GURMAIL SAINI v. LATTY & AMRITA PETROLEUM, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6275-04T26275-04T2

GURMAIL SAINI,

Plaintiff-Appellant,

v.

LATTY & AMRITA PETROLEUM, INC.,

GURMAIL PARMAR, PIARA MULTANI,

SATWINDER MULTANI, DR. ADJIT

SODHI, DR. SINGH SAINI,

Defendants-Respondents.

__________________________________

 

Submitted September 13, 2006 - Decided September 29, 2006

Before Judges Parrillo, Hoens and Sapp-Peterson.

 
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5677-00.

Gurmail Saini, appellant pro se.

No brief filed on behalf of respondents.

PER CURIAM

Plaintiff Gurmail Saini appeals from the July 22, 2005 order of the Law Division denying his motion to vacate dismissal of the complaint and restore it to the active trial calendar. We affirm.

Briefly, by way of background, on June 19, 2000, plaintiff filed a complaint against Latty & Amrita Petroleum, Inc. (Latty) and several individual defendants alleging non-payment of a $33,000 loan extended to Latty and defendant Piara Multani, or in the alternative, forgery of checks dated October 19, 1994 intended as repayment of the loan. Following discovery, the court granted summary judgment dismissals of plaintiff's complaint against defendants Gurmail Parmar and Piara Multani. Eventually, the matter was referred to mediation, which was unsuccessful, the mediator apparently having concluded on February 13, 2002, that plaintiff did not have a viable cause of action. When the matter was called for trial on January 27, 2003, neither plaintiff nor his counsel appeared and the only defendant present for trial was Dr. Adjit Sodhi. Consequently, by order of February 4, 2003, the court dismissed with prejudice plaintiff's complaint against all remaining defendants, except Dr. Sodhi, for lack of prosecution. In the meantime, on January 28, 2003, plaintiff requested a voluntary dismissal of the complaint against Dr. Sodhi, and accordingly on that same day, the court entered an order of dismissal without prejudice.

Over two-and-one-half years later, in July 2005, plaintiff moved to vacate the dismissal and reinstate his complaint, alleging that he never consented to the dismissal in the first instance although assertedly he learned of the action as early as June 28, 2003. Judge Rosenberg denied the motion, reasoning:

Plaintiff wishes to have the complaint restored after it was dismissed for lack of prosecution.

However, it was just not administratively dismissed, the parties appeared for a trial call on January 27th, 2003. On that morning - I'm sorry, a week later plaintiff's complaint was . . . partially dismissed for February 4, 2003 by Judge Epstein. According to Judge Epstein's order only one count against Dr. Sodhi remained.

On January 28th, 2003 plaintiff requested a voluntary dismissal so that the one remaining count . . . after Judge Epstein's order was also dismissed.

Defendant - that'd be the plaintiff, states that this case was dismissed without his knowledge and presence. In his certification he talks about not being represented properly by a couple of attorneys. He may or may not have a malpractice action against one or both of them, but the complaint will not be restored because he moved - there's no good reason given. He voluntarily dismissed the complaint on his own.

On appeal, plaintiff raises the following issues for our review:

I. GURMAIL SAINI'S CHECKS WORTH $33,000 WERE STOLEN AND FORGED AND THE REPORT OF [THE] SIGNATURE EXPERT PROVED THAT SIGNATURES ON THE FORGED CHECKS WERE NOT OF GURMAIL SAINI. IT CONSTITUTES THE GOOD CAUSE THAT A FORGERY TOOK PLACE.

II. SURINDER SAINI (APPELLANT'S EX-WIFE) COMMITTED FRAUD IN THE DIVORCE TRIAL COURT AND CLAIMED $16,500 (HALF OF [$]33,000) FROM GURMAIL SAINI'S TRUST ACCOUNT. GURMAIL SAINI NEVER RECEIVED HIS $33,000. THIS AMOUNT HAD ALREADY BEEN FORGED.

