ASSEM A. ABULKHAIR v. WILLIAM SMITH, ESQ. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6525-05T36525-05T3

ASSEM A. ABULKHAIR,

Plaintiff-Appellant,

v.

WILLIAM SMITH, ESQ. and

HOOK, SMITH & MEYER,

Defendants-Respondents.

_______________________________________

 

Argued March 28, 2007 - Decided April 18, 2007

Before Judges Parker, Yannotti and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-5756-06.

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

William T. Smith argued the cause for respondents (Hook, Smith & Meyer, attorneys; Mr. Smith, on the brief).

PER CURIAM

Plaintiff Assem A. Abulkhair appeals from an order entered on June 9, 2006, denying his motion for a new trial. For the reasons that follow, we reverse.

In 1998, plaintiff retained defendant William Smith (Smith) to represent him in a legal malpractice action. Smith agreed to represent plaintiff on a contingency fee basis, with Smith receiving one-third of any recovery. Plaintiff agreed to pay all out-of-pocket expenses. Plaintiff paid Smith $5,000, the court filing fee of $200, and $500 for the services of Milton Diamond (Diamond), the legal expert retained to address the malpractice issues. Smith arranged for Dr. William Oppenheim (Oppenheim) to provide expert medical testimony. Plaintiff paid $1,800 to schedule Oppenheim's deposition, an additional $1,500 for Diamond's services, as well as a $450 fee when Oppenheim's deposition was cancelled. In April 2000, the trial court granted summary judgment to the defendant and that determination was affirmed on appeal.

On or about February 17, 2006, plaintiff filed a complaint in the Special Civil Part against Smith and his firm, Hook, Smith & Meyer. Plaintiff sought the return of the $5,000 that he had given to Smith. Plaintiff alleged that he had "voluntarily offered" Smith the $5,000 as a deposit and told Smith that he could keep the deposit in the event "the jury comes [in] with nothing." Otherwise, the deposit would be deducted from Smith's fee. Plaintiff additionally sought the return of expenses that he paid for the lawsuit, including the $1,800 paid to Oppenheim, the $1,500 paid to Diamond, and the $450 cancellation fee. Plaintiff asserted that Smith had exercised "bad judgment" in paying experts who had not rendered any services. Smith filed an answer on or about March 16, 2006, denying the allegations.

The matter was tried to a jury on April 24, 2006. We do not have a transcript of the trial; however, the parties agree that prior to trial, the trial judge dismissed plaintiff's claim for reimbursement of the monies he paid to Oppenheim and Diamond because plaintiff did not have an expert to testify that such payments were unnecessary. The judge further ruled that expert testimony was not required for plaintiff's claim for reimbursement of the $450 cancellation fee. The judge allowed plaintiff to present evidence in support of his claim for the return of the $5,000 that plaintiff had given to Smith. The jury found that plaintiff was entitled to be reimbursed for the $450 cancellation fee but not the return of the $5,000.

In his motion for a new trial, plaintiff argued that the judge erred by barring him from presenting certain evidence he wanted to use to challenge Smith's credibility. According to plaintiff, the judge excluded the evidence because it would "confuse the jury." Plaintiff also contended that the judge erred in dismissing his claim for the return of the monies that he paid for the experts. Plaintiff argued that expert testimony was not required for these claims. The motion was heard on June 9, 2006, and an order was entered that day denying the motion for a new trial. This appeal followed.

Plaintiff contends that the judge erred: 1) by requiring expert testimony to support his claim for the return of the expert fees paid to Diamond and Oppenheim; 2) in excluding evidence designed to undermine Smith's credibility; and 3) in dismissing and suppressing the claim for the return of the expert fees without a motion, in violation of the court rules and the United States Constitution.

A trial judge may grant a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). "Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006) (citing Crego v. Carp, 295 N.J. Super. 565, 577 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997)).

Appellate courts should accord substantial deference to a trial judge's decision on a motion for a new trial because the judge undoubtedly has a "feel for the case." Ibid. (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)). However, a new trial may be required if erroneous rulings by the trial judge were unduly prejudicial. Crawn v. Campo, 136 N.J. 494, 511-12 (1994).

We are convinced that the judge erred in dismissing plaintiff's claims for the return of the $1,800 paid to Oppenheim, and the $1,500 paid for Diamond's services. As stated previously, the judge ruled that plaintiff could not pursue these claims without expert testimony; however, such testimony is not required when a matter in dispute "falls within jurors' common knowledge." Jerista v. Murray, 185 N.J. 175, 200 (2005). "When the average juror can deduce what happened without resort to scientific or technical knowledge, expert testimony is not mandated." Ibid.

The record shows that the trial in the legal malpractice action was scheduled for May 24, 2000, and the defendant's motion for summary judgment was scheduled to be heard on April 14, 2000. It seems that Oppenheim would not appear for his deposition unless he was paid $1,800 ten business days prior to the deposition. It is undisputed that plaintiff gave Smith $1,800 for Oppenheim's deposition. Initially, Smith did not tender the money to Oppenheim because the defendant's attorney had objected to the amount of Oppenheim's fee.

