WALTER JOVICH v. RICHARD KASSAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WALTER JOVICH,

Plaintiff-Appellant,

v.

RICHARD KASSAY and JOAN

KASSAY,

Defendants-Respondents.

_________________________________________________

September 5, 2014

Submitted August 26, 2014 Decided

Before Judges Hayden and Leone.

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

Walter Jovich, appellant pro se.

Nemergut & Duff, attorneys for respondents (Paul J. Nemergut, III, on the brief).

PER CURIAM

Plaintiff Walter Jovich appeals from two March 15, 2013 Law Division orders (1) directing the release to defendants Richard and Joan Kassay of $256,454.45 plaintiff had deposited with the Superior Court Trust Fund plus accrued interest; and (2) denying his cross-motion, which sought to vacate the default judgment against him. After a review of the contentions raised on appeal in light of the applicable legal principles, we affirm.

We detailed the factual and procedural history of this case when it was last up on appeal in an unpublished opinion, Jovich v. Kassay, No. A-3775-10 (App. Div. Apr. 27, 2012). We recite only the pertinent facts and those which occurred since our decision.

Defendants and plaintiff entered into a contract whereby plaintiff agreed to frame defendants' new home. Upon completion of plaintiff's work, defendants refused to pay plaintiff the $18,500 balance due on the contract. Plaintiff filed suit against defendants for breach of contract on December 4, 2003, and defendants soon filed a counterclaim for breach of contract and violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. After mandatory arbitration and several adjournments, the trial was finally set for April 16, 2007; however, plaintiff failed to appear. The trial court gave plaintiff's counsel a week to locate his client, but on April 23, 2007, when plaintiff still could not be located, the court dismissed his complaint without prejudice.

As defendants' counterclaim was not adjudicated, the court ordered them to wait forty-five days before seeking default. Thereafter, the court granted defendants' motion and suppressed plaintiff's answer and defenses to the counterclaims. A proof hearing took place on October 17, 2007; neither plaintiff nor his counsel appeared. Following the hearing, the trial court entered a judgment for defendants for $206,423.34, which included treble damages under the CFA, counsel fees, and costs.

On April 22, 2008, plaintiff moved to vacate the default judgment. After several delays, a plenary hearing finally occurred on October 18, 2010. On February 25, 2011, the trial judge denied plaintiff's motion to vacate the default and reinstate his complaint. The trial judge found plaintiff's testimony was entirely lacking in credibility and determined that he had not shown the excusable neglect required to vacate the default judgment. On April 1, 2011, the judge denied reconsideration and ordered the release of funds held in escrow by plaintiff's counsel.

We granted a stay of the release pending plaintiff s appeal conditioned on plaintiff posting a bond or cash deposit. On April 27, 2012, we affirmed the trial judge's decision. Thereafter, the Supreme Court denied certification. Jovich v. Kassay, 212 N.J. 288 (2012).

On January 17, 2013, defendants moved for the release of the funds plaintiff had deposited with the court. Plaintiff cross-moved seeking to deny defendants' motion to release the funds, vacate the default judgment, and schedule the case for a new trial. With his motion, plaintiff certified that he had just become aware that, after the plenary hearing on his original motion to vacate, but before the judge issued his decision, defendant Joan Kassay had sent a letter to the assignment judge in Monmouth County. Plaintiff asserted that Mrs. Kassay's letter to the assignment judge, his reply to her, the assignment judge's transmittal to the trial judge, and the trial judge's "obvious reading and consideration of Mrs. Kassay's letter, all without oral or written notice to [his] attorney were improper and prejudicial to [him]."

The assignment judge had received Mrs. Kassay's six-page letter on January 24, 2011, which detailed the procedural history of the case and expressed Mrs. Kassay's frustrations over the delays and continued lack of closure. The letter also accused plaintiff and his counsel of unethical behavior. The assignment judge forwarded the letter to the trial judge two days later, requesting to be kept apprised of the completion of the matter and be informed if a decision would not be rendered within thirty days. On the same day, the assignment judge wrote to Mrs. Kassay acknowledging receipt of her letter and advising that he discussed this matter with the trial judge and "he has assured me that he should be issuing a decision in the very near future."

