ASSEM ABULKHAIR v. WILLIAM SMITH ESQ HOOK SMITH MEYER (2013)

Plaintiff Assem A. Abulkhair, appeals from separate Law Division orders that consolidated plaintiff's two legal malpractice actions, denied his motion to have the trial judge recuse herself, and dismissed the complaints with prejudice.   We affirm.

In July 2000, plaintiff retained defendants William T. Smith and the law firm of Hook, Smith & Meyer to represent him in a personal injury action arising out of an October 1999 automobile accident.¹  In March 2001, plaintiff retained defendants to represent him in an uninsured motorist (UM) action arising out of a March 18, 1998 automobile accident.²  Although another attorney had been representing plaintiff in the UM action until then, plaintiff had become frustrated with repeated adjournments of the UM arbitration, so he retained defendants.

Defendants represented plaintiff in the two actions until April 16, 2004, when they wrote to him and terminated their representation in both cases.   Plaintiff and defendants dispute the reason for the breakdown of their relationship.   Plaintiff claims defendants grossly neglected his files;  defendants claim plaintiff behaved erratically and refused to consider reasonable settlement offers.

On February 24, 2010, plaintiff filed separate legal malpractice complaints against defendants in which he alleged they mishandled his claims.   The trial judge consolidated the cases in an order entered on October 28, 2011.

Thereafter, on December 12, 2011, the trial judge denied plaintiff's motion to recuse herself.   Plaintiff claimed that because the judge's spouse was a partner in the law firm that had represented a defendant in one of the actions out of which plaintiff's legal malpractice case against defendants arose, she had a conflict.   At the time defendant filed his recusal motion, the underlying action had been dismissed by the trial court.   Although the trial court's decision had been affirmed on appeal, defendant's petition for certification was pending before the New Jersey Supreme Court.   See Banks, supra, 209 N.J. 233.

The judge presiding over the malpractice actions knew nothing about the underlying action and determined that any connection between the underlying action and pending malpractice case was too remote to pose a conflict requiring recusal.   The judge explained that nothing she had to decide in the pending malpractice action had anything to do with the law firm that represented a defendant in the underlying case.

Following oral argument, the judge denied plaintiff's motion and announced that she would move on to other matters concerning the malpractice case.   Plaintiff refused to participate, informing the judge that he would appeal her decision.   The judge explained that there was a trial date and said, “I am going to hear the other motions in front of me, if you wish to stay and participate I would welcome that.”   When plaintiff repeated that he intended to appeal the judge's decision declining to recuse herself, the judge asked plaintiff, “most respectfully, to please sit down.”   The judge attempted to address an application defendants had filed based on plaintiff's failure to file an affidavit of merit.   Plaintiff interrupted her.   When plaintiff continued to interrupt, a sheriff's officer instructed him to sit down or leave.   Plaintiff then left the courtroom.

After plaintiff left the courtroom, the judge entered an order denying defendants' motion to dismiss the complaints based on the affidavit-of-merit statute, N.J.S.A. 2A:53A–27.   In a rider attached to the order, the judge gave plaintiff an additional sixty days to file an affidavit of merit.   When plaintiff did not file an affidavit of merit within sixty days, defendants filed a motion to dismiss his complaints with prejudice.   On the return date of defendants' motion, plaintiff did not appear.³  After noting that plaintiff had received notice of the hearing from the court and from defense counsel, the judge granted defendants' motion and dismissed both complaints with prejudice.   Plaintiff appeals from the confirming order.

Plaintiff makes the following arguments:

POINT I.

THE COURT ERRED IN REQUIRING AN AFFIDAVIT OF MERIT WHERE ABULKHAIR'S CASES FELL WITHIN THE COMMON LAW KNOWLEDGE EXCEPTION [T]O THE STATUTORY REQUIREMENT ALTHOUGH ABULKHAIR FILED A SWORN STATEMENT IN LIEU OF THE AFFIDAVIT SETTING FORTH THAT DEFENDANTS HAD FAILED [T]O PROVIDE RECORDS HAVING [A] SUBSTANTIAL BEARING ON THE PREPARATION OF THE AFFIDAVIT ITSELF.

