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Sclar v. Abualburak


July 15, 2010


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

Per curiam.


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 plaintiff's services in June 2008, and he promptly paid the $1,000 requested on that invoice in November 2007.

Defendant testified that the foreclosure action was delayed by the other party filing for bankruptcy in February 2008. Because the foreclosure case was not progressing and plaintiff was not returning his calls, defendant went to plaintiff's office in June 2008 to retrieve the foreclosure file and give the matter to another lawyer. He first asked plaintiff what amount was due on his fees. Plaintiff told him only a few hundred dollars were due and not to worry about it.

Defendant then asked for the foreclosure file. He was persuaded, however, to leave the file with plaintiff, agreeing to give plaintiff one more week to file a motion in the bankruptcy court. When nothing happened that week, defendant returned to plaintiff's office for the file and terminated plaintiff's services. Sometime later, he received an invoice for almost $3,000 in additional fees and costs, which amount was far more than plaintiff had said was due. Defendant did not pay the invoice because plaintiff had not acted diligently on the two matters of representation and had caused losses to defendant as a result.

After defendant's testimony, the court questioned plaintiff about the reason that the eviction action was not filed for six months. Plaintiff explained the delay as follows:

[I]nitially my -- efforts with Mr. Abualburak's approval were to try and negotiate payment. There wasn't much in arrears at the time I was retained. There was actually a payment made by the defendant in August, which was forwarded onto Mr. Abualburak for a month's rent. In September there was negotiation between Mr. Abualburak and the -- and the defendants with regard to upholding an agreement that had made -- been made prior to my retention to wait until January so that they could attempt to secure a loan to pay off monies owed to him. I therefore was compelled to wait based upon their agreement. I confirmed -- I received a letter from the defendants confirming they had a discussion. I forwarded that letter onto Mr. Abualburak with a confirming letter that I was going to wait. In January filed the complaint for eviction which was processed by the Court in Essex based on their backlog in due course and we eventually did get the eviction on March 10th.

In response, defendant testified further that he never agreed to settlement terms with the tenant, and he denied approving a delay in filing for eviction.*fn1

On March 30, 2009, the court heard further argument on plaintiff's motion to dismiss the counterclaim. It ruled that an affidavit of merit was necessary to proceed on the counterclaim and dismissed the counterclaim with prejudice. The court then stated its decision on plaintiff's claim for fees and entered judgment in the full amount demanded, $2,964.88. Defendant filed a timely notice of appeal.

N.J.S.A. 2A:53A-27 states:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. . . .

Furthermore, N.J.S.A. 2A:53A-29 provides: "If the plaintiff fails to provide an affidavit . . . it shall be deemed a failure to state a cause of action." Although the statute refers to "the plaintiff," a counterclaimant is considered to be the same as a plaintiff for purposes of the affidavit of merit statute. Charles A. Manganaro Consulting Eng'rs, Inc. v. Carney's Point Twp. Sewerage Auth., 344 N.J. Super. 343, 348 (App. Div. 2001); Diocese of Metuchen v. Prisco & Edwards, AIA, 374 N.J. Super. 409, 415 (App. Div. 2005).

On appeal, our standard of review is plenary from dismissal of a claim for failure to serve an affidavit of merit. Natale v. Camden County Corr. Facility, 318 F.3d 575, 579 (3d Cir. 2003); see also Smerling v. Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006) ("review of a trial court's order of dismissal of a complaint pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief may be granted, is plenary").

"A claim against an attorney for alleged malpractice is a claim for property damage within the legislative intent and plain meaning of the statute." Cornblatt v. Barow, 303 N.J. Super. 81, 86 (App. Div. 1997), rev'd on other grounds, 153 N.J. 218 (1998). Whether the affidavit of merit statute is applicable depends on whether "the claim's underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession." Couri v. Gardner, 173 N.J. 328, 340 (2002). "If such proof is required, an affidavit of merit shall be mandatory for that claim, unless either the statutory, N.J.S.A. 2A:53A-28, or common knowledge exceptions apply." Id. at 341.

Defendant does not dispute that an affidavit of merit is required in a legal malpractice action alleging negligence in the exercise of professional judgment. See, e.g., Levinson v. D'Alfonso & Stein, 320 N.J. Super. 312, 314 (App. Div. 1999). Defendant argues that his claim did not involve the exercise of professional judgment and did not require testimony about the professional standard of care. He contends his claim falls within the common knowledge exception to the statute.

In Hubbard v. Reed, 168 N.J. 387, 390 (2001), the Court held that "an affidavit need not be provided in common knowledge cases when an expert will not be called to testify." A common knowledge case is one in which "jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts." Id. at 394 (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)).

In a related context, the Court said in Palanque v. Lambert-Wooley, 168 N.J. 398 (2001):

Because defendant's careless acts are quite obvious, a plaintiff need not present expert testimony at trial to establish the standard of care. . . . [T]he case is treated as an ordinary negligence action in which a jury can determine without the aid of experts whether a defendant acted with reasonable care. . . . [R]equiring an affidavit of merit in such a case is not necessary to achieve the primary goal of the statute, that is, to weed out meritless malpractice lawsuits at an early stage and to prevent frivolous litigation. [Id. at 406 (citations omitted).]

This common knowledge exception to the affidavit of merit requirement is to be narrowly construed. Hubbard, supra, 168 N.J. at 397.

