FULTON BANK OF NEW JERSEY v. J.B. CONTRACTING, INC

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1684-17T2

FULTON BANK OF NEW
JERSEY, as successor by merger
from SKYLANDS COMMUNITY
BANK,

          Plaintiff-Respondent,

v.

J.B. CONTRACTING, INC.,
STANLEY J. KAPUSTA, JR.,
and WILLIAM ALLEN CRAYNE,

          Defendants,

and

JOHN KAPUSTA,

     Defendant-Appellant.
______________________________

                    Submitted November 9, 2018 – Decided January 29, 2019

                    Before Judges Whipple and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Somerset County, Docket No. L-0344-16.
            Gray Law Group, attorneys for appellant (Bruce D.
            Nimensky, on the brief).

            Rudolph A. Palombi, Jr., attorney for respondent.

PER CURIAM

      Defendant John Kapusta appeals from the October 27, 2017 order of the

Law Division denying his motion to vacate a default judgment entered against

him in this action to enforce a commercial loan guaranty. We affirm.

                                        I.

      The following facts are derived from the record. On May 7, 2008, Kapusta

sold his interest in defendant JB Contracting, Inc. (JB), which consisted of all

issued and outstanding shares of the corporation, to his nephew and another man

for more than $2.6 million.1 On that date, Kapusta resigned in writing as Chief

Executive Officer, President, Secretary, Treasurer, and Director of JB. Prior to

the sale, Kapusta secured a line of credit from Skylands Community Bank

(Skylands Bank) on behalf of JB. At the time of the sale, there was no amount

due on the line of credit.




1
   The record refers to defendant Stanley J. Kapusta, Jr. alternatively as John
Kapusta's son, nephew, and brother. We accept as accurate a representation by
John's counsel that Stanley is John's nephew. The precise nature of their familial
relationship is not relevant to the outcome of this appeal.
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        On August 25, 2008, Kapusta signed a $200,000 promissory note in favor

of Skylands Bank on behalf of JB, identifying himself as President of JB. It is

not clear whether Kapusta had reassumed the role of President of JB, or merely

represented himself as holding that office at the time of the loan. Kapusta also

signed a personal guaranty in favor of Skylands Bank for $200,000, in which JB

was identified as the borrower. The loan documents list Kapusta's guaranty as

security and collateral for JB's loan. Plaintiff Fulton Bank of New Jersey (Fulton

Bank) is the successor to Skylands Bank by merger.

        In December 2015, JB defaulted on the promissory note. According to

the terms of the note, the default accelerated all amounts due.

        On March 4, 2016, Fulton Bank filed a complaint in the Law Division

against JB, Kapusta, his nephew, and the other principal of JB. The bank alleged

that Kapusta, as a guarantor of the JB's promissory note, was obligated to pay

all amounts due under the note.

        Kapusta concedes that he was served with the complaint on March 19,

2016.    According to Kapusta, shortly after he received the complaint, he

contacted his nephew, who purportedly advised Kapusta that he would retain an

attorney to represent him in this matter. Kapusta took no further action to ensure

that his interests were represented. He did not request the name of the attorney


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retained to represent him, did not request a copy of any documents filed on his

behalf, and did not make any inquiries with respect to the progress of the matter.

      No attorney was retained to represent Kapusta. As a result, an answer was

not filed on his behalf. On May 4, 2016, a default was entered against Kapusta

with notice. On October 28, 2016, the court entered a final judgment against

Kapusta and in favor of Fulton Bank in the amount of $214,473.18, plus accrued

interest to September 30, 2016.

      Almost a year later, on October 3, 2017, Kapusta moved to vacate the final

judgment. He alleged excusable neglect for his failure to file an answer and

argued that he could raise a meritorious defense to the complaint. Kapusta

alleged that in September 2008, a representative of Skylands Bank, aware that

Kapusta had sold his interest in JB, and was no longer an officer of the company,

asked Kapusta to "work with him" to "roll over" JB's existing line of credit.

