ALEX GLOUCK VS. ANTON SKVORTSOVÂ (L-4409-13, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0531-15T2
ALEX GLOUCK,
Plaintiff-Respondent,
v.
ANTON SKVORTSOV,
Defendant-Appellant,
and
IRINA G. HYMAN,
Defendant.
________________________________________________________________
Argued November 29, 2016 – Decided July 28, 2017
Before Judges Messano and Espinosa.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No L-4409-
13.
Michael Confusione argued the cause for
appellant (Hegge & Confusione, LLC, attorneys;
Mr. Confusione, of counsel and on the brief).
Robert G. Ricco argued the cause for
respondent.
PER CURIAM
Defendant Anton Skvortsov1 appeals from a default judgment
entered following a proof hearing after he refused to participate
in a scheduled trial. We affirm.
Plaintiff filed a complaint against Skvortsov and his mother,
Irina Hyman, in June 2013, alleging negligence, assault and
battery, and intentional infliction of emotional distress.
According to the complaint, plaintiff visited business premises
owned by Hyman in the Dominican Republic to examine the inventory
of her food-importing business. Defendant, who met plaintiff upon
his arrival, became angry, walked away and then returned with a
machete which he used to attack plaintiff, injuring him.
Defendants filed an answer, denying the allegations, and a
counterclaim, which was later withdrawn. They dismissed their
attorney in the spring of 2015 and appeared pro se thereafter.
Trial was initially scheduled for June 8, 2015. The trial
date was adjourned to July 27, 2015, after defendants filed notice
they were dismissing their attorney.
On June 5, 2015, defendant filed a motion to dismiss the
complaint for lack of subject-matter jurisdiction, forum non
conveniens, lack of standing and failure to state a claim upon
1
The trial judge dismissed all charges against Irina Hyman and
she is not a party to this appeal. When "defendant" is used in
this opinion, it refers to Skvortsov.
2 A-0531-15T2
which relief can be granted. Plaintiff filed a cross-motion for
summary judgment. Both motions were denied by the trial judge as
untimely in light of the July 27 trial date.
On July 27, the parties appeared for trial. Defendant
announced at the outset he was "not ready to proceed with the
trial" because, he contended, despite the trial judge's ruling on
his prior motion, he had the right to a plenary hearing on his
arguments. The trial judge explained that the trial scheduled for
that date was the hearing defendant sought.
The trial judge reviewed with defendant and Hyman that it was
their choice to proceed without an attorney and then asked if they
had any request before the trial commenced. Defendant stated:
I would like to state only for the record I
am not ready to proceed with trial because the
– the jurisdiction, which has been challenged,
and it can be challenged at any time, even as
late as the appeal process.
This challenge has issued to this Court,
and I require that this jurisdiction will be
established, as along as – along with
plaintiff's standing in front of this Court
before we can proceed to any trial.
[(Emphasis added).]
In short, although defendant's motion had been denied, he
insisted his arguments be addressed on the merits before a trial
could proceed. After questioning the parties, the trial judge
noted plaintiff was a resident of Bergen County; defendants were
3 A-0531-15T2
residents of Hudson County; defendants had availed themselves of
the jurisdiction of the court by filing an answer and counterclaim
through counsel; and defendants' challenge to the court's
jurisdiction was made approximately two years after the complaint
was filed. The trial judge declined to dismiss the complaint,
finding the court had jurisdiction over the matter.
After the trial judge stated her reasons for denying his
request, defendant stated,
Your Honor, I believe that I gave sufficient
reason and I am not ready to proceed with the
trial. And if there's nothing else, I cannot
– I stand by my paperwork, Your Honor,
respectfully.
The trial judge proceeded to question plaintiff's counsel and
then defendant as to whether they had submitted a pretrial
exchange. Defendant's response and the ensuing colloquy with the
court follow:
[DEFENDANT]: If I may, though, I understand
your question, Your Honor, but
because I know that – I believe
there's no basis, that I don’t
believe that I am required to
go through the trial until the
matter – until this matter is
addressed. So, I have nothing
else to say.
THE COURT: Okay, what do you mean that
you're not required to go to
trial?
4 A-0531-15T2
[DEFENDANT]: I am not ready to proceed with
the trial, Your Honor, because
that I still don’t see –
because there's still the
matter of plaintiff's
standing, and the Court's
subject matter jurisdiction
have not been addressed.
We owed no duty to [the
plaintiff] . . . . And I am
not willing to submit to this
Court's jurisdiction until the
duty that we supposedly owed to
[plaintiff] has been
established.
THE COURT: So, you're not going to
participate in this trial?
[DEFENDANT]: I am not going to participate
in this trial until this matter
is addressed. I refuse to be
a victim to my lawyers [sic]
incompetent – whatever he was
doing.[2]
[(Emphasis added).]
After further dialogue about defendant's decision not to hire
another attorney, this exchange occurred:
THE COURT: All right. So, your request
was denied. Do you understand
that?
[DEFENDANT]: I understand, Your Honor.
