NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3723-16T4
ARTHUR B. DENNIS,
Plaintiff-Appellant,
v.
MEGAN M. STETTLER and JESSICA R. SHAW,
Defendants-Respondents. _____________________________
Argued October 2, 2018 – Decided December 31, 2018
Before Judges Rothstadt and Natali.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. DC-007067-13.
Arthur B. Dennis, appellant, argued the cause pro se.
Donna M. Hawley argued the cause for respondent Megan M. Stettler (Cooper, Maren, Nitsberg, Voss & DeCoursey, attorneys; Donna M. Hawley, of counsel and on the brief).
PER CURIAM In this Special Civil Part action, plaintiff Arthur B. Dennis sued
defendants Megan M. Stettler and Jessica R. Shaw for damages arising from
personal injuries and property damage plaintiff allegedly sustained as a result of
two separate automobile accidents: one with Stettler, and the other five minutes
later with Shaw. Plaintiff appeals from the trial court's April 3, 2017 order
dismissing his complaint with prejudice after the parties appeared for trial on a
previously assigned "try or dismiss" date and plaintiff advised the court that he
would not proceed to trial that day.
On appeal, plaintiff contends that the judgment dismissing his case should
be vacated under Rule 4:50 because it was obtained through a "fraud on the
court." He also contends that the trial court abused its discretion by not changing
venue, that it erred in dismissing his complaint, and that it violated a "public
policy against piecemeal adjudication." 1 For the reasons that follow, we affirm.
1 Plaintiff raises additional arguments in his reply brief that were neither raised before the trial court nor addressed in his merits brief. Because these issues were not presented to the trial court or argued in his merits brief, they are not properly before us and are deemed waived. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (stating we "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest"); see also Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (claims not addressed in merits brief deemed abandoned). A-3723-16T4 2 The facts gleaned from the record are summarized as follows. Plaintiff's
two accidents occurred on October 12, 2011, and according to plaintiff, they
caused him to suffer injuries to his back and damage to his automobile. Plaintiff
filed suit in 2013 and, due to alleged discovery violations, the trial court
dismissed his complaint with prejudice for the first time on August 24, 2014.
Plaintiff appealed and we reversed and remanded for the reasons stated in our
unpublished opinion filed in May 2016. See Dennis v. Stettler, Docket No. A-
0742-14 (App. Div. May 3, 2016).
After our remand, on August 23, 2016, the matter came before the court
for a trial. At the commencement of the trial, plaintiff stated that he was suing
only for economic losses, but that he was not prepared to proceed with trial on
that day because he wanted a change in venue based on his belief that he would
not receive a fair trial in Atlantic County. Stettler also sought an adjournment
of the matter based on her unavailability. The trial court denied the motions and
the matter proceeded to trial before a jury.
Plaintiff was the only witness who testified on his behalf. At the close of
plaintiff's case, Stettler moved to dismiss under Rule 4:37-2(b) because plaintiff
had not provided expert testimony regarding his alleged injuries and economic
loss. The court granted the motion and dismissed the case against Stettler with
A-3723-16T4 3 prejudice. A default judgment was entered against Shaw, who failed to appear
at trial.
The court subsequently scheduled a post-trial conference regarding both
cases for October 21, 2016. At the conference, the trial court informed the
parties that it had entered default judgment against Shaw in error because she
had not been notified of the trial date. The court then reinstated the case as to
all parties.
Plaintiff filed a motion to change venue on December 6, 2016. On January
6, 2017, the day the motion was scheduled to be heard, plaintiff appeared in
court, but became angry with court staff and defense counsel and ultimately
chose to leave the courthouse. That same day, the trial court denied the motion
to change venue and scheduled trial for February 23, 2017.
On the trial date, the parties appeared, but plaintiff informed the court that
he was not ready to proceed as he again sought a change in venue. The trial
court informed plaintiff it would not change its earlier decision, but agreed to
entertain a motion to stay the trial date in order to give plaintiff an opportunity
to file an interlocutory appeal from the January 6, 2017 order denying a change
in venue. After considering the parties' arguments, the trial court assigned the
matter an April 3, 2017 "try or dismiss" date and stated that the case would be
A-3723-16T4 4 going forward that day without excuses. The trial court also informed the parties
that if they wished to have the matter tried by a jury, they would need to file a
request with the court at least seven days prior to that date so jurors could be
summoned.
