and afternoon represent the appellant and the debtor in this case gregory lane count if you please the court i'd like to just jump right into some of the facts that i believe support our position in this matter  at the at the trial court level so to speak we submitted a sixteen page affidavit with a number of exhibits which at that stage of a summary judgment level were required to  the facts that were submitted in our affidavit there were no counter affidavits factual affidavits submitted counsel leonard submitted a an affidavit which put in the record all of the pleadings from the state court case but there were there were really no no counter factual affidavits that were submitted the the case seemed it seems to me counsel are you suggesting that if the facts were contrary to the finding of the state court that the bankruptcy court was required to accept the facts articulated in the affidavit is true i'm submitting that the court was required to accept the facts in the affidavit is true to the extent that they impacted on the court's consideration of whether or not mr couch had a full and fair opportunity to litigate at the state court level only in that sense because that really is the crux of this case did he have a full and fair opportunity to litigate he paid a twenty two thousand dollars retainer to his state court counsel jeremy little to defend the case and also included in that sum was a retainer to defend christopher byrnes who was a codefendant and ended up actually testifying against him at the hearing on damages mr little mr little advised greg that the case had been settled mr couch was thrilled to hear that i was informed was everything in writing given to mr no sir there was not  and mr couch is not an attorney and he's not really even a a sophisticated what i would use that term in someone cavalierly but he's not really a sophisticated person  he he does communicate with me via e mail but the notice was given a verbal e and that fact had to be accepted as true at the summary judgment level that that that that actually happened that he did get a  verbal notice that the case had been settled and then when he moved back to london in april of two thousand and fourteen he did not receive any of the pleadings the motions the notices of hearing that had been filed in the state court and there's evidence in the record to suggest that that his post office box was in fact closed and that he was not receiving those correspondence we also put in our affidavit that that panther and coolants knew where he was living in london his physical address that they had that information in his file his personnel file and  they chose not to provide that information to their counsel in the state court case or or they chose simply not to send and we have a litany of pleadings that they even admit were returned to them without getting to mr  missouri and i don't know what the status of his license is in tennessee but i was able to track him down and i spoke with him over the phone occasion i represented this court he was defensive and interestingly enough him and as i said he was defensive and was not interested in cooperate with me so i won one conversation with him and all that aside the only evidence on the record was that my clients were told by an attorney that they trusted and paid twenty two thousand dollars to that their case had been settled hearsay no it would not have been because it was the declaration of a party party debtor in this say in this case where that's why he was not even even even if he had he did not get notice of what was going on a state court case but he his mental state was that the case was was concluded and it really goes to to the totality of whether or not he had a full and fair opportunity here to to defend this case also on the record is have evidence that over over four hundred thousand dollars in sales proceeds were remitted to panther for the sale of their products that they received payment for their products at the at the prices they were charging when gregg acted as a as a middleman really relevant if he's diverting business opportunities from his employer well it goes it goes to the to it that that goes to the issue of whether or not he has defenses that he could assert if the case ever got to the merits and also he you know it he i think greg would ultimately testify that panther was a wall of what was happening in this case so it all just goes to the totality of did did he really have a fair opportunity to defend himself you know that that issue goes to the question consumer protection act you know the judgment was just a little over one hundred thousand but it got trebled under there to see consumer protection act when my clients doing commercial sales and plus they got all their attorney fees and so that that damages amount could have been mitigated by evidence that greg paid them the money they were owed for their product and that he did not have that he did not act maliciously or you know is is bound by the activities of his attorney right wrong or indifferent how do you respond to that well ordered ordinarily ordinarily that would be true when your attorney is acting in good faith and and you know i think that that is ordinarily true but this is a case where we're trying to decide if a default judgment for half a million dollars if that should be given collateral stop will break loose of a fact and the thing that i think the thing that i think is most important in rebutting that idea that supposition is that the two recent cases that have come  down from the tennessee bankruptcy courts in fourteen and fifteen the bennett case and then the vincent case talk about the fifth element being that the party had a full and fair opportunity to contest the issue now sought to be precluded and even judge shafik knowledged in his opinion in the fisher case that that the court is supposed to look at did did the defendant make a conscious decision a choice to voluntarily walk away from the lawsuit and not defendant a knowing conscious decision to walk away from the case both of the case and the case in the discovery yes and he did respond to it he responded to it in writing he gave his his answers to the discovery to his attorney germy little but  so but that's that's admitted really that there's no there's no question but that they acknowledge he responded to the discovery initially their position is that he didn't respond sufficiently and so they moved for a more a more definite response to produce more discovery and that that's the point where greg stopped receiving the notices so he did answer this governor and this one will acknowledge that i believe it but it was not answered as as adequately as he would have liked so the bottom line is he's did not have a truly fair if fairness is the approach a truly fair opportunity to fully defend himself and for that reason i believe that he should have his day in court on the merits thank you of decision in the andersen v fisher case rendered by the same bankruptcy judge that ran a decision this case which was affirmed by the panel