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Filing # 90094320 E-Filed 05/24/2019 01:20:39 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
898 FIFTH AVENUE SOUTH HOLDINGS,
LLC, Foreign Limited Liability Company
Plaintiff,
v. Case-No.: 18-CA-2183
BAYSTAR HOLDINGS, LLC, a Florida
Limited Liability Company; KYLE D.
MCLAUGHLIN, and DANAN JON DELSING
Defendant(s)
DANAN JON DELSING,
Crossclaim-Plaintiff,
v.
KYLE D. MCLAUGHLIN
Crossclaim-Defendant.
‘RESPONSE AND OPPOSITION TO DEFENDANT’S MOTION
TO SET ASIDE FINAL JUDGMENT
COMES NOW, The Crossclaim-Plaintiff, DANAN JON DELSING, by and through the
undersigned counsel, files his response and opposition to the Crossclaim-Defendant KYLE
MCLAUGHLIN’S Motion to Set Aside Entry of Default and Default Judgment.
I_INTRODUCTION
‘Defendant’s Motion to Vacate the Default Judgment must be denied on the grounds that i
McLaughlin had actual and adequate notice of this lawsuit, and he expressly accepted waiver of service. i
Despite having full knowledge that he was being sued by Delsing, McLaughlin opted to ignore these
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 05/24/2019 01:20:39 PMproceedings completely and consistently failed to respond as required by law even though he was familiar
with what he needed to do due to his involvement in another pending lawsuit. Moreover, McLaughlin does
not have a meritorious defense, and has not demonstrated that his neglect was excusable. For the arguments
stated herein, Defendant’s Motion to Set Aside Entry of Default Judgment must be denied.
Il. STATEMENT OF FACTS
1, On August 7, 2018, Mr. McLaughlin was properly served with the underlying complaint by 898
Fifth Avenue South Holdings, LLC (“Plaintiff”) vs. Baystar Holdings, LLC; Kyle D. McLaughlin
(“McLaughlin”); and Danan Jon Delsing (“Delsing”).
2. On August 23, 2018, Delsing filed his response and crossclaim against Mclaughlin stating that
McLaughlin was responsible for the outstanding rent owed on the lease to Plaintiff (the “Lease”) and shall
be required to reimburse Delsing for his court costs and reasonable attorney fees. (“Delsing’s Crossclaim”)
3. On August 31, 2018, Attorney Ralston, counsel for Delsing, began the initial communication
with McLaughlin via telephone regarding Delsing’s Crossclaim against McLaughlin. Attached as Exhibit
“A” is Attorney Ralston’s Affidavit In Support of Objection to Motion For Relief From Final Judgment.
(“Attorney Ralston’s Affidavit”)
4. On September 4, 2018, Attorney Ralston emailed McLaughlin a copy of the Answer, Affirmative
Defenses and Crossclaim filed in the matter along with a waiver and acceptance of service of process.
McLaughlin responded to Attorney Ralston’s email and stated:
“I feel Delsing’s suit against me is mislead (sic) and paints me as breaching an agreement that was
out of my control...this suit has no merit against me...if Danan wants to file a suit...if Danan still
wants to move forward with the suit against me, then | respectfully ask that I am given until theend of this month to sign the acceptance of service.” See Exhibit “B” in Attorney Ralston’s
Affidavit.
Accordingly, McLaughlin referenced Delsing’s Crossclaim 4 times in this correspondence in which he
acknowledged that he was being sued by Delsing.
5. On September 5, 2018, Attorney Ralston communicated via email to McLaughlin that Delsing
did not want to delay service, and that if McLaughlin was unwilling to sign the waiver of service of process,
Delsing would move forward with formal service by a Sheriff. Jd. McLaughlin replied, “Understood - I am
simply requesting some more time before signing.” McLaughlin then followed up with an email that stated,
“Tl sign it”. Jd. In this email, McLaughlin provided an updated address to Attorney Ralston for her to send
all future pleadings. Jd.
6. On September 7, 2018, McLaughlin signed and returned the Acceptance of Service and Waiver
of Service of Process. On September 14, 2018, Delsing filed the Acceptance of Service and Waiver of
Service of Process signed by McLaughlin with the Court.
7. On October 2, 2018, Plaintiff filed against McLaughlin a Motion for Clerk Default for Failing
to Respond within the time frame set by Florida’s Rules of Civil Procedure, copy of which was sent to
McLaughlin’s address of record. McLaughlin failed to respond.
8. On November 20, 2018, 74 days after McLaughlin was served with the Delsing’s Crossclaim,
Delsing filed a Motion for Judicial Default against McLaughlin for failing to respond to the Crossclaim, a
copy of which was sent to McLaughlin’s address of record. McLaughlin again failed to respond.9. On November 26, 2018, the Court granted Delsing’s Motion of Judicial Default, a copy of which
was sent to McLaughlin’s address of record. McLaughlin again failed to respond.
10. On November 27, 2018, Attorney Ralston stated in an email to McLaughlin that Delsing was
looking for McLaughlin to indemnify and hold Delsing harmless in regard to the outstanding rent owed to
Plaintiff. See Exhibit “D” in Attorney Ralston’s Affidavit. McLaughlin replied, “I am willing to do that,
however I need this default dismissed...” Jd, Again, McLaughlin acknowledged Delsing’s Crossclaim, and
understood that a judicial default had been entered against him by Delsing. Attorney Ralston then asked if
he had the funds to pay the outstanding rent owed to Plaintiff, however, McLaughlin did not respond.
11. On January 9, 2018, Plaintiff received a Final Judgment granted against only Delsing.
McLaughlin was omitted from Plaintiff's Final Judgment despite being properly served with the underlying
lawsuit and failing to respond to the lawsuit.
12. On February 20, 2019, Attorney Ralston served McLaughlin with the Motion for Final
Crossclaim Judgment after Default (“Motion for Final Judgment”), Crossclaim-Plaintiff's Affidavit in
Support of Final Crossclaim Default Judgment, and Affidavit of Mark B. Cohen, Esq. as to Reasonableness
of Attorney’s Fees via US Mail at McLaughlin address of record. The Motion for Final Judgment clearly
stated Delsing was seeking Final Judgment against McLaughlin. McLaughlin again failed to respond.
13. On March 20, 2019, Delsing filed a Notice of Hearing for the Motion for Final Judgment and
served McLaughlin via US mail with the Notice of Hearing. After the hearing, Attorney Ralston served
McLaughlin with copies of the proposed Recommended Order Granting Crossclaim Plaintiff's Motion for
Crossclaim Judgment after Default (“Proposed Order”) along with a copy of the Proposed Order.
McLaughlin failed to respond.14. On April 23, 2019, 228 days after McLaughlin accepted service of the Delsing’s Crossclaim,
this Court entered an Order granting Delsing’s Motion for Crossclaim Judgment After Default. (the
“Default Judgment”)
15. On May 2, 2019, McLaughlin filed a Motion to Set Aside Final Judgment on the basis of
defective service of process, more than 150 days after the judicial default was entered against him.
UI. ARGUMENTS
16. “It is only where service is so defective as to amount to no notice that a judgment is void,
because then there is a denial of due process. Where notice is adequate, defects in process or service of
process are waived if not timely raised.” Paleias v. Wang, 632 So.2d 1132, 1135 (Fla. 4th DCA 1994).
17. “A distinction is to be noted between a total want of service where the defendant received no
notice at all, and a service which is irregular or defective but actually gives the defendant notice of the
proceedings against him. The former confers no jurisdiction of the person by the court, but the latter or
defective service of process, on the contrary, confers jurisdiction upon the court of the person summoned.
so that the judgment based upon it is voidable only and not void.” Daniel J. Decker and Angela S. Decker
v, Robert A. Kaplus, 763 So.2d 1229 (Fla. 5"DCA 2000) (quoting State ex rel. Gore v. Chillingworth,
171 So. 649, 652 (Fla.1936)).
18. Further, cases addressing insufficient service of process have emphasized that a defendant
may not, “simply ignore the process, sit idly by, let default be entered against it...” Craven v. JM. Fields,
Anc., 226 $0.2d 407, 410 (Fla. 4th DCA 1969). Instead, “[a] party complaining of irregular service or
return is required to move diligently to effectuate those remedies available to [the party] by our rules of
civil procedure lest [the party] suffer the consequences.” Id.19. In order to have a default set aside, the moving party has the burden to demonstrate excusable
neglect, a meritorious defense, and due diligence. A party's failure to satisfy these requirements is fatal to
the success of a motion to vacate. Geer v. Jacobsen, 880 So.2d 717 (Fla. 2d DCA 2004). There is no
precise definition of excusable neglect and it is a general concept the trial court must consider on a case-
by-case basis. Boudot v. Boudot, 925 So.2d 409, 415 (Fla. 5th DCA 2006). A defendant’s failure to retain
counsel or to understand the legal consequences of its actions is not excusable neglect. Joe-Lin, Inc. v.
ERG Rest. Grp., Inc., 696 So..2d 539, 541 (Fla. Sth DCA 1997) John Crescent, Inc. v. Schwartz, 382
So.2d 383, 385-86 (Fla. 4th DCA 1980)(finding that the “mere assertion by a party to a lawsuit that he
does not comprehend the legal obligations attendant to service of process does not create a sufficient
showing of mistake, inadvertence, surprise or excusable neglect to warrant the vacating of a final
judgment).
