ASSEM A. ABULKHAIR v. EDWARD ENGELHART

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3883-10T2

ASSEM A. ABULKHAIR,

Plaintiff-Appellant,

v.

EDWARD ENGELHART AND SOMMER

AND ENGELHART,

Defendants-Respondents.

___________________________________________

March 29, 2012

Argued March 6, 2012 - Decided

Before Judges Reisner and Hayden.

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

Assem A. Abulkhair, appellant, argued the cause pro se.

Respondents have not filed a brief.

PER CURIAM

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 Passaic County Jail, this fact has no bearing on [plaintiff's] legal malpractice claim. Thus, the instant action is barred by the six-year statute of limitations.

Addressing defendants' entire controversy defense, Judge Rand noted that the equitable doctrine was designed to prevent piecemeal decisions, promote fairness to the parties and promote judicial efficiency. DiTrolio v. Antiles, 142 N.J. 253, 267 (1995). The judge concluded that allowing plaintiff to

proceed on his current malpractice claims would undermine all three purposes of the entire controversy doctrine. [Plaintiff] had ample opportunity to pursue his current claims against defendants in his 2000 Special Civil Part case to recover fees paid to defendants based on the same alleged acts of malpractice. Moreover, [plaintiff] had the opportunity to pursue his current claims in the two defamation actions he filed in Essex County against [defendants]. Although these prior defamation claims did not share any common legal issues with the instant litigation, they arise out of the same series of interrelated dealings between the parties. Indeed, [plaintiff's] current legal malpractice claims and prior defamation claims all concern [defendants'] dealings with [plaintiff] arising out of defendants' representation of [plaintiff] in his case against TWA. As such, permitting [plaintiff] to bring these claims based on the same set of facts at this stage would clearly result in piecemeal decisions, would be unfair to defendants and would frustrate judicial efficiency.

Finally, the judge determined, based upon the long litigious history between the parties, including several cases that had previously been deemed frivolous, the untenable nature of plaintiff's present complaint, and plaintiff's failure to withdraw the suit pursuant to defendants' written request, that the litigation was frivolous and defendants were entitled to attorneys' fees. The judge further decided that the requested fees and costs were reasonable.

Accordingly, the judge granted defendants' motion for summary judgment and frivolous litigation sanctions. This appeal followed.

On appeal, plaintiff raises the following contentions.

I. ABULKHAIR'S LEGAL MALPRACTICE CLAIM IS [NOT] BARRED BY [T]HE STATUTE OF LIMITATIONS SINCE [T]HE UNDERLYING PROCEEDING HAS NOT BEEN COMPLETED; THUS, THE COURT ERRED AND ABUSED ITS DISCRETION BY ITS FAILURE TO ABIDE BY THE LAW IN DETERMINING OTHERWISE.

II. [T]HE DECISION BELOW VIOLATED THE DOCTRINE OF FRAUDULENT CONCEALMENT [WHICH] ALLOWS COURTS TO TOLL THIS STATUTE OF LIMITATION WHEN THE DEFENDANT CONCEALS THE ACTS GIV[ING] RISE TO THE CAUSE OF ACTION. [T]HE COURT THUS ERRED AND ABUSED ITS DISCRETION [I]N CHALLENGING [T]HE CANON AND DECIDING OTHERWISE. [I]TS ERROR MUST [BE] REVERSED AS THE INTEREST OF JUSTICE REQUIRES.

III. SINCE ABULKHAIR'S LEGAL MALPRACTICE CLAIM IS GROUNDED AND AUTHORIZED UNDER [T]HE LAW, THE FRIVOLOUS LITIGATION STATUTE DOES [NOT] APPLY. [T]HE COURT ERRED [I]N DECIDING OTHERWISE. ITS ERROR WARRANTED A REVERSAL WITHOUT REGARD [SIC].

Having carefully considered plaintiff's arguments in light of the record and applicable law, we have determined that none of the arguments is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed in Judge Rand's thoughtful written decision. We add only the following.

We start with the basic principle that "[s]tatutes of limitations are essentially equitable in nature, promoting the timely and efficient litigation of claims." Montells v. Haynes, 133 N.J. 282, 292 (1993) (citing Ochs v. Fed. Ins. Co., 90 N.J. 108 (1982)). The statute of limitations in New Jersey for legal malpractice suits is six years. N.J.S.A. 2A:14-1. It is well-settled that a cause of action for legal malpractice accrues "when the client suffers actual damage and discovers, or through the use of reasonable diligence should discover, the facts essential to the malpractice claim." Grunwald v. Bronkesh, 131 N.J. 483, 494 (1993).

We reject plaintiff's contention that because he has a claim in the TWA bankruptcy proceeding,1 the statute of limitations has not yet started to run. Since plaintiff first sued defendants in 2000, plaintiff's theory has been that, if defendant Edward Engelhard had appeared for oral argument on the motion for reconsideration, plaintiff would have won his law suit and prevailed in his claim against TWA. Thus, plaintiff's legal malpractice claim arose when his suit against TWA was dismissed in 2000. The alleged pending bankruptcy claim is not an element of plaintiff's underlying malpractice claim against defendants but simply a means to compensate plaintiff's property loss and lessen defendants' potential damages.

1 Plaintiff has provided no proof that he has filed a claim and that there is still a possibility of gaining some relief in the bankruptcy proceeding filed in 2001.