something up and saying well good enough to post it on the door when that isn't allowed or isn't provided for by the particular rules i don't agree that it's not allowed and provided for we did cite a series of cases that talk this is not a game of hide and seek and the courts have recognized that service is not a game and all we have to do is to make good faith efforts to affect service to give no i don't agree with that i don't think that you can just say i'm a good faith efforts and that's enough the good faith efforts and the actual notice all relate to construing whether the rule was followed and you haven't pointed me to a rule that allows simply posting on the door at a time when the process server doesn't say someone's home it's not like you're holding your hands close to your heart and i drop it at your feet and you go i didn't i didn't get it that is a different case or even if i'm standing at the door shouting the shouting incident was a different day than the posting incident and so i think those two have to be together they are the same what evidence is there the same day there's evidence that when they went back to  mexico but there was an attempt to serve the door was answered by the sun the sun open the door the sun he was asked is your dad live here and yes he lives here is not home right now so there was an effort to go back and then when the process server went back that's when the process server there he doesn't that's when the wife was behind the door he doesn't live here that's when it was posted on but that's not what the process server says i mean he doesn't put those as the same day because to me that's a really important and the other thing is these affidavit these process servers know this stuff they need to be clear and when they're not clear i think you can say mean there's there's doubt about that i don't think the district court found that that day she was home the court's holding on that point is not that precise in terms of the factual fine i don't think it needed to be because the point of what we did in the esposa case is the source of the case law that i cited about or that reference the supreme court's decision  the source of the authority for the good faith efforts to affect service and i say the efforts by themselves are enough i'm not saying they're relevant but that isn't enough it's not enough if i go to your house three times and you're not there and i know i had tried just leave it on the door that isn't going to cut it we decided a dozen cases i believe in the combined briefs that we have presented where there were circumstances similar to this where there was physical service not made and i don't think i submit that makes a difference if you have somebody where the services drop and i won't take it by hand or they won't open the door i don't think that there is a real difference there substantively the fact is the service was refused and the process server announced why she was there said i'm here to serve a summons and i served and was refused that in that instance whether you drop it at the door drop it outside post it on the door that is the affecting summons here and know that the two were the same day i did or the same moment i don't know that that's been shown that i granular enough to tell you one way or another on argument so i can't i can't my belief is that they were the same day but i can't tell you that with one hundred percent sure how do you address this fact that the district court didn't make an express finding that gary lived there thank  ever by gary causey to the effect that council made that i don't live here it says i reside in denver it doesn't say i don't rise in albuquerque it doesn't say i'm separated from my wife and it doesn't say i never got a notice or actual notice of this lawsuit all the m d c aren't about he did get notice actual notice of this lawsuit and that and not only that the other in the show of notices your honor is that and i even wrote a and the evidence and i submit in that circumstance is overwhelming that that's one of at least one of his usual abodes that's a fact finding that cannot be overcome because of the multitude of evidence that we've submitted from many different sources including declaration mean that seems like these two people have a very complicated the to the husband wife here and so i'm having my little trouble with just sending keep sending stuff to albuquerque when the man lives in denver relying on a i don't know on again off again we don't license i mean we don't know right we don't have speculative ya know what we do know is they were married nobody said they were married they both listed albuquerque as the address it's on his tax returns on his w two it's he list  not participate on this was a different kind i don't mean come to court i mean did he participate in the course of this proceeding not at all your honor and he will not until it respond to what was sent to do not until the motion the rule sixty b motion was filed after the appeal delays had expired the law you're talking about with the lawyer is a different lawsuit right oh i'm sorry the i think that's what's confusing guys lawsuit yes he did participate in that lawsuit but that was a different one  he appeared through counsel there was another similar lawsuit brought in the wheezy and similar to this one called do gas and that well it's he said new mexico and that was two thousand and twelve and twenty thirteen remember mr mr gary causey's affidavit says he moved to denver in april two thousand and ten but we have proof solid proof after that date of at least eight different instances domicile is shown or his residence or his abode whatever you want to call it as shown in the mexico that's what the overwhelming proof is and that's why i think the court can find everything about whether they were married in the state of their marriage or whether they enjoyed whatever we're kind of relationship is all speculative the facts are all of the facts are that he lived there and we were entitled to rely on that there's no evidence that we were trying to go sneak one by these guys we were trying to serve the sky diligently and when we got him at domicile i was satisfied as counsel the service to his wife having it come back post to the door the fact that she refused the service to me that was effective service even if that wasn't the same day even if it wasn't the same day because i think they had been retained you case you are frightened support that there are a dozen case which is your best case that supports that proposition that if they shouting through the door was a separate day from the posting on the door and on the posting on the door i think so and that's the close conwell there we go conwell c e o and cases is very similar