                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3205-18T1

EDWARD HAYES,

         Plaintiff-Appellant/
         Cross-Respondent,

v.

RODNEY YOUMAN,

         Defendant-Respondent/
         Cross-Appellant,

and

THOMAS YOUMAN, a/k/a
THOMAS ELDEN YOUMAN
HENLY, YOUMAN & ABAD,
a law firm, YOUMAN & YOUMAN,
a law firm,

     Defendants.
_______________________________

                   Argued January 27, 2020 – Decided April 23, 2020

                   Before Judges Sumners, Geiger and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Docket No. L-0786-17.
            Mario A. Iavicoli argued the cause for appellant/cross-
            respondent.

            Jeffrey S. Mandel argued             the   cause    for
            respondent/cross-appellant.

PER CURIAM

      Plaintiff Edward Hayes appeals from Law Division orders: (1) granting

defendant Rodney Youman (Rodney)1 summary judgment dismissing plaintiff's

legal malpractice claim; (2) granting Rodney's oral motion in limine barring

plaintiff's legal malpractice expert's report and testimony; and (3) dismissing

plaintiff's remaining claims with prejudice for failure to prosecute. Rodney

cross-appeals from an order denying his motion for frivolous litigation

sanctions. We affirm.

                                       I.

      The Underlying Facts

      This case arose from a fraudulent business scheme carried out in Ecuador

against plaintiff, a Canadian citizen who resides in Ontario, resulting in the

conversion of his funds that were earmarked for the purchase of investment

properties in Ecuador. Viewing the facts in a light most favorable to plaintiff,


1
  We refer to defendants Rodney Youman and Thomas Youman by their first
names to avoid confusion. We intend no disrespect in doing so.


                                                                        A-3205-18T1
                                       2
the record establishes the following conduct by Thomas Youman (Thomas) and

limited involvement of Rodney.

      In 2008, plaintiff decided to purchase an apartment in Ecuador. He

traveled to Salinas, Ecuador, where he spoke to real estate salesperson, Ivan

Jaramillo.   Jaramillo recommended that plaintiff retain Thomas for legal

services related to the apartment purchase.        It was later discovered that

Ecuadorian public records do not list Thomas as a licensed attorney.

      Plaintiff took Jaramillo's advice and began meeting with Thomas at the

offices of Youman & Abad, located in Cuenca, Ecuador, which plaintiff believed

was a law firm. Plaintiff visited the office on at least fifteen more occasions.

According to plaintiff, Thomas "portrayed himself as a lawyer."

      Youman & Abad Asesores Y Asociados Compania Limitada was created

on November 16, 2006, by Rodney (190 shares), Thomas (10 shares), and Maria

Jose Abad Pesantez (200 shares); it was incorporated in Ecuador. 2                A

"Constitucion" was properly filed with the appropriate office of the Ecuadorian

government by the firm. It described various objectives, one of which was "La

asesoria legal," or "legal advice."    Rodney claims Youman & Abad was a



2
  Although plaintiff has not briefed the issue, a "compania limitada" is apparently
similar to a limited liability company (LLC) in New Jersey.
                                                                          A-3205-18T1
                                        3
consulting firm, not a law firm. Plaintiff alleges that because Youman & Abad

was not registered in the Public Cadastre of the Ecuadorian Stock Market, it was

not authorized to create trust funds or make investments for the public.

      A 2011 filing by Youman & Abad listed Thomas as "Presidente" and

Maria Jose Abad as "Gerente General"; Rodney was not designated as a

corporate officer. Youman & Abad was dissolved on February 22, 2013, for

failure to comply with Ecuadorian corporate laws.

      Plaintiff engaged Youman & Abad to conduct business in Ecuador. On

April 23, 2008, while in Toronto, Canada, plaintiff executed a power of attorney

allowing Thomas to purchase a specific property. Thomas then facilitated the

purchase of an apartment after plaintiff sent him several $5000 wire transfers.

Subsequently, while plaintiff was in Cuenca, he granted a general power of

attorney to Thomas allowing him discretion to purchase real estate.

      Following the purchase, plaintiff and Thomas continued their business

relationship. Beginning on March 25, 2009, plaintiff wired various sums of

money to a bank account that he believed was a trust account held by Youman

& Abad. The money was intended to be invested in Ecuadorian real estate with

Thomas acting as the trustee of the account.




