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Assem A. Abulkhair v. Edward W. Boehm


June 4, 2012


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-225-08.

Per curiam.


Argued May 15, 2012

Before Judges Yannotti and Espinosa.

Plaintiff Assem A. Abulkhair appeals from an order entered by the trial court on August 22, 2011, denying his motion for a new trial. We affirm.

Plaintiff was involved in an automobile accident on March 18, 1998, and in September 1999, he sought dental treatment from defendant, Edward W. Boehm, D.M.D. On February 4, 2008. Plaintiff filed a pro se complaint alleging that defendant had erroneously billed Medicaid rather than his insurance carrier for payment. Plaintiff alleged that, as a result of this error, his insurance carrier denied his claim for personal injury protection (PIP) benefits.

The trial court entered an order dismissing plaintiff's complaint because it had not been filed within the two years required by N.J.S.A. 2A:14-2, the statute of limitations applicable to tort actions. We reversed the trial court's order, concluding that the six-year statute of limitations in N.J.S.A. 2A:14-1 applied to plaintiff's claims. Abulkhair v. Boehm, No. A-3544-08 (App. Div. May 25, 2010).

On April 25, 2011, the trial court notified the parties that the case was scheduled for trial on June 27, 2011. On May 19, 2011, the court entered an order resolving certain discovery issues, and in a cover letter, reminded the parties that the case was scheduled for trial on June 27, 2011. The parties appeared for trial on that date, and plaintiff sought an adjournment of the trial. Plaintiff assured the court that he would be prepared to proceed on July 11, 2011.

According to defendant's attorney, plaintiff did not want to bring his expert witness, Kurosh Haghighi, D.D.S. (Dr. Haghighi), to court on July 12, 2011, but he said that he would have Dr. Haghighi in court on July 13, 2011. Plaintiff told the trial judge that he was not paying Dr. Haghighi to testify but the doctor would appear voluntarily. The trial court adjourned the matter.

The trial began on July 11, 2011. Dr. Haghighi did not appear on July 13, 2011. Barry W. Sirota (Sirota), who was acting as plaintiff's legal adviser, faxed a letter to the court that day. In the letter, Sirota stated that the evening of July 12, 2011, he and plaintiff spoke to Dr. Haghighi on the phone and the doctor said he would be in court the following day.

Sirota wrote that, when he came into the office on the morning of July 13, 2011, he was given a telephone message which indicated that Dr. Haghighi could not make it to court that day. Sirota called the doctor's office, but no one anwered the phone. He wrote, "I can only imagine that the [d]octor has had an unexpected emergency."

Sirota also wrote that plaintiff would "ask the [c]court to either accept the medical/dental reports that ha[d] been marked as [e]xhibits . . . ." Alternatively, plaintiff would ask the court to grant him a continuance so that he could bring the doctor into court the following day, after defendant had presented his case.

Later on July 13, 2011, Sirota faxed another letter to the trial judge, in which he stated that he had received a phone call from Dr. Haghighi. According to Sirota, Dr. Haghighi's brother was being married on the morning of July 14, 2011, so the doctor would not be available to appear on that day.

It appears that plaintiff asked the court for a continuance so that he could produce Dr. Haghighi the following day. The court denied the request. The matter was submitted to the jury, which returned a verdict answering "No" to the following questions:

1. Did Plaintiff prove that the dental treatment he received from Dr. Edward Boehm was due to his auto accident that occurred on March 18, 1998?

2. Did the Plaintiff prove that Dr. Boehm caused the claim to be closed before additional bills could be submitted to the No Fault carrier?

On August 8, 2011, the court entered an order dismissing plaintiff's complaint with prejudice.

Thereafter, plaintiff filed a motion for a new trial. He argued that the court's refusal to permit him additional time in which to present Dr. Haghighi as a witness resulted in a miscarriage of justice. Plaintiff claimed that the doctor would have disputed defendant's testimony that he had only treated plaintiff for tooth decay, cavities and fillings. According to plaintiff, Dr. Haghighi would "testify and prove" that he did not have any tooth decay, cavities or fillings in the prior decade. Defendant opposed plaintiff's motion.

The trial court entered an order dated August 22, 2011, denying the motion. Appended to the order was a rider, setting forth the court's reasons for its decision. The court stated that plaintiff's failure to present Dr. Haghighi as a witness did not represent a clear injustice warranting a new trial. The court wrote that

[t]his matter was originally scheduled for trial on June 27, 2011. However, on that date the [p]laintiff arrived unprepared to proceed and asked for a two-week adjournment. In [an] attempt to accommodate the [p]laintiff's request, the [c]court reluctantly adjourned the trial date to July 11, 2011 and set a stringent schedule for supplying the pre-trial submissions, including [p]laintiff's expert report, voir dire questions and verdict sheet. Plaintiff assured the [c]court that Dr. Haghighi was a friend of his and will appear free of charge. The [c]court notified the [p]laintiff that his expert must submit a report by July 6, 2011. Moreover, as the [p]laintiff was unsure of the availability of Dr. Haghighi, the [c]court also allowed the [p]laintiff to present this expert either on July 12 or July 13. The [c]court specifically told the

