SHAUKAT ALI v. ARTHUR S. WEINER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4387-03T24387-03T2

SHAUKAT ALI,

Plaintiff-Appellant,

v.

ARTHUR S. WEINER,

Defendant-Respondent.

___________________________________________

 

Argued May 17, 2006 - Decided June 19, 2006

Before Judges Conley and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County,

L-0339-02.

Shaukat Ali, appellant, argued the cause pro se.

Joseph B. Brown argued the cause for respondent (Sobel and Brown, attorneys; Mr. Brown, on the brief).

PER CURIAM

Plaintiff Shaukat Ali appeals the entry of a January 30, 2004, order granting summary judgment, dismissing Count Two of plaintiff's complaint in which he asserted a breach of contract claim against defendant Arthur S. Wiener. We affirm.

This matter arises out of a contract between plaintiff and defendant for the preparation of a parenting and custody evaluation report that plaintiff sought in order to rebut a report prepared by court-appointed psychologist, Dr. Lee Monday. Dr. Monday recommended that plaintiff's former spouse, Tehmina Ali, be awarded sole custody and that plaintiff have limited visitation. Plaintiff disagreed with Dr. Monday's assessment, so he contacted defendant about writing a report to contradict Dr. Monday's findings. A meeting was scheduled for May 17, 2000. The exact content of the meeting is disputed. Plaintiff contends he told defendant he wanted a report in his favor within thirty days and that defendant agreed. He also contends defendant told him he was a "preferred provider" and therefore the cost of counseling sessions would be limited to the amount of plaintiff's co-pay. Defendant contends he never would have promised a report in plaintiff's favor and that he never agreed to provide the report within thirty days. He further contends he told plaintiff that the insurance company would not be responsible for the charges.

On May 19, 2000, upon plaintiff's request, Judge Deanne Wilson permitted plaintiff to submit a custody report and scheduled trial for July 26 and 27, 2000. The parties signed an agreement during their May 23, 2000, consultation session. Plaintiff also gave defendant a $1,680 deposit. Neither party was able to provide the court with a true copy of the original contract. Defendant provided the court with a copy of the agreement he typically used for the type of contract into which he and plaintiff entered, but plaintiff asserted that he signed a different contract.

In relevant part, the contract stated the following:

5. Fees are based on a session rate of $140.00[.] A session is 50 minutes. For reasons noted below, I require a prepayment of a portion of the estimated total fee. This pre- payment is $1,680.00. I will bill against this sum. I may at my discretion require additional prepayments. Prepayment of fees serves two valuable purposes. First, prepayment avoids delay in the issuing of the final report. Secondly, if there is one person who is required by the Court to pay the entire fee or a substantial portion of the fee, the prepayment assures that the evaluation will not be prejudiced by expectations of future payment. There are reduced charges for time spent reviewing documents ($100.00 per hour) and writing the final report. ($110.00 per hour). Fees for Court appearances, depositions, etc., are portal to portal. Such fees will be similarly arranged and need to be discussed in detail. A subpoena does not excuse the necessity of paying the court appearance or deposition fee usually in advance.

. . . .

7. The final report will be sent to the Court and the attorneys representing the parents and to the guardian ad litem when one is appointed.

Thereafter, plaintiff met with defendant on a number of occasions, spoke with defendant telephonically, and exchanged a series of letters. Plaintiff expected a favorable report from defendant within thirty days or, at the very least, in advance of trial. Defendant did not submit a report within thirty days. In correspondence to plaintiff, he expressed his understanding of plaintiff's sense of urgency and agreed to complete the report as soon as possible, but he explained to plaintiff the ultimate report would reflect his opinion as to what was in the best interests of the children.

Finally, I want to let you know that I do not agree with your sense of how the Court system works. I will write a report that is in the best interests of the children as I can determine such interests. How the Court uses the report and its conclusions is up to how the Court itself determines the best interests principle as well as other matters bearing on this custody matter.

In response to this correspondence, plaintiff wrote a

letter to defendant on July 1, 2000, in which he stated:

Good afternoon, on May 17, 2000, we met and I requested you (sic), is it possible can you complete my family Custody Evaluation report in a timely fashion, which legally in New Jersey is thirty days.

. . . .

Now what I see my final trial hearing is approaching soon and the main purpose why I hired you was to get Custody Evaluation report in a timely fashion, which will assist me in challenging my wife custody of my children!

Please remember, I have no use of this report at trial day. I need this report before the trial so that I can coordinate efforts how this report will assist me at the time of trial.

