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Sclar v. Abualburak

July 15, 2010

DOUGLASS F. SCLAR, ESQ., PLAINTIFF-RESPONDENT,
v.
NABIL ABUALBURAK, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-10568-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 8, 2010

Before Judges Parrillo and Ashrafi.

Defendant Nabil Abualburak appeals from a judgment of the Special Civil Part in favor of plaintiff attorney for unpaid legal fees. Primarily, he challenges the trial court's dismissal of his counterclaim because he did not serve an affidavit of merit in accordance with N.J.S.A. 2A:53A-27. We affirm.

Plaintiff Douglass Sclar filed a complaint seeking $2,964.88 in unpaid legal fees. Defendant filed an answer and a counterclaim alleging professional negligence that caused him $21,000 in damages. He agreed to limit his counterclaim to the $15,000 jurisdictional limit of the Special Civil Part. See R. 6:1-2(a)(1). Plaintiff filed an answer to the counterclaim on December 22, 2008.

On March 11, 2009, the case was called for trial. Plaintiff moved to dismiss defendant's negligence counterclaim for failure to file an affidavit of merit under N.J.S.A. 2A:53A-27. He also argued that plaintiff did not have an expert witness to prove his counterclaim. The court heard brief argument and decided to bifurcate the trial to give defense counsel an opportunity to file a response to plaintiff's motion.

The court proceeded to try plaintiff's claim for fees on that date, ruling that defendant would be permitted to allege an affirmative defense of negligence in plaintiff's performance as his attorney.

The following facts were developed through the testimony of the two parties at trial. Defendant owned commercial real estate in East Orange, New Jersey, leased to a tenant for use as a daycare center. On June 27, 2007, he retained plaintiff to represent him for an eviction action because the tenant was delinquent in payment of the monthly rent. Apparently, the tenant had not paid the rent of $3,500 per month since April.

Defendant signed a retainer agreement setting forth the subjects of representation and the hourly fees and other charges of plaintiff. On July 3, defendant paid a retainer fee of $1,000 by check. He made a second $1,000 payment by check in November 2007.

The eviction complaint was filed in January 2008, about six months after plaintiff was retained. On March 10, 2008, plaintiff obtained a judgment for possession of the East Orange property on behalf of defendant, and the tenant was removed from the premises in due course after the judgment.

Plaintiff testified that the retainer agreement also covered other services he was to perform for defendant, including a foreclosure action against the same party that was the tenant in the eviction action. Defendant had a mortgage from that party on another property, and the mortgage loan was also in default. Plaintiff testified that the payments totaling $2,000 were the only payments he received from defendant for his services.

Plaintiff's invoices and timesheets were admitted in evidence without objection, and they showed a balance due for his services of $2,964.88.

Defendant did not challenge the specifics of the time sheets or the calculation of the balance due. Instead, he testified that he wanted the eviction action to be brought as soon as possible but plaintiff delayed it for six months without reason, thus causing defendant to lose rent for that time period. He also testified that he received only one invoice from plaintiff from the time of his retention until he terminated ...


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