The Siege is Broken, the Beast is Free again. Sorry Friends it was beyond my talent.
THE STATE OF FLORIDA
19TH JUDICIAL CIRCUIT COURT
IN AND FOR MARTIN COUNTY
John W. DeVore
Plaintiff
vs.
PublishAmerica INC.
Victor E. Cretella III
Willem Meiners
Lawrence A. Clopper CASE NO. 08-589 CA
Ryan Tuccinardi
PLAINTIFF’S AFFIDAVIT IN SUPPORT OF
MOTION TO STRIKE
THE PURPORTED ORDER DATED 24 JULY 2008
Plaintiff, John W. DeVore, as Affiant herein, duly sets forth that, I am the Affiant herein and that this Affidavit is given to support the Motion to Strike the Purported “Order” entered and dated on 24 July 2008 in this above captioned case. Affiant, being duly sworn, does hereby state, declare, depose and affirm that the facts provided herein are true and given of my own personal knowledge, and that I am in all ways competent to provide the same.
1. This Affidavit is given as evidence before this above named court, entered in support of Plaintiff’s Motion to Strike the Purported, “ORDER”, dated, “24th day of July 2008”, entered in the above captioned case, which purports to “VACATE THE DEFAULT AGAINST TUCCINARDI”.
2. The Motion before the court on 24 July 2008 was Plaintiff’s “Motion to Strike”, the “Defendants Motion for Relief from Judgment”.
3. The “Motion for Relief from Judgment” had been entered by Kip A. Davis, of Stuart, Florida, to set aside a judgment, alleged by Kip A. Davis, to have been entered on 16 June 2008, against Defendant Ryan Tuccinardi.
4. Affiant informed the court that no Judgment had been entered against Defendant Ryan Tuccinardi on 16 June 2008, or at any other time to that date.
5. Upon Notice that the Judgment alleged by Kip A. Davis, had not been entered, Mr. Robert R. Makemson, acting for the court, declared the “Motion for Relief…”, entered by Kip A. Davis, to be Moot.
6. Mr. Kip A. Davis then requested that the court set aside the Default of Defendant Ryan Tuccinardi.
7. Mr. Makemson then inquired of Affiant whether there would be any objection to altering the nature of the proceeding to allow Mr. Davis to bring a Motion to Set Aside Default, without Notice.
8. Affiant declared that Mr. Kip A. Davis was NOT AUTHORIZED TO REPRESENT Defendant Tuccinardi, before the Court in this case.
9. Mr. Makemson indicated that he was personally satisfied that Mr. Davis had authority to represent defendant Tuccinardi.
10. Plaintiff on that date, 24 July 2008, Demanded documentary Evidence that the Attorney, Kip A. Davis esquire FBN 148921, had in truth been hired by, retained by, employed by, and authorized by, Defendant Ryan Tuccinardi, in this case.
11. Mr. Makemson then asked this Affiant whether this Affiant had a copy of a law which provided for a right on the part of the Plaintiff to documentary evidence of the legal authority of an attorney to represent a specific opposing party.
12. Affiant informed the court that it was a Common Law and unalienable right of a party to demand documentary proof of the legal authority and standing of a person purporting to represent any opposing party.
13. Mr. Makemson then inquired whether Affiant had a copy of some law that included provisions for that alleged right.
14. Affiant informed Mr. Makemson that Affiant did not have a copy of that law in hand.
15. Affiant then requested that the Hearing be Continued until Affiant could obtain a copy of the law which included provision for the right of a party to know by documentary evidence, the authority and legal standing, of a person purporting to represent an opposing party.
16. Mr. Makemson then inquired of Mr. Davis as to whether he knew of any law that provided for a right in a party to demand documentation of the right in an attorney to represent an opposing party.
17. Mr. Davis informed the court that he knew of no law that provided for any duty on his part to provide documentary evidence to support his claim of authority from Defendant Ryan Tuccinardi in this case.
18. Mr. Robert R. Makemson then also stated that he knew of no law or rule, that provided for any duty on the part of Mr. Davis to show any documentary evidence of his authority and standing to represent Defendant Ryan Tuccinardi in this case.
19. Mr. Kip A. Davis, did not state or testify that he was in fact employed or authorized by the Defendant, Ryan Tuccinardi in this case.
20. The “Motion for Relief From Judgment” which Mr. Davis, claimed was entered in behalf of Defendant “RYAN TUCCINARDI”, does not at any place assert that, “No service of Process has occurred… ” upon Defendant Ryan Tuccinardi.
21. Mr. Davis did not claim, at any point in the hearing, that “No service of Process has occurred…” with respect to Defendant Tuccinardi.
