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Srymanske v. Smalfus

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 11, 2007

JEFFREY SRYMANSKE AND DOROTHY SRYMANSKE, PLAINTIFFS-RESPONDENTS,
v.
RAYMOND H. SMALFUS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. DC-3213-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 26, 2007

Before Judges Parker and Seltzer.

In this Special Civil Part case, defendant Raymond H. Smalfus appeals from an order entered on August 23, 2006 denying his motion to vacate a default judgment. We affirm.

On March 2, 2004, plaintiffs filed a complaint in Special Civil Part alleging that "defendant took possession of an antique shotgun owned by the [p]laintiffs for the purpose of restoring the shotgun to working condition and possible sale." They further alleged that on September 12, 2003, "[d]efendant sent a brief letter to the [p]laintiffs stating that the shotgun had been repaired and that he had located a buyer for the gun . . . . willing to pay $12,000 . . . in addition to paying off what was owed for [the] repair work." Plaintiffs alleged that they told defendant they were interested in selling the gun and inquired about his rate of commission. After further correspondence, plaintiffs claimed that they "made several attempts to contact the [d]efendant by telephone, but their calls went unanswered." Ultimately, defendant refused to return the gun or forward the money and plaintiffs sought damages in the amount of $12,000.

Defendant never filed an answer to the complaint. On August 10, 2004, however, defendant entered into a consent order with plaintiffs in which the parties agreed to resolve all issues between them. Plaintiffs claimed that they complied with their obligations under the consent order but defendant did not. The matter was returned to the trial list and tentatively scheduled for April/May 2005.

Defendant claims that he requested an adjournment due to illness. He did not, however, produce any letter or other documentary evidence supporting that claim. Nevertheless, he attested that it was his "understanding that the matter had been adjourned and that [he] would receive a new date." By December 29, 2005 -- some seven months after the tentatively scheduled trial date -- defendant sent a letter to the court inquiring about a new trial date. He later learned that a default judgment had been entered against him on May 10, 2005. He then filed a motion to vacate the default, claiming that

I have a viable defense in this matter of Lack of Jurisdiction, as this should have been brought in Pennsylvania, which is where I reside, and where the bulk of this issue occurred. There is also a Statute of Limitations issue, and there is a gross misidentification of the property in question.

After hearing argument on the motion, the trial judge denied it, stating:

There's no reason to set this [default judgment] aside. [Defendant] was properly in the case; participated in the case; was well aware of everything; and even entered into a consent order, when he was represented by another attorney. And if he has a problem with that attorney, you know what he can do, but that has nothing to do with my involvement. So, I'm going to deny that motion.

In this appeal, defendant argues:

POINT ONE

THE COURT BELOW ERRED BY DENYING APPELLANT'S MOTION AS HE HAS GOOD CAUSE TO VACATE THE DEFAULT JUDGMENT AND QUALIFIES FOR RELIEF

POINT TWO

THE APPELLANT IS ENTITLED TO DUE PROCESS IN THIS MATTER

POINT THREE

THE COURT BELOW LACKED JURISDICTION TO ENTER THE JUDGMENT, AS THE EVENTS OCCURRED IN PENNSYLVANIA, AND DEFENDANT IS A PENNSYLVANIA RESIDENT

POINT FOUR

THE APPELLANT HAD THE VALID DEFENSE OF LACHES

POINT FIVE

PLAINTIFFS FILED THEIR SUIT FAR OUTSIDE THE APPLICABLE STATUTE OF LIMITATIONS

We have carefully considered the record in light of defendant's arguments and the applicable law. We are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Defendant never filed an answer to the complaint asserting his defenses, as required by R. 6:3-1(1). He claimed to have requested an adjournment of the April/May 2005 tentative trial date, but has presented no letter or other documentary evidence supporting that claim, although he did submit a letter to the court in December 2005 inquiring about a trial date.

Defendant's failure to file an answer and plead his defenses results in waiver of them. Pressler, Current N.J. Court Rules, comment 1.2.1 on R. 4:5-4 (2007); see, e.g., Hill v. N.J. Dep't. of Corrs., 342 N.J. Super. 273, 294 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002); Lech v. State Farm Ins. Co., 335 N.J. Super. 254, 256 (App. Div. 2000); Aikens v. Schmidt, 329 N.J. Super. 335, 339-40 (App. Div. 2000). Moreover, the consent order entered into by defendant gives no indication that defendant was reserving the defenses of jurisdiction, statute of limitations and laches. Once a party has appeared in an action, that party waives any objection to personal jurisdiction. Hill v. Warner, Berman & Spitz, P.A., 197 N.J. Super. 152, 167 (App. Div. 1984).

In short, we agree with the trial judge that defendant had notice of the case, was represented by counsel and entered into a consent order. Defendant has provided no reasons for his failure to inquire about an adjourned trial date between May and December 2005. While a default judgment may be set aside "for good cause shown," R. 4:43-3, defendant failed to demonstrate good cause.

Affirmed.

20070711

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