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Edward Mathis v. Enco Home Inspections and Robert Horvath

April 14, 2011

EDWARD MATHIS, PLAINTIFF-APPELLANT,
v.
ENCO HOME INSPECTIONS AND ROBERT HORVATH, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. SC-2001-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2011

Before Judges Payne and Baxter.

Plaintiff Edward Mathis, who filed suit for nonpayment of wages against defendants ENCO Home Inspections and its president, Robert Horvath, and was awarded a default judgment in the amount of $1435.50 on July 25, 2005, appeals from (1) orders entered on September 11, 2009 vacating a writ of execution and levy on the car and bank account of Horvath, and vacating the default judgment entered against defendants and restoring defendants' answer and defenses; (2) orders of October 1, 2009 insofar as they limited plaintiff's discovery demands and dismissed claims against Horvath as the result of plaintiff's failure to state a claim against him upon which relief could be granted; and (3) an order of October 28, 2009 dismissing claims against ENCO for lack of in personam jurisdiction. We remand for further proceedings.

I.

The record discloses that plaintiff was employed by ENCO, a New York limited liability company, as a home inspector pursuant to an inspector employment agreement dated April 23, 2003. He was enrolled in a National Institute of Building Inspectors training program conducted in Bound Brook, New Jersey on May 9, 2003, but did not complete the program. He performed sixteen home inspections for ENCO in the period from June 24, 2003 to October 3, 2003. Asserting that some or all of the inspections were deficient, ENCO withheld compensation in the amount claimed by plaintiff. All inspections were conducted in the state of New York.

On April 12, 2005, plaintiff filed suit in the Special Civil Part, Small Claims Section against ENCO and its president, Horvath, alleging in Count One that he was an employee of ENCO and Horvath and that he performed work for which he should have been paid $708.50, but that payment had been refused. In Count Two, plaintiff sought "attorney's fees, costs and other remedies pursuant to New York Consolidated Law § 198, N.J.S.A. 34:11-56a4, et seq. (and any other applicable law), which provide for special damages and/or a 25% enhancement of any amount owed by the defendant to its former employee and other relief," and demanded judgment in the amount of $885 plus punitive damages, interest and attorney's fees. In Count Three, plaintiff alleged defendants' bad faith and again sought $885 in compensatory damages, punitive damages, interest, and attorney's fees.

Because the matter was within the jurisdiction of the Small Claims Section, defendants were not required to obtain representation by counsel, Rule 6:11, and no answer was required. R. 6:2-1.*fn1 Defendants were served*fn2 on May 18, 2005 and at that time were advised of a June 2, 2005 trial date. However, on May 23, 2005, the Operations Manager of ENCO telefaxed a letter to the Assistant Division Manager of the Bergen County Special Civil Part requesting an adjournment to permit defendants to obtain the documentation necessary to defend the claim, which was not kept on site. The letter continued:

Additionally, ENCO Home Inspections is a limited liability company residing in New York State, and as an employee of said company, Robert Horvath cannot be held personally responsible in this action. Furthermore, we have to seek advice as to the above named court's jurisdictional authority in this matter since we are in fact a limited liability company registered in New York State. We also question the validity of the venue since this is a labor dispute. Possibly, you will be able to answer those questions.

Please contact me at this office at your earliest possible convenience with a revised trial date. If necessary, you can reach me at any of the numbers listed below.

There is no indication that a copy of the letter was sent to counsel for plaintiff, and receipt has been denied.

Defendants did not appear personally on June 2, and their adjournment request, if considered, appears to have been denied. A judgment was entered in favor of plaintiff and against defendant on July 25, 2005 in the amount of $1435.50. The record does not disclose whether the judgment was served on defendants. See R. 1:5-1(a). An information subpoena was served on defendants on or about August 31, 2005. Additional costs were included in the judgment on July 13, 2009, increasing its amount to $1595.55.

Pursuant to plaintiff's motion, on May 26, 2006 an order was entered requiring defendants to show cause on June 23, 2006 why they should not be adjudged to have violated plaintiff's rights by failing to answer the August 31, 2005 information subpoena. Again, defendants did not ...


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