as recent as two thousand and fourteen and that case is factually and legally indistinguishable from this case the sole issue on appeal your honour's is whether or not the bankruptcy court aaron awarding apple e summary judgment finding that the state court judgments there rendered an athlete's favor are entitled to state court final judgments on the merits rendered in a case where appellant appeared with counsel filed to answer filed a counterclaim then proceeded disregard the state courts discovery order for default penalty default judgment was issued and then after a judge evidentiary hearing on damages the court rendered a damages award to the apple lease what's significant in this case is that below and on appeal the appellant does not dispute the key elements that are part of the andersen analysis and those three key elements are that one that the state court judgments addressed the same types of claims covered by this action second that the claims are actually litigated the tennessee state court and finally that the claims were necessary to state court judgment therefore in accordance with the andersen decision the state court judge in this case are entitled to place of effect much of helen's argument is that attempt to real litigate the material facts of the underlying state court litigation however as dictated by the decision in andersen the bankruptcy court and this panel need only look at the findings inclusions that are set forth in the state court judgments in other words you just need to look at the face of those judgments to determine whether or not the enders analysis has been met and again there is no specific dispute as to whether or not the andersen analysis has been met appellants principal argument is that we need to create some kind of distinction with the andersen elsa's that there's these two added elop more specific elements namely that a judgment needs to be on the merits and that they need to be a full and fair opportunity well that's what occurred in this case indeed appellants ignoring the fundamental nature of a penalty default judgment a penalty default judgment as was noted in discussion decision by the panel is quote our judge of all judgments entered as a sanction where party has substantially participate in action in which he had full and fair opportunity defend on the merits but subsequently chooses not to do so and even attempts to frustrate the effort to bring this action to judgment therefore the entry of the penalty for judgment in of itself confirms that the state court judgments were judgments on the merits and that appellant was given a full and fair opportunity forded final and collateral stock will effect and the gear and again i would emphasize that appellant appeared in that action got a notice of that litigation answered higher counsel counterclaim and it was only after he began to disregard the court's discovery order that now this issue arises of blame in his state court attorney and whether or not he had been getting proper service if you're claiming any indication of the disconnect between mr coach would speculation but i suspect because he was unable to communicate with the client regarding the court's directives regarding discovery he felt it was necessary to withdraw from that case and the record indicates that that motion withdraw was served on a pallet and there was a hearing on that motion the court properly granted that that motion so there be no reason for your client or the to contact that attorney afterwards if the trade with go direct and again while he's represented by klein it would be inappropriate to directly contact  couch regarding his discovery failures appellants counsel wants to talk a lot about the foreign fair opportunity element in the context of these later cases however if you turn to those later cases i believe mr post teller cited the bennett case as well as the assange case i mean both of those cases are still on all fours with this case in the bennett case for example the court held there is no dispute that the state court judgment is a final judgment and that the parties are the same the only critical issues are whether the fraud issue in this adversarial proceeding was actually litigated in the state court case and whether the fraud issue was necessary state court judgement again those elements are not dispute this case in the visit case the court said that because there's no question that the fault judgment is a final order and that of the fent it was a party and had option defending the prior suit the only issues to be resolved are whether the same issue was raised in the prior suit whether the issue was actually litigated again elements that are part of the andersen analysis that are not in dispute in this case turning to the two reasons why appellant feels he wasn't given a full and fair opportunity of the first being that somehow blame needs to be imputed on his stake or council for not for falsely informing him of the resolution of the case will again as your honor preston printed out its bedrock principle six circuit law that clients are responsible for the acts of the missions of their council that's clearly set  midterm an international case cited an applebee's brief again in that case the sixth circuit docked of the rule that because a party quote voluntarily chose its attorney as his representative in the action he cannot now avoid the consequences of the action missions of this really selected aged any other notion would be wholly inconsistent with our system of represented litigation in which each party is deemed bound by the acts of this laure agent and is considered to have notice of all facts those of which can be charged upon th turn and consequently any of these any allegations regarding misconduct by his state order turny have no legal bearing on the coolest effect of the state court judgments and indeed blaming steak or counsel is just simply not a is not grounds for reversal in this and again as i pointed out to the panel the record shows that state court counsel filed a motion withdraw all that was heard and properly granted by the court if ultimately it proves which we can only speculate that appellant has some type of claim against his stake or counsel then so be it but that any such claim is not a defense to this action the second issue raised by appellant as to why believes there wasn't opportunity is with regard to service however the record shows that service was properly conducted by the police council in the state court case tennessee law or requires the court and or a party to serve another  i don't know the exact timeline or the most between  no don't take your time to look at that i can i can find that was do you know if the state court order authorizing withdrawal of counsel is served on the on the debt are correct and again the addresses used are the address listed in the answer in the counterclaim as well as appeal box that mr couch had been using in fact that's the p o box address that mr couch filed his filed his bankruptcy case under and so during the time that the order of default was