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Abulkhair v. Smith

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 26, 2009

ASSEM A. ABULKHAIR, PLAINTIFF-APPELLANT,
v.
WILLIAM SMITH, ESQ., AND HOOK, SMITH & MEYER, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-5756-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 3, 2009

Before Judges Wefing and Yannotti.

Plaintiff Assem Abulkhair appeals from an order entered by the Law Division on April 23, 2008, which denied his motion for a change of venue, and an order entered on June 20, 2008, which denied his motions to reinstate his complaint and for the recusal of the judge assigned to the matter. For the reasons that follow, we affirm.

We briefly summarize the procedural history of this case. In February 2006, plaintiff filed an action against defendant William Smith and his law firm seeking the return of certain monies paid to defendant in connection with a legal malpractice action in which defendant represented plaintiff. The trial judge dismissed certain of plaintiff's claims because he did not have an expert to testify with regard to those costs. The remaining claims, for the return of a $5,000 deposit for costs and a $450 fee for cancellation of a deposition, were tried to a jury, which awarded plaintiff $450 for the cancellation fee but rejected his claim for the $5,000 deposit.

Plaintiff appealed from the judgment that was entered in accordance with the jury's verdict. We reversed the judgment, concluding that the trial judge had erroneously dismissed certain of plaintiff's claims due to the absence of expert testimony and incorrectly charged the jury in the trial on the remaining claims. Abulkhair v. Smith, No. A-6525-05 (App. Div. Apr. 18, 2007), certif. denied, 193 N.J. 585 (2008). We remanded the matter for a new trial.

In April 2007, following our remand, plaintiff filed a motion for summary judgment and a motion to transfer the matter to the Civil Part of the Law Division. The trial judge denied the motions. The case was listed for trial on September 4, 2007. Prior to the scheduled trial date, plaintiff had also filed a motion pursuant to Rule 4:3-3(a)(2) for a change of venue from Bergen County to Essex County. The Assignment Judge had delegated authority to the trial judge to rule on that motion.

On the trial date, the judge denied plaintiff's motion for a change of venue and entered an order dated September 4, 2007 memorializing his decision. Plaintiff informed the judge that he was appealing the denial of the April 2007 motions.*fn1

Plaintiff told the court that he did not want to proceed until the Appellate Division considered the matter. He asked the judge for a stay of the trial. The trial judge denied the application. Plaintiff then informed the judge that he did not object to the dismissal of the action so that he could pursue his appellate remedies. The court thereupon dismissed plaintiff's complaint.

On that same day, plaintiff wrote to the Assignment Judge seeking reconsideration of the trial judge's order denying his motion for a change of venue. The Assignment Judge responded in a letter dated September 11, 2007, and stated that plaintiff was actually seeking the trial judge's recusal. She suggested that he file a motion asking for that relief. Plaintiff replied in a letter to the Assignment Judge dated September 25, 2007, and again asked for a change of venue.

Plaintiff wrote to the Assignment Judge in February 2008, and stated that he had not received a decision on his application for a change of venue. It is unclear from the record whether plaintiff ever filed a formal motion seeking reconsideration of the trial judge's September 4, 2007 order. The Assignment Judge entered an order on April 23, 2008, denying plaintiff's request for a change of venue.

Thereafter, plaintiff made another motion for the trial judge's recusal and a motion to reinstate his complaint. The trial judge considered the motions on May 9, 2008, and rendered a decision from the bench. The court recounted the history of the matter and noted that plaintiff had voluntarily dismissed his complaint because he did not want to proceed with the trial on September 4, 2007 while he sought appellate review of the interlocutory orders in the case.

The judge found that plaintiff had not established any reason for reconsideration of his earlier decision to deny plaintiff's motion for recusal. The judge also found no basis to reinstate the complaint. On June 9, 2008, plaintiff filed a notice of appeal from the Assignment Judge's April 23, 2008 order denying his motion for a change of venue. The trial judge entered an order dated June 20, 2008, memorializing his decisions on plaintiff's motion for recusal and reinstatement of this complaint. On August 4, 2008, plaintiff filed a notice of appeal from the judge's June 20, 2008 order.

In this appeal, plaintiff raises the following issues for our consideration:

POINT I

THE COURT'S IMPROPER DENIAL OF [PLAINTIFF'S] REQUEST TO TRANSFER HIS ACTION IS AN INSUPPORTABLE RULING THAT CONSTITUTES AN ABUSE OF ITS DISCRETION THAT AMOUNTED TO A DENIAL OF JUSTICE WHICH VIOLATED THE FEDERAL AND STATE STATUTES WHICH JEOPARDIZED [PLAINTIFF'S] ABSOLUTE RIGHT TO HAVE A FAIR AND IMPARTIAL TRIAL AND IS THUS UNCONSITUTIONAL.

POINT II

THE COURT'S RULING DENYING [PLAINTIFF'S] MOTION WITHOUT GOOD CAUSE FOR ITS DENIAL AS MANDATED IS A CLEAR DEVIATION FROM THE RULES OF COURT AND STATUTES WHICH CONSTRUED AS AN ABUSE OF ITS DISCRETION THAT MUST BE DISTURBED AND REVERSED IN THE INTEREST OF OUR POLESTAR JUSTICE.

We are convinced from our review of the record that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following brief comments.

Plaintiff's motion pursuant to Rule 4:3-3(a)(2) to transfer venue of this action from Bergen County to Essex County was committed to the sound discretion of the trial court. We are satisfied that plaintiff failed to establish any basis for a change of venue. We reject his assertion that there was "a substantial doubt" that he could obtain "a fair and impartial trial" on his claims in Bergen County. Ibid. Plaintiff's dissatisfaction with the prior rulings of the trial judge is not a basis to change venue. We therefore affirm the order of April 23, 2008 denying plaintiff's application.

We also find no merit in plaintiff's appeal from the trial judge's order of June 20, 2008. We are convinced that the trial judge did not abuse his discretion by denying plaintiff's motion for his recusal. Although the judge had presided over the earlier trial and the resulting judgment had been reversed on appeal, that is not a basis for recusal. Feldman v. Feldman, 378 N.J. Super. 83, 99-100 (App. Div. 2005). Notwithstanding plaintiff's arguments to the contrary, we are satisfied that the trial judge was fully capable of handling the remand proceeding in a fair and impartial manner. Ibid.

We are also convinced that the judge did not err by refusing to reinstate plaintiff's complaint. As we stated previously, the matter was remanded for a new trial and the trial was scheduled for September 4, 2007. Due to his dissatisfaction with the judge's previous decisions of his motions, plaintiff refused to proceed with the trial and elected instead to take a voluntary dismissal of the action while he pursued his appellate remedies. Suffice it to say, plaintiff was given an opportunity for a trial and he elected to forgo that opportunity. We are convinced that, under these circumstances, the trial judge did not abuse his discretion by denying plaintiff's motion to reinstate his complaint.

Affirmed.


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