On April 3, 2017, the parties appeared for the scheduled trial. By that
date, plaintiff had not filed an interlocutory appeal nor did either party request
a jury. Plaintiff again advised the court that he was not prepared to move
forward and try the case because he did not "trust the court." The trial court
ordered that the plaintiff's complaint be dismissed with prejudice, placing its
reasons for doing so on the record that day.
Plaintiff filed a notice appeal from the trial court's April 3, 2017 order.
Subsequently, the trial court issued an amplification of its decision under Rule
2:5-1(b), explaining the procedural history of the matter and asserting that
plaintiff was aware well in advance of trial that if he was not prepared to try the
case, the matter would be dismissed with prejudice.
We begin our review by addressing plaintiff's contention that the trial
court abused its discretion by dismissing his complaint with prejudice. We
review a court's decision to dismiss with prejudice for failure to appear at trial
under an abuse of discretion standard. Trial courts have broad discretion in
A-3723-16T4 5 determining whether to grant or deny an adjournment request. State v. Jenkins,
349 N.J. Super 464, 478 (App. Div. 2002). When reviewing an exercise of such
discretion, the Appellate Division will not substitute its judgment for that of the
trial court, but will consider only whether the trial court "pursue[d] a manifestly
unjust course." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App.
Div. 1996).
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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-3723-16T4
ARTHUR B. DENNIS,
Plaintiff-Appellant,
v.
MEGAN M. STETTLER and JESSICA R. SHAW,
Defendants-Respondents. _____________________________
Argued October 2, 2018 – Decided December 31, 2018
Before Judges Rothstadt and Natali.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. DC-007067-13.
Arthur B. Dennis, appellant, argued the cause pro se.
Donna M. Hawley argued the cause for respondent Megan M. Stettler (Cooper, Maren, Nitsberg, Voss & DeCoursey, attorneys; Donna M. Hawley, of counsel and on the brief).
PER CURIAM In this Special Civil Part action, plaintiff Arthur B. Dennis sued
defendants Megan M. Stettler and Jessica R. Shaw for damages arising from
personal injuries and property damage plaintiff allegedly sustained as a result of
two separate automobile accidents: one with Stettler, and the other five minutes
later with Shaw. Plaintiff appeals from the trial court's April 3, 2017 order
dismissing his complaint with prejudice after the parties appeared for trial on a
previously assigned "try or dismiss" date and plaintiff advised the court that he
would not proceed to trial that day.
On appeal, plaintiff contends that the judgment dismissing his case should
be vacated under Rule 4:50 because it was obtained through a "fraud on the
court." He also contends that the trial court abused its discretion by not changing
venue, that it erred in dismissing his complaint, and that it violated a "public
policy against piecemeal adjudication." 1 For the reasons that follow, we affirm.
1 Plaintiff raises additional arguments in his reply brief that were neither raised before the trial court nor addressed in his merits brief. Because these issues were not presented to the trial court or argued in his merits brief, they are not properly before us and are deemed waived. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (stating we "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest"); see also Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (claims not addressed in merits brief deemed abandoned). A-3723-16T4 2 The facts gleaned from the record are summarized as follows. Plaintiff's
two accidents occurred on October 12, 2011, and according to plaintiff, they
caused him to suffer injuries to his back and damage to his automobile. Plaintiff
filed suit in 2013 and, due to alleged discovery violations, the trial court
dismissed his complaint with prejudice for the first time on August 24, 2014.
Plaintiff appealed and we reversed and remanded for the reasons stated in our
unpublished opinion filed in May 2016. See Dennis v. Stettler, Docket No. A-
0742-14 (App. Div. May 3, 2016).
After our remand, on August 23, 2016, the matter came before the court
for a trial. At the commencement of the trial, plaintiff stated that he was suing
only for economic losses, but that he was not prepared to proceed with trial on
that day because he wanted a change in venue based on his belief that he would
not receive a fair trial in Atlantic County. Stettler also sought an adjournment
of the matter based on her unavailability. The trial court denied the motions and
the matter proceeded to trial before a jury.