III. SURINDER SAINI IN HER CERTIFICATION CLAIMED THAT IN MAY 29, 1995 SHE RECEIVED THE PART OF FORGED MONEY[,] $28,000, FROM GURMAIL PARMAR AND LATER SHE AND GURMAIL SAINI DIVIDED THAT MONEY. ON THE OTHER HAND[,] SHE CLAIMED THE SAME MONEY IN DIVORCE COURT AND RECEIVED $16,500 FROM GURMAIL SAINI'S INJURY SETTLEMENT ACCOUNT THAT WAS IN EDWARD DUSCHOCK'S TRUST ACCOUNT. THIS WAY SHE COMMITTED FRAUD IN THE MATRIMONIAL COURT.

IV. SURINDER SAINI CLAIMED IN HER CERTIFICATION THAT SHE RECEIVED $28,000 IN [THE] MAY 29, 2005 MEETING. ON THE OTHER HAND[,] IN THAT MEETING DR. A[D]JIT SODHI PREPARED RECEIPTS AND POWER OF ATTORNEY AND FORCED GURMAIL SAINI TO SIGN THOSE RECEIPTS. AFTER THAT THEY KICKED GURMAIL SAINI OUT FROM THE HOUSE. THIS CONSTITUTES GOOD CAUSE THAT THE DEFENDANTS['] OBJECTIVE OF THAT MEETING WAS TO CHEAT GURMAIL SAINI AND TO CREATE LEGAL EVIDENCE THAT GURMAIL SAINI RECEIVED MONEY BUT ACTUALLY [THE] MONEY WAS ALREADY IN THE CUSTODY OF DEFENDANTS.

V. GURMAIL PARMAR WHO ACTUALLY FORGED THE CHECKS OF $33,000[,] WAS SUMMONED TO APPEAR IN MATRIMONIAL TRIAL COURT BUT HE DID NOT APPEAR THERE. THIS MONEY WAS ALREADY IN THE ACCOUNTS OF GURMAIL PARMAR AND SURINDER SAINI KNEW THIS FACT BUT DID NOT DISCLOSE [IT] IN THE MATRIMONIAL TRIAL COURT.

VI. GURMAIL PARMAR TOLD [A] LIE IN HIS DEPOSITION STAT[ING] THAT HE RETURNED [THE] MONEY TO GURMAIL SAINI IN THE FORM OF CASH, BLANK MONEY ORDERS, AND CHECKS ISSUED BY GURMAIL PARMAR'S BROTHER-IN-LAW. IN HIS DEPOSITION[,] GURMAIL PARMAR SAID THAT GURMAIL SAINI SIGNED THE CHECKS, THAT WAS NOT TRUE. GURMAIL PARMAR NEVER PRODUCED ANY EVIDENCE TO PROVE THAT.

VII. GURMAIL PARMAR IN HIS DEPOSITION SAID THAT IN [THE] MAY 29, 1995 MEETING, GURMAIL PARMAR HAD GIVEN THE MONEY TO GURMAIL SAINI AND GURMAIL SAINI HANDED THAT OVER TO DR. SODHI. ON THE OTHER HAND[,] DR. A[D]JIT SODHI IN HIS CERTIFICATION SAID THAT GURMAIL PARMAR GAVE THE MONEY TO GURMAIL SAINI AND GURMAIL SAINI GAVE [IT] TO SURINDER SAINI WHO LEFT WITH THE MONEY. GURMAIL PARMAR'S DEPOSITION AND DR. A[D]JIT SODHI'S CERTIFICATION DO NOT MATCH.

