NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2292-24
ABIODUN OLANIWUN,
Plaintiff-Appellant,
v.
FIRAS N. ESHEESH,
Defendant- Respondent. __________________________
Submitted May 4, 2026 – Decided June 5, 2026
Before Judges Walcott-Henderson and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. DC-002601-24.
Abiodun Olaniwun, self-represented appellant.
Respondent has not filed a brief.
PER CURIAM
In this action brought in the Special Civil Part under the Consumer Fraud
Act, N.J.S.A. 56:8-1 to -20, self-represented plaintiff Abiodun Olaniwun
appeals from an order dismissing his complaint against defendant Firas N. Esheesh, a car salesman and mechanic, without prejudice. Defendant has not
filed a brief.1 For the reasons that follow, we reverse and remand for
reinstatement of plaintiff's complaint.
The following facts are derived from plaintiff's brief and appendix and are
undisputed. In January 2024, plaintiff purchased a 2006 Cadillac DTS from
defendant for $2,500. Plaintiff inquired about the vehicle after seeing it on
defendant's Facebook page, asking whether there were any mechanical and
electrical issues to which defendant reportedly responded "NO ISSUE" in a text
message prior to the sale. The Cadillac was garaged at defendant's place of
business in Rockaway and when plaintiff went there to see the Cadillac, he
learned defendant was also a mechanic and inquired whether he could repair a
different vehicle plaintiff owned, a 2009 Jaguar XFP, that had mechanical
issues. Defendant responded in the affirmative and the parties arranged for
plaintiff to bring the Jaguar to defendant's garage for repairs. Soon thereafter,
plaintiff dropped off the Jaguar to defendant and drove the Cadillac home.
Thereafter, various issues arose with the Cadillac, prompting plaintiff to
file a complaint against defendant in the Special Civil Part, alleging that
1 The court entered an order dated February 4, 2026 suppressing defendant's brief. A-2292-24 2 defendant knowingly sold him a "faulty vehicle," and demanding damages,
including a refund of his money plus all other costs and expenses incurred in
fixing some of the problems in the vehicle. More particularly, plaintiff alleged
that the Cadillac failed to start the day after he purchased it and drove it home,
prompting him to contact defendant who advised him to use jumper cables to
start the vehicle, and that one week later, the vehicle broke down on the highway
and had to be towed. Plaintiff's complaint included a demand for damages in
the amount of $5,700.
Plaintiff subsequently moved to amend the complaint, increasing his
demand for damages to $7,759.09. The court granted the motion and entered an
order on June 14, 2024. In his amended complaint, plaintiff alleged that after
the Cadillac broke down on the roadway and was towed to another garage, he
was presented with two options: pay storage fees of $25 per day, or pay the
costs to repair the vehicle at that garage, which amounted to $7,759.09.2
A hearing on plaintiff's complaint was scheduled before the court on
February 10, 2025. On that date, before a full courtroom, the court commenced
the day's proceedings with an introduction and instructions to all litigants, which
2 Additionally, plaintiff alleges that when he retrieved the Jaguar from defendant, it had a broken center dashboard speaker, which cost him an additional $1,500 to replace, and included these costs in his amended complaint. A-2292-24 3 included the following: "[y]ou are here for the Morris County Small Claims and
Special Civil calendar call," "[i]f both parties are here we're going to send you
to a settlement conference," and "[i]f I have a plaintiff and I have no defendant,
I'm going to enter what's called default. If I have a defendant and I have no
plaintiff the case against you will be dismissed." The court next explained that
any litigant who decides to go to trial "are going to be bound by the same rules
of court and the same rules of evidence just as if you were an attorney," and "[i]f
you are unhappy with any decision . . . you have the absolute right to take an
appeal of that decision with the Appellate Division of the Superior Court. You
have [forty-five] days to file your appeal, and you have to pay for and request
the transcript of today's proceedings."
The court called plaintiff's case first and both parties responded that they
were present and ready and were sent to a settlement conference. Following the
unsuccessful settlement conference and the parties' return to the courtroom, the
court stated "[e]veryone is going to stay in the courtroom until we give you
instructions otherwise so that we don't lose anyone for our settlement
conferences, and we don't want people milling about in the hallway so that we
don't know where anyone is."