A. MCLAUGHLIN HAD ACTUAL AND ADEQUATE NOTICE OF DELSING’S CROSSCLAIM
SO THE COURT HAS JURISDICITON OVER MCLAUGHLIN AND THE FINAL JUDGMENT
IS VOIDABLE, NOT VOID.
20. Here, the Court has jurisdiction over McLaughlin because McLaughlin had actual notice of
Delsing’s Crossclaim, and he expressly accepted service by virtue of the acceptance and waiver of service
of process. In email correspondence with Attorney Ralston, McLaughlin specifically referred to Delsing’s
Crossclaim on multiple occasions and acknowledged that he was being sued by Delsing. Although service
was irregular, McLaughlin was completely and utterly aware of Delsing’s Crossclaim, and he expressly
accepted the waiver of service in an effort to avoid being formally served by a Sheriff. Because McLaughlin
had actual and adequate notice of Delsing’s Crossclaim, the Court has jurisdiction over him and the Final
Judgment is voidable, not void. Thus, the Default Judgment should not be vacated since service was
effectuated on McLaughlin and he had actual notice of the proceeding against him.B. MCLAUGHLIN HAD ACTUAL AND ADEQUATE NOTICE OF DELSING’S CROSSCLAIM
YET IGNORED IT COMPLETELY AND HAS FAILED TO DEMONSTRATE EXCUSABLE
NEGLECT.
21. McLaughlin has not provided any reasonable explanation for his failure to respond to Delsing’s
Crossclaim, thus his neglect is not excusable. Despite having full knowledge and ample time to respond,
McLaughlin ignored every single proceeding in this lawsuit, as well as, the underlying lawsuit by Plaintiff.
McLaughlin had over 7 months (228 days) to take action from the time he expressly acknowledged
Delsing’s Crossclaim and over 150 days from when the judicial default was entered, yet he failed to retain
counsel, failed to file any pleadings, and failed to appear at any of the hearings on the matter as required by
law.
22. Moreover, McLaughlin indicated to Attorney Ralston that he would not be retaining counsel to
defend against Delsing’s Crossclaim even though he retained counsel in other pending litigation against
him in Collier County, Florida (Case No. 18-CA-3536). See Paragraph 5 in Attorney Ralston’s Affidavit.
In McLaughlin’s other suit, McLaughlin is being sued for breach of contract, misappropriation of trade
secrets, and fraud for running a separate business out of the Waterfront Realty office (the location of the
“Lease”). In that case, McLaughlin retained counsel and filed responses, affirmative defenses, amended
complaints, etc. This indicates that McLaughlin is familiar with civil proceedings, and that he understands
the consequences and significance of failing to respond.
23. Accordingly, McLaughlin’s assertion that, “there was no explanation that I was being sued”,
“there was no explanation as to what would happen if didn’t do anything to respond”, and that he “failed
to infer from the notice that he was required to be at the hearing” is disingenuous because McLaughlin was
completely aware that he was being sued by Delsing, and that a Judicial Default had been entered against
him by Delsing. The Notice of Hearing Default of Final Judgment (Doc.#48) had McLaughlin’s name as
the Defendant and clearly stated the purpose as “Crossclaim-Plaintiff's Motion for Final CrossclaimJudgment After Default.” Almost 4 months before the Default Judgment hearing, McLaughlin stated in an
email, “I need this default dismissed and would need indemnification from any further claims from your
client (Delsing) going forward.” See Exhibit “D” in Attorney Ralston’s Affidavit. McLaughlin further stated
that he was willing to indemnify and hold Delsing harmless if Delsing agreed to dismiss the “default”
against him. Jd. When Attorney Ralston asked McLaughlin if he had the funds to satisfy the outstanding
rent owed to Plaintiff, McLaughlin did not respond and did not engage in any further attempts to resolve
the matter with Delsing.
24. As such, McLaughlin has exhibited a pattern of procrastination and feigned ignorance while
engaging in bad faith attempts to resolve the matter with Delsing. McLaughlin failed to take any of these
proceedings seriously, so his neglect is not excusable. Because he has not demonstrated excusable neglect,
the Default Judgment should not be vacated.
C. MCLAUGHLIN DOES NOT HAVE A MERITORIOUS DEFENSE BECAUSE HE ACTED IN
ACCORDANCE WITH THE MEDIATION AGREEMENT AND ORAL AGREEMENT WHICH
MCLAUGHLIN BELIEVED TO BE ENFORCEABLE AGAINST HIM,
25. McLaughlin also does not have a meritorious defense. The mediation agreement signed by Jack
Newby, an authorized agent for McLaughlin, obligated McLaughlin to remove Delsing from the Lease
completely. In addition, there was an oral agreement that Delsing reasonably relied on where Delsing and
McLaughlin agreed that McLaughlin would solely continue to operate the space, assume full responsibility
of the Lease, and pay all future rent payments on the Lease.
26. However, McLaughlin breached both of these agreements by failing to take Delsing off the
Lease and failing to assume full responsibility of all future payments of the Lease. Mclaughlin admitted in
his Motion for Relief and email correspondence that he attempted to remove Delsing from the Lease,
continued to operate out of the space, and continued to make rent payments for approximately one year
after Delsing vacated the premises before McLaughlin defaulted on the Lease. Thus, McLaughlin acted inaccordance with the mediation and oral agreement and believed that both agreements were enforceable
against him. As a result, McLaughlin does not have a meritorious defense, and the Default Judgment should
not be vacated. More importantly, in order to have the Default Judgment set aside it is required that
McLaughlin present a meritorious defense and he has failed to do so.
27. Lastly, Delsing would be prejudiced if the Default Judgment is set aside because Plaintiff has
only obtained a judgment against Delsing in the underlying lawsuit. Delsing reasonably relied on the
mediation agreement and McLaughlin’s oral representations, that McLaughlin would be fully responsible
for the Lease. However, Delsing timely responded to the underlyingly complaint while McLaughlin sat idly
by and completely ignored both lawsuits. Plaintiff now seeks $64,928.43 plus attorneys and costs from
Delsing and is actively attempting to garnish Delsing’s wages. As a result, McLaughlin has completely
evaded accountability in the underlying lawsuit and is now trying to vacate this default judgment on false
pretenses. Thus, Delsing would be prejudiced if the Court set asides the Default Final Judgment against
McLaughlin.
D. CONCLUSION
28. Accordingly, McLaughlin had actual and adequate notice of Delsing’s Crossclaim, so the Final
Judgment is not void and the Court has jurisdiction over him, Because McLaughlin does not have and has
not shown a meritorious defense, and he has not shown that his neglect was excusable, McLaughlin has not
satisfied the requirements to vacate the Final Judgement. Therefore, the Default Judgment should not be
vacated.
WHEREFORE, the Crossclaim-Plaintiff, DANAN JON DELSING, asks this court to uphold the
Default Final Judgment and provide any other relief the Court deems proper, or alternatively, demands an
evidentiary hearing on the matter.Respectfully Submitted,
By: /s/Michael A. Cook
Michael A. Cook, Esq.
Attorney for Defendant/Crossclaim-Plaintiff
Florida Bar No. 107683
YCM Law, PLLC
999 Vanderbilt Beach Rd. Suite 200
Naples, FL 34103
Phone: (239) 221-6362
Facsimile: (954) 368-2004
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email
this 24%day of May 2019 to:
Alex. R Figares, Esq.
Coleman, Yovannovich & Koester, P.A.
Email for Service: cykservice@cyklawfirm.com
Seth Horras, Esq.
Coleman, Yovannovich & Koester, P.A.
Email for Service: cykservice@cyklawfirm.com
Brantley Oakey, Esq.
The Law Office of Brantley Oakey
Email: service@yournaplesattorney.com
By: /s/Michael A. Cook
Michael A. Cook, Esq.
Attorney for Defendant/Crossclaim-Plaintiff
10EXHIBIT “A”IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA CIVIL DIVISION
898 FIFTH AVENUE SOUTH HOLDINGS,
LLC, a Foreign Limited Liability Company
Plaintiff,
v. Case No.: 18-CA-2183
BAYSTAR HOLDINGS, LLC, a Florida
Limited Liability Company; KYLE D.
MCLAUGHLIN, and DANAN JON
DELSING,
Defendants.
DANAN JON DELSING,
Crossclaim-Plaintiff,
ve
KYLE D. MCLAUGHLIN,
Crossclaim-Defendant.
/
AFFIDAVIT OF MEREDITH PECK RALSTON, ESQ. IN SUPPORT OF OBJECTION
TO MOTION FOR RELIEF FROM FINAL JUDGMENT
STATE OF FLORIDA
COUNTY OF COLLIER
Before me, the undersigned authority, Personally appeared Meredith Peck Ralston
(“Ralston”). who after being first duly sworn, deposes and states, under penalty of perjury:
1. Tam over the age of twenty-one years, am an attorney licensed to practice law in
the State of Florida, and understand the obligations of an oath,
2. I served as attomey for Crossclaim-Plaintiff Danan Jon Delsing (“Delsing”) in
this case and communicated with Crossclaim-Defendant Kyle D. McLaughlin (“McLaughlin”)
concerning Delsing’s claims against McLaughlin on multiple occasions.
13. The first time I spoke with McLaughlin was via telephone on or about August 31,
2018. I attach a copy of an initial e-mail sent by McLaughlin to me as a follow up to our
conversation dated September 2, 2018 as Exhibit “A”.
