life thirty first two thousand and fourteen sound discretion and you're looking at a panel composed of a lot of veteran former trial judges who we understand that the cases have port is certainly something that was considered at the time and at the time there was nothing presented during the course of the examination which was merely mr turner rest changing the facts associated with supposed to presume that everything happened just hunky dorey to support the trial judge's ruling in the absence of a record her i believe that the cases that have been cited for the proposition that a bystander support is necessary to be filed can be distinguished one of the first cases with respect to the marriage why should we be inclined to distinguish them i should or would you say this is pretty good rule we should expect that we're going to be provided with the record well i think within each of the cases and certainly if the court feels that a supplement of the record would help this court in making a decision i would be i will be moving the court to supplement the record so i can obtain a certification from judge lauren essentially four months or four years with mercer turner and the defense doing essentially nothing to push this case forward so at the time i deemed it was determined that the record was complete because we had a record for almost four years detailed court documents and we also had the docket sheet indicating all of the hearing date who was present what was filed when it was filed and alan's filed there wasn't anything else outside of what was contained in the record at this point that is the affidavits in the record that was complete at the time of the trial court considered all of these matters the cases cited are omitting the significant documents financial documents or in one case a jurisdictional issue related to a summons we have a body of work over years where there was nothing done to the silicate or push this case forward but to the extent that the court received the documents nowhere in their brief does that lay out anything specific that was said at the hearing that without pain justification for bay caving pursuant to the arom factors if in fact at the time the motion was filed that was fi thirteen zero one which contemplates that the judgment occurred within thirty days of the filing of the motion at no time was it ever amended the defendant relies upon the put to no one motion and then through the course of the appeal now th to push the thirteen zero one into line with the fourteen zero one requirement in the air room standards are the three prong analysis an era when in fact there was was very little there is no evidence as a relates based upon the difficulties that we've been having in trying to get somebody to respond the court set the motion for summary judgment during of defense on december twentieth two thousand and thirteen between that time plaintiffs counsel filed an appropriate response and also across a motion for this default judgment or otherwise participate in the litigation which is consistent with how the history of this case has been developed ever since the complaint was filed back in two thousand and five from the timeframe when the complaint was filed attorney for the defendant filed a motion to dismiss but never noticed it so trying to get the case moving i filed notices of the defendant's own motion to dismiss three times to try to get the case off the off the mark during this timeframe where we're going through trying to get that motion to dismiss or and that through the timeframe summary judgment was denied for the defendant judge laurence has headquarter the attorney for the defendant to answer complaint he also ordered the attorney for the defendant to answer scullery during the time frame once he filed a motion for summary judgment sometime in october of two thousand and thirteen i moved to compel discovery because i wanted to try to establish what the facts are that he was wrote that he was relying upon combine that with the fact that there wasn't any answer filed i had nothing to try to determine what the basis of the motion for s court granted my motion in order to him to comply with this government in seven days he fails to comply with the discovery at that point and then we move to the december twentieth hearing thereafter i file  a motion for judgment order on january thirtieth two thousand and fourteen biled it and i noticed appearing on february eleventh two thousand and four at that hearing i was i was kind of shocked that he wasn't at the hearing that there was a hearing on february eleventh where the judgment order was in or i den wait thirty forty five days to initiate supplemental proceedings to obtain collection of the matter i found a third party citation then on may nineteenth two thousand and fourteen the defendant files a motion to vacate under section thirteen a one court and later grants the motion and that is what has put us to this point th  circumstances that existed to relax the state so when the attorneys conduct is the reason for the delay the courts have held that that's not a basis to relax that the due diligence climates in this case there's nothing kind of outsider exigent that would suggest that there's the imposition of equity when trying to determine whether or not we should make this motion to dismiss when in fact when we go through the air route factors there's nothing that would support the three prongs any one of the three prongs let alone each of them so i think that the court abuse of discretion one because i don't believe the recent person can look at the history of this case and the record to determine whether or not there was due diligence either and identification of america tori's defense since there was no facts put in the brief to support this contention there is a contention that there was a motion for summary judgment piled but there is nothing in the record indicate what the defense actually was the clerk of this court trying to do some was present on the date july thirty one two thousand and fourteen that you would have no cooperation trying to comply with perspiration of a bystander's record since mr day's involvement we have had supplied which essentially he didn't receive those documents that he listed in the af i believe also even with the record issue i believe that the court could consider equitable