and there's a handful of others just like that where you have attempts to evade service so i think i think on the service issue that we did and it is the fairness and it's the due process that's what you look at ultimately is was there a due process and i believe that under the circumstances this gentleman very cause and i submit to the court that if he had an issue with the service it was incumbent upon him to file something because there was you know did he follow the rule sixty within ninety days of the final judgment or you keep trying to go back to the day of the entry of default but there was no final judgment till i guess the three months four months before doing anything at all that there was no amended i mean frankly at the trial if the judge had found there was never a joint venture there was never an agreement he couldn't have entered a final judgement of the fall so even when you default if the evidence at trial shows you try some other defendant that shows something completely different the judge could have said i don't think there's i mean i think the norris's are lying to me it's at its center i'm not saying that that happened i'm saying the judge could have said that and would have entered a final judgment it would have been nothing for gary to challenge paid one give me nothing for him to move to set aside until the final judgments entered you the party that was improperly served in your  view were not served doesn't have anything to challenge i don't agree with i think that your upon the time that you have notice of but the service even if you allege it's improper service and i believe there are cases that talk about you can't wait there's a judgment to avoid maybe that's too maybe i'm wrong in that it's too simple and but that's how i see it are two parts of the question ok was it a reasonable time what was the rule sixty b motion within a reasonable time for him to challenge the entry of the partial f d i don't think so because it is just seeking relief from a judgment in the cornerstone of the ultimate default judgment the first part of it was the first service on him which was the entry of the fault the confirmation of the fall was simply a second step so there's two months i don't even think it's it's a reasonable time for him to have waited until after the appeal delays had run to file his motion if he thought if he gets a if he gets an amended notice of judgment which he obviously did because he ultimately appeared and the court is mailing everything to him at this address in  if he waits another three months he doesn't appeal he doesn't file a rule fifty nine motion he doesn't he waits to follow rule sixty motion in order to what i think is going on is to get around and do an end run on an appeal because he failed a timely appear and because he failed timely fall post trial motions where he could challenge judgment he failed to do anything at all and tools to rule sixty b and i just don't submit to the court that that's not the way the rules are meant to operate it's not a game of hide and seek it's not a game of wait and see it's a game it's a process that he it was incumbent upon him within twenty days i'm going to shoot you to kerry because you're otherwise going to run out of time i'm sorry i'm and no i mean totally you're responding to our questions five minutes yeah time flies when you're having fun so on kerry i wanted to ask about attorney's fees assuming argue window that the district court ruling on the bridge contract will be affirmed in assuming argue end kerry and you're also challenging the absence of lost profits so yes you are challenging the amount in the senate but assuming argue window that we were to affirm that then we get to the attorney's fees shouldn't the attorney's fees be limited to the reasonable and necessary to pursue that amount again that breach against kerry not reduce your duty which you lost on not unjust enrichment you lost on not running around trying to find gary or any of that just that and were they so segregated so that's why i don't think the operative facts are all the same or similar so i've answered your question is no i don't think so because the core operative facts are all essential are the same in terms of what we are claiming the fury's or recovery are different so i don't  think that what we ultimately prevailed on and how we prevail is not dispositive of the recovery because we still had to prove the underlying facts which were and then did you segregate out the time spent on gary  we did segregate out how much was where would i find the i did the records work and give you the record cite these top in my mind it was we did calculate this service cost in the process and things like that and  estimated cost for serving the appeal we did do that just wasn't part it was an appeal this i appreciated i think the courts bring up some of these issues for the first time not that you can you have the right to do ok i mean kerry directly challenge the amount of the attorney at the district court level that's what's confusing to me the other side did not do anything to oppose our motion for attorneys so i don't think you can do that on the first time on appeal that's a different question yes you did challenge it on yeah but you can't it was not a challenge there was a prior counsel for them and it was not challenge now we don't have a lot of time on the last lot of questions and richardson on the the jurisdiction issues and i do not believe judge cost that the one thousand dollars is anything that the north has provided record and there you have nine for two at eleven seventy five as an example one form one you can see each one of these there's a column at the top that says estimated net value value determined usually meets with the debtor and talks to them about we don't know what transpired don't know which are original trustee is dead the bankruptcy attorney for the nurse is dead i don't have anybody i can ask those questions which begs the quite well except your clients well my clients election is not i mean i have a client who's a plumber and i have a client who's a housewife and they are not versed in bankruptcy law so they are not i don't think you have to be versed in bankruptcy law to remember what you told anybody about this big on they i believe their testimony was that they didn't really know the value of the claim and that's what their testimony at trial was now what they couldn't recall is exactly when and what they told to the trustee along those lines they all they did testify that they always believed that there was little value or an unknown value because they didn't know with the causes could pay if they could ever recover anything from this amount because the money just appeared on the bigger  n on the