4, The e-mail I sent to McLaughlin on September 4, 2018, which he attached to his
Affidavit and framed in his Motion for Relief from Final Judgment as an isolated
communication, was a follow up to a telephone conversation I had with McLaughlin concerning
the case in which we discussed the failure of McLaughlin to respond to the Complaint filed by
Plaintiff 898 Fifth Avenue South Holdings, LLC (“Plaintiff” , the Crossclaim by Delsing against
McLaughlin, and the merits of the case.
5. In my telephone conversation with McLaughlin he indicated that he would not be
retaining counsel to defend against the claims against him in this case even though he was
retaining counsel in other pending litigation against him in Collier County, Florida (Case No, 18-
CA-3656).
6. Talso discussed with McLaughlin via telephone that we would formally serve him
with the Crossclaim unless McLaughlin elected to waive formal service of process and accept
service. I then followed up with e-mails concerning our conversation. Copies of portions of e-
mails with McLaughlin from September 5, 2018 arc attached hereto as Exhibit “B”.
7. I felt from our conversation that McLaughlin was well aware of the Crossclaim
against him and that he needed to respond to it by filing a response with the Court.
8. T communicated with McLaughlin concerning the case on several more occasions
including October 23, 2018 and October 29, 2018, which is evidenced by the e-mail chain
attached hereto as Exhibit “C”.
ne9. On November 20, 2018, 74 days after McLaughlin was served with the
Crossclaim, I filed Crossclaim-Plaintiff’s Motion for Judicial Default (“Motion for Default”),
which was served on McLaughlin via US Mail at the address that he instructed me to list as his
address on his Acceptance of Service and Waiver of Service of Process.
10. McLaughlin contacted me on November 27, 2018 and was aware of the Motion
for Default, but still failed to file any document in the case. A copy of our e-mail
correspondence is attached hereto as Exhibit “D”.
11. In that November 27, 2018 communication, McLaughlin stated that he was
willing to indemnify and hold Delsing harmless in regard to the outstanding rent owed to
Plaintiff.
12. I served McLaughlin with the Motion for Final Crossclaim Judgment after
Default (“Motion for Final Judgment”), Crossclaim-Plaintiff’s Affidavit in Support of Final
Crossclaim Default Judgment, and Affidavit of Mark B. Cohn, Esq, as to Reasonableness of
Altorney’s Fees via US Mail at the address for McLaughlin on February 20, 2019 as reflected in
the Certificate of Services for those filings or Notice of Filing.
13. The Motion for Final Judgment clearly outlined that Delsing was seeking
judgment against McLaughlin, but McLaughlin failed to respond,
14, One month after filing the Motion for Final Judgment, I scheduled the hearing on
that motion and served McLaughlin via US mail with the Notice of Hearing.
15. After the hearing on the Motion for Final Judgment, I also served McLaughlin
with copies of the letter to Magistrate Friedman’s office enclosing Delsing’s proposed
Recommended Order Granting Crossclaim Plaintiff's Motion for Crossclaim Judgment after
Default (“Proposed Order”) along with a copy of the Proposed Order.FURTHER AFFIANT SAYETH NAUGHT
Vt ecten eg heltrtes
Meredith Peck Ralston
Ath
Sworn to and subscribed to me this! gay of May, 2019, by Meredith Peck Ralston who is
personally known to me.
‘aula _lateer.
Printed Name of Notary Public
My Commission Expires:EXHIBIT Acostnene Original Message -------- cx Mi \y it f
Subject: Fwd: Baystar - 898 5th Ave S
From: Kyle McLaughlin
Date: Sun, September 02, 2018 3:18 pm
To: meredith@peckandpecklaw.com
Hi Meredith,
Per our conversation, please see below communication attempts and response from Alex Figares.
For disclosure purposes, I ask that you please keep the nature and my personal private information
confidential - this is not something I want disclosed to anyone.
Regards,
Kyle McLaughlin
Forwarded message ---------
From: Alex Figares
Date: Thu, Aug 30, 2018 at 9:28 AM
Subject: RE: Baystar - 898 Sth Ave S
To: Kyle McLaughlin
Received.
Alex R. Figares, Esq.
The Northern Trust Building
4001 Tamiami Trail North, Suite 300
Naples, Florida 34103 COLEMAN YOvAMON ste
P; (239) 435-3535 | F: (239) 438-1218 COLEMAN | TOUANOWICH [rOESTER
aflgares@syktawtirm.com
Both Alex R. Figares and Coleman, Yovanovich & Koester, PA, intend that thls message be used
exclusively by the addressee{s),
Visit cyklawfirm.com to learn more about us. thi, message may contain Information that is privileged, confidential, and exempt from disclosure
under applicable Faw.
Unauthorized disclosure or use of this Information is strictly prohibited. If you have received this
communication in error, please
notify Alex R. Figares immediately at afigares@cykdawfirm.com or call (239) 435-3535, and permanently dispose of the original message.
From: Kyle McLaughlin [mailto:kylemelaughlin127@gmail.com!
Sent: Wednesday, August 29, 2018 7:04 PM
To: Alex Figares ; CYKService
Subject: Re: Baystar - 898 Sth Ave S .
Following up on this - please confirm receipt.
Thank you,
Kyle McLaughlin
239-641-1892EXHIBIT BOriginal Message
Subject: Re: Fwd: Baystar - 898 5th Ave S
From: Kyle McLaughlin
Date: Wed, September 05, 2018 10:28 am
To: Meredith Peck
Ill sign it - please update my address, I no longer live at river reach dr, havent for years
my address is 1378 Chesapeake Ave Naples, FL 34102
On Wed, Sep 5, 2018 at 10:23 AM Meredith Peck wrote:
You can, but he doesn't want to delay service if you are unwilling to sign the Acceptance of Service.
Meredith A, Peck, Esq.
Peck & Peck, P.A.
5200 Tamiami Trail North, Suite 101
Naples, Florida 34103
Telephone (239) 263-9811
Facsimile (239) 263-9818
For service of pleadings and court documents email: service@peckandpecklaw.com
CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged and
confidential, and is intended only for the use of the individual or entity named above. If the reader of this
message is not the intended recipient, you are hereby notified that any dissemination, distribution or
copying of this communication is strictly prohibited. If you have received this transmission in error,
please immediately reply to the sender that you have received this communication in error and then
delete it. Thank you.
Original Message
Subject: Re: Fwd: Baystar - 898 Sth Ave S
From: Kyle McLaughlin
Date: Wed, September 05, 2018 10:17 am
To: Meredith Peck
By the Sherrif? I don’t understand, can I no longer sign what you sent me?
On Wed, Sep 5, 2018 at 9:54 AM Meredith Peck wrote:
' Lunderstand. I forwarded the correspondence to my client and he has instructed that we
: proceed with formal service, so we will be doing so.
_ We will keep you updated on any progress with the landlord's counsel concerning the
proposed tenant,
: Thank you,
Meredith A. Peck, Esq.
Pack & Peck, P.A.
5200 Tamiami Trail North, Suite 101,
: Naples, Florida 34103
Telephone (239) 263-9811
Facsimile (239).263-9818
For service of pleadings and court documents email: service@peckandpecklaw.com
CONFIDENTIALITY NOTICE: The information contained in this transmission may be privilegedand confidential, and is intended only for the use of the individual or entity named above. If
; the reader of this message is not the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly prohibited. If you have
| received this transmission in error, please immediately reply to the sender that you have
| received this communication in error and then delete it. Thank you.
conse Original Message --------
Subject: Re; Fwd: Baystar - 898 5th Ave S
From: Kyle McLaughlin
Date: Wed, September 05, 2018 9:34 am
To: Meredith Peck
Understood - I am simply requesting some more time before signing. That is all.
Please keep me updated on the response from their attorney - thank you
On Wed, Sep 5, 2018 at 9:32 AM Meredith Peck
wrote:
| Kyle,
Iwill pass along your comments to Danan, however, we have already filed the
Crossclaim with the Court and will be Proceeding with service, If you are unwilling
to accept service and waive formal service of Process, we will proceed with having
you served by the Sheriff and filing its return of service with the Court.
I will also be sending a follow up letter to the attorney for the landlord concerning
the tenant to see if we can work toward a resolution on this matter.
Best,
Meredith A. Peck, Esq.
Peck & Peck, P.A.
5200 Tamiami Trail North, Suite 101,
Naples, Florida 34103
Telephone (239) 263-9811
Facsimile (239) 263-9818
For service of pleadings and court documents email: service@peckandpecklaw.com
CONFIDENTIALITY NOTICE: The information contained in this transmission may be
privileged and confidential, and is intended only for the use of the individual or
: entity named above. If the reader of this message is not the intended recipient, you
are hereby notified that any dissemination, distribution or copying of this
communication is strictly prohibited. If you have received this transmission in error,
please immediately reply to the sender that you have received this communication
in error and then delete it. Thank you.
- Original Message --------
Subject: Re: Fwd: Baystar - 898 5th Ave S
From: Kyle McLaughlin
Date: Tue, September 04, 2018 5:34 pm
To: meredith@peckandpecklaw.com
Yes, please proceed with follow up ta the other attorney.In good faith, 1 feel that Delsing's suit against me is mislead and paints me
as breaching an agreement that was out of my control.