A-2292-24 4 The court next called plaintiff's case, but only defendant responded;
plaintiff was not in the courtroom. The court dismissed plaintiff's complaint
without prejudice, finding plaintiff had "voluntarily absented himself." The
court noted that court staff had searched for plaintiff to no avail and granted
defendant's application for dismissal due to plaintiff's absence. The court also
denied plaintiff's subsequent motion to reinstate his complaint. Plaintiff
appealed.
Our standard of review concerning a dismissal of a complaint is whether
the trial court abused its discretion. Abtrax Pharm. v. Elkins-Sinn, 139 N.J. 499,
517 (1995). The decision whether to dismiss with or without prejudice is
reposed in the sound discretion of the trial court under Rule 4:37-2(a)." Crispin
v. Volkswagenwerk, A.G., 96 N.J. 336, 346 (1984); see also Gonzalez v. Safe
& Sound Sec. Corp., 185 N.J. 100, 115 (2005). "A court abuses its discretion
when its 'decision is made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis.'" State v.
Chavies, 247 N.J. 245, 257 (2021) (quoting State v. R.Y., 242 N.J. 48, 65
(2020)). "[A] functional approach to abuse of discretion examines whether there
are good reasons for an appellate court to defer to the particular decision at
issue." R.Y., 242 N.J. at 65 (2020) (quoting Flagg v. Essex Cnty. Prosecutor,
A-2292-24 5 171 N.J. 561, 571 (2002)). "When examining a trial court's exercise of
discretionary authority, we reverse only when the exercise of discretion was
'manifestly unjust' under the circumstances." Newark Morning Ledger Co. v.
N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 174 (App. Div. 2011)
(quoting Union Cnty. Improvement Auth. v. Artaki, LLC, 392 N.J. Super. 141,
149 (App. Div. 2007)). Moreover, we must defer to the trial court's findings of
fact and conclusions of law "unless we are convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
Free access — add to your briefcase to read the full text and ask questions with AI
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-2292-24
ABIODUN OLANIWUN,
Plaintiff-Appellant,
v.
FIRAS N. ESHEESH,
Defendant- Respondent. __________________________
Submitted May 4, 2026 – Decided June 5, 2026
Before Judges Walcott-Henderson and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. DC-002601-24.
Abiodun Olaniwun, self-represented appellant.
Respondent has not filed a brief.
PER CURIAM
In this action brought in the Special Civil Part under the Consumer Fraud
Act, N.J.S.A. 56:8-1 to -20, self-represented plaintiff Abiodun Olaniwun
appeals from an order dismissing his complaint against defendant Firas N. Esheesh, a car salesman and mechanic, without prejudice. Defendant has not
filed a brief.1 For the reasons that follow, we reverse and remand for
reinstatement of plaintiff's complaint.
The following facts are derived from plaintiff's brief and appendix and are
undisputed. In January 2024, plaintiff purchased a 2006 Cadillac DTS from
defendant for $2,500. Plaintiff inquired about the vehicle after seeing it on
defendant's Facebook page, asking whether there were any mechanical and
electrical issues to which defendant reportedly responded "NO ISSUE" in a text
message prior to the sale. The Cadillac was garaged at defendant's place of
business in Rockaway and when plaintiff went there to see the Cadillac, he
learned defendant was also a mechanic and inquired whether he could repair a
different vehicle plaintiff owned, a 2009 Jaguar XFP, that had mechanical
issues. Defendant responded in the affirmative and the parties arranged for
plaintiff to bring the Jaguar to defendant's garage for repairs. Soon thereafter,
plaintiff dropped off the Jaguar to defendant and drove the Cadillac home.
Thereafter, various issues arose with the Cadillac, prompting plaintiff to
file a complaint against defendant in the Special Civil Part, alleging that
1 The court entered an order dated February 4, 2026 suppressing defendant's brief. A-2292-24 2 defendant knowingly sold him a "faulty vehicle," and demanding damages,
including a refund of his money plus all other costs and expenses incurred in
fixing some of the problems in the vehicle. More particularly, plaintiff alleged
that the Cadillac failed to start the day after he purchased it and drove it home,
prompting him to contact defendant who advised him to use jumper cables to
start the vehicle, and that one week later, the vehicle broke down on the highway
and had to be towed. Plaintiff's complaint included a demand for damages in
the amount of $5,700.