entered it was was ultimately believe the discovery order was put on in november and a default judgment was put on in february twenty fifteen so that would be the chronology of events but again under tennessee law all of the only obligation is to serve out that last known address that was listed with the court there's no other obligation on the part of apple east to serve and that's how the bankruptcy court found that's how the this court should fine seems that the argument is well i was wrong by them and therefore i wrong them and i think those are the for those reasons that's why a judge chef found that the parent wasn't entitled to this was that was not entitled to some relief in equity to the extent appellant now wants to try to relieve a gate the merits of the claims of the underlying state court litigation this panel as well as the bankruptcy court below is precluded from reviewing those the merits of those claims  to address those but under the book or film and doctor and this court can act as a review court for the state court and i would also point out that appellant a no point has gone back to the state court to file something to say you need to set aside this judgment or for him any other relief and there's nothing prohibit him from doing that is there i mean i would argue the merits of his entire time is that relief however i believe he may have had a recourse at some point to seek better relief correct well you're taking a break how do you respond to the lack of affidavit at the hearing before the bankruptcy court again affidavit are not any facts set forth in mr couches affidavit or any facts that would have been set forth in affidavits from my clients be legally irrelevant in andersen as a firm by the bapi the analysis is in the test is that you have to look at the facts and conclusions that are set forth in those judge state court judgments to determine whether or not standard so again i would i would argue and point out that the standard here is is not for us to come to court and relive a gate the merits of the case is not just put set forth additional testimony it's simply the court means they analyze the st judgments on their face and determine whether or not the elements of andersen have been properly m correct and again i go back to the standard the standard is you have to look at the face of these judgments and on the judgment there is just to fit a service that reflect service on the addresses that were listed in the state court litigation and into to be frank you would be impossible almost for your client to come up with the after day with the appellant things you need i don't know about impossible if anything's impossible but right but i would agree that it would put an undue burden on us to kind of reinvent out of there some affidavit that that that shows definitively that what his allegations are true and again i feel like the discussion is that we're somehow litigating whether or not those facts archer and that's just not properly part of the before you embark on on your comments did i hear you say that the only issue before this court is whether there is a full and fair opportunity for leg ation that is the crux of the case history so are you have banning the first argument that i saw in your brief whether this was decided on the merits i think that under i think that under to the sea state law a default judgment is on the merits and i think i think that i'd like to first say that one of the statements of judge shafted that mr letter quoted was he referred to my client as being willfully ignorant of the state court litigation and that right there kind of shows you how judge shaft looked at this case he did not accept our affidavit as factually true as he was required to do at the summary judgment stage of litigation and keep in mind that just because a summary judgment motion might be overruled that doesn't mean that they're going to necessarily lose the case that they might win all are asking for is a chance mr little has or doesn't have but but i would have to say and say no to that question because the court at this stage is supposed to be looking at the totality of the circumstances and did did greg the certificate of service write that my client never received well and if and if you accept his affidavit as accurate they knew where they should have been singing this stuff to and a required to serve in any other address and what is reflected on that in the documents filed in the case why is their service insufficient well i believe that i believe the tennessee rule of for civil procedure at issue says that they're required to submit to his last known address and the obligation of the lead again to make sure that the court file reflects the last known address or the most it it would have been had greg known that the case was still going  it was mailed to the address that jeremy little put on his distribution list when he filed the motion to withdraw it was mailed to that address and we have a whole we have a whole  that by their own admission were returned to them unclaimed unable to forward he did not receive the order allowing jeremy little to withdraw as his counsel had had to be and knowing him as i do he would have been all over that i mean here i stand and i've been in this case for a year now this is not a great couch great couch doesn't give a twenty two thousand dollar retainer to a law firm for he and his codefendant and fallen one thousand page counter claim and then just stop for dissipating in the case and the fundamental the fundamental question before this court really is is is was it fair and relief where the all that could have been live again well i don't i don't know the answer to that i it well that the answer is that he didn't he didn't know he didn't find out about the judgment until until he got served with the with the adversary complaint in this very case he didn't even know about it until and that's in his affidavit he had no knowledge of this judgment until he until the day he got served with the adversary complaint  and and so that's when he first learned that there had been a judgment and we felt like we had to defend that here before we could do anything down there interestingly enough judge schaff in his opinion in the fisher case that they rely upon so heavily said where a party has substantially participated in an action in which he had a full and fair opportunity to defend on the merits but subsequently chooses not to do so and even attempts to frustrate the efforts to bring the action to judgment doesn't get a piece of paper doesn't do anything afterwards it just seems so odd to me that there wasn't a follow up on that part coupled with there was nothing on the schedule whatsoever the same french affairs it reported this lawsuit understand that but there's a question of says a you've been involved in a lawsuit within the last year and clearly would have been the ok for me certainly sir i'm sorry rob but i think you're close to the end zone i'm at the very end thank you if you are rep with our sons to you may well i just would i just would