Marolax of Naples removed Danan fromthe lease as agreed, when the new
owner 898 5th ave holdings (Hoffman) purchased the property, they
assumed the personal guarantee of myself and Danan - the agreement
signed at NABOR removed him from the lease, but not from the personal
guarantee - this suit has no merit against me.
To be completely honest with you, I want to keep this friendly - I still think
Danan is a great guy and I don't want this to be yet another smear on the
friendship we used to have - Im hoping you can help avoid him continuing
on this unnecessary suit against me.
I understand that he must have been extremely upset to receive the suit
from Hoffman, trust me, I was too considering 1 had been working on a
new tenant the whole time. There's really no reason to sue me here, the
reason the lease became delinquent is due to Jack Newby terminating me,
robbing me of almost $200K and shutting down all my vital
communications and access to leases and documentations - something Im
sure Danan remembers well as a he found himself in a similar situation
against Jack in early 2017.
Candidly, if Danan wants to file a suit, it should be against Jack, not me as
all of this was completely out of my control - I acted in good faith towards
Hoffman, and I acted in good faith towards Danan by attempting to reach
him multiple times when I found out about the suit, to which he never
replied.
At this point and time I would ask of you to please share my thoughts with
Mr. Delsing so we may come to a better resolution - I am still diligently
working with the Hoffman representatives to execute the new tenant's
lease; this should be happening within the next few weeks. Given all this
information, if Danan still wants to move forward with a suit against me,
then I respectfully ask that I am given until the end of this month
(September 2018) to sign the acceptance of service, as I am sure this will
all be resolved by then.
Either way, I hope to resolve this ASAP, as Im sure Danan does as well -
please past along my sincere best wishes to him and his family.
Thanks again for your time and explanation, seems like Danan hired a
great Attorney.
Best Regards,
Kyle McLaughlin
239-641-1892
On Tue, Sep 4, 2018 at 4:30 PM Meredith Peck
wrote:
| Kyle,
: Please confirm that I am permitted to follow up with the attorney
regarding the other tenant that is ready, willing and able to rent the
_ premises at the same amount that is due under the original lease. I will
; then send him follow correspondence concerning the matter.
| Also, as discussed, I attach to this e-mail a copy of the Answer,
| Affirmative Defenses and Crossclaim filed in the matter along with an
» acceptance of service for you to sign. If you accept service and waive
; Formal service of process, please sign and return the attached; Acceptance via e-mail. If you will not accept service, we will proceed
: with having a process server formally serve you with the documents.
} Sincerely,
| Meredith A. Peck, Esq.
| Peck & Peck, PA.
| 5200 Tamiami Trail North, Suite 101
: Naples, Florida 34103
| Telephone (239) 263-9811
| Facsimile (239) 263-9818
i For service of pleadings and court documents
; email: service@peckandpecklaw.com
| CONFIDENTIALITY NOTICE: The information contained in this
i transmission may be privileged and confidential, and is intended only for
| the use of the individual or entity named above. If the reader of this
; Message is not the intended recipient, you are hereby notified that any
’ dissemination, distribution or copying of this communication is strictly
: prohibited. If you have received this transmission in error, please
immediately reply to the sender that you have received this
communication in error and then delete it. Thank you.EXHIBIT C——---- Original Message
Subject: Re: Fwd: Baystar - 898 Sth Ave S
From: Kyle McLaughlin
Date: Mon, October 29, 2018 5:29 pm
To: Meredith Peck
Attomey, broker was ccd on email
On Mon, Oct 29, 2018 at 5:28 PM Meredith Peck wrote:
Did you contact the broker you hired on the matter or are you attempting to correspond with the
attorney for the landlord?
Thanks,
Meredith A. Peck, Esq.
Peck & Peck, P.A.
4200 Tamiami Trail North, Suite 101
Naples, Florida 34103,
Telephone (239) 263-9811
Facsimile (239) 263-9818
For service of pleadings and court documents email: service@peckandpecklaw.com
CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged and
confidential, and is intended only for the use of the individual or entity named above. If the reader of this
message Is not the intended recipient, you are hereby notified that any dissemination, distribution or
copying of this communication Is strictly prohibited. If you have received this transmission in error,
please immediately reply to the sender that you have received this communication in error and then
delete it. Thank you.
woneeene Original Message -------~
Subject: Re: Fwd: Baystar - 898 5th Ave S
From: Kyle McLaughlin
Date: Mon, October 29, 2018 5:26 pm
To: Meredith Peck
T have not, I am waiting for a response to my email sent last week.
On Mon, Oct 29, 2018 at 5:25 PM Meredith Peck wrote:
Kyle,
Did you find out anything further about what happened with the tenant or the status of finding
another tenant?
Thanks,
Meredith A. Peck, Esq.
Peck & Peck, P.A,
5200 Tamiami Trail North, Suite 101
Naples, Florida 34103
Telephone (239) 263-9811
Facsimile (239) 263-9818
For service of pleadings and court documents email: service@peckandpecklaw.com, CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged
and confidential, and is intended only for the use of the individual or entity named above. If
: the reader of this message is not the intended recipient, you are hereby notified that any
_ dissemination, distribution or copying of this communication is strictly prohibited. If you have
, feceived this transmission in error, please immediately reply to the sender that you have
| received this communication in error and then delete it. Thank you.
---+---- Original Message --------
Subject: Re: Fwd: Baystar - 898 Sth Ave S
From: Kyle McLaughlin
Date: Tue, October 23, 2018 3:14 pm
To: Meredith Peck
wrote:
Kyle,
Tam not aware who they are using. You may want to contact the broker you hired
to determine what has occurred regarding the other lease as I too was surprised
! when opposing counsel advised that the deal fell apart. Please let me know what
* you learn.
Thank you,
Meredith 4. Peck, Esq.
Peck & Peck, P.A.
5200 Tamiami Trail North, Suite 101
Naples, Florida 34103
Telephone (239) 263-9811
Facsimile (239) 263-9818
For service of pleadings and court documents email: service@peckandpecklaw.com
CONFIDENTIALITY NOTICE: The information contained in this transmission mey be
privileged and confidential, and is intended only for the use of the indivicual or
entity named above. If the reader of this message Is not the intended recipient, you
are hereby notified that any dissemination, distribution or copying of this
communication is strictly prohibited. If you have received this transmission in error,
please immediately reply to the sender that you have received this communication
i in error and then delete it. Thank you.
conennee Original Message -------~
Subject: Re: Fwd: Baystar - 898 5th Ave S
From: Kyle McLaughlin
Date: Tue, October 23, 2018 2:50 pm
To: Meredith Peck
Hi. Meredith,
That comes as a surprise to me as last I heard they had an executed lease.Do you know if they are still using the broker I hired (CRE) or are they
using their own? That will determine whether or not I'can get an update
for you as they have kept me pretty much removed from the entire
process.
Regards,
Kyle
On Tue, Oct 23, 2018 at 12:02 PM Meredith Peck
wrote:
: Kyle,
| Do you have any update as to what is occurring in this matter? My
| understanding from speaking with counsel for the landlord is that the
‘ tenant you located did not work out and that tenant leased another
| Space elsewhere, Have you been in contact any further with the landlord
| and do you have any other prospective tenants?
Thank you,
Meredith A. Peck, Esq.
Peck & Peck, P.A.
5200 Tamiami Trail North, Suite 101
Naples, Florida 34103
Telephone (239) 263-9811
Facsimile (239) 263-9818
For service of pleadings and court documents
email: service@peckandpecklaw.com
CONFIDENTIALITY NOTICE: The information contained in this
transmission may be privileged and confidential, and is intended only for
the use of the individual or entity named above. If the reader of this
message Is not the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly
: prohibited. If you have received this transmission in error, please
immediately reply to the sender that you have received this
communication in error and then delete it. Thank you.EXHIBIT DOriginal Message --------
Subject: Re: Baystar - 898 5th Ave S
From: Kyle McLaughlin
Date: Tue, November 27, 2018 2:02 pm
To: Meredith Peck
Jam willing to do that, however I need this default dismissed and would need indemnification from any
further claims from your client going forward
22@ Vitus-free. www.avast.com
On Tue, Nov 27, 2018 at 1:59 PM Meredith Peck wrote:
Kyle,
Clarification - I meant to say that Danan is looking for you to indemnify and hold him harmless in regard
to the outstanding rent owed to the landlord, 898 Fifth Avenue Holdings, and to satisfy any rent
obligation. We sought the default to protect Danan's interest, particularly because the landlord is
seeking judgment against Danan.
Thank you,
Meredith A. Peck, Esq.
Peck & Peck, P.A.
5200 Tamiami Trail North, Suite 101
Naples, Florida 34103
Telephone (239) 263-9811
Facsimile (239) 263-9818
For service of pleadings and court documents email: Service@peckandpecklaw.com
CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged and
confidential, and is intended only for the use of the individual or entity named above. If the reader of this
message is not the intended recipient, you are hereby notified that any dissemination, distribution or
copying of this communication is strictly prohibited. If you have received this transmission in error,
Please immediately reply to the sender that you have received this communication in error and then
delete it. Thank you.
-------- Original Message --------
Subject: Re: Baystar - 898 Sth Ave S
From: Kyle McLaughlin
Date: Tue, November 27, 2018 1:32 pm
To: Meredith Peck
Meredith,
Did you ever consider to ask me if I would be willing to do that instead of going through the
trouble, wasted money and time to file for a default?