Plaintiff subsequently moved to amend the complaint, increasing his
demand for damages to $7,759.09. The court granted the motion and entered an
order on June 14, 2024. In his amended complaint, plaintiff alleged that after
the Cadillac broke down on the roadway and was towed to another garage, he
was presented with two options: pay storage fees of $25 per day, or pay the
costs to repair the vehicle at that garage, which amounted to $7,759.09.2
A hearing on plaintiff's complaint was scheduled before the court on
February 10, 2025. On that date, before a full courtroom, the court commenced
the day's proceedings with an introduction and instructions to all litigants, which
2 Additionally, plaintiff alleges that when he retrieved the Jaguar from defendant, it had a broken center dashboard speaker, which cost him an additional $1,500 to replace, and included these costs in his amended complaint. A-2292-24 3 included the following: "[y]ou are here for the Morris County Small Claims and
Special Civil calendar call," "[i]f both parties are here we're going to send you
to a settlement conference," and "[i]f I have a plaintiff and I have no defendant,
I'm going to enter what's called default. If I have a defendant and I have no
plaintiff the case against you will be dismissed." The court next explained that
any litigant who decides to go to trial "are going to be bound by the same rules
of court and the same rules of evidence just as if you were an attorney," and "[i]f
you are unhappy with any decision . . . you have the absolute right to take an
appeal of that decision with the Appellate Division of the Superior Court. You
have [forty-five] days to file your appeal, and you have to pay for and request
the transcript of today's proceedings."
The court called plaintiff's case first and both parties responded that they
were present and ready and were sent to a settlement conference. Following the
unsuccessful settlement conference and the parties' return to the courtroom, the
court stated "[e]veryone is going to stay in the courtroom until we give you
instructions otherwise so that we don't lose anyone for our settlement
conferences, and we don't want people milling about in the hallway so that we
don't know where anyone is."
A-2292-24 4 The court next called plaintiff's case, but only defendant responded;
plaintiff was not in the courtroom. The court dismissed plaintiff's complaint
without prejudice, finding plaintiff had "voluntarily absented himself." The
court noted that court staff had searched for plaintiff to no avail and granted
defendant's application for dismissal due to plaintiff's absence. The court also
denied plaintiff's subsequent motion to reinstate his complaint. Plaintiff
appealed.
Our standard of review concerning a dismissal of a complaint is whether
the trial court abused its discretion. Abtrax Pharm. v. Elkins-Sinn, 139 N.J. 499,
517 (1995). The decision whether to dismiss with or without prejudice is
reposed in the sound discretion of the trial court under Rule 4:37-2(a)." Crispin
v. Volkswagenwerk, A.G., 96 N.J. 336, 346 (1984); see also Gonzalez v. Safe
& Sound Sec. Corp., 185 N.J. 100, 115 (2005). "A court abuses its discretion
when its 'decision is made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis.'" State v.
Chavies, 247 N.J. 245, 257 (2021) (quoting State v. R.Y., 242 N.J. 48, 65
(2020)). "[A] functional approach to abuse of discretion examines whether there
are good reasons for an appellate court to defer to the particular decision at
issue." R.Y., 242 N.J. at 65 (2020) (quoting Flagg v. Essex Cnty. Prosecutor,
A-2292-24 5 171 N.J. 561, 571 (2002)). "When examining a trial court's exercise of
discretionary authority, we reverse only when the exercise of discretion was
'manifestly unjust' under the circumstances." Newark Morning Ledger Co. v.
N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 174 (App. Div. 2011)
(quoting Union Cnty. Improvement Auth. v. Artaki, LLC, 392 N.J. Super. 141,
149 (App. Div. 2007)). Moreover, we must defer to the trial court's findings of
fact and conclusions of law "unless we are convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Rova Farms Resort, Inc.
v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (quoting Fagliarone v. Twp. of
No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963))."
Dismissal, even without prejudice, is a drastic remedy and should be used
sparingly, especially where the result is to deprive a litigant of a hearing on the
merits. Zaccardi v. Becker, 88 N.J. 245, 253 (1982). As stated in Egg Harbor
Care Ctr. v. Scheraldi, 455 N.J. Super. 343, 355 (App. Div. 2018), "a dismissal
based on the court's procedural inability to consider a case is without prejudice."
"A dismissal without prejudice means that there has been no adjudication on the
merits and that a subsequent complaint alleging the same cause of action will
not be barred by reason of its prior dismissal." Czepas v. Schenk, 362 N.J.
A-2292-24 6 Super. 216, 228 (App. Div. 2003) (citing O'Loughlin v. Nat'l Cmty. Bank, 338
N.J. Super. 592, 603 (App. Div. 2001); Mason v. Nabisco Brands, Inc., 233 N.J.