Mrs. Kassay submitted a certification in response to plaintiff's cross-motion explaining that she wrote to the assignment judge based on his supervisory role of the trial judge. She stated that her only purpose in writing was "to express [her] frustrations and to see if he could expedite the decision-making process based on the numerous delays [she] had endured." Mrs. Kassay specified that she knew she was not allowed to speak with the trial judge and never had any ex parte communications with him.

On March 15, 2013, the trial judge held oral argument on defendants' motion to release plaintiff's funds and on plaintiff's cross-motion to vacate the default based on his allegation of a prejudicial ex parte communication. After hearing oral argument, the judge denied plaintiff's cross-motion, stating as follows:

Simply put, Ms. Kassay's January 24, 2011 letter to the assignment judge had no bearing on this court's February 25, 2011 decision as reflected by the transcript of [that] decision. This court neither requested this letter either from Ms. Kassay or from the assignment judge, this court did not solicit this letter, or in fact rely upon it in rendering its decision.

The assignment judge never discussed with this court the contents of Ms. Kassay's letter. The assignment judge simply communicated to this court that a litigant had complained about the court's delay in issuing its decision. And requested that this court issue its decision within thirty days if possible.

The procedural posture of this case, the facts that the case was then over seven years old, and plagued by periods of delay, postponement, and inactivity, were well known to this court well before the assignment judge's communication and transmittal of Ms. Kassay's letter. . . .

. . . .

As this court made clear in both its oral decision of February 25, 2011 and its oral decision denying Mr. Jovich's motion for reconsideration, the court rendered its decision based on the evidence adduced at the plenary hearing and specifically the in-court testimony of the witnesses in making its credibility evaluations. . . . [T]his court never viewed, much less considered Ms. Kassay's letter to the assignment judge as "post-hearing papers" for the court's additional consideration.

The trial judge granted defendants' motion, ordered the release of plaintiff's funds held in trust, and denied plaintiff's cross-motion. This appeal followed.

On appeal, plaintiff argues that the January 24, 2011 letter was a prejudicial ex parte communication containing false accusations about him.1 Plaintiff contends that, contrary to the trial judge's assertion, the judge must have utilized the letter in issuing his February 24, 2011 decision because that decision referenced information that could only have been derived from the letter, namely that plaintiff's attorney was also his business partner and that plaintiff had transferred assets to avoid the judgment. Plaintiff requests that we overturn the trial judge's decision and vacate the default judgment against him based on this alleged "violation of the Code of Judicial Conduct."

We do not agree that the assignment judge's transmittal of a litigant's complaint concerning delays of the litigation to the judge handling the case constitutes an ex parte communication by a party. Moreover, we utilize a harmless error analysis to determine whether an ex parte communication or other irregularities warrant a reversal. See State v. Brown, 275 N.J. Super. 329, 332-33 (App. Div.), certif. denied, 138 N.J. 269 (1994). To obtain a reversal on this theory, the party seeking to overturn the decision must establish that there was an ex parte communication and that it was "clearly capable of producing an unjust result[.]" R. 2:10-2.

We find that plaintiff's arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We merely note that the record does not support plaintiff's claim that the judge relied on information in Mrs. Kassay's letter in reaching his decision. Our review of the record reveals that the factual assertions regarding a business relationship between plaintiff and his attorney as well as plaintiff's transfer of assets were submitted to the trial judge before he rendered his February 25, 2011 decision. Indeed, defendants had certified in the prior motion that plaintiff and his attorney were business partners, and presented evidence that plaintiff was transferring his assets.

Nothing in the record provides any reason to doubt that the trial judge truthfully related that, although he was made aware of the existence of Mrs. Kassay's letter, he was not influenced by its contents. The judge's original decision declining to vacate the default judgment entered against plaintiff, which we have previously affirmed, is well supported by the record, and there is no basis to disturb it.

Affirmed.

1 To the extent plaintiff alleges in his reply brief for the first time that there were additional ex parte communications, those contentions are not properly before us and we decline to address them. See State v. Galicia, 210 N.J. 364, 383 (2012) ("Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." (citing Deerfield Estates, Inc. v. E. Brunswick, 60 N.J. 115, 120 (1972)).