In this case, defendant contends that a six-month delay in filing a landlord-tenant eviction action is negligence that does not require the testimony of an expert. A layperson will understand that the delay was not justifiable and caused damage to the client-landlord. Although defendant's argument has some appeal in the context of routine eviction actions, we agree with the trial judge that jurors would need to hear from an expert in this case. They would need evidence to understand the nature of landlord-tenant eviction actions and the standards of care and performance that are expected of lawyers in such cases. We need not decide whether an expert witness is needed in every case where delay in filing a complaint is alleged, but in this one, there were enough complications and potential issues of attorney performance that the judge did not err in concluding that an affidavit of merit was necessary.*fn2

In Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 12-15 (App. Div. 2001), we affirmed dismissal of a defendant's legal malpractice counterclaim where defendant alleged that plaintiff attorneys "fail[ed] to file, or delay[ed] the filing of, lawsuits for her." We concluded that the defendant was required to present expert testimony to establish the standard of care and proximate causation of her alleged losses. Id. at 15.

We said in Brach, Eichler:

New Jersey courts have dispensed with the expert testimony requirement in cases where attorneys have failed to fulfill the most basic obligations. See, e.g., [Sommers v. McKinney, 287 N.J. Super. 1, 8-12 (App. Div. 1996)] (lawyer entirely failed to submit a legal argument in client's defense); [Brizak v. Needle, 239 N.J. Super. 415, 431-32 (App. Div.), certif. denied, 122 N.J. 164 (1990)] (attorney failed to protect client's claim against the running of the statute of limitations); Stewart v. Sbarro, [142 N.J. Super. 581, 591-92 (App. Div.) certif. denied 72 N.J. 459 (1976)] (lawyer sacrificed client's creditor priority by failing to ensure that a bond and mortgage were properly recorded). [345 N.J. Super. at 12-13.]

See also Popwell v. Law Offices of Broome and Horn, 363 N.J. Super. 404, 410 (Law Div. 2002) (no affidavit of merit required where application for a trial de novo from an adverse arbitration decision was not timely filed). In Brach, Eichler, supra, we said:

A common thread runs through these cases, namely none of them required the trier of fact to evaluate an attorney's legal judgment concerning a complex legal issue. Where a trier of fact would be put in such a position, New Jersey courts have required expert testimony to be presented. See, e.g., [Aldrich v. Hawrylo, 281 N.J. Super. 201, 214 (App. Div. 1995), appeal dism., 146 N.J. 493 (1996)] (expert testimony was required where an attorney told sellers of property that they did not need to disclose zoning restriction to buyers because the attorney reasoned that the restriction was invalid). [345 N.J. Super. at 13.]

In this case, a juror could not be expected to know, without the aid of an expert, the time and preparation necessary to file an eviction complaint involving a commercial tenancy, or whether legal strategy or settlement efforts justified any delay in the filing. Similar to the claim in Brach, Eichler, jurors could not determine whether plaintiff was negligent only from their common knowledge.

Defendant argues alternatively that, even if his malpractice claim required an affidavit of merit, his common law negligence claim was still viable. This argument is without merit.

"Legal malpractice is a variation on the tort of negligence." Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 357 (2004); accord McGrogan v. Till, 167 N.J. 414, 425 (2001); see also N.J.S.A. 2A:53A-27 (reference to "malpractice or negligence."). In assessing application of the affidavit of merit statute, the Court in Couri, supra, distinguished between ordinary negligence and malpractice:

[C]laims against licensed professionals acting in a professional capacity that require proof of ordinary negligence but not of a deviation from professional standards are not encompassed by the statute. For example, while the former standard would include allegations that a psychiatrist failed to diagnose a patient properly or provide proper treatment, it would exclude allegations that a psychiatrist negligently tripped a patient when the patient entered the doctor's office, which clearly would be outside the scope of the statute. [173 N.J. at 341.]

In this case, defendant's negligence claim arises out of allegations concerning plaintiff's professional performance. It does not involve negligence outside plaintiff's role as an attorney representing defendant as a client. Defendant did not have an ordinary negligence claim against plaintiff.

The trial court also correctly determined that defendant's allegations of negligence could be presented as an affirmative defense to plaintiff's claim for professional fees, even if defendant could not proceed with his counterclaim. As we held in Manganaro Consulting Engineers, supra, 344 N.J. Super. at 347, "the Affidavit of Merit Statute has no applicability to a defendant who asserts, as an affirmative defense to an action by a professional for the recovery of fees, that the plaintiff should be denied any relief because the professional services were not properly performed." The trial court concluded, however, that defendant did not prove the affirmative defense.

Finally, defendant also contends the trial court erred in granting judgment to plaintiff for the full amount of attorney's fees demanded because the "facts of this case indicate that the plaintiff failed to calculate an additional fee that was paid to him by the defendant." Defendant does not elaborate on this argument or point to a reference in the record establishing that he made payment beyond the two $1,000 payments that were acknowledged and accounted for in plaintiff's proofs. Our own review of the trial record has not revealed what additional payment was made.

With respect to the trial court's findings of fact and decision on plaintiff's claim for fees, our scope of appellate review is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We defer to the trial court and may not disturb its factual findings so long as "there is sufficient credible evidence in the record to support the findings." Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009) (quoting State v. Adams, 194 N.J. 186, 203 (2008)). This court "may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).

Here, the trial judge found that defendant agreed to leave the two cases with plaintiff despite the delays. In doing so, he implicitly agreed to pay plaintiff's fees as provided in their retainer agreement. Those findings are supported by sufficient credible evidence in the trial record.


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