Because he had not been paid, Oppenheim cancelled the deposition, which had been scheduled for April 17, 2000. The deposition was rescheduled for May 8, 2000, and at some point Smith paid Oppenheim the $1,800 in order to schedule the deposition. However, on April 14, 2000, summary judgment was granted to the defendant and the deposition never took place. Plaintiff maintains that Smith used poor judgment in paying Oppenheim. He asserts that Smith should have held off paying Oppenheim until the summary judgment motion was decided. Smith denies these allegations. He asserts that it was necessary to pay Oppenheim in advance to schedule the deposition and be prepared for trial.

Plaintiff also alleges that Smith erred by paying Diamond $1,500 for his services. It seems that plaintiff paid Diamond $500 for his initial review of the file and preparation of an affidavit of merit. Again, it is undisputed that plaintiff gave Smith the $1,500 for Diamond's services. Plaintiff claims that Diamond did nothing to warrant payment of the additional $1,500. Smith disputes this allegation, and contends that it was necessary to pay Diamond in advance for his services. However, it appears that Diamond never provided a written report.

In our view, plaintiff's claims for the return of the $1,800 paid to Oppenheim and the $1,500 paid to Diamond do not require expert testimony. Jurors do not require expert testimony to determine whether Smith should have waited for the outcome of the summary judgment motion before paying Oppenheim or whether Smith acted reasonably by scheduling the deposition to ensure that Oppenheim would be deposed prior to trial, should it occur. Furthermore, jurors do not require expert testimony to determine whether Diamond provided services and whether the payment to him of $1,500 was warranted in the circumstances. Therefore, we reverse the judge's determination to dismiss plaintiff's claims for the return of the monies paid to Oppenheim and Diamond.

Plaintiff next argues that the judge erred by refusing to allow him to introduce evidence that purportedly would have shown that Smith was not a credible witness. Because there was no written retainer agreement, there was a genuine issue of fact as to the terms upon which plaintiff paid Smith the initial $5,000. Plaintiff alleged that Smith could keep the $5,000 if the matter went to trial and the jury did not award plaintiff any damages. Plaintiff alleges that Smith was not permitted to retain the $5,000 because the case was dismissed on summary judgment rather than after a trial. In response, Smith asserts that he is entitled to keep the $5,000 because it was paid as a retainer.

Plaintiff argues that he should have been permitted to introduce evidence of certain allegedly false statements that Smith made while representing plaintiff in a prior personal injury action. According to plaintiff, that matter had been dismissed for failure to prosecute. Smith moved to reinstate the case, and asserted that the court had not notified him that the case would be dismissed. Plaintiff alleges that this statement was false. Plaintiff also asserts that Smith was less than candid when plaintiff alleged that Smith had engaged in certain discussions with an insurance carrier. Smith told the judge that he did not know what plaintiff was talking about. Plaintiff insists that Smith's statement was false.

Here, the judge invoked his authority under N.J.R.E. 403 and excluded this evidence. The rule permits a trial judge to exclude relevant evidence if its "probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." A trial judge's determination pursuant to N.J.R.E. 403 will not be overturned on appeal unless the judge abused his discretion. Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).

We are convinced that the judge did not abuse his discretion by precluding plaintiff from presenting his evidence because, even if it had probative value, there was a substantial risk that the evidence would confuse the issues and mislead the jury. We emphasize that, notwithstanding plaintiff's arguments to the contrary, it is not at all clear that Smith's statements were false. We expect that Smith would have had some explanation for his remarks and the trial in this case would have become sidetracked on issues that had no direct bearing on whether plaintiff was entitled to the return of the $5,000 he paid to Smith. Thus, the judge properly exercised his discretion under N.J.R.E. 403 by barring this evidence.

We agree, however, with plaintiff's contention that the judge should not have precluded him from bringing out the fact that Smith had represented plaintiff in three cases and there were no written contingent fee agreements for any of those matters. The record shows that when the foreperson of the jury announced the verdict, she stated in effect that plaintiff was not entitled to reimbursement of the $5,000 because he did not have a written agreement. As plaintiff points out, the jury may very well have concluded that he did not meet his burden of proof because there was no written agreement setting forth the terms upon which he paid Smith the $5,000. The jurors may have viewed the matter differently if they were aware that Smith had not prepared written contingency fee agreements for other cases in which he represented plaintiff.

Not only should the jury have been allowed to hear this evidence, the jurors should have been instructed that it was Smith's obligation under the rules of professional conduct to have a written agreement detailing his contingent fee arrangements with plaintiff. RPC 1.5(c) states in part:

A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. . . .

The jurors should have been instructed that under our rules of professional conduct, a client does not have a responsibility to ensure that a contingency fee agreement is in writing. That responsibility rests solely with the attorney. The jurors should have been told that they may consider Smith's failure to comply with the rule in determining whether to accept plaintiff's version of the terms upon which he paid Smith the $5,000, or the version offered by defendant. We expect that when the matter is re-tried, the judge will instruct the jury accordingly.

 
Reversed and remanded for a new trial. We do not retain jurisdiction.

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A-6525-05T3

April 18, 2007