Additionally as clarification, there is no rent owed to Baystar nor is Baystar seeking rent from
Danan.
Please adviseIQ Virus-free. avast.
On Tue, Nov 27, 2018 at 12:49 PM Meredith Peck wrote:
| Kyle,
| As you know, I represent Danan and his interest. Danan is looking for you to indemnify and
_ hold him harmless In regard to the outstanding rent owed to Baystar and to satisfy any rent
| obligation. To protect my client's interest, we sought the default, Particularly since Baystar is
: seeking judgment against Danan,
: Sincerely,
i Meredith A. Peck, Esq.
\
On Nov 27, 2018, at 11:42 AM, Kyle McLaughlin wrote:
Meredith,
A few things regarding this case that are extremely confusing.
1. I have been in constant communication with you in regards to what is going on
with Hoffmann - your request for default came as an absolute shock to me as I
have responded to all of your emails
2. What is Danan looking to accomplish by coming after me when this is
completely out of my control? is he wanting to be dismissed from hoffmann's
suit?
3. As I mentioned before, Jack Newby, whom I am currently in another tawsuit
with, was the basis for this entire problem and was the only signer on that
NABOR agreement
As Ive mentioned before, I am willing to cooperate with you and Danan, but my
attempts so far have been unsuccessful with both him, and now you.
Please advise
Thanks,
Kyle McLaughlin
239-641-1892
Preview
Filing # 90094320 E-Filed 05/24/2019 01:20:39 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, Foreign Limited Liability Company Plaintiff, v. Case-No.: 18-CA-2183 BAYSTAR HOLDINGS, LLC, a Florida Limited Liability Company; KYLE D. MCLAUGHLIN, and DANAN JON DELSING Defendant(s) DANAN JON DELSING, Crossclaim-Plaintiff, v. KYLE D. MCLAUGHLIN Crossclaim-Defendant. ‘RESPONSE AND OPPOSITION TO DEFENDANT’S MOTION TO SET ASIDE FINAL JUDGMENT COMES NOW, The Crossclaim-Plaintiff, DANAN JON DELSING, by and through the undersigned counsel, files his response and opposition to the Crossclaim-Defendant KYLE MCLAUGHLIN’S Motion to Set Aside Entry of Default and Default Judgment. I_INTRODUCTION ‘Defendant’s Motion to Vacate the Default Judgment must be denied on the grounds that i McLaughlin had actual and adequate notice of this lawsuit, and he expressly accepted waiver of service. i Despite having full knowledge that he was being sued by Delsing, McLaughlin opted to ignore these FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 05/24/2019 01:20:39 PMproceedings completely and consistently failed to respond as required by law even though he was familiar with what he needed to do due to his involvement in another pending lawsuit. Moreover, McLaughlin does not have a meritorious defense, and has not demonstrated that his neglect was excusable. For the arguments stated herein, Defendant’s Motion to Set Aside Entry of Default Judgment must be denied. Il. STATEMENT OF FACTS 1, On August 7, 2018, Mr. McLaughlin was properly served with the underlying complaint by 898 Fifth Avenue South Holdings, LLC (“Plaintiff”) vs. Baystar Holdings, LLC; Kyle D. McLaughlin (“McLaughlin”); and Danan Jon Delsing (“Delsing”). 2. On August 23, 2018, Delsing filed his response and crossclaim against Mclaughlin stating that McLaughlin was responsible for the outstanding rent owed on the lease to Plaintiff (the “Lease”) and shall be required to reimburse Delsing for his court costs and reasonable attorney fees. (“Delsing’s Crossclaim”) 3. On August 31, 2018, Attorney Ralston, counsel for Delsing, began the initial communication with McLaughlin via telephone regarding Delsing’s Crossclaim against McLaughlin. Attached as Exhibit “A” is Attorney Ralston’s Affidavit In Support of Objection to Motion For Relief From Final Judgment. (“Attorney Ralston’s Affidavit”) 4. On September 4, 2018, Attorney Ralston emailed McLaughlin a copy of the Answer, Affirmative Defenses and Crossclaim filed in the matter along with a waiver and acceptance of service of process. McLaughlin responded to Attorney Ralston’s email and stated: “I feel Delsing’s suit against me is mislead (sic) and paints me as breaching an agreement that was out of my control...this suit has no merit against me...if Danan wants to file a suit...if Danan still wants to move forward with the suit against me, then | respectfully ask that I am given until theend of this month to sign the acceptance of service.” See Exhibit “B” in Attorney Ralston’s Affidavit. Accordingly, McLaughlin referenced Delsing’s Crossclaim 4 times in this correspondence in which he acknowledged that he was being sued by Delsing. 5. On September 5, 2018, Attorney Ralston communicated via email to McLaughlin that Delsing did not want to delay service, and that if McLaughlin was unwilling to sign the waiver of service of process, Delsing would move forward with formal service by a Sheriff. Jd. McLaughlin replied, “Understood - I am simply requesting some more time before signing.” McLaughlin then followed up with an email that stated, “Tl sign it”. Jd. In this email, McLaughlin provided an updated address to Attorney Ralston for her to send all future pleadings. Jd. 6. On September 7, 2018, McLaughlin signed and returned the Acceptance of Service and Waiver of Service of Process. On September 14, 2018, Delsing filed the Acceptance of Service and Waiver of Service of Process signed by McLaughlin with the Court. 7. On October 2, 2018, Plaintiff filed against McLaughlin a Motion for Clerk Default for Failing to Respond within the time frame set by Florida’s Rules of Civil Procedure, copy of which was sent to McLaughlin’s address of record. McLaughlin failed to respond. 8. On November 20, 2018, 74 days after McLaughlin was served with the Delsing’s Crossclaim, Delsing filed a Motion for Judicial Default against McLaughlin for failing to respond to the Crossclaim, a copy of which was sent to McLaughlin’s address of record. McLaughlin again failed to respond.9. On November 26, 2018, the Court granted Delsing’s Motion of Judicial Default, a copy of which was sent to McLaughlin’s address of record. McLaughlin again failed to respond. 10. On November 27, 2018, Attorney Ralston stated in an email to McLaughlin that Delsing was looking for McLaughlin to indemnify and hold Delsing harmless in regard to the outstanding rent owed to Plaintiff. See Exhibit “D” in Attorney Ralston’s Affidavit. McLaughlin replied, “I am willing to do that, however I need this default dismissed...” Jd, Again, McLaughlin acknowledged Delsing’s Crossclaim, and understood that a judicial default had been entered against him by Delsing. Attorney Ralston then asked if he had the funds to pay the outstanding rent owed to Plaintiff, however, McLaughlin did not respond. 11. On January 9, 2018, Plaintiff received a Final Judgment granted against only Delsing. McLaughlin was omitted from Plaintiff's Final Judgment despite being properly served with the underlying lawsuit and failing to respond to the lawsuit. 12. On February 20, 2019, Attorney Ralston served McLaughlin with the Motion for Final Crossclaim Judgment after Default (“Motion for Final Judgment”), Crossclaim-Plaintiff's Affidavit in Support of Final Crossclaim Default Judgment, and Affidavit of Mark B. Cohen, Esq. as to Reasonableness of Attorney’s Fees via US Mail at McLaughlin address of record. The Motion for Final Judgment clearly stated Delsing was seeking Final Judgment against McLaughlin. McLaughlin again failed to respond. 13. On March 20, 2019, Delsing filed a Notice of Hearing for the Motion for Final Judgment and served McLaughlin via US mail with the Notice of Hearing. After the hearing, Attorney Ralston served McLaughlin with copies of the proposed Recommended Order Granting Crossclaim Plaintiff's Motion for Crossclaim Judgment after Default (“Proposed Order”) along with a copy of the Proposed Order. McLaughlin failed to respond.14. On April 23, 2019, 228 days after McLaughlin accepted service of the Delsing’s Crossclaim, this Court entered an Order granting Delsing’s Motion for Crossclaim Judgment After Default. (the “Default Judgment”) 15. On May 2, 2019, McLaughlin filed a Motion to Set Aside Final Judgment on the basis of defective service of process, more than 150 days after the judicial default was entered against him. UI. ARGUMENTS 16. “It is only where service is so defective as to amount to no notice that a judgment is void, because then there is a denial of due process. Where notice is adequate, defects in process or service of process are waived if not timely raised.” Paleias v. Wang, 632 So.2d 1132, 1135 (Fla. 4th DCA 1994). 17. “A distinction is to be noted between a total want of service where the defendant received no notice at all, and a service which is irregular or defective but actually gives the defendant notice of the proceedings against him. The former confers no jurisdiction of the person by the court, but the latter or defective service of process, on the contrary, confers jurisdiction upon the court of the person summoned. so that the judgment based upon it is voidable only and not void.” Daniel J. Decker and Angela S. Decker v, Robert A. Kaplus, 763 So.2d 1229 (Fla. 5"DCA 2000) (quoting State ex rel. Gore v. Chillingworth, 171 So. 649, 652 (Fla.1936)). 