December 28, 2011
CLARKIN & VIGNUOLO, PLAINTIFF-RESPONDENT,
MEREDITH DOWNES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. SC-817-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2011 -
Before Judges Lihotz and Waugh.
Defendant Meredith Downes appeals from the judgment of the Special Civil Part, Small Claims Section awarding $1,799.88 to plaintiff Clarkin & Vignuolo for legal services provided to Downes.
We reverse and vacate the judgment on appeal because our review of the record reveals that plaintiff failed to comply with the provisions of Rule 1:20A-6. That rule provides as follows:
No lawsuit to recover a fee may be filed until the expiration of the 30 day period herein giving Pre-Action Notice to a client The attorney's complaint shall allege the giving of the notice required by this rule or it shall be dismissed. The complaint in this matter contains no allegation that the required notice was given, nor does the record contain a document demonstrating that notice was given. Consequently, the trial judge should have dismissed the complaint as required by the rule.
Defendant, who is representing herself, has not raised the issue on appeal. Although pro se litigants are generally expected to be familiar with the law, it would be inappropriate to apply that principle here because plaintiff was under an affirmative duty to notify her of the right to arbitrate. We cannot permit plaintiff to avoid compliance with the rule because defendant has not raised it on appeal for the simple reason that to do so would render the rule nugatory. See Nieschmidt Law Office v. Leamann, 399 N.J. Super. 125 (App. Div. 2008).
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