KYUNG SIK YOO AND HANG J. YOO v. MICHAEL KIMM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2981-04T32981-04T3

KYUNG SIK YOO AND

HANG J. YOO,

Plaintiffs-Respondents,

v.

MICHAEL KIMM,

Defendant-Appellant.

 

Submitted January 11, 2006 - Decided January 27, 2006

Before Judges Weissbard, Winkelstein and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-4079-04.

Michael S. Kimm, appellant pro se.

Cole, Schotz, Meisel, Forman & Leonard, attorneys for respondent (Edward S. Kiel, of counsel and on the brief).

PER CURIAM

Defendant Michael Kimm is an attorney who represented plaintiffs Kyung Sik Yoo and Hang J. Yoo in a case before the United States District Court. He appeals from a January 19, 2005 order for final judgment that limited his counsel fees. On appeal, he raises the following issues:

I. THE LAW DIVISION SHOULD HAVE GRANTED A COMITY-STAY PENDING RESOLUTION OF THE FEDERAL COURT FEE APPLICATION, IN VIEW OF THE FEDERAL COURT'S EXTENSIVE PRIOR INVOLVEMENT.

II. SINCE KIMM'S JUNE 24 MOTION FOR STAY CONSTITUTED A CLEAR "INTENTION TO DEFEND," PLAINTIFFS' APPLICATION FOR CLERK'S DEFAULT AND THE CLERK'S DEFAULT NOTATION SHOULD BE INVALIDATED.

III. THE LAW DIVISION'S REFUSAL TO SET ASIDE CLERK'S ENTRY OF DEFAULT DATED OCTOBER 4, 2004, IN THE FACE OF KIMM'S SUBSTANTIVE RESPONSE TO THE COMPLAINT, ALSO DATED OCTOBER 4, 2004, WAS A CLEAR ABUSE OF DISCRETION AS A MATTER OF LAW.

IV. THE MOTION JUDGE'S FAILURE TO GRANT SUMMARY JUDGMENT WAS A LEGAL ERROR.

V. THE MOTION JUDGE'S FAILURE TO GRANT RECUSAL WAS A LEGAL ERROR.

We have carefully reviewed the record and the applicable law in light of defendant's arguments. We conclude that his contentions are clearly without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) & (E). We affirm substantially for the reasons expressed by Judge Moses in her well-reasoned oral decisions on November 19, 2004, and January 18, 2005. We add only the following.

The January 19, 2005 judgment was entered by default. "[A] direct appeal will not lie from a judgment by default." New Jersey Div. of Youth & Family Servs. v. T.R., 331 N.J. Super. 360, 363-64 (App. Div. 2000); see also Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992); Pressler, Current N.J. Court Rules, comment 2.2.3 on R. 2:2-3. Recourse must first be made to the trial court under Rule 4:50-1. See ibid. Kimm did not follow that procedure. Consequently, this deficiency alone would be sufficient to defeat his appeal.

We also substantively agree with Judge Moses' determination that either under Rule 4:43-3, applicable to motions to set aside a default, or Rule 4:50-1, for relief from a final judgment, defendant simply failed to carry his burden.

Finally, defendant claims the trial court should have granted a comity stay pending resolution of his application to the federal court for counsel fees. Judge Moses denied the stay, determining that the then current posture of the case in federal court did not rise to the level of a "pending action." Judge Moses was proven correct. The federal court declined to exercise supplemental jurisdiction over that matter. The Law Division's decision to deny the stay was not an abuse of its discretion. See Kaselaan & D'Angelo Assocs. v. Soffian, 290 N.J. Super. 293, 301 (App. Div. 1996); Gosschalk v. Gosschalk, 48 N.J. Super. 566, 579 (App. Div.), aff'd, 28 N.J. 73 (1958).

 
Affirmed.

(continued)

(continued)

3

A-2981-04T3

January 27, 2006