18. Further, cases addressing insufficient service of process have emphasized that a defendant may not, “simply ignore the process, sit idly by, let default be entered against it...” Craven v. JM. Fields, Anc., 226 $0.2d 407, 410 (Fla. 4th DCA 1969). Instead, “[a] party complaining of irregular service or return is required to move diligently to effectuate those remedies available to [the party] by our rules of civil procedure lest [the party] suffer the consequences.” Id.19. In order to have a default set aside, the moving party has the burden to demonstrate excusable neglect, a meritorious defense, and due diligence. A party's failure to satisfy these requirements is fatal to the success of a motion to vacate. Geer v. Jacobsen, 880 So.2d 717 (Fla. 2d DCA 2004). There is no precise definition of excusable neglect and it is a general concept the trial court must consider on a case- by-case basis. Boudot v. Boudot, 925 So.2d 409, 415 (Fla. 5th DCA 2006). A defendant’s failure to retain counsel or to understand the legal consequences of its actions is not excusable neglect. Joe-Lin, Inc. v. ERG Rest. Grp., Inc., 696 So..2d 539, 541 (Fla. Sth DCA 1997) John Crescent, Inc. v. Schwartz, 382 So.2d 383, 385-86 (Fla. 4th DCA 1980)(finding that the “mere assertion by a party to a lawsuit that he does not comprehend the legal obligations attendant to service of process does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect to warrant the vacating of a final judgment). A. MCLAUGHLIN HAD ACTUAL AND ADEQUATE NOTICE OF DELSING’S CROSSCLAIM SO THE COURT HAS JURISDICITON OVER MCLAUGHLIN AND THE FINAL JUDGMENT IS VOIDABLE, NOT VOID. 20. Here, the Court has jurisdiction over McLaughlin because McLaughlin had actual notice of Delsing’s Crossclaim, and he expressly accepted service by virtue of the acceptance and waiver of service of process. In email correspondence with Attorney Ralston, McLaughlin specifically referred to Delsing’s Crossclaim on multiple occasions and acknowledged that he was being sued by Delsing. Although service was irregular, McLaughlin was completely and utterly aware of Delsing’s Crossclaim, and he expressly accepted the waiver of service in an effort to avoid being formally served by a Sheriff. Because McLaughlin had actual and adequate notice of Delsing’s Crossclaim, the Court has jurisdiction over him and the Final Judgment is voidable, not void. Thus, the Default Judgment should not be vacated since service was effectuated on McLaughlin and he had actual notice of the proceeding against him.B. MCLAUGHLIN HAD ACTUAL AND ADEQUATE NOTICE OF DELSING’S CROSSCLAIM YET IGNORED IT COMPLETELY AND HAS FAILED TO DEMONSTRATE EXCUSABLE NEGLECT. 21. McLaughlin has not provided any reasonable explanation for his failure to respond to Delsing’s Crossclaim, thus his neglect is not excusable. Despite having full knowledge and ample time to respond, McLaughlin ignored every single proceeding in this lawsuit, as well as, the underlying lawsuit by Plaintiff. McLaughlin had over 7 months (228 days) to take action from the time he expressly acknowledged Delsing’s Crossclaim and over 150 days from when the judicial default was entered, yet he failed to retain counsel, failed to file any pleadings, and failed to appear at any of the hearings on the matter as required by law. 22. Moreover, McLaughlin indicated to Attorney Ralston that he would not be retaining counsel to defend against Delsing’s Crossclaim even though he retained counsel in other pending litigation against him in Collier County, Florida (Case No. 18-CA-3536). See Paragraph 5 in Attorney Ralston’s Affidavit. In McLaughlin’s other suit, McLaughlin is being sued for breach of contract, misappropriation of trade secrets, and fraud for running a separate business out of the Waterfront Realty office (the location of the “Lease”). In that case, McLaughlin retained counsel and filed responses, affirmative defenses, amended complaints, etc. This indicates that McLaughlin is familiar with civil proceedings, and that he understands the consequences and significance of failing to respond. 23. Accordingly, McLaughlin’s assertion that, “there was no explanation that I was being sued”, “there was no explanation as to what would happen if didn’t do anything to respond”, and that he “failed to infer from the notice that he was required to be at the hearing” is disingenuous because McLaughlin was completely aware that he was being sued by Delsing, and that a Judicial Default had been entered against him by Delsing. The Notice of Hearing Default of Final Judgment (Doc.#48) had McLaughlin’s name as the Defendant and clearly stated the purpose as “Crossclaim-Plaintiff's Motion for Final CrossclaimJudgment After Default.” Almost 4 months before the Default Judgment hearing, McLaughlin stated in an email, “I need this default dismissed and would need indemnification from any further claims from your client (Delsing) going forward.” See Exhibit “D” in Attorney Ralston’s Affidavit. McLaughlin further stated that he was willing to indemnify and hold Delsing harmless if Delsing agreed to dismiss the “default” against him. Jd. When Attorney Ralston asked McLaughlin if he had the funds to satisfy the outstanding rent owed to Plaintiff, McLaughlin did not respond and did not engage in any further attempts to resolve the matter with Delsing. 24. As such, McLaughlin has exhibited a pattern of procrastination and feigned ignorance while engaging in bad faith attempts to resolve the matter with Delsing. McLaughlin failed to take any of these proceedings seriously, so his neglect is not excusable. Because he has not demonstrated excusable neglect, the Default Judgment should not be vacated. C. MCLAUGHLIN DOES NOT HAVE A MERITORIOUS DEFENSE BECAUSE HE ACTED IN ACCORDANCE WITH THE MEDIATION AGREEMENT AND ORAL AGREEMENT WHICH MCLAUGHLIN BELIEVED TO BE ENFORCEABLE AGAINST HIM, 25. McLaughlin also does not have a meritorious defense. The mediation agreement signed by Jack Newby, an authorized agent for McLaughlin, obligated McLaughlin to remove Delsing from the Lease completely. In addition, there was an oral agreement that Delsing reasonably relied on where Delsing and McLaughlin agreed that McLaughlin would solely continue to operate the space, assume full responsibility of the Lease, and pay all future rent payments on the Lease. 26. However, McLaughlin breached both of these agreements by failing to take Delsing off the Lease and failing to assume full responsibility of all future payments of the Lease. Mclaughlin admitted in his Motion for Relief and email correspondence that he attempted to remove Delsing from the Lease, continued to operate out of the space, and continued to make rent payments for approximately one year after Delsing vacated the premises before McLaughlin defaulted on the Lease. Thus, McLaughlin acted inaccordance with the mediation and oral agreement and believed that both agreements were enforceable against him. As a result, McLaughlin does not have a meritorious defense, and the Default Judgment should not be vacated. More importantly, in order to have the Default Judgment set aside it is required that McLaughlin present a meritorious defense and he has failed to do so. 27. Lastly, Delsing would be prejudiced if the Default Judgment is set aside because Plaintiff has only obtained a judgment against Delsing in the underlying lawsuit. Delsing reasonably relied on the mediation agreement and McLaughlin’s oral representations, that McLaughlin would be fully responsible for the Lease. However, Delsing timely responded to the underlyingly complaint while McLaughlin sat idly by and completely ignored both lawsuits. Plaintiff now seeks $64,928.43 plus attorneys and costs from Delsing and is actively attempting to garnish Delsing’s wages. As a result, McLaughlin has completely evaded accountability in the underlying lawsuit and is now trying to vacate this default judgment on false pretenses. Thus, Delsing would be prejudiced if the Court set asides the Default Final Judgment against McLaughlin. D. CONCLUSION 28. Accordingly, McLaughlin had actual and adequate notice of Delsing’s Crossclaim, so the Final Judgment is not void and the Court has jurisdiction over him, Because McLaughlin does not have and has not shown a meritorious defense, and he has not shown that his neglect was excusable, McLaughlin has not satisfied the requirements to vacate the Final Judgement. Therefore, the Default Judgment should not be vacated. WHEREFORE, the Crossclaim-Plaintiff, DANAN JON DELSING, asks this court to uphold the Default Final Judgment and provide any other relief the Court deems proper, or alternatively, demands an evidentiary hearing on the matter.Respectfully Submitted, By: /s/Michael A. Cook Michael A. Cook, Esq. Attorney for Defendant/Crossclaim-Plaintiff Florida Bar No. 107683 YCM Law, PLLC 999 Vanderbilt Beach Rd. Suite 200 Naples, FL 34103 Phone: (239) 221-6362 Facsimile: (954) 368-2004 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email this 24%day of May 2019 to: Alex. R Figares, Esq. Coleman, Yovannovich & Koester, P.A. Email for Service: cykservice@cyklawfirm.com Seth Horras, Esq. Coleman, Yovannovich & Koester, P.A. Email for Service: cykservice@cyklawfirm.com Brantley Oakey, Esq. The Law Office of Brantley Oakey Email: service@yournaplesattorney.com By: /s/Michael A. Cook Michael A. Cook, Esq. Attorney for Defendant/Crossclaim-Plaintiff 10EXHIBIT “A”IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL DIVISION 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, a Foreign Limited Liability Company Plaintiff, v. Case No.: 18-CA-2183 BAYSTAR HOLDINGS, LLC, a Florida Limited Liability Company; KYLE D. MCLAUGHLIN, and DANAN JON DELSING, Defendants. DANAN JON DELSING, Crossclaim-Plaintiff, ve KYLE D. MCLAUGHLIN, Crossclaim-Defendant. / AFFIDAVIT OF MEREDITH PECK RALSTON, ESQ. IN SUPPORT OF OBJECTION TO MOTION FOR RELIEF FROM FINAL JUDGMENT STATE OF FLORIDA COUNTY OF COLLIER Before me, the undersigned authority, Personally appeared Meredith Peck Ralston (“Ralston”). who after being first duly sworn, deposes and states, under penalty of perjury: 1. Tam over the age of twenty-one years, am an attorney licensed to practice law in the State of Florida, and understand the obligations of an oath, 2. I served as attomey for Crossclaim-Plaintiff Danan Jon Delsing (“Delsing”) in this case and communicated with Crossclaim-Defendant Kyle D. McLaughlin (“McLaughlin”) concerning Delsing’s claims against McLaughlin on multiple occasions. 13. The first time I spoke with McLaughlin was via telephone on or about August 31, 2018. I attach a copy of an initial e-mail sent by McLaughlin to me as a follow up to our conversation dated September 2, 2018 as Exhibit “A”. 