Super. 263, 267 (App. Div. 1989)). 3
On appeal, plaintiff argues the dismissal was unfair and unjust, asserting
that he did not voluntarily absent himself but had to use the restroom due to a
medical need and that he informed the Sheriff's Officer stationed in the
courtroom. He contends the judge's order mischaracterizes his actions and
requests reversal for a fair judgment. Substantively, plaintiff maintains
defendant's misrepresentation about the vehicle's condition and failure to
disclose damage to the Jaguar constituted violations of New Jersey's Consumer
Fraud Act and criminal mischief statutes, and these issues were not properly
adjudicated due to the procedural dismissal. He seeks reinstatement of his
complaint for an adjudication of his claims on the merits.
Here, there is no question the court properly and plainly instructed all
litigants to remain present in the courtroom in order to avoid exactly what
happened here. The record clearly shows the court advised the litigants to "stay
3 A dismissal is with prejudice "[u]nless the order of dismissal otherwise specifies," and "any dismissal not specifically provided for by [Rule] 4:37, other than a dismissal for lack of jurisdiction, operates as an adjudication on the merits." R. 4:37-2(d). A-2292-24 7 in the courtroom until we give you instructions otherwise so that we don 't lose
anyone for our settlement conferences, and we don't want people milling about
in the hallway so that we don't know where anyone is." Despite the court's
warning, however, plaintiff was absent from the courtroom after his case was
called for trial, prompting the court to remark that "we cannot locate plaintiff,
Mr. Olaniwun," which was confirmed by defense counsel and court staff. The
court further noted, "I believe he was informed at least fifteen minutes ago that
we were proceeding to trial, . . . and he's not here." The court dismissed
plaintiff's complaint following defendant's application for dismissal, reiterating
it had instructed all parties to remain in the courtroom unless they were at their
settlement conference, and plaintiff was not given instructions otherwise,
finding "plaintiff had absented himself" from the courtroom.
Nevertheless, the record reflects that plaintiff's absence was not willful or
contumacious, but rather due to a claimed medical need to use the restroom,
which he asserts was communicated to court staff. The court's own instructions
to litigants to remain in the courtroom were clear, but the circumstances suggest
at least a plausible explanation for plaintiff's absence. The court did not make
a specific finding that plaintiff's explanation was not credible, nor did it explore
whether the absence was truly "voluntary" or the result of excusable neglect.
A-2292-24 8 New Jersey courts have recognized that where a litigant's failure to appear
is due to excusable neglect, reinstatement is appropriate, particularly where the
opposing party is not prejudiced and the absence was not part of a pattern of
delay or disregard for court orders. See Mason, 233 N.J. Super. 263, 267 (App.
Div. 1989) ("A dismissal without prejudice means that there has been no
adjudication on the merits and that a subsequent complaint alleging the same
cause of action will not be barred by reason of its prior dismissal."). On the
contrary, the record shows that plaintiff was present in the courtroom at the time
of the calendar call and attended the settlement conference, which we can fairly
infer was indicative of his intent to proceed to trial. And, as the court had duly
advised all litigants, due to the sheer number of litigants present for the day's
proceedings, the record suggests the proceedings were lengthy, and thus, it was
not unreasonable that plaintiff would need to excuse himself from the courtroom
at some point to use the facilities, as he claimed. The court referenced a
discussion with its staff about plaintiff's whereabouts, but did not otherwise note
on the record whether plaintiff had advised the Sheriff's Officer of his need to
be excused from the courtroom as he claimed.
Moreover, there is no indication in the record that defendant would be
prejudiced by reinstatement and proceeding to trial. Under these circumstances, and
A-2292-24 9 given the strong preference for adjudication on the merits, the absence of prejudice
to defendant, and plaintiff's assertion of excusable neglect, the interests of justice
would be served by reinstating the complaint and allowing plaintiff to present his
claims at trial, which is consistent with our preference for matters to be decided
on their merits rather than on procedural grounds. Nowosleska v. Steel, 400 N.J.
297, 303 (App. Div. 2008). We are thus satisfied that the court's denial of
reinstatement, without further inquiry into the circumstances of plaintiff's absence
and without a finding of willful disregard for court orders, constitutes an abuse of
discretion, warranting reversal.
Reversed and remanded for reinstatement of plaintiff's complaint. We do not
retain jurisdiction.
A-2292-24 10