[p]laintiff: "If he is not here one of these days, then once again you don't' have a witness." [June 27, 2011, Peremptory trial]. On the week of the trial, Dr. Haghighi did not appear on either July 12, 2011, July 13, 2011 or July 14. On[] the first day of trial, July 11, 2011, the [p]laintiff advised the [c]court that he "had arranged with Dr. Haghighi to come on Wednesday morning [July 13, 2011]." On that day the doctor did not appear, despite repeated unanswered calls to his office. Thus, the

[c]court determined that [plaintiff] must start with his own testimony first. During the morning and afternoon hours, the

[p]laintiff presented a lengthy and repetitious testimony on direct examination.

The court noted that plaintiff had provided inconsistent explanations for Dr. Haghighi's failure to appear, including the assertion that the witness did not know how to get to Hackensack. The court said that there was no "legitimate explanation" for Dr. Haghighi's "repeated failure to appear." The court stated that

[a]s the main case has been put forth by both parties absent the [p]laintiff's expert's testimony, in the afternoon of July 14, 2011, the [c]court determined that it would be inequitable to make the jury come back the next day when the expert ha[d] already failed to appear the two prior days. The Court advised the jury that the

[p]laintiff was making his closing statement under protest.

The court added that plaintiff did not present sufficient evidence to support his claim. The court noted that it could be inferred from the answers to the questions on the verdict sheet that the jury had determined that defendant did not treat plaintiff for injuries sustained in the auto accident and did not cause the PIP carrier to close plaintiff's file.

The court decided that its refusal to allow plaintiff another opportunity to present Dr. Haghighi as a witness did not result in clear injustice, in light of the fact that plaintiff was specifically told that his expert should be available to testify on either July 12, 2011, or July 13, 2011, and plaintiff failed to ensure that his expert appeared on those dates. The court determined that plaintiff was "given every opportunity to present his case to the jury."

On appeal, plaintiff argues that: 1) the trial court abused its discretion by denying his request to extend the trial an additional day so that his expert witness could testify; and 2) the trial court abused its discretion and denied him due process and equal protection by refusing to grant his request for a continuance so that he could present his expert's testimony to prove damages and undermine defendant's credibility.

We note that, although plaintiff is appealing from the denial of his request for a new trial, he has not provided the court with transcripts of the trial proceedings. Rule 2:5-3(a) requires the appellant to request the preparation and filing of the transcript. R. 2:5-3(a). In addition, Rule 2:5-3(b) states that the transcript shall include the entire proceedings in the court or agency from which the appeal is taken, including the reasons given by the trial judge in determining a motion for a new trial, unless a written statement of such reasons was filed by the judge. The transcript shall not, however, include opening and closing statements to the jury or voir dire examinations or legal arguments by counsel unless a question with respect thereto is raised on appeal, in which case the appellant shall specifically order the same in the request for transcript.

Furthermore, Rule 2:6-12(d) requires the appellant to file at least three copies of the transcript, in addition to the copy filed with the court by the reporter, clerk or agency.

We reject appellant's contention that he was not required to provide a transcript of the entire trial. Where, as in this case, a party appeals from an order denying a motion for a new trial, the party must provide the court with the transcript of the trial so that we can determine whether the court's ruling during trial unduly prejudiced the party. See Crawn v. Campo, 136 N.J. 494, 512 (1994) (affirming the grant of a new trial where the trial rulings prejudiced a party).

If an appellant fails to submit a transcript of the trial proceedings, and the deficiency prohibits review of a particular claim, the court may decline to address the issue. Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004). We conclude that, despite this deficiency, dismissal of plaintiff's appeal is not warranted. We are satisfied that the record before the court on plaintiff's motion for a new trial, and the rider appended to the court's August 22, 2011 order, provide a sufficient basis for consideration of the merits of plaintiff's appeal.

Plaintiff argues that the trial court abused its discretion by denying his request for a continuance and the error resulted in undue prejudice which required the court to grant his motion for a new trial. We disagree.

"[A] trial court has wide discretion in controlling the courtroom and the court proceedings." D.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346, cert. denied, 555 U.S. 1085, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008). We will not interfere with the trial court's exercise of discretion unless the court "'pursue[d] a manifestly unjust course.'" Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.) (quoting Gittleman v. Central Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968)), certif. denied, 144 N.J. 174 (1996).

We are satisfied from our review of the record before us that the trial judge did not abuse his discretion by denying plaintiff's request for a continuance. We are convinced that plaintiff was afforded a full and fair opportunity to present his case. We note that the court adjourned the trial to July 11, 2011, at plaintiff's request, and plaintiff assured the court that his expert witness would appear on July 13, 2011.

Plaintiff's expert did not appear on July 13, 2011, and he did not provide an explanation for his non-appearance. Sirota's statement that he could "only imagine" that the doctor had an "unexpected emergency" was never substantiated.

We have considered plaintiff's other arguments and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).



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