                                                                           A-3205-18T1
                                       4
      This plan was reflected in trust fund certificates on Youman & Abad

letterhead. The certificates stated that plaintiff's funds were "due to investments

in the real estate and other business areas in Ecuador" and plaintiff "may

withdraw them at any[]time under his written request." Thomas signed the

document with the designation "Esq." Similar certificates were issued on June

10, 2011, October 27, 2011, January 27, 2012 and October 19, 2012. 3 However,

as the trial court later found, while Thomas represented to plaintiff that the

money would be deposited in the firm's trust account, the money was actually

deposited in Thomas' personal account.

      Eventually, plaintiff and Thomas began socializing and Thomas

introduced him to the rest of his family, including Rodney. Plaintiff met Rodney

only three times, all while in Ecuador. The first time was in either 2009 or 2010,

at a restaurant in Cuenca; by this point plaintiff had already decided to do

business with Thomas. The second time was at another restaurant, but they did

not discuss any business together. The third time, plaintiff merely said "hello"




3
   The October 19, 2012 certificate is on Youman & Youman letterhead while
the other four are on Youman & Abad letterhead. Rodney explains that
"Youman & Youman is either a messenger company or a consulting company in
Ecuador operated by Thomas and another Youman (Thomas' nephew)." Thomas
signed three of the five certificates with the suffix "Esq."
                                                                          A-3205-18T1
                                        5
to Rodney at the office of Youman & Abad. During their encounters, plaintiff

never discussed business with Rodney.

      Plaintiff subsequently loaned Thomas $40,000 on February 12, 2012 and

$83,486 on February 6, 2013, with an interest rate of seven percent. On June 1,

2014, plaintiff made a final wire transfer to Thomas for $25,825. In sum,

plaintiff wired a total of $324,471.50 to Thomas individually. None of the funds

were remitted to Youman & Youman or Youman & Abad.

      Following his last wire transfer to Thomas, plaintiff decided to sell the

apartment he purchased, and Thomas' parents were interested in purchasing it.

However, plaintiff discovered Thomas had quoted a higher price for the

apartment than what plaintiff had expressed to him. Plaintiff viewed this as

unethical and soon demanded that Thomas return all the wired funds and

cancelled the power of attorney he gave to Thomas. Thomas agreed to do so but

contended that he only owed plaintiff $29,330.39.

      On June 21, 2016, plaintiff hired attorney Aaron Denker who sent a letter

to Rodney demanding the return of $145,033.16, the amount plaintiff alleged

was owed to him. Rodney responded that he was unfamiliar with plaintiff,

unaware of any of plaintiff's money held in trust, had "no businesses or offices




                                                                        A-3205-18T1
                                        6
in Ecuador of any kind," and that his law firm in the United States "is not

associated with any company or business in Ecuador."

      Thomas has made various statements where he purports to be a lawyer.

Likewise, Rodney has purportedly indicated that he has law offices in Ecuador

(in online videos, newspaper articles, and business cards) and stated that Thomas

was a lawyer in Ecuador. However, plaintiff never indicated in his testimony

that these statements by Thomas or Rodney established his belief that Thomas

was a lawyer or that Rodney was his attorney. Further, Rodney contends this

evidence should not be considered because it was submitted by plaintiff after

the discovery-end-date.

      Rodney is an attorney admitted to practice in New Jersey and New York.

Plaintiff last visited New Jersey around the year 2000, long before any events

relevant to this matter transpired.

      Plaintiff does not contend that Rodney personally provided investment

advice to him. Nor does he contend that Rodney personally rendered legal

services to plaintiff in Ecuador, New Jersey, or elsewhere. Rodney did not

accept any retainer or payment from plaintiff.      Rodney did not personally

participate in plaintiff's transactions with Thomas.      Plaintiff presents no




                                                                        A-3205-18T1
                                       7
evidence that Rodney personally participated in the conversion of plaintiff's

funds.

      Plaintiff acknowledges that he never retained Rodney to perform legal

services, advise him regarding Ecuadorian real estate law, or assist him in the

purchase of property in Ecuador.         Plaintiff never compensated Rodney in

exchange for legal advice or services.