standards as relates in the favor of the plaintiff in this case we've had to expend over almost four years of litigation costs associated with this matter and now the defense is essentially wanting to say ok now we're involved let's really litigate this case and fortunately my client has had to bear the opportunity toss of not having the judgment amount that we have in the and the value of the services which were performed in addition they've had to incur the attorney's fees associated with presenting this case primarily a lot of those additional fees or so as a result of the fact of i've been trying to move this case to a point where we can actually get to issue as opposed to continuing on in this flat spend cycle of nothing taking place despite court orders despite my insistence and i believe also that the record is does not contain any anywhere that there was ever an amendment to their motion to vacate to conform  that the reviewing court has no basis to conclude the trial court's committed an abuse of discretion and the fourth district has stated this in the case of in re of hayden another fourth district case from two thousand  now the fourth district has also stated previously that in the absence of any transcripts where the issue on appeal stems from an evidentiary hearing that's the review in court is to presume that the trial court's decision was based in sufficient facts and that the trial court properly applied the law to those facts the fact that my understanding is that it was a fourteen zero one your honor well if i can turn the court's attention to the record i see one six seven eight states there that the defendant filed a in the motion petition pursuant to fourteen zero one it says it in the head whatever other evidence he may have brought it there at that hearing to support his petition now if it's not like plaintiff not have an opportunity to secure a perfect record again you plaintive could have asked for a court reporter at the hearing perhaps there was one not available but he certainly could have asked to continue the hearing also the advise plaintiffs to include that in the record but again i was not contacted about any of a great set of facts or and kind of stipulation on that matter and so i think that  on that basis alone the court doesn't need to get into the to the elements or the the nitty gritty of what's you know whether there was in the tort meritorious the defense or the due diligence was exercised i think even on case it's as we cited on page sixteen of our brief it's cunningham vs miller's general insurance company and in that case the fourth district stated that  now in abuse of discretion occurs when there's no reasonable person that could take the position adopted by the trial court and i think that based on the record that we do have before us that no reasonable person could have taken a position different than what the exactly what was on the affidavit i think it was a lot more but we just don't know but just based on that even if that's true what's in the affidavit in obviously the trial court must have found most of it true if not all of it we can see that the court would never have entered an order granting a default order the full judgments if the trial court was aware that the other side did not have notice of that hearing or did not even receive a copy of a motion for a that there's other things that mr turner did not receive such as the motion for sanctions but i don't think that the court really needs to get into into all those other things that are contained affidavit unless it now again that the purpose of a fortune one is to bring the attention to the trial court's attention on information that if it had at the time it entered the order it would not of enter the order and i think if the trial court knew anyone it would have known that the other side did not have a insufficient and to go any further would be complete speculation on my part you know i wasn't there but i think we can safely say that the trial court presumably trusted mr turner's testimony he was able to waive the credibility of mr  turner he believed him the last time i checked the trial courts don't grant motions to bake eight from that based on testimony that they think someone's lying to them i don't think that's how it how it works and so base to address the issue my understanding of the record is that the motion filed was the thirteenth one that argued substantial justice there's nothing in the motion that addressed any of the supreme court factors as stated in error so there is nothing presented nothing in the motion that supported even if it was a four to no one title it would only have been entitle only to receive facts that would support the air room factors for drying her or her regarding the due diligence component was contained in the affidavit there's nothing in their brief that indicates any statement by the end of day regarding any of the other factors that were dressed the air room factors that were addressed at this hearing this evidence you're hearing that  presumed everything was actually discussed down today was there he's in the fence he's in there are there are there firm he certainly wouldn't have to go under necessarily the presumption because he would actually know what was said or what was not set that was my practice at the point i think ok i didn't intend to send notice i filed a motion have a pending to see if i could get some compliance without actually setting it or notice of that necessarily wasn't an oversight on my part it was just my practice at the moment because i wanted to see if i could get some compliance membership for the discovery so i could do something with a motion for summary judgment to be filed defense counsel fails to address any of the diligence requirements that is required in this case i mean you keep coming back to the diligence and it's clear that the motion to vacate five months after the falls in your four months after he received the judgment order of the motion and the argument and the notice the court record indicates in the judgment order that all parties receive notice there's nothing that has can refute that in addition there's a variety of arguments that are in our brief that aren't addressed by defense that are otherwise way as i've indicated before i don't believe that any reasonable person could otherwise come up