22. No evidence of any form was entered by any party to the effect that, “No service of Process has occurred…” with respect to Defendant Tuccinardi.
23. The Return of Service filed by the Sheriff of Frederick County, Maryland, together with the supplemental return of service set forth that, Service of Process, for Defendant Tuccinardi, had been accepted by an authorized officer of Defendant Publish America LLLP, with respect to the Original Complaint.
24. Process was accepted in behalf of, Defendant Ryan Tuccinardi, by the officers of Defendant Publish America LLLP, with respect to the Amended Complaint.
25. That Process, accepted by the officers of Defendant PublishAmerica LLLP, in behalf of Defendant, Ryan Tuccinardi, was never returned to this court or to this Affiant/Plaintiff, by the officers of Defendant Publish America LLLP.
26. The officers of Defendant Publish America LLLP, never provided any notice either to this Plaintiff or to this court, that they were unable or unwilling to forward the Service of Process, which they had accepted from the Sheriff and from the United States Postal Service, to Defendant Tuccinardi.
27. Defendant Victor E. Cretella personally accepted responsibility for insuring the due completion of service of Process in behalf of Defendant Tuccinardi in this case with respect to the Original Complaint, which had been delivered to his Office by the Sheriff of Frederick County, Maryland.
28. Defendant Victor E. Cretella personally accepted responsibility for insuring the due completion of service of Process in behalf of Defendant Tuccinardi with respect to the Amended Complaint, which had been delivered to, and accepted by his office, by Certified Mail.
29. If process was not duly served on Defendant Ryan Tuccinardi, then it was the knowing and intentional act of Defendant Victor E. Cretella acting in his personal capacity by gross negligence, to interfere with and prevent the service of process upon Defendant Ryan Tuccinardi in this case.
30. Mr. Kip A. Davis in his Motion for Relief From Judgment/to Set Aside Default, did not state that, “No Service of Process had occurred…” to Defendant Tuccinardi.
31. Mr. Kip A. Davis in his arguments before the court on 24 July 2008 did not state that, “No Service of Process had occurred…” to Defendant Tuccinardi.
32. Mr. Kip A. Davis in his arguments before the court on 24 July 2008 did not state or set forth the time and date upon which he had been contacted by Defendant Tuccinardi and requested by Defendant Tuccinardi, to represent him in this matter.
33. Mr. Kip A. Davis at no time has stated or set forth the time or date upon which Defendant Ryan Tuccinardi did receive Service of Process.
34. Mr. Kip A. Davis has never stated or set forth that, Service of Process on Defendant Ryan Tuccinardi was not completed timely.
35. Mr. Kip A. Davis has never stated or set forth that, Defendant Ryan Tuccinardi was for any reason unable to answer or otherwise duly and timely respond to the Complaint, or to the Amended Complaint.
36. There has never in this matter been any affidavit or any evidence of any kind submitted by Defendant Ryan Tuccinardi in his own behalf.
37. Mr. Kip A. Davis has also claimed to represent Defendants Meiners and Klopper in this case.
38. Defendants Meiners and Klopper are former employers of Ryan Tuccinardi.
39. Defendants Meiners and Klopper through another of their employees have claimed that they fired, Defendant Tuccinardi, on 1 February 2008.
40. Affiant at the hearing held on 24 July 2008, informed the court that Mr. Kip A. Davis by claiming to represent parties with adverse and divergent interests in this case had adopted a conflict of interests which necessarily voided all the pleadings which he had allegedly filed for all those defendants.
41. The court did not find on 24 July 2008 that,
“No service of Process has occurred therefore the default entered on
June 16, 2008 and April 16, 2008 are vacated.”
42. No default was entered on June 16, 2008 in this case.
43. Robert R. Makemson stated that he had adjudged that, “…both of the Defaults of Defendant Ryan Tuccinardi…” should be set aside.
Further Affiant sayeth naught at this time.
The above facts are given by this Affiant, of my own certain knowledge and good faith belief under penalties of perjury, before a qualified witness this; ____ day of August 2008 for the purpose of standing as evidence in the above captioned case, in witness whereof, I set my signature here below.
____________________________
John W. DeVore, Affiant
The above affiant known to me personally or by sufficient evidence, did appear before me, a Notary Public of the State of Florida on the above written date and did take an oath, and did depose and state that this document is his own free will act made for those purposes set forth herein to which oath and signature I bear testimony by my signature and seal here below.
Affiant provided the following as Identification ___________________________________________________________
My Commission Expires _________________ __________________________________
Signature of Notary Public or Clerk of Court
__________________________________
Notary or Clerk Name Printed
Seal…
Maybe someone with a greater talent can finish them off?
John DeVore