2
Defendant contended that his attorney ignored his directions by
filing a counterclaim rather than a motion challenging
jurisdiction.
5 A-0531-15T2
THE COURT: All right. And your position
now is that you refuse to
proceed with the trial?
[DEFENDANT]: Your Honor, may I respectfully
ask –
THE COURT: What I can do is this – it's
ten of 3:00 – what I can do is,
respectfully, give you the
rest of the afternoon and you
come back tomorrow with a
fresh, clear mind, and you can
collect your thoughts, and be
ready to proceed to defend the
claims that are presented.
That's what I can do for you,
not to ram it through right now
at the – at this point. . . .
Now, I've heard the
application to dismiss for
lack of jurisdiction, and to
dismiss for forum non
conveniens. That's been
denied. The matter is here for
trial. All the parties live in
New Jersey, plaintiff in
Bergen County, defendant in
Hudson County.
. . . .
It's more or less not unusual
to see this type of claim for
compensation. They could be
awarded. They could be
dismissed. I have no idea what
will happen. But . . . for you
to say, I simply refuse to go
ahead, that’s going to push the
issue to a very negative
result, and, perhaps, even
default being entered against
6 A-0531-15T2
you, which I would rather not
have to do.
[(Emphasis added).]
Although he stated he understood, defendant asked "on whose
authority" the court was denying him his "due process" rights.
The trial judge stated again that the application had been denied
and, noting defendant had not requested time to obtain another
attorney, the trial would proceed and defendant could appeal the
denial of his motion.
Defendant then asked for "an Order from this hearing, and
. . . sufficient time to be able to review everything that's been
said during the session," which he later modified to a request for
one week. The trial judge denied the adjournment request and said
defendant would have to pursue that with the presiding judge.
After the trial judge questioned plaintiff's counsel
regarding the jury demand, defendant yet again made "one last
request" -- that the trial judge "state only for the record the
reason for denial of [his] request and [his] paperwork." The
trial judge replied she had already given the reasons and then
arranged for the parties to appear before the presiding trial
judge the following morning.
We do not have a transcript of the proceeding before the
presiding judge. However, the account provided by plaintiff's
7 A-0531-15T2
counsel to the trial judge is not disputed. Counsel stated that
when they appeared before the presiding trial judge, defendant
"did not ask for an adjournment, technically . . . . He said he
didn’t need an adjournment. He went back into the discussion
about jurisdiction. So, . . . there's no adjournment is the net
result."
When the trial judge addressed defendant and Hyman to
ascertain if they understood the matter had been assigned back to
trial, defendant repeated the same objection:
Excuse me, Your honor. I'm not ready to
proceed with the trial until only for the
record this Court states how it has – under
which presumed jurisdiction – under which
assumed jurisdiction, and until plaintiff
proves its standing in front of the Court.
The trial judge then directed that opening statements should
proceed. Defendant objected, stating, "Please, could you state
them only for the record why you are denying me my due process."
The trial judge replied she had already ruled on the motion.
Defendant then stated,
For the record show . . . that the [j]udge
refuse to state – state under which presumed
jurisdiction, assume jurisdiction without the
plaintiff proving their standing on my demand,
that the [c]ourt is still intending to proceed
to trial.
Once again, the trial judge confirmed that both defendants
had been residents of Hudson County since at least as early as
8 A-0531-15T2
2012 when the incident occurred. She then stated the trial would
start.
At this point, plaintiff's counsel made an oral motion for
default against defendant and Hyman "if [defendant is] going to
continue to object as to proceeding on the trial" on the ground
that defendant and Hyman were "refusing to participate in the
trial." The trial judge engaged in the following colloquy with
defendant:
THE COURT: Mr. Skvortsov, are you now
going to proceed and defend on
this case?
[DEFENDANT]: I am not going to proceed with
the trial for the reasons
stated on the . . . record.
THE COURT: All right. So, you are not
going to participate and
defend yourself through the
course of plaintiff's
presentation. Correct?
[DEFENDANT]: I stand by my paperwork. I
stand by the statements I made
only for the record.
Based on these statements, the trial judge granted the request
of plaintiff's counsel to enter default against defendant and
Hyman on liability and to proceed to an assessment of damages.
Plaintiff testified that defendant cut him with a machete, twice
to the head, and slashed him to the bone on his left forearm,
severing all his nerves, tendons and blood vessels. During the
9 A-0531-15T2
course of plaintiff's testimony, defendant rose and asked the
court:
Excuse me, Your Honor. Since I'm not
participating . . . in these proceedings on
the reasons stated on the record, may I please
leave and be notified when we will have to
recess to appear here?
The trial judge asked if he wished to be excused; he stated
he did. The trial judge sought further clarification:
THE COURT: All right. Okay. We'll stop
for now, take a – a short
recess. You can be excused and
leave. If – is that what
you['re] asking to leave –
[DEFENDANT]: No, I'm asking –
. . . .
I'm asking permission to
leave, and can you please tell
me when to be back here once
you're done with the
proceedings, and after the
recess that you're going to
take after hearing the . . .
plaintiff's case?