4, The e-mail I sent to McLaughlin on September 4, 2018, which he attached to his Affidavit and framed in his Motion for Relief from Final Judgment as an isolated communication, was a follow up to a telephone conversation I had with McLaughlin concerning the case in which we discussed the failure of McLaughlin to respond to the Complaint filed by Plaintiff 898 Fifth Avenue South Holdings, LLC (“Plaintiff” , the Crossclaim by Delsing against McLaughlin, and the merits of the case. 5. In my telephone conversation with McLaughlin he indicated that he would not be retaining counsel to defend against the claims against him in this case even though he was retaining counsel in other pending litigation against him in Collier County, Florida (Case No, 18- CA-3656). 6. Talso discussed with McLaughlin via telephone that we would formally serve him with the Crossclaim unless McLaughlin elected to waive formal service of process and accept service. I then followed up with e-mails concerning our conversation. Copies of portions of e- mails with McLaughlin from September 5, 2018 arc attached hereto as Exhibit “B”. 7. I felt from our conversation that McLaughlin was well aware of the Crossclaim against him and that he needed to respond to it by filing a response with the Court. 8. T communicated with McLaughlin concerning the case on several more occasions including October 23, 2018 and October 29, 2018, which is evidenced by the e-mail chain attached hereto as Exhibit “C”. ne9. On November 20, 2018, 74 days after McLaughlin was served with the Crossclaim, I filed Crossclaim-Plaintiff’s Motion for Judicial Default (“Motion for Default”), which was served on McLaughlin via US Mail at the address that he instructed me to list as his address on his Acceptance of Service and Waiver of Service of Process. 10. McLaughlin contacted me on November 27, 2018 and was aware of the Motion for Default, but still failed to file any document in the case. A copy of our e-mail correspondence is attached hereto as Exhibit “D”. 11. In that November 27, 2018 communication, McLaughlin stated that he was willing to indemnify and hold Delsing harmless in regard to the outstanding rent owed to Plaintiff. 12. I served McLaughlin with the Motion for Final Crossclaim Judgment after Default (“Motion for Final Judgment”), Crossclaim-Plaintiff’s Affidavit in Support of Final Crossclaim Default Judgment, and Affidavit of Mark B. Cohn, Esq, as to Reasonableness of Altorney’s Fees via US Mail at the address for McLaughlin on February 20, 2019 as reflected in the Certificate of Services for those filings or Notice of Filing. 13. The Motion for Final Judgment clearly outlined that Delsing was seeking judgment against McLaughlin, but McLaughlin failed to respond, 14, One month after filing the Motion for Final Judgment, I scheduled the hearing on that motion and served McLaughlin via US mail with the Notice of Hearing. 15. After the hearing on the Motion for Final Judgment, I also served McLaughlin with copies of the letter to Magistrate Friedman’s office enclosing Delsing’s proposed Recommended Order Granting Crossclaim Plaintiff's Motion for Crossclaim Judgment after Default (“Proposed Order”) along with a copy of the Proposed Order.FURTHER AFFIANT SAYETH NAUGHT Vt ecten eg heltrtes Meredith Peck Ralston Ath Sworn to and subscribed to me this! gay of May, 2019, by Meredith Peck Ralston who is personally known to me. ‘aula _lateer. Printed Name of Notary Public My Commission Expires:EXHIBIT Acostnene Original Message -------- cx Mi \y it f Subject: Fwd: Baystar - 898 5th Ave S From: Kyle McLaughlin Date: Sun, September 02, 2018 3:18 pm To: meredith@peckandpecklaw.com Hi Meredith, Per our conversation, please see below communication attempts and response from Alex Figares. For disclosure purposes, I ask that you please keep the nature and my personal private information confidential - this is not something I want disclosed to anyone. Regards, Kyle McLaughlin Forwarded message --------- From: Alex Figares Date: Thu, Aug 30, 2018 at 9:28 AM Subject: RE: Baystar - 898 Sth Ave S To: Kyle McLaughlin Received. Alex R. Figares, Esq. The Northern Trust Building 4001 Tamiami Trail North, Suite 300 Naples, Florida 34103 COLEMAN YOvAMON ste P; (239) 435-3535 | F: (239) 438-1218 COLEMAN | TOUANOWICH [rOESTER aflgares@syktawtirm.com Both Alex R. Figares and Coleman, Yovanovich & Koester, PA, intend that thls message be used exclusively by the addressee{s), Visit cyklawfirm.com to learn more about us. thi, message may contain Information that is privileged, confidential, and exempt from disclosure under applicable Faw. Unauthorized disclosure or use of this Information is strictly prohibited. If you have received this communication in error, please notify Alex R. Figares immediately at afigares@cykdawfirm.com or call (239) 435-3535, and permanently dispose of the original message. From: Kyle McLaughlin [mailto:kylemelaughlin127@gmail.com! Sent: Wednesday, August 29, 2018 7:04 PM To: Alex Figares ; CYKService Subject: Re: Baystar - 898 Sth Ave S . Following up on this - please confirm receipt. Thank you, Kyle McLaughlin 239-641-1892EXHIBIT BOriginal Message Subject: Re: Fwd: Baystar - 898 5th Ave S From: Kyle McLaughlin Date: Wed, September 05, 2018 10:28 am To: Meredith Peck Ill sign it - please update my address, I no longer live at river reach dr, havent for years my address is 1378 Chesapeake Ave Naples, FL 34102 On Wed, Sep 5, 2018 at 10:23 AM Meredith Peck wrote: You can, but he doesn't want to delay service if you are unwilling to sign the Acceptance of Service. Meredith A, Peck, Esq. Peck & Peck, P.A. 5200 Tamiami Trail North, Suite 101 Naples, Florida 34103 Telephone (239) 263-9811 Facsimile (239) 263-9818 For service of pleadings and court documents email: service@peckandpecklaw.com CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged and confidential, and is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you. Original Message Subject: Re: Fwd: Baystar - 898 Sth Ave S From: Kyle McLaughlin Date: Wed, September 05, 2018 10:17 am To: Meredith Peck By the Sherrif? I don’t understand, can I no longer sign what you sent me? On Wed, Sep 5, 2018 at 9:54 AM Meredith Peck wrote: ' Lunderstand. I forwarded the correspondence to my client and he has instructed that we : proceed with formal service, so we will be doing so. _ We will keep you updated on any progress with the landlord's counsel concerning the proposed tenant, : Thank you, Meredith A. Peck, Esq. Pack & Peck, P.A. 5200 Tamiami Trail North, Suite 101, : Naples, Florida 34103 Telephone (239) 263-9811 Facsimile (239).263-9818 For service of pleadings and court documents email: service@peckandpecklaw.com CONFIDENTIALITY NOTICE: The information contained in this transmission may be privilegedand confidential, and is intended only for the use of the individual or entity named above. If ; the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have | received this transmission in error, please immediately reply to the sender that you have | received this communication in error and then delete it. Thank you. conse Original Message -------- Subject: Re; Fwd: Baystar - 898 5th Ave S From: Kyle McLaughlin Date: Wed, September 05, 2018 9:34 am To: Meredith Peck Understood - I am simply requesting some more time before signing. That is all. Please keep me updated on the response from their attorney - thank you On Wed, Sep 5, 2018 at 9:32 AM Meredith Peck wrote: | Kyle, Iwill pass along your comments to Danan, however, we have already filed the Crossclaim with the Court and will be Proceeding with service, If you are unwilling to accept service and waive formal service of Process, we will proceed with having you served by the Sheriff and filing its return of service with the Court. I will also be sending a follow up letter to the attorney for the landlord concerning the tenant to see if we can work toward a resolution on this matter. Best, Meredith A. Peck, Esq. Peck & Peck, P.A. 5200 Tamiami Trail North, Suite 101, Naples, Florida 34103 Telephone (239) 263-9811 Facsimile (239) 263-9818 For service of pleadings and court documents email: service@peckandpecklaw.com CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged and confidential, and is intended only for the use of the individual or : entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you. - Original Message -------- Subject: Re: Fwd: Baystar - 898 5th Ave S From: Kyle McLaughlin Date: Tue, September 04, 2018 5:34 pm To: meredith@peckandpecklaw.com Yes, please proceed with follow up ta the other attorney.In good faith, 1 feel that Delsing's suit against me is mislead and paints me as breaching an agreement that was out of my control. Marolax of Naples removed Danan fromthe lease as agreed, when the new owner 898 5th ave holdings (Hoffman) purchased the property, they assumed the personal guarantee of myself and Danan - the agreement signed at NABOR removed him from the lease, but not from the personal guarantee - this suit has no merit against me. To be completely honest with you, I want to keep this friendly - I still think Danan is a great guy and I don't want this to be yet another smear on the friendship we used to have - Im hoping you can help avoid him continuing on this unnecessary suit against me. I understand that he must have been extremely upset to receive the suit from Hoffman, trust me, I was too considering 1 had been working on a new tenant the whole time. There's really no reason to sue me here, the reason the lease became delinquent is due to Jack Newby terminating me, robbing me of almost $200K and shutting down all my vital communications and access to leases and documentations - something Im sure Danan remembers well as a he found himself in a similar situation against Jack in early 2017. Candidly, if Danan wants to file a suit, it should be against Jack, not me as all of this