      The only nexus to New Jersey is that Rodney is licensed to practice in

New Jersey, where he posted certain information regarding Thomas on the

internet that plaintiff claims was misleading. Even so, plaintiff does not claim

that he relied on any misleading statements, advertisements, or internet postings

by Rodney.

      The Procedural History

      Plaintiff filed a three-count complaint that alleged misrepresentation,

fraud, and theft against Rodney, Thomas, Youman & Abad, and Youman &

Youman (count one) (the fraud and conversion count); and professional

negligence against Rodney (count two) (the legal malpractice count).4




4
 Count three incorporated counts one and two against fictious defendants who
were never identified.
                                                                        A-3205-18T1
                                          8
      The fraud and conversion count alleged Rodney "was a member of the law

firm of Youman & Abad, a legal entity in Cuenca, Ecuador" and a "member of

the law firm of Youman, Madeo and Fasano, LLP" in Union City. Thomas and

Rodney allegedly "worked together on legal matters in the law firm of Youman

& Abad," "Youman & Youman," and "Youman, Madeo and Fasano, LLP."

      Plaintiff averred that Thomas "was the agent, servant and/or employee of

Rodney" and that Rodney "was principal, master and/or employer of Thomas"

and is thereby "liable for the acts and omissions of Thomas."

      The legal malpractice count alleged Rodney was negligent by the

following acts and omissions: (a) failure to properly supervise Thomas as

Rodney's agent, servant, or employee; (b) failure to properly investigate and

conveying false facts to plaintiff's attorney after a demand for return of the funds

was made to Rodney; (c) threatening plaintiff and plaintiff's attorney to deter

them from pursuing plaintiff's rights; and (d) not controlling the use of the law

firm's documents.

      Defendants initially moved to dismiss the complaint on grounds of

insufficient service of process, lack of subject matter jurisdiction, and forum non




                                                                           A-3205-18T1
                                         9
conveniens.5 The trial court denied the motion. We denied defendants' motion

for leave to appeal.

      Rodney then filed an answer that asserted numerous affirmative defenses,

including failure to state a cause of action, lack of subject matter jurisdiction,

lack of personal jurisdiction due to insufficient service of process, and the

absence of any damages attributable to any wrongful act or omission by Rodney.

However, Rodney, did not respond to the allegations set forth in the legal

malpractice count.

      Rodney also moved to dismiss the complaint for failure to comply with

the affidavit of merit statute, N.J.S.A. 2A:53A-27.            The motion judge

determined that an affidavit of merit was not required on a claim for fraud, citing

Stoecker v. Echevarria, 408 N.J. Super. 597 (App. Div. 2009). Moreover, the

judge also explained that plaintiff did not need to serve an affidavit of merit until

defendant filed an answer to the legal malpractice count. Rodney then filed an

amended answer responding to the legal malpractice count.

      A default judgment was entered against the other defendants; they have

not appealed from that judgment and are not participating in this appeal.


5
  On appeal, Rodney does not brief the issue of forum non conveniens or lack
of subject matter jurisdiction. During oral argument before this court, Rodney's
counsel advised that Rodney abandoned those issues at the trial level.
                                                                            A-3205-18T1
                                        10
      Rodney subsequently moved for summary judgment. The motion judge

granted summary judgment dismissing the legal malpractice claim but denied

summary judgment as to fraud and conversion count.

      In her written opinion, the motion judge found that plaintiff executed a

power of attorney in favor of Thomas, permitting him "to perform real estate

investment and transaction activities in the capacity of, as [p]laintiff understood,

a lawyer." The judge then discussed the real estate investment enterprise, the

funds wired by plaintiff to Thomas, and the trust fund certificates signed by

Thomas with the suffix "Esq."       The judge found several genuine issues of

material fact precluded summary judgment as to the fraud and conversion count,

including:

             (1) Youman & Abad's business practices as legal versus
             consulting, (2) Defendant Rodney's involvement with,
             and control over, Youman & Abad as an entity used to
             promote an alleged fraudulent scheme, (3) Defendant
             Rodney's acts of and benefit from holding out
             Defendant Thomas to be a lawyer, and (4) the
             connection between Defendant Rodney's law practices
             in New York and New Jersey and Youman & Abad.
      As to the legal malpractice count, the judge found that plaintiff had not

established that he had an attorney-client relationship with Rodney, as required

by Jersita v. Murray, 185 N.J. 175 (2005).



