SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 16T4 ARTHUR B. DENNIS, Plaintiff

- Appellant,

v. MEGAN M. STETTLER and JESSICA R. SHAW, Defendants

- Respondents.

__________________________ __ _

Argued October 2, 2018

– Decided Before Judges Rothstadt and Natali. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. DC

- 00 7067

- 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent o r be binding upon any court."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.

December 31, 20182 A

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In this Special Civil Part a ction, plaintiff Arthur B. Dennis sued defendants Megan M. Ste ttler and Jessica R. Shaw fo r d a mages arising from personal injuries and property damage plaintiff allegedly sustained as a result of
two separate automobile accident s : one with Stettler , and th e other five minutes later with Shaw. Plaintiff appeals from the trial court's April 3, 2017 order dismissing his co mplaint with prejudice after th e parties appeared for trial on a previously assigne d "try or di s miss" date and p la i n t iff 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 d i s c r e tion 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 th a t follow , we affirm.

1 Plaintiff raises additional arguments in his reply br ief that were neither raised before the trial court nor addressed in his merits brief. Because th ese issue s w ere 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 , 2 19 N.J. 199, 226

- 27 (2014) (s tating 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 t rial 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 )

.3 A

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The facts gleaned from the record are summarized as follows. Plaint iff's
two accidents occurred on October 12, 2011 , and according to plaintiff , they caused him to suffer injuries to his back an d damage to his automobile. Plaintiff filed suit in 2013 and, due to alleged discovery violations, the trial court dismissed his complaint with prejudice fo r th e first time on August 24, 2014. Plaintiff appealed and we reversed and remanded for th e reasons stated in our unpublished opinion filed in May 2016. See Dennis v. Stettler , Docket No. A

0742

- 14 (App . Div. May 3, 2016).
Af ter 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 want ed a change in venue based on his belief that he would not receive a fair trial in Atlantic County

. Stettler also sought an adjournment

o f the matter based on her unavailability

. The trial court denied the motion s and the matter proceeded to trial before a jury.
P laintiff 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. Th e court granted the motion and dismissed the case against Stettler with4 A

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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, 2 016. 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 t o 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 tria l court denied the motion to change venue and scheduled trial for February 23, 2017. On the trial date, t he parties appeared, but plaintiff informed the court that he was not ready to proceed as he again sought a change in venue. T he 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 consideri ng the parties' arguments, the trial court assign ed the
matter a n April 3, 2017 "try or dismiss" date and stat ed that the case would be5 A

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going forward that day without excuses. The trial court also informed the parties that if t he y wished to have the matte r tried by a jury , t he y would need to file a request with the court at least seven days prior to that date s o 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. P laintiff 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 p laintiff's complaint be dismissed with prejudi ce , 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 a mplification of its decision under Rule
2:5

- 1(b), explaining the procedural h istory 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 ab used 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 in6 A

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determining whether to gran t 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 wheth er 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 co urt 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 beha lf 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. Dismissal s for failure to appear are generally without prejudice "unless the court for good cause orders otherwise." Connors7 A

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v. Sexton Studios, Inc. , 270 N.J. Super. 390, 39 2

- 9 3 (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 prej udice. See Ibid. ; s ee 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 tant amount 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 a nd ready to proceed. Moreover,8 A

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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 constitute d "egregious conduct" and disregard of the court's authority, and thus establish ed good cause for dismissing his complaint with prejudice. We turn our attention next to plai ntiff's argument that he is entitled to relief under Rule 4:50

- 1(c) f rom 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 "demonstrat ed , clearly and convincingly, that a party has se ntiently 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,9 A

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Inc. , 394 N.J. Super. 237, 251 ( App. Div. 2007) ). Plaintiff has not met this bu rden. We next consider plain tiff's appeal from the d e nial 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 resulte d." 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 tria l 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 p roof 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)). When10 A

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venue is challenged for this reason under Rule 4:3

- 3(a)(2), the movant has the burde n of demonstrating good cause for the change. Pressler & Ve r niero, Current N.J. Court Rules , cm t

. on R. 4:3

- 3 (2019)

. Applying these guiding principles, we conclude that plaintiff's contentions are without sufficient merit t o warrant discussion in a writ ten opinion. R. 2:11

- 3(e)(1)(E). Suffice it to say, plaintiff failed to me et 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 t he 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.