Submitted December 3, 2018
Elizabeth Trapp, Esq., Attorney for Plaintiff
Moncavage, pro se, for Defendant
ORDER ON DEFENDANTS' APPEAL FROM
COMMISSIONER'S FINDING OF FACT AND
Kenneth S. Clark, Jr. Judge
Advanced Exteriors and David Moncavage
("Defendants") appeal the Commissioner's
Recommendation to deny Defendants' Motion to Vacate
Default Judgment. For the reasons discussed below,
Defendants' appeal is DISMISSED, and the
Commissioner's Recommendation is
ACCEPTED and entered as the
ORDER of the Court.
and Factual History
April Black and Cydnee Martin ("Plaintiffs") filed
a complaint against Defendants on May 2, 2018 seeking damages
resulting from Defendants' breach of contract,
anticipatory breach of contract, conversion and fraud for
failing to complete contracted upon home improvements.
Defendants never filed a response to Plaintiffs'
Complaint. Plaintiffs were awarded default judgment in the
amount of $49, 403.50 on June 8, 2018. Defendants then filed
a Motion to Vacate Default Judgment on June 13, 2018. A
motion hearing before the Commissioner was scheduled for
August 30, 2018 at 9:30 a.m. Notice of the motion hearing was
sent by mail to the parties on July 11, 2018. Plaintiffs'
Response in Opposition to Defendants' Motion to Vacate
Default Judgment was filed on August 26, 2018.
motion hearing was held on August 30, 2018 at 9:30 a.m.
Defendants failed to appear at the hearing and the
Commissioner recommended to deny Defendants' motion. The
Commissioner filed his Recommendation on September 11, 2018.
On September 25, 2018 Defendant David Moncavage filed an
Appeal of the Commissioner's Recommendation, arguing that
Defendants never received written notice of the scheduled
hearing date. Plaintiffs filed their response to
Defendant David Moncavage's appeal on October 11, 2018.
Defendant David Moncavage filed the motion hearing transcript
and his appeal was formally submitted to this Court for
decision on December 3, 2018. Defendant Advanced Exteriors
has not retained counsel.
Commissioner's decision to deny a motion to vacate a
default judgment is case dispositive. The Court reviews objections
made to case dispositive determinations de
reviewing an appeal from commissioner's finding of facts
and recommendations, (iv) A judge of the Court shall make a
de novo determination of those portions of the
report or specified proposed findings of fact or
recommendations to which an objection is made. A judge may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the Commissioner.
David Moncavage's Motion to Appeal All Commissioner's
Recommendations avers that his failure to appear at the
motion hearing was due to the fact that he never received
written notice of the scheduled hearing date. Defendant
Moncavage further states that "weeks" after filing
his June 13, 2018 motion he contacted the court to inquire
about the status of the hearing and was told "it
hadn't been reviewed yet…and [he] would receive a
letter in the mail."Defendant Moncavage's averments are
contradicted by the Court docket's recordation that
written notice was mailed to all parties on July 11, 2018.
Furthermore, at the motion hearing, the Commissioner
specifically noted that Defendant Moncavage had ...