                                                                           A-3205-18T1
                                        11
      The case was called for trial on February 4, 2019. Rodney made an oral

motion in limine to bar plaintiff from calling his legal expert witness o r

introducing his expert report. The court granted the motion because the expert's

report focused on whether Rodney committed legal malpractice under New

Jersey law, a claim that had previously been dismissed on summary judgment.

The judge concluded that the expert report "is not relevant or admissible" as to

the remaining fraud or conversion claim, which was based on Thomas

representing to plaintiff he was going to deposit plaintiff's money in the law

firm's trust account but was actually deposited into Thomas' personal account.

      Even without plaintiff's expert report and testimony, the trial judge found

that plaintiff could proceed on the fraud and conversion count. However, when

plaintiff's counsel asked the judge, "[d]o I have [enough] facts that could survive

a motion at the end of my opening?" the judge responded, "[n]o." Plaintiff's

counsel conceded he was likely unable to prove fraud by a preponderance of the

evidence. The judge then stated:

                  Understood. All right. So the plaintiff agrees to
            dismissal, but preserves the right to appeal the court's
            ruling of the granting of the in limine motion, barring
            the expert's report, which in essence causes him not to
            be able to lead to establish his cause of action.
                   ....


                                                                          A-3205-18T1
                                       12
                   I think . . . your best position on behalf of your
            client is to acknowledge the fact you can't proceed . . .
            and make your proofs in this case without this report
            and you're appealing a final judgment based upon the
            court barring this report.
Plaintiff followed that suggestion and elected not to proceed with the trial. As

a result, the judge entered an order dismissing the case with prejudice for lack

of prosecution.

      Rodney then moved for frivolous pleading sanctions under Rule 1:4-8 and

N.J.S.A. 2A:15-59.1, which the court denied because plaintiff survived

summary judgment on the fraud and conversion count. In his written opinion,

the judge noted that frivolous litigation sanctions "can only be awarded from the

moment in time it becomes clear the litigation is frivolous."

      The judge stated that the summary judgment motion judge "held that

[p]laintiff had submitted sufficient evidence to proceed against [Rodney] on [the

fraud and conversion count], which sounded in fraud," but not the legal

malpractice count. The judge then reviewed the summary judgment judge's

findings as to the fraud and conversion count. The judge determined that the

finding that plaintiff presented sufficient evidence to proceed to trial on the

fraud and conversion count "is sufficient to preclude a finding that [p]laintiff

and his counsel filed or advanced a frivolous lawsuit," citing United Hearts,


                                                                         A-3205-18T1
                                      13
L.L.C. v. Zahabian, 407 N.J. Super. 379 (App. Div. 2009). Accordingly, the

judge found there was no basis to award counsel fees or costs to Rodney.

      The judge further found the litigation was not frivolous or brought in bad

faith. He noted the YouTube videos and business cards indicating Thomas was

ostensibly licensed to practice law in Ecuador. The judge further noted the use

of company letterhead to defraud plaintiff. The judge then discussed potential

liability based on aiding and abetting fraud.

      This appeal followed. Plaintiff appeals from the order granting summary

judgment dismissing the legal malpractice claim against Rodney and the ruling

barring introduction of the report and testimony of plaintiff's expert. Rodney

cross-appeals from the denial of frivolous litigation sanctions.

      Plaintiff raises the following points on appeal:

            I. THE GRANT OF PARTIAL SUMMARY
            JUDGMENT    AND  DISMISSAL  OF   THE
            NEGLIGENCE COUNT (COUNT II) OF THE
            COMPLAINT WAS IN ERROR BECAUSE AN
            ATTORNEY-CLIENT RELATIONSHIP DID, IN
            FACT, EXIST BETWEEN PLAINTIFF AND
            DEFENDANT, RODNEY YOUMAN.

                  A. Youman & Abad was a Law Firm.

                  B. Plaintiff and Youman & Abad Entered Into an
                  Attorney-Client Relationship, Pursuant to which
                  that Firm Represented Plaintiff in Real Estate
                  Ventures.