Plaintiff was the only witness who testified on his behalf. At the close of
plaintiff's case, Stettler moved to dismiss under Rule 4:37-2(b) because plaintiff
had not provided expert testimony regarding his alleged injuries and economic
loss. The court granted the motion and dismissed the case against Stettler with
A-3723-16T4 3 prejudice. A default judgment was entered against Shaw, who failed to appear
at trial.
The court subsequently scheduled a post-trial conference regarding both
cases for October 21, 2016. At the conference, the trial court informed the
parties that it had entered default judgment against Shaw in error because she
had not been notified of the trial date. The court then reinstated the case as to
all parties.
Plaintiff filed a motion to change venue on December 6, 2016. On January
6, 2017, the day the motion was scheduled to be heard, plaintiff appeared in
court, but became angry with court staff and defense counsel and ultimately
chose to leave the courthouse. That same day, the trial court denied the motion
to change venue and scheduled trial for February 23, 2017.
On the trial date, the parties appeared, but plaintiff informed the court that
he was not ready to proceed as he again sought a change in venue. The trial
court informed plaintiff it would not change its earlier decision, but agreed to
entertain a motion to stay the trial date in order to give plaintiff an opportunity
to file an interlocutory appeal from the January 6, 2017 order denying a change
in venue. After considering the parties' arguments, the trial court assigned the
matter an April 3, 2017 "try or dismiss" date and stated that the case would be
A-3723-16T4 4 going forward that day without excuses. The trial court also informed the parties
that if they wished to have the matter tried by a jury, they would need to file a
request with the court at least seven days prior to that date so jurors could be
summoned.
On April 3, 2017, the parties appeared for the scheduled trial. By that
date, plaintiff had not filed an interlocutory appeal nor did either party request
a jury. Plaintiff again advised the court that he was not prepared to move
forward and try the case because he did not "trust the court." The trial court
ordered that the plaintiff's complaint be dismissed with prejudice, placing its
reasons for doing so on the record that day.
Plaintiff filed a notice appeal from the trial court's April 3, 2017 order.
Subsequently, the trial court issued an amplification of its decision under Rule
2:5-1(b), explaining the procedural history of the matter and asserting that
plaintiff was aware well in advance of trial that if he was not prepared to try the
case, the matter would be dismissed with prejudice.
We begin our review by addressing plaintiff's contention that the trial
court abused its discretion by dismissing his complaint with prejudice. We
review a court's decision to dismiss with prejudice for failure to appear at trial
under an abuse of discretion standard. Trial courts have broad discretion in
A-3723-16T4 5 determining whether to grant or deny an adjournment request. State v. Jenkins,
349 N.J. Super 464, 478 (App. Div. 2002). When reviewing an exercise of such
discretion, the Appellate Division will not substitute its judgment for that of the
trial court, but will consider only whether the trial court "pursue[d] a manifestly
unjust course." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App.
Div. 1996).
Plaintiff argues that because Stettler had once obtained an adjournment of
an earlier trial date, Shaw was not present in court on the "try or dismiss" trial
date, and a jury had not been called that day, the matter should not have been
dismissed. Moreover, he contends that because there was no provision for a
dismissal with prejudice in the court's notice scheduling the trial date, any
dismissal should have been without prejudice. We disagree.
Rule 1:2-4(a) provides that a trial court may dismiss a complaint if
"without just excuse or because of failure to give reasonable attention to the
matter, no appearance is made on behalf of a party . . . on the day of trial[.]" If
a party wishes to adjourn, absent good cause for the delay, he or she must submit
requests for adjournments to the clerk's office no less than five days before the
scheduled court event. R. 6:4-7. Dismissals for failure to appear are generally
without prejudice "unless the court for good cause orders otherwise." Connors
A-3723-16T4 6 v. Sexton Studios, Inc., 270 N.J. Super. 390, 392-93 (App. Div. 1994) (finding
that no good cause existed to dismiss plaintiff's case with prejudice where he
was not present in the courtroom when the case was called due to traffic and
parking issues). Egregious conduct or purposeful noncompliance with court
schedules on the part of the plaintiff constitutes good cause for dismissal with
prejudice. See Ibid.; see also Rule 4:37-2(a) (applying the same standard to a
party's motion to dismiss for failure to comply with a court rule). Dismissal
with prejudice is normally ordered "only when no lesser sanction will suffice to
erase the prejudice suffered by the non-delinquent party. . . ." Zaccardi v.
