ARTHUR B. DENNIS v. MEGAN M. STETTLER

NOT FOR PUBLICATION WITHOUT THE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).
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      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


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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


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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


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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


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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,


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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,




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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


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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.




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