WILLIAM DYKEMAN, ETC. VS. OCEAN MONMOUTH CONSTRUCTION, INC. (L-0536-03, OCEAN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-2811-15T2
WILLIAM DYKEMAN t/a
ATLANTIC COAST
COMMERCIAL INTERIORS,
Plaintiff-Appellant,
v.
OCEAN MONMOUTH
CONSTRUCTION, INC.,
Defendant-Respondent.
Argued September 26, 2018 – Decided November 21, 2018
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-0536-03.
William Dykeman, appellant, argued the cause pro se.
Helen B. Rosner argued the cause for respondent (Stone
Mandia, LLC, attorneys; Helen B. Rosner, on the brief).
PER CURIAM
Plaintiff William Dykeman appeals the November 30, 2015 order
dismissing with prejudice his complaint against defendant Ocean Monmouth
Construction, Inc. We affirm.
Plaintiff filed his complaint in 2003. The tortured history of this matter
since that date bears some discussion. Plaintiff and his attorney failed to appear
for trial on August 2, 2004, and September 13, 2004. On October 22, 2004, the
Law Division judge dismissed the complaint and entered a default judgment for
defendant on its counterclaim because of plaintiff's failures to appear.
Over two years later, plaintiff, who was by then self-represented, filed a
motion to reinstate. The motion was granted on March 23, 2007. Over the
course of the next year, plaintiff filed numerous discovery and related motions,
all of which were denied. On December 5, 2008, plaintiff's motion for summary
judgment was denied as was his out-of-time application for reconsideration.
Plaintiff unsuccessfully sought leave to appeal.
For reasons we cannot decipher from this record, years later, the matte r
resurfaced. On May 14, 2015, plaintiff filed another motion for summary
judgment and for other relief. Judge Craig L. Wellerson denied the application
on June 26, 2015. He subsequently denied plaintiff's application for
reconsideration. The court set the matter for trial, indicating it would take
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precedence over other cases listed for that date. Plaintiff was by then
incarcerated in state prison. He unsuccessfully sought leave to take an emergent
appeal.
The matter was rescheduled for November 30, 2015, and Judge Wellerson
advised plaintiff that he would be responsible to bear the cost, in advance, of his
transport to court in accord with N.J.A.C. 10A:3-9.13. Plaintiff wrote to the
court, explaining he considered it inequitable as he knew a prison er who was
transported without paying the costs in advance, and that he should therefore not
be required to do so. He further requested that if the judge intended to dismiss
the matter, that he do so without prejudice and that he toll the running of the
statute of limitations during plaintiff's period of incarceration. The judge, in
writing, reiterated the process for plaintiff to appear and advised in no uncertain
terms that the matter would not be adjourned again. At the call of the list,
plaintiff did not appear. The judge dismissed the matter with prejudice.
Plaintiff thereafter filed an appeal out of time, but was granted his motion
to file as within time. His request for free transcripts was denied. Over the
course of the ensuing year and a half, plaintiff filed various motions to extend
filing dates, be allowed to file an overlength brief, and other applications. The
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matter was finally set down for oral argument on September 26, 2018. Plaintiff
was heard telephonically, as he continues to be incarcerated.
The dispute underlying the complaint relates to a building contract
allegedly entered into in the spring of 2002. Based on plaintiff's documents, it
appears that the substance of his complaint is that defendant should not have
terminated the contract with plaintiff, a subcontractor, or demanded the return
of a $10,000 deposit defendant paid to plaintiff. In his brief, plaintiff raises the
following points:
POINT ONE: AS THE FOLLOWING
SUBSECTIONS CLEARLY SHOW, NO GENUINE
ISSUE OF MATERIAL FACT EXISTS SO AS TO
REQUIRE A JURY TRIAL BECAUSE THIS
COMMERCIAL BUILDING CONSTRUCTION
CONTRACT WAS UNILATERALLY TERMINATED
BY DEFENDANT OMC BEFORE ANY
PERFORMANCE WAS DUE BY PLAINTIFF
DYKEMAN (ACI) IN SEPTEMBER OF 2002.
PART ONE: THE CONTRACT EXISTED AS A
MATTER OF LAW.
PART TWO: NO FRAUD EXISTED, NOR DID
DEFENDANT OMC MOVE TO RESCIND THE
CONTRACT IF THEY TRULY BELIEVED THIS
ALLEGED FRAUD OCCURRED.
PART THREE: A BREAKDOWN OF OMC's
LEGAL ARGUMENT IN OPPOSITION TO
SUMMARY JUDGMENT REVEALS THAT NO
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GENUINE ISSUE OF MATERIAL FACT EXISTS SO
AS TO PRECLUDE SUMMARY JUDGMENT.
PART FOUR: WHY SUMMARY JUDGMENT IS
PROPER.
POINT TWO: THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY NOT FOLLOWING RULE
4:46-2(c) AND THE RULING IN LOMBARDI v.
MASSO, 207 N.J. 517 (2011) BY EXPLAINING
WHAT GENUINE ISSUES OF MATERIAL FACT
REQUIRED A TRIAL IN 2015.
POINT THREE: N.J.A.C. 10A:3-9.13 IS
UNCONSTITUTIONAL THE WAY IT WAS
SPECIFICALLY APPLIED TO PLAINTIFF
DYKEMAN IN 2015.
We consider the points regarding the underlying dispute to so miss the
mark of this appeal, which is an appeal of an order dismissing a matter with
prejudice, not an appeal addressing the merits of the claim, as to not warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Plaintiff's contentions regarding dismissal with prejudice lack merit.
Plaintiff knew the process necessary for him to appear and did not pursue it.
Defendant was again required to appear to no avail.
R. 1:2-4(a) authorizes a court, when a litigant fails to appear, to take such
steps "as it deems appropriate." We find the dismissal of the case with prejudice
under these circumstances was entirely unobjectionable. The judge most
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certainly did not abuse his discretion in doing so, and had ample cause to dismiss
with prejudice. "The trial court has an array of available remedies to enforce
compliance with" court rules or orders. Gonzalez v. Safe & Sound Sec. Corp.,
185 N.J. 100, 115 (2005) (citing Crispin v. Volkswagenwerk, A.G., 96 N.J. 336,
345 (1984)). When a plaintiff fails to abide by these rules and orders, "he
subjects himself to the list of sanctions referenced in Rule 1:2-4(a), one of which
is 'dismissal of the complaint.'" Ibid.
Affirmed.
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