VIII. AFTER [THE] MAY 29, 1995 MEETING[,] DR. A[D]JIT SODHI SENT GURMAIL SAINI A LETTER TO FIND [A] NEW PRIMARY CARE PHYSICIAN. GURMAIL SAINI NEVER WENT TO DR. SODHI'S OFFICE AFTER THE ABOVE[-] MENTIONED MEETING. BUT IN HIS CERTIFICATION DR. SODHI CLAIMED TO SEE GURMAIL SAINI A COUPLE OF TIMES AFTER THE MEETING, THAT'S NOT TRUE. IT CONSTITUTES GOOD REASON THAT DR. SODHI WAS USED AS A SHIELD IN THE ABOVE[-] MENTIONED FORGERY CASE BECAUSE GURMAIL SAINI TRUSTED DR. SODHI AS A MEMBER OF [THE] SAME COMMUNITY AND AS A PHYSICIAN-PATIENT RELATIONSHIP.

IX. AFTER THE CERTIFICATION OF SURINDER SAINI, EDWARD DUSCHOCK TOOK VOLUNTARY DISMISSAL OF THE CASE WITH THE INTENTION THE CASE COULD BE REOPENED. BUT GURMAIL SAINI HAD NO INFORMATION ABOUT IT. ALTHOUGH IT HURT GURMAIL SAINI BUT IT CAN BE CONSIDERED GOOD CAUSE THAT EDWARD DUSCHOCK TOOK VOLUNTARY DISMISSAL BECAUSE SURINDER SAINI'S CERTIFICATION MESSED [UP] THE CASE AND BEYOND THAT[,] EDWARD DUSCHOCK COULD NOT HANDLE IT PROFESSIONALLY.

We have considered each of these issues in light of the record, the applicable law, and the arguments of plaintiff pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add, however, the following comments.

It is clear that if, without just excuse, a plaintiff fails to appear on the day of trial, a court may order the dismissal of the complaint. R. 1:2-4(a); Kohn's Bakery, Inc. v. Terracciano, 147 N.J. Super. 582, 584-85 (App. Div. 1977). Thus, our standard of review of the invocation of the dismissal sanction is whether the trial court abused its discretion. Ibid. Here, plaintiff has failed to offer any evidence of excuse, much less "just excuse" for his and counsel's failure to appear at time of trial. On the contrary, on the day following his non-appearance, plaintiff, either himself or through counsel, requested a voluntary dismissal of his complaint against the only remaining defendant, Dr. Sodhi. By then, of course, summary judgment dismissals had been entered in favor of two other defendants and mediation of plaintiff's dispute with the rest proved unsuccessful. Under the circumstances, we find no abuse of discretion in the dismissal with prejudice of plaintiff's complaint for want of prosecution, and accordingly no error in the court's denial of plaintiff's much belated motion to vacate the dismissal.

As to the other order dated January 28, 2002, "[i]t is elementary that a dismissal without prejudice adjudicates nothing and does not constitute a bar to re-institution of the action, subject to the constraint imposed by the statute of limitations." O'Loughlin v. Nat'l Cmty. Bank, 338 N.J. Super. 592, 603 (App. Div.), certif. denied, 169 N.J. 606 (2001) (citing Pressler, Current N.J. Court Rules, comment 1 on R. 4:37-1 (2000)). Here, by his own admission, the latest plaintiff discovered the so-called forgery was April 25, 1995, and therefore by the time he filed the instant motion, the six-year limitations period on contract claims, N.J.S.A. 2A:14-1, had already run. Moreover, no "excusable neglect" has been demonstrated. Baumann v. Marinaro, 95 N.J. 380, 394 (1984).

Finally, as for plaintiff's claim that his attorney requested a voluntary dismissal without his consent, suffice it to say there is no competent proof of this fact in the record. Indeed, plaintiff acknowledges awareness of the dismissal by, at the very latest, June 2003, yet took no remedial action until over two-and-one-half years later. In the meantime, ethics grievances which he filed against his attorney were dismissed for want of "clear and convincing evidence of any ethical violations." Considering all these circumstances, we cannot conclude that the court erred in denying plaintiff's motion to vacate the dismissal and reinstate his complaint.

Affirmed.

 

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A-6275-04T2

 

September 29, 2006