was completely out of my control - I acted in good faith towards Hoffman, and I acted in good faith towards Danan by attempting to reach him multiple times when I found out about the suit, to which he never replied. At this point and time I would ask of you to please share my thoughts with Mr. Delsing so we may come to a better resolution - I am still diligently working with the Hoffman representatives to execute the new tenant's lease; this should be happening within the next few weeks. Given all this information, if Danan still wants to move forward with a suit against me, then I respectfully ask that I am given until the end of this month (September 2018) to sign the acceptance of service, as I am sure this will all be resolved by then. Either way, I hope to resolve this ASAP, as Im sure Danan does as well - please past along my sincere best wishes to him and his family. Thanks again for your time and explanation, seems like Danan hired a great Attorney. Best Regards, Kyle McLaughlin 239-641-1892 On Tue, Sep 4, 2018 at 4:30 PM Meredith Peck wrote: | Kyle, : Please confirm that I am permitted to follow up with the attorney regarding the other tenant that is ready, willing and able to rent the _ premises at the same amount that is due under the original lease. I will ; then send him follow correspondence concerning the matter. | Also, as discussed, I attach to this e-mail a copy of the Answer, | Affirmative Defenses and Crossclaim filed in the matter along with an » acceptance of service for you to sign. If you accept service and waive ; Formal service of process, please sign and return the attached; Acceptance via e-mail. If you will not accept service, we will proceed : with having a process server formally serve you with the documents. } Sincerely, | Meredith A. Peck, Esq. | Peck & Peck, PA. | 5200 Tamiami Trail North, Suite 101 : Naples, Florida 34103 | Telephone (239) 263-9811 | Facsimile (239) 263-9818 i For service of pleadings and court documents ; email: service@peckandpecklaw.com | CONFIDENTIALITY NOTICE: The information contained in this i transmission may be privileged and confidential, and is intended only for | the use of the individual or entity named above. If the reader of this ; Message is not the intended recipient, you are hereby notified that any ’ dissemination, distribution or copying of this communication is strictly : prohibited. If you have received this transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you.EXHIBIT C——---- Original Message Subject: Re: Fwd: Baystar - 898 Sth Ave S From: Kyle McLaughlin Date: Mon, October 29, 2018 5:29 pm To: Meredith Peck Attomey, broker was ccd on email On Mon, Oct 29, 2018 at 5:28 PM Meredith Peck wrote: Did you contact the broker you hired on the matter or are you attempting to correspond with the attorney for the landlord? Thanks, Meredith A. Peck, Esq. Peck & Peck, P.A. 4200 Tamiami Trail North, Suite 101 Naples, Florida 34103, Telephone (239) 263-9811 Facsimile (239) 263-9818 For service of pleadings and court documents email: service@peckandpecklaw.com CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged and confidential, and is intended only for the use of the individual or entity named above. If the reader of this message Is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication Is strictly prohibited. If you have received this transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you. woneeene Original Message -------~ Subject: Re: Fwd: Baystar - 898 5th Ave S From: Kyle McLaughlin Date: Mon, October 29, 2018 5:26 pm To: Meredith Peck T have not, I am waiting for a response to my email sent last week. On Mon, Oct 29, 2018 at 5:25 PM Meredith Peck wrote: Kyle, Did you find out anything further about what happened with the tenant or the status of finding another tenant? Thanks, Meredith A. Peck, Esq. Peck & Peck, P.A, 5200 Tamiami Trail North, Suite 101 Naples, Florida 34103 Telephone (239) 263-9811 Facsimile (239) 263-9818 For service of pleadings and court documents email: service@peckandpecklaw.com, CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged and confidential, and is intended only for the use of the individual or entity named above. If : the reader of this message is not the intended recipient, you are hereby notified that any _ dissemination, distribution or copying of this communication is strictly prohibited. If you have , feceived this transmission in error, please immediately reply to the sender that you have | received this communication in error and then delete it. Thank you. ---+---- Original Message -------- Subject: Re: Fwd: Baystar - 898 Sth Ave S From: Kyle McLaughlin Date: Tue, October 23, 2018 3:14 pm To: Meredith Peck wrote: Kyle, Tam not aware who they are using. You may want to contact the broker you hired to determine what has occurred regarding the other lease as I too was surprised ! when opposing counsel advised that the deal fell apart. Please let me know what * you learn. Thank you, Meredith 4. Peck, Esq. Peck & Peck, P.A. 5200 Tamiami Trail North, Suite 101 Naples, Florida 34103 Telephone (239) 263-9811 Facsimile (239) 263-9818 For service of pleadings and court documents email: service@peckandpecklaw.com CONFIDENTIALITY NOTICE: The information contained in this transmission mey be privileged and confidential, and is intended only for the use of the indivicual or entity named above. If the reader of this message Is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, please immediately reply to the sender that you have received this communication i in error and then delete it. Thank you. conennee Original Message -------~ Subject: Re: Fwd: Baystar - 898 5th Ave S From: Kyle McLaughlin Date: Tue, October 23, 2018 2:50 pm To: Meredith Peck Hi. Meredith, That comes as a surprise to me as last I heard they had an executed lease.Do you know if they are still using the broker I hired (CRE) or are they using their own? That will determine whether or not I'can get an update for you as they have kept me pretty much removed from the entire process. Regards, Kyle On Tue, Oct 23, 2018 at 12:02 PM Meredith Peck wrote: : Kyle, | Do you have any update as to what is occurring in this matter? My | understanding from speaking with counsel for the landlord is that the ‘ tenant you located did not work out and that tenant leased another | Space elsewhere, Have you been in contact any further with the landlord | and do you have any other prospective tenants? Thank you, Meredith A. Peck, Esq. Peck & Peck, P.A. 5200 Tamiami Trail North, Suite 101 Naples, Florida 34103 Telephone (239) 263-9811 Facsimile (239) 263-9818 For service of pleadings and court documents email: service@peckandpecklaw.com CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged and confidential, and is intended only for the use of the individual or entity named above. If the reader of this message Is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly : prohibited. If you have received this transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you.EXHIBIT DOriginal Message -------- Subject: Re: Baystar - 898 5th Ave S From: Kyle McLaughlin Date: Tue, November 27, 2018 2:02 pm To: Meredith Peck Jam willing to do that, however I need this default dismissed and would need indemnification from any further claims from your client going forward 22@ Vitus-free. www.avast.com On Tue, Nov 27, 2018 at 1:59 PM Meredith Peck wrote: Kyle, Clarification - I meant to say that Danan is looking for you to indemnify and hold him harmless in regard to the outstanding rent owed to the landlord, 898 Fifth Avenue Holdings, and to satisfy any rent obligation. We sought the default to protect Danan's interest, particularly because the landlord is seeking judgment against Danan. Thank you, Meredith A. Peck, Esq. Peck & Peck, P.A. 5200 Tamiami Trail North, Suite 101 Naples, Florida 34103 Telephone (239) 263-9811 Facsimile (239) 263-9818 For service of pleadings and court documents email: Service@peckandpecklaw.com CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged and confidential, and is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, Please immediately reply to the sender that you have received this communication in error and then delete it. Thank you. -------- Original Message -------- Subject: Re: Baystar - 898 Sth Ave S From: Kyle McLaughlin Date: Tue, November 27, 2018 1:32 pm To: Meredith Peck Meredith, Did you ever consider to ask me if I would be willing to do that instead of going through the trouble, wasted money and time to file for a default? Additionally as clarification, there is no rent owed to Baystar nor is Baystar seeking rent from Danan. Please adviseIQ Virus-free. avast. On Tue, Nov 27, 2018 at 12:49 PM Meredith Peck wrote: | Kyle, | As you know, I represent Danan and his interest. Danan is looking for you to indemnify and _ hold him harmless In regard to the outstanding rent owed to Baystar and to satisfy any rent | obligation. To protect my client's interest, we sought the default, Particularly since Baystar is : seeking judgment against Danan, : Sincerely, i Meredith A. Peck, Esq. \ On Nov 27, 2018, at 11:42 AM, Kyle McLaughlin wrote: Meredith, A few things regarding this case that are extremely confusing. 1. I have been in constant communication with you in regards to what is going on with Hoffmann - your request for default came as an absolute shock to me as I have responded to all of your emails 2. What is Danan looking to accomplish by coming after me when this is completely out of my control? is he wanting to be dismissed from hoffmann's suit? 3. As I mentioned before, Jack Newby, whom I am currently in another tawsuit with, was the basis for this entire problem and was the only signer on that NABOR agreement As Ive mentioned before, I am willing to cooperate with you and Danan, but my attempts so far have been unsuccessful with both him, and now you. Please advise Thanks, Kyle McLaughlin 239-641-1892