Kapusta alleged that he "made it clear" to the representative that he was not

guarantying JB's loan, and was only assisting him to "avoid going back to his

bosses at the Bank" and to circumvent "the steps needed to secure a new line of

credit." Kapusta alleged that the representative assured him orally that he was

not guarantying JB's loan. Kapusta did not allege that his signatures on the




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promissory note or personal guaranty were forged. He did not explain why he

identified himself as JB's President on the promissory note. 2

      In response, the bank representative involved in the transaction certified

that in August 2008, Kapusta had not informed him nor the bank that he had sold

his interest in JB.   In addition, he certified that with respect to Kapusta's

allegation that the bank was "rolling over" an existing line of credit, "each loan

to this borrower was evaluated on its own merits at the time it was made" and

that "had . . . Kapusta not agreed to guaranty the loan, [JB] would not have

received the $200,000[.]"

      On October 27, 2017, the trial court denied Kapusta's motion. In his

thorough written opinion, Judge Thomas C. Miller concluded that Kapusta had

demonstrated neither excusable neglect nor a meritorious defense. The court

concluded that "[e]ven minimal diligence requires . . . Kapusta to take other

steps more than one call to [his nephew] before his actions could be

demonstrated as 'excusable.'" With respect to the merits of Kapusta's defense,

the court concluded that it was clear that Kapusta executed both the promissory

note and the guaranty, that he identified himself as President of JB when doing



2
  Although Kapusta alleges the transaction took place in September 2008, both
the promissory note and the guaranty are dated August 25, 2008.
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so, and that the terms of those contracts were unambiguously stated in writing.

In addition, the court found that Kapusta's claim that he was released from

personal liability by a verbal representation of a bank official was barred by the

parol evidence rule, given the integrated nature of the contracts.

      On October 27, 2017, the trial court entered an order denying Kapusta's

motion. This appeal followed.

                                        II.

      Rule 4:43-3 provides that the court may set aside a default judgment in

accordance with Rule 4:50-1. An application to vacate a judgment pursuant to

Rule 4:50-1 is addressed to the motion judge's sound discretion, which should

be guided by equitable principles. Hous. Auth. v. Little,  135 N.J. 274, 283

(1994). "[T]he opening of default judgments should be viewed with great

liberality, and every reasonable ground for indulgence is tolerated to the end that

a just result is reached." Marder v. Realty Constr. Co.,  84 N.J. Super. 313, 319

(App. Div. 1964). A trial court's determination under Rule 4:50-1 is entitled to

substantial deference and will not be reversed in the absence of a clear abuse of

discretion. US Bank Nat'l Ass'n v. Guillaume,  209 N.J. 449, 467 (2012). To

warrant reversal of the trial court's order, Kapusta must show that the decision

was "made without a rational explanation, inexplicably departed from


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established policies, or rested on an impermissible basis." Guillaume,  209 N.J.
 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc.,  191 N.J. 88, 123 (2007)

(internal quotations omitted)).

      Kapusta seeks relief under subsection (a) of Rule 4:50-1, which allows a

judgment to be set aside for "mistake, inadvertence, surprise, or excusable

neglect[.]"   "Generally, a defendant seeking to reopen a default judgment

because of excusable neglect must show that the failure to answer was excusable

under the circumstances and that a meritorious defense is available." Little,  135 N.J. at 284 (citing Mancini v. EDS,  132 N.J. 330, 334-35 (1993)). "Carelessness

may be excusable when attributable to an honest mistake that is compatible with

due diligence or reasonable prudence." Mancini,  132 N.J. at 335.

      Having carefully reviewed Kapusta's arguments in light of the record and

applicable legal principles, we affirm the October 27, 2017 order for the reasons

stated by Judge Miller in his thorough and well-reasoned written opinion. As

the trial court found, Kapusta's failure to take any steps to ensure that an answer

was filed on his behalf does not constitute excusable neglect. Nor has he

demonstrated a meritorious defense, given that as a sophisticated businessman

he signed an unambiguous guaranty of JB's loan, which clearly stated that the

parties' agreement was fully integrated in the written document, precluding his


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proffered evidence of an oral promise that directly contradicts the central

covenant of the guaranty.

      Affirmed.




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