AISHA PINSON v. KARIM ARZADI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

AISHA PINSON and RHONDA PINSON,

Plaintiffs-Appellants,

v.

KARIM ARZADI and ANGELICA GUZMAN,

Defendants-Respondents.

____________________________________________________

Submitted April 23, 2013 Decided

Before Judges Fisher and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0460-10.

George N. Polis, attorney for appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys for respondents (John P. O'Toole, of counsel and on the brief).

PER CURIAM

In this appeal, we consider plaintiffs' argument that the judge erred in dismissing their professional negligence claim against defendants, without a formal motion, immediately prior to the commencement of the trial because they intended to attempt to prove professional negligence without expert testimony. Finding no error, we affirm.

The genesis of this action was a June 1, 2004 automobile accident in which plaintiff Aisha Pinson was the driver and her mother, plaintiff Rhonda Pinson, was a passenger in a vehicle rear-ended by a vehicle driven by Naveem Gunti. The following month, plaintiffs retained the defendant-attorneys to represent her.

During discovery in the suit brought by plaintiffs against Gunti, it was learned that the vehicle Aisha owned and operated during the accident was uninsured. As a result, Gunti successfully moved to dismiss Aisha's complaint pursuant to N.J.S.A. 39:6A-4.5(a). Defendants, however, continued to pursue Rhonda's claim against Gunti, and additionally filed a claim with the New Jersey Property and Liability Guaranty Association. All Rhonda's claims were settled in 2008.

Plaintiffs filed this action in 2010, alleging defendants' professional negligence and violations of Rules of Professional Conduct (RPC) 1.3, 1.4, 1.7, 1.8, 1.15 and 3.4. During the pretrial stage, defendants moved for an order compelling a date certain for the production of plaintiffs' liability expert report. The motion was denied, and plaintiffs never served an expert report.

The matter was scheduled for a trial to occur on May 21, 2012. On that date, after a conference in chambers, the trial

judge sua sponte considered whether plaintiffs possessed a sustainable cause of action and, after hearing argument, dismissed the action, concluding, in essence, that plaintiff could not survive a motion for an involuntary dismissal without the presentation of expert testimony.

Plaintiffs appeal, arguing only:

AS A MATTER OF LAW, THE TRIAL COURT ERRED IN TREATING A MOOT MOTION IN LIMINE TO BAR EXPERT TESTIMONY INTO A MOTION FOR SUMMARY JUDGMENT WITHOUT NOTICE TO NON-MOVANTS AND DISMISS PLAINTIFFS' COMPLAINT WITHOUT AN OPPORTUNITY FOR PLAINTIFFS TO FULLY PUT FORTH THEIR CASE IN CHIEF IN DUE COURSE, AND THUS DEVELOP A FULL EVIDENTIARY RECORD SO AS TO HAVE "THEIR DAY IN COURT."

We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

Although the impetus for this suit may have been plaintiffs' claim that defendants failed to remit all the settlement funds due Rhonda, during the colloquy on the day of the aborted trial, plaintiffs' counsel acknowledged that all funds due Rhonda as a result of the settlement of her claims had been turned over:

THE COURT: What I'm asking is, the money that she received as a result of the settlement of this case, is she missing any money?

MR. POLIS: Judge, no.

Notwithstanding, plaintiffs sought to pursue their claim that defendants committed RPC violations.

In the sua sponte proceeding on the trial date, the judge gave plaintiffs every opportunity to explain their causes of action with regard to defendants' alleged failings.1 Plaintiffs claimed there were three RPC breaches: (1) defendants' alleged failure to turn over their file to plaintiffs or their new representative upon request; (2) defendants' alleged direct communication with plaintiffs after learning of their retention of new counsel; and (3) defendants' alleged failure to obtain a waiver of the conflict of interest presented by their representation of both plaintiffs in the auto accident litigation. In viewing these allegations in the light most favorable to plaintiffs, the judge concluded that plaintiffs' professional negligence claim could not survive a motion for an

involuntary dismissal because plaintiffs would not be presenting expert testimony regarding defendants' alleged breaches of standards of care and whether any such breach proximately caused damage.

In rejecting plaintiffs' argument that expert testimony was not required, the judge correctly concluded that the alleged RPC violations do not give rise to a private cause of action. See Baxt v. Liloia, 155 N.J. 190, 197-98 (1998). These rules, at best, constitute evidence of standards that governed defendants' conduct in representing plaintiffs. See Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 90 (App. Div. 2001). Ultimately, as the judge correctly held, without expert testimony, the jury would not be permitted to determine whether defendants were professionally negligent merely as a result of an RPC violation or whether their alleged negligence was the proximate cause of any damage to plaintiffs. Vort v. Hollander, 257 N.J. Super. 56, 60-61 (App. Div.), certif. denied, 130 N.J. 599 (1992); Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983).

Affirmed.

1As a result, we reject the argument that plaintiffs were prejudiced by the procedure employed. Rather than impanel a jury, entertain opening statements, allow plaintiffs to call their witnesses and evidence regarding defendants' alleged RPC violations, and then dismiss the matter by way of an involuntary dismissal, the judge allowed plaintiffs to orally explain the nature of their case and the evidence they would produce, viewed those allegations and that evidence in the light most favorable to plaintiffs, and quite rightly concluded that plaintiffs' case fatally lacked expert testimony. Although unorthodox and no model for the disposition of cases on their merits, we see no prejudice in the judge's short cut to the involuntary dismissal stage, preserving valuable judicial resources for more deserving cases.

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