bigger issue of the jurisdiction question and the other point i wanted to make on the few things the effect of the bankruptcy you're opening none of this ministerial act cases we cited are all in that it has no effect there's been no move by the bankruptcy court to do anything i think with respect to the to the it's the fun now of the day that's the focus of the abandonment and the district court decided that the bankruptcy court did not who let's assume argue endo fails to disclose something in their schedules in a bankruptcy court as against a wrong doing allegedly wrong doing toward fees or the plaintiffs still lose is simply no evidence of that if there was facts about that it's way too late to do that on a rule sixty b motion after a trial and the finale of this judgment i agree with judge cost i believe we want to remark how can we zero in court attack the finale and this is where i would phrase it how can we see in a court attack the finale of the abandonment court i don't think you can that's not what the the courts are imperative do now should this court punt that question and wait to the michigan bankruptcy court ask you not do so because i think that this court can decide as it should that you have three whole minutes thank you your honor try to address to the issues that apply to carry that were discussed by opposing counsel on the issue this is a thousand thousand dollars and once again i mean the  norse's i mean the best position to know where that came from in their testimony that they just can't remember they don't know where that came from is not credible i mean they knew enough to know what district attorney and follow complain and they also knew about credibility that yes  honor my point is they also went to an attorney and file the lawsuit and i knew the value of the claim was the amount of the checks that were issued and furthermore the fact that they didn't release the discovery i mean normally you'd be able to take discovery and say what did you tell the trustee that led to this thousand dollars and that's why you could bring a stop loss with evidence that they misled the bankruptcy court but that we're is that in this record in this action right while your honor i substitute his counsel when the motion for a leaf was filed i don't feel i'm not blaming you for what didn't happen but i want to know what did happen is there anything in the record that this alleged misrepresentation was investigated during discovery in this case you can show us how it happened i don't believe so and i think that's part of the all i don't think that it anyone fully appreciated the significance of the bankruptcy proceeding and what actually occurred in the fact that this hadn't been fully disclosed until later until is looked into by counsel for gary you normally have to bring i'm not going to stop will ok well i think there were rusty made any effort to come in here to this case in any way despite my encouraging the trust the counsel for the trustee to do so no i think that back should prefer to sit back and let anybody litigate these issues  the attorney's fee issue there there's there's a motion for attorney's fees it's part of the record it's in my record excerpts i believe it at tab eight and there was no effort to separate out who what what that was that was a full amount of attorneys fees and costs in the case and it was fifty six thousand dollars plus costs and the you can see in that motion the argument for why kerry was solitarily liable is because he didn't attempt to settle the case with them and they were forced to try the case and because jerry you know  not served and didn't just say i'm sorry jerry did not display in the lawsuit was found liable but you brought up judge chains i mean it's not equitable to find kerry responsible for the full amount of attorneys fees specially with all the work that was done relating to service of the fact that the only way he was found liable was because some phones were transferred to his account and he never agreed to the terms of the j v a cell i'm sorry i know it's hard to time limits but they are what they are all right directors in close us out here with your big three minutes ok your honor you asked very specific questions about what the record showed and my opponent i'm sure unintentionally made three errors about what the record says he said that kerry only said he resided in denver not that he didn't reside in new mexico paragraph eight of his affidavit says since april two thousand and ten to the present i have not resided in albuquerque and there is nothing in the record that contradicts that no other  second of all and i think your honor put figured out this one that the time when the service at the there was a knock on the door and the wife says i'm not there was not the same time that the notice was posted to the front door the affidavit from the process paragraph eight says the wife yelled through the door and in paragraph nine says subsequently so like another another time that the process server went there they posted to the front door and finally opposing counsel said that there were eight times that there was an attempt to serve at his condo that's actually not what the affidavit said it just says multiple times but aside from those misstatements you asked a very good question which was what's the closest case you have to knocking on the door and hearing shouting through the door one day and coming back another day to post and opposing counsel said that it's the congo case but that case has nothing to do with the facts here the issue in that case was did they serve someone who lived with the defendant and the defendant argued the woman that you served was not my wife it was the nanny who doesn't live there and the trial court found as a matter of fact he was alive the trial court said the affidavit from the process server which was a detailed affidavit as your honor referred to it was clearly the white that was served and he was just making up but in that case you had papers handed to someone here if you were to affirm in this case that would mean when you post to the front door how do you tell whether it was the nanny or the wife or anyone who got the survey you can't tell not to mention you could never tell if the person was of suitable age so it would be completely unworkable they have a rule to assume how old was the son who answered the door the one time that's not in the record i can tell you he was in his twenty's but we don't know the relationship but it's not in the record  really just to be clear you asked did gary participate on the underlying trial no period he did not there is no evidence of that for the first time we see gary is in june of two thousand and sixteen filing a sixty before all sixty motion there's no