Opinion
DOCKET NO. A-5650-11T3
02-03-2015
BERMAN, SAUTER, RECORD & JARDIM, P.C., f/k/a RAMSEY BERMAN, P.C., Plaintiff, v. ART ROBINSON; AOR HOLDINGS, INC.; OWEN PROPERTIES, LLC; and RIGHTER EQUITIES, LLC, Defendants, and DTH15, LLC, Defendant/Third-Party Plaintiff-Appellant, v. HERSH, RAMSEY & BERMAN, P.C.; and KENNETH R. SAUTER, ESQ., Third-Party Defendants-Respondents, and J. DAVID RAMSEY, ESQ.; and EDWARD A. BERMAN, ESQ., Third-Party Defendants.
Kenneth S. Thyne argued the cause for appellant (Roper & Twardowsky, LLC, attorneys; Mr. Thyne, on the briefs). Robert C. Neff, Jr. argued the cause for respondents (Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys; Kurt W. Krauss, of counsel and on the brief; Mr. Neff, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Maven. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1181-08. Kenneth S. Thyne argued the cause for appellant (Roper & Twardowsky, LLC, attorneys; Mr. Thyne, on the briefs). Robert C. Neff, Jr. argued the cause for respondents (Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys; Kurt W. Krauss, of counsel and on the brief; Mr. Neff, on the brief). PER CURIAM
This professional liability matter arises from the legal representation by third party-defendants Hersh, Ramsey & Berman, P.C. and Kenneth R. Sauter, Esq., (HR&B) of third-party plaintiff DTH15, LLC (DTH) in negotiations and preparation of an agreement of sale for real estate. Litigation ensued between DTH and the prospective purchaser over the termination of the agreement of sale. The decision resolving that lawsuit was affirmed on appeal. Blue & Gold Dev. Group, Inc. v. DTH 15 LLC, No. A-0278-06 (App. Div. Feb. 13, 2008) (slip op. 2).
Upon our review of this record, although not directly raised by the litigants, it is apparent that the trial judge, who was serving on recall, was a member of the appellate panel that reviewed the underlying litigation addressed to DTH's liability, implicating the professional conduct of counsel now challenge in this malpractice action. To ensure there can be no question of "fair and unbiased" proceedings, we deem it necessary to vacate the order entered on defendants' in limine motion to bar plaintiff's expert and dismiss the complaint with prejudice on the day of trial. Further, we remand this matter to the Law Division for reassignment and review by a different judge. State v. Derrick Daniels, 220 N.J. 97 (2014).
On remand, the Law Division judge assigned to review the matter shall consider the propriety of the procedure advancing substantive dispositive motions in limine, in light of the repeated cautions in this regard by this court. See Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76 (App. Div. 2001) (holding heightened caution is appropriate when a motion in limine is made on the day of trial and has the potential to summarily dispose of the case); Bellardini v. Krikorian, 222 N.J. Super. 457, 464 (App. Div. 1988) (noting that "in limine rulings on evidence questions . . . should be granted only sparingly and with the same caution as requests for dismissals on opening statements"); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 104 (2015).
The orders barring plaintiff's expert and dismissing the complaint are vacated. Plaintiff's complaint is reinstated.
Vacated and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION