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Assem A. Abulkhair v. Edward Engelhart and Sommer and Engelhart

March 29, 2012

ASSEM A. ABULKHAIR, PLAINTIFF-APPELLANT,
v.
EDWARD ENGELHART AND SOMMER AND ENGELHART, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3872-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 6, 2012 -

Before Judges Reisner and Hayden.

Plaintiff Assem A. Abulkhair appeals from a February 28, 2011 Law Division order granting the summary judgment motion of defendants Edward Engelhart and Sommer and Engelhart (collectively "defendants").

We discern the following facts from the record. In 1999, plaintiff filed a complaint against TWA in the Special Civil Part for damages due to loss of personal property. The judge granted the airline's motion for summary judgment and dismissed the complaint. Shortly thereafter, plaintiff hired defendant Edward Engelhart of the law firm Sommer and Engelhart to bring a motion for reconsideration. After receiving a $1,000 retainer, defendants filed the motion but failed to appear at the scheduled oral argument. The judge denied the motion for reconsideration.

In 2000, plaintiff sued defendants in the Special Civil Part for the return of his retainer. The suit was dismissed without prejudice. Plaintiff appealed but we dismissed the appeal in 2002 for failure to prosecute. In 2001, TWA filed for bankruptcy. Plaintiff also filed unsuccessful claims against defendants with the New Jersey Lawyers' Fund for Client Protection, the District Ethics Committee, and the Disciplinary Review Board.

In 2008, plaintiff filed a complaint in Essex County against defendants for defamation, which was dismissed based upon the litigation privilege. See Erickson v. Marsh & McLennan Co., 117 N.J. 539, 563 (1990). The trial judge also held that plaintiff's claims were frivolous and designed to harass defendants. Plaintiff appealed and we affirmed.

In 2010, plaintiff filed a second defamation suit in Essex County against defendants and the New Jersey Law Journal. Because the case arose out of the same set of facts as the dismissed 2008 suit, on August 27, 2010, the trial judge dismissed the new action. He also determined the suit was frivolous and awarded monetary sanctions under the Frivolous Litigation Statute. N.J.S.A. 2A:15-59.1(a)(1). The judge also ordered that any further cases plaintiff proposed to file against defendants in Essex County must be reviewed by the trial judge before formal filing was permitted.

On November 30, 2010, plaintiff filed this action in Morris County, alleging that in 2000 defendants had negligently represented plaintiff, breached their retainer agreement with him, and breached the fiduciary duties they owed him. Defendants moved to dismiss on the grounds that plaintiff's claims were barred by the statute of limitations, the doctrine of res judicata, and the entire controversy doctrine. In addition, defendants sent plaintiff a frivolous litigation notice pursuant to Rule 1:4-8(b), requesting that he dismiss the suit or they would seek sanctions and attorneys fees.

Judge David Rand held in a written opinion that plaintiff's claims were barred by both the statute of limitations and the entire controversy doctrine. He found that plaintiff's cause of action accrued at some point in 2000 and thus was barred by the six-year statute of limitation for legal malpractice claims. N.J.S.A. 2A:14-1.

Moreover, even if plaintiff's claims were timely, the judge found, they were barred by the entire controversy doctrine.

Indeed, [plaintiff's] complaint in that action alleged that defendants did not deserve their fee for the same alleged acts of malpractice that are the subject of the instant case. Although [plaintiff] maintains that he only recently discovered that Mr. Engelhart missed the March 3, 2000 oral argument because he was in ...


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