Plaintiff continued to exchange correspondence with defendant, insisting defendant was supposed to prepare a report within thirty days and had agreed to prepare a report favorable to him. Defendant continued to respond that his report would reflect what he opined was in the best interest of the children. In correspondence dated August 26, 2000, defendant advised plaintiff, "there is no reason to expect that any evaluation I write will substantively rebut the evaluation of Dr. Monday," and that his recommendations "may even be more restrictive" than Dr. Monday's recommendations. Defendant never completed a report.

In January 2002, plaintiff approached Dr. Jill Soderman at a parenting organization meeting about providing a custody report on his behalf. Dr. Soderman saw plaintiff twice a week for approximately four months. Neither plaintiff's spouse nor his children participated in any of the sessions. Based upon his sessions with plaintiff, Dr. Soderman provided a report on May 13, 2002, in which he recommended that the court explore therapeutic mediations between plaintiff, his former spouse, and their children. She also recommended plaintiff continue therapy and attend parenting classes.

On May 16, 2002, plaintiff filed a six-count complaint against several defendants. Count Two alleged breach of contract against defendant Dr. Wiener for failing to provide the report and/or refund unused funds. Plaintiff sought compensatory, consequential, and punitive damages. Defendant filed an answer and counterclaim in which he alleged plaintiff failed to pay $407.50, which represented the outstanding balance due on his account.

Defendant filed for summary judgment on October 8, 2003. In support of the motion, defendant contended he never agreed to conduct a parental custody evaluation or to submit a favorable custody evaluation. Instead, defendant claimed he agreed to follow customary ethical guidelines in drafting the report. Acknowledging he was unable to produce the original contract, defendant supported the motion by providing the court with his usual parental custody evaluation agreement. Defendant further contended he never agreed to bill plaintiff's insurance company for the evaluation sessions. Finally, defendant argued that although plaintiff continuously demanded that he complete the report, plaintiff ultimately realized that any report issued would not rebut Dr. Monday's report and could possibly be more negative. As such, defendant argued that it was plaintiff who "chose to break off contact, to not request a report, and to refuse to pay the balance of his bill."

Plaintiff filed opposition on October 31, 2003. He argued that summary judgment should be denied because he never had an opportunity to depose defendant and "there are genuine issues and this motion that defendant took the money and never completed the report." Plaintiff also filed a cross-motion for summary judgment, essentially arguing there was no genuine issue of material fact; specifically, plaintiff maintained that he and defendant agreed defendant would provide a report, defendant took his money for the report, and defendant never provided the report.

On January 30, 2004, Judge Karen Russell granted summary judgment in defendant's favor, dismissing Count Two of the complaint. She placed her reasons in a written opinion issued the same day. The judge found that plaintiff's complaint was limited to breach of contract and refused to address any arguments relating to consumer fraud, deceptive business practices, or that "innocent children had been punished." She acknowledged there were genuine issues of material fact as to the contents of the agreement, but she found plaintiff failed to provide sufficient evidence of compensable damages. She based her decision on the speculative nature of the outcome of plaintiff's custody hearing and on the fact that plaintiff eventually got the report he sought from Dr. Soderman. Noting the many delays in plaintiff's divorce trial, Judge Russell also found plaintiff's delay in retaining Dr. Soderman refuted his claim that he needed the report urgently or immediately. She determined plaintiff "failed to make a showing as to legally compensable consequences flowing from the failure of Dr. Weiner to meet the purported 30 day deadline, or to prepare a report of the nature he purportedly agreed to prepare . . . ." The judge also dismissed the cross-motion.

Plaintiff filed the present appeal on March 12, 2004. In his brief, plaintiff failed to comply with R. 2:6-2(a)(5), which requires the appellant to divide the legal arguments under appropriate point headings. Nonetheless, we glean from his brief that plaintiff contends the trial court erred in granting summary judgment because he established genuinely disputed issues of fact as to his entitlement to compensatory, consequential, and punitive damages. Moreover, in this appeal, he also requests, for the first time, an order permitting him to amend his complaint to assert fraud claims.

After carefully reviewing the record in light of the written and oral arguments advanced by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A) and (E), and we affirm substantially for the reasons expressed by Judge Russell in her written opinion issued January 30, 2004. Likewise, since plaintiff failed to seek relief pursuant to R. 4:9-1 in the trial court, his motion to amend his complaint is not properly before us. R. 1:7-2; R. 2:10-2; State v. Arthur, 184 N.J. 307 (2005).

Affirmed.

 

Improperly pled as Arthur S. Weiner.

The counterclaim is not before us.

(continued)

(continued)

9

A-4387-03T2

June 19, 2006