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Walter Jovich v. Richard Kassay and Joan Kassay

April 27, 2012

WALTER JOVICH, PLAINTIFF-APPELLANT,
v.
RICHARD KASSAY AND JOAN KASSAY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5908-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 16, 2012 -

Before Judges Grall and Skillman.

This is an appeal from an order denying a motion to vacate a default judgment.

Defendants contracted with plaintiff to frame a new home they were constructing in Howell for $64,000. When plaintiff completed his work, defendants refused to pay the alleged balance of $18,500 due under the contract.

On December 4, 2003, plaintiff filed this action for recovery of that balance. On December 29, 2003, defendants filed a counterclaim for breach of the contract based on plaintiff's alleged failure to perform his contractual obligations in a workmanlike manner and for violations of the Consumer Fraud Act.

The case initially came on for trial in July 2006, but a mistrial was declared after the courts were closed due to the Legislature's failure to adopt a budget. After another trial date was adjourned due to the illness of one of the defendants, the case was rescheduled for trial on April 16, 2007. However, plaintiff failed to appear on that date. The trial court gave plaintiff's counsel a week to locate plaintiff, and when he was unable to do so, the court dismissed plaintiff's complaint without prejudice.

This dismissal left defendants' counterclaim unadjudicated. The trial court ordered defendants to wait at least forty-five days before seeking a default judgment on the counterclaim.

After passage of that period, on June 7, 2007, the court entered an order suppressing plaintiff's answer and defenses to the counterclaim, and a proof hearing was scheduled for October 19, 2007. Neither plaintiff nor his counsel appeared at the hearing. Based on the evidence presented at that hearing, the trial court entered a judgment in defendants' favor awarding them $183,923.40*fn1 in damages, $17,500 in counsel fees and $5,000 in costs for a total of $206,423.34.

In April 2008, plaintiff filed a motion to vacate the default judgment. Plaintiff alleged in his certification in support of this motion that he had failed to appear for trial because he was too sick to participate in a trial and was in Bulgaria for treatment and that his attorney had assured him he would be able to obtain an adjournment. Plaintiff also alleged that upon his return from Bulgaria, he had provided his attorney with documentation of the medical treatment he received there, but that he had not heard further from his attorney regarding the case. Plaintiff further alleged that he was unaware the trial court had dismissed his complaint and was unaware defendants were pursuing a counterclaim against him. Plaintiff also claimed that he first became aware of the default judgment on April 9, 2008, when he received a call from his real estate broker advising him that she had received a letter from plaintiff's attorney indicating that there was a judgment against him and that there could not be a closing on property he was selling until that judgment was satisfied.

The trial court concluded that there should be a plenary hearing regarding plaintiff's motion to vacate the default judgment. On October 18, 2010, the court held a hearing at which plaintiff, the attorney who represented him at the time of the scheduled trial in April 2007, David Parinello, and another attorney who also represented plaintiff in connection with the case, Vincent Halleran, all testified.

Based on the evidence presented at that hearing, Judge Bauman issued a comprehensive oral opinion on February 25, 2011 denying plaintiff's motion to vacate the default judgment. The judge found plaintiff's testimony that he was unaware of the dismissal of his complaint in April 2007 to be incredible:

Parinello told Judge Cavanagh [on the April 16, 2007 trial date] that he really didn't know where [plaintiff] was. The Court does not find [plaintiff] credible when he testified that he told Parinello prior to April 16, 2007 that he would be in Bulgaria partaking of mineral water treatment. The more likely scenario is that upon his return to New Jersey he called Parinello on April 25, 2007 and met with Parinello at some point thereafter at which point Parinello ...


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