THE COURT: Well, what I intend to do is to
issue a written decision based
on the presentation now this
morning.
[DEFENDANT]: Uh-huh. I understand.
THE COURT: You're welcome to stay and
continue to listen and
participate as best you can as
a defaulted defendant. But if
you're asking, instead, for
10 A-0531-15T2
permission to leave, I
have . . . no problem with
that if you want to.
Defendant stated he "really appreciate[d] [the court]
accommodating" him and Hyman and elected to leave. After hearing
the remainder of plaintiff's testimony regarding his injuries,
medical treatment and impact on his life, the trial judge entered
an order awarding plaintiff $153,200 against defendant and set
forth her reasons in a sixteen-page written decision.
Defendant did not seek to vacate the default or file a motion
to vacate the default judgment entered against him pursuant to
Rule 4:50-1. Instead, he filed a direct appeal from that judgment,
arguing the judgment should be vacated because the trial judge
erred in entering default against defendants and proceeding with
a proof hearing (Point I). He argues further that the trial court
violated his right to a trial by jury (Point II); erred in failing
to dismiss the complaint on forum non conveniens grounds (Point
III); erred in failing to apply the laws of the Dominican Republic
(Point IV); and erred in refusing to grant his adjournment request
(Point V).
The only argument that merits discussion is defendant's
challenge to the entry of default against him.
Rule 4:43-1 states, in pertinent part:
11 A-0531-15T2
If a party against whom a judgment for
affirmative relief is sought has failed to
plead or otherwise defend as provided by these
rules or court order, or if the answer has
been stricken with prejudice, the clerk shall
enter a default on the docket as to such party.
[(Emphasis added).]
Significantly, the basis for entering a default is not limited
to a failure to defend as required by the Rules; it applies to a
defendant's failure to "defend as provided by" the Rules. Ibid.
"As a general matter, there are various ways in which a
party's failure to adequately fulfill conditions imposed by a
court order in discovery or in preparation for trial may ultimately
permit the dismissal of a claim or the entry of default." N.J.
Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 506
(App. Div. 2009), rev'd on other grounds, 205 N.J. 17 (2011). More
typical examples of such failures include "[f]ailures to file
responsive pleadings or to appear when required to litigate the
matter." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J.
Super. 154, 168 (App. Div. 2012).
A defendant represented by counsel does not necessarily fail
to defend by refusing to attend or participate at trial because
the attorney can litigate the defense on his behalf. See P.W.R.,
supra, 410 N.J. Super. at 506 ("Because a party represented by
counsel may defend at trial without being physically present,
12 A-0531-15T2
default may not be entered when a party is not present at a trial
absent evidence that the party has not otherwise defended as
required by rule or court order.").
In this case, defendant appeared pro se and declined the
trial judge's suggestion that he secure another attorney.
Therefore, both his physical presence and participation were
required in order for him to "defend as provided by" the Rules.
R. 4:43-1. And, his stated reason for refusing to participate
failed to justify his failure to defend.
Defendant first refused to participate in the trial on the
ground that his motion had been denied on procedural grounds and
demanded it be decided on the merits. The trial judge explained
the procedural basis for the denial but went further, to decide
the motion on the merits. Despite her acceding to his request,
defendant continued to demand she state reasons for denying his
motion to dismiss and was adamant that he would not participate
in the trial.
In response, the trial judge advised defendant that she had
decided the motion and the matter would be tried. When he
continued to refuse to participate, she offered to adjourn for the
day, to "give [him] the rest of the afternoon and . . . come back
tomorrow with a fresh, clear mind," so he could "collect [his]
thoughts, and be ready to proceed to defend the claims that are
13 A-0531-15T2
presented." She also cautioned him as to the consequence of
refusing to participate in the trial:
[F]or you to say, I simply refuse to go ahead,
that’s going to push the issue to a very
negative result, and, perhaps, even default
being entered against you, which I would
rather not have to do.
Despite this caution, defendant doggedly persisted in
refusing to participate. In effect, he insisted his motion to
dismiss be granted and would not brook the trial court's decision
to deny the motion and proceed to trial.
In addition to unequivocally refusing to defend himself,
defendant chose to absent himself from trial. Here, again, the
trial judge attempted to encourage him to engage in the litigation,
advising that if he stayed, he could "continue to listen and
participate as best [he could] as a defaulted defendant."
Certainly, the procedure followed here, to enter default
against a recalcitrant defendant, would only be appropriate in
very rare circumstances. We are satisfied that such circumstances
existed here, where defendant repeatedly and unequivocally refused
to participate in or attend the trial after being adequately
advised by the trial judge as to the consequences of his action.
His conduct clearly constituted a failure to defend, falling within
the grounds for a default under Rule 4:43-1. Moreover, in light
of his continuing refusal, we discern no logical basis for the
14 A-0531-15T2
trial court to expend the resources necessary to conduct a full-
scale trial, impaneling a jury to consider what, in effect, would
have been the proof hearing that was conducted.
Defendant's remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
15 A-0531-15T2