POINT II.

THE NEW JERSEY AFFIDAVIT OF MERIT STATUTE IS UNBALANCED.   THE COURT ERRED IN DENYING ABULKHAIR HIS CASE MANAGEMENT CONFERENCE REQUIRE[D][I]N ALL MALPRAC [TICE] ACTIONS AND THEREFORE, ITS DISMISSAL WAS A PRODUCT OF MISAPPLICATION AND MISINTERPRETATIONS OF THE LAW THAT MUST [BE] REVERSED.

POINT III.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION [I]N REFUSING TO RECUSE ITSELF BECAUSE HER HUSBAND'S FIRM REPRESENTED ONE OF THE UNDERLYING MALPRACTICE CLAIM.   THEREFORE, ABULKHAIR CAN[NOT] RECEIVE [A] FAIR AND UNBIASED HEARING BECAUSE HER HUSBAND HAS CONTINUALLY RECEIVED INCOME FROM [T]HE SAME CLAIM OVER WHICH SHE IS PRESIDING.   THUS, HER RECUSAL IS IMPROPERLY DENIED.

POINT IV.

THE COURT ERRED AND ABUSED ITS DISCRETION IN DENYING ABULKHAIR HIS ORAL ARGUMENT WHILE GRANTING DEFENDANTS A UNILATERAL BACKDOOR ONE.

Having considered plaintiff's arguments in light of the record and controlling law, we conclude his arguments are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).   We add only the following comments.   Although litigants may certainly represent themselves, “[p]rocedural rules are not abrogated or abridged by plaintiff's pro se status.”  Rosenblum v. Borough of Closter, 285 N.J.Super. 230, 241 (App.Div.1995), certif. denied, 146 N.J. 70 (1996).   In making that choice, “ ‘they must understand that they are required to follow accepted rules of procedure promulgated by the Supreme Court to guarantee an orderly process.’ ”  Id. at 241–242 (quoting Tuckey v. Harleysville Ins. Co., 236 N.J.Super. 221, 224 (App.Div.1989)).

Plaintiff had no right to refuse to participate in court proceedings after the trial judge properly declined to recuse herself.   The judge could have exercised her discretion to dismiss plaintiff's complaint for that reason.   Nevertheless, she treated plaintiff with the utmost respect, and based on his self-represented status, commendably exercised her discretion by permitting him additional time to file an affidavit of merit.   Nothing in the record supports plaintiff's allegations that the judge evidenced anger and hostility toward him.

Affirmed.

FOOTNOTES

FN1. The history of the underlying litigation is set forth in Abulkhair v. Banks, No. A–5432–09 (App.Div. August 10, 2011), certif. denied, 209 N.J. 233 (2012)..  FN1. The history of the underlying litigation is set forth in Abulkhair v. Banks, No. A–5432–09 (App.Div. August 10, 2011), certif. denied, 209 N.J. 233 (2012).

FN2. The history of defendant's uninsured motorist claim is set forth in Abulkhair v. Liberty Mutual Ins., No. A–1299–06 (App.Div. February 1, 2008), certif. denied, 199 N.J. 130 (2009) and Abulkhair v. Liberty Mutual Ins., No. A–3408–10 (App.Div. November 10, 2011)..  FN2. The history of defendant's uninsured motorist claim is set forth in Abulkhair v. Liberty Mutual Ins., No. A–1299–06 (App.Div. February 1, 2008), certif. denied, 199 N.J. 130 (2009) and Abulkhair v. Liberty Mutual Ins., No. A–3408–10 (App.Div. November 10, 2011).

FN3. Plaintiff claims he did not receive notice of the hearing..  FN3. Plaintiff claims he did not receive notice of the hearing.

PER CURIAM