Becker, 88 N.J. 245, 253 (1982).
Here, we do not discern any abuse of the trial court's discretion in
dismissing plaintiff's complaint with prejudice. Prior to its dismissal, the matter
already had three scheduled court dates—January 6, 2017 for the motion to
change venue, and trial dates of February 23, 2017 and April 3, 2017—where
plaintiff either voluntarily left the courthouse or stated that he was unwilling to
proceed with trial, which is tantamount to failure to appear under Rule 1:2-4.
Plaintiff did not notify the clerk's office in advance that he wished to adjourn,
as required under Rule 6:4-7, and did not demonstrate good cause for not doing
so. On all of the dates, Stettler was present and ready to proceed. Moreover,
A-3723-16T4 7 prior to the dismissal, the trial court offered plaintiff several accommodations,
allowing him, for example, time to file an interlocutory appeal. Despite those
accommodations, plaintiff refused to proceed, primarily based upon his distrust
of the court and defense counsel. Plaintiff's actions constituted "egregious
conduct" and disregard of the court's authority, and thus established good cause
for dismissing his complaint with prejudice.
We turn our attention next to plaintiff's argument that he is entitled to
relief under Rule 4:50-1(c) from the order dismissing his complaint, an argument
plaintiff never raised before the trial court. Because it was not raised before the
trial court, we decline to consider his argument. See Zaman, 219 N.J. at 226-
27. Even if we were to consider it, based upon what he has argued to us, we
conclude that plaintiff failed to establish there was any fraud on the court as he
has not "demonstrated, clearly and convincingly, that a party has sentiently set
in motion some unconscionable scheme calculated to interfere with the judicial
system's ability [to] impartially . . . adjudicate a matter by improperly
influencing the trier or unfairly hampering the presentation of the opposing
party's claim or defense." Triffin v. Automatic Data Processing, Inc., 411 N.J.
Super. 292, 298 (App. Div. 2010) (quoting Triffin v. Automatic Data Processing,
A-3723-16T4 8 Inc., 394 N.J. Super. 237, 251 (App. Div. 2007)). Plaintiff has not met this
burden.
We next consider plaintiff's appeal from the denial of his motion to change
venue. We review a court's decision not to change venue under an abuse of
discretion standard, and will reverse only when that decision is "so wide of the
mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106
(1982).
Plaintiff argues that the trial court abused its discretion in denying his
motion to change venue from Atlantic to Cumberland County because he
satisfied all of the requirements under Rule 4:3-2 and Rule 4:3-3. According to
plaintiff, a change in venue was necessary because of the "authority granted to
Defense Lawyers to perform the duties of the Judge and Clerk in order to
guarantee the outcome of the case in favor of" defendants. He also argues that
the trial court denied his motion without an explanation of its reasons as required
by Rule 1:7-4(a), warranting the reversal of that order and the reinstatement of
his complaint. We disagree.
A change of venue is warranted where there is "clear and convincing proof
that a fair and impartial trial cannot be had" in a given venue. State v. Koedatich,
112 N.J. 225, 267 (1988) (citing State v. Wise, 19 N.J. 59, 73-74 (1955)). When
A-3723-16T4 9 venue is challenged for this reason under Rule 4:3-3(a)(2), the movant has the
burden of demonstrating good cause for the change. Pressler & Verniero,
Current N.J. Court Rules, cmt. on R. 4:3-3 (2019).
Applying these guiding principles, we conclude that plaintiff's contentions
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). Suffice it to say, plaintiff failed to meet his burden to establish a
change in venue was warranted. Neither his perception that he was being treated
unfairly nor his contention that defense counsel was "in control" of the case were
supported by the record.
As to plaintiff's remaining arguments, we conclude they also lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3723-16T4 10