                                                                        A-3205-18T1
                                       14
                   C. When Plaintiff Retained Youman & Abad, that
                   Law Firm Assumed Responsibility for his
                   Representation. Every Principal of that Firm,
                   Including Rodney Youman, was Responsible for
                   Damages Caused by the Tortious Acts and
                   Omissions of any other Principal, Attorney or
                   Employee.

                   D. Rodney Youman Should Be Estopped from
                   Denying Liability for the Acts and Omissions of
                   Youman & Abad.

             II. THE TRIAL COURT ERRONEOUSLY HELD
             THAT PLAINTIFF COULD NOT CALL WILLIAM
             MARTIN, ESQ. AS AN EXPERT AT TRIAL AND
             THEN DISMISSED PLAINTIFF'S COMPLAINT FOR
             INSUFFICIENT EVIDENCE.

       Rodney raises the following points in his cross-appeal6:

             IV. THE COURT BELOW ERRED IN NOT
             GRANTING SUMMARY JUDGMENT ON THE
             CLAIM OF ORDINARY NEGLIGENCE (IF IT
             EXISTED),    FRAUD,     THEFT,    AND
             MISREPRESENTATION, BECAUSE THE RECORD
             LACKED EVIDENCE TO SUBSTANTIATE ANY
             [OF]  THE   CLAIMS    AND   PLAINTIFF'S
             ADMISSIONS DISPROVED THE EXISTENCE OF
             THE CLAIMS.

             V. THE COURT BELOW ERRED IN FINDING AS A
             MATTER OF LAW THAT A PARTY WHO
             SURVIVES SUMMARY JUDGMENT CANNOT
             HAVE PURSUED A FRIVOLOUS CLAIM,
             ESPECIALLY WHEN THERE IS PROOF THAT
             COUNSEL AVOIDED SUMMARY JUDGMENT

6
    We have deleted those points which merely oppose plaintiff's arguments.
                                                                       A-3205-18T1
                                      15
            WITH FALSE FACTS AND ADMITTED AS WE
            AWAITED THE JURY THAT HE LACKED
            EVIDENCE TO SURVIVE DISMISSAL.
            VI. THE COURT BELOW ERRED ON THE ISSUE
            OF WHETHER PLAINTIFF'S AFFIDAVIT OF
            MERIT MET THE STATUTORY REQUIREMENTS
            BECAUSE, EVEN IF THE ANSWER FAILED TO
            ADDRESS EACH CLAIM, THE STATUTE
            REQUIRES ONLY THE FILING OF AN ANSWER
            WITHOUT REGARD TO ITS SUFFICIENCY.

                                        II.

      Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59

(2015).   That is, we "consider whether the competent evidential materials

presented, when viewed in the light most favorable to the non-moving party, are

sufficient to permit a rational factfinder to resolve the alleged dispute d issue in

favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995).     Summary judgment must be granted "if the pleadings,

depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment or order as a

matter of law." RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472

(2018) (quoting R. 4:46-2(c)). "When no issue of fact exists, and only a question

of law remains," a reviewing court "affords no special deference to the legal

                                                                           A-3205-18T1
                                        16
determinations of the trial court." Ibid. (quoting Templo Fuente De Vida Corp.

v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016)).

                                       III.

      We first address the summary judgment dismissal of plaintiff's legal

malpractice count. Plaintiff contends an attorney-client relationship existed

between Rodney and himself because Rodney was a principal of Youman &

Abad; accordingly, he is liable for the tortious acts of any other principal,

attorney, or employee of the firm, namely Thomas.7 He further contends Rodney

should be estopped from denying liability for the acts and omissions of the firm.

We are unpersuaded by these arguments.

      "Legal malpractice is negligence relating to an attorney's representation

of a client." Sommers v. McKinney, 287 N.J. Super. 1, 9 (App. Div. 1996). In

order to establish legal malpractice, the plaintiff must demonstrate three

elements: "(1) the existence of an attorney-client relationship creating a duty of

care by the defendant attorney; (2) the breach of that duty by the defendant; and

(3) proximate causation of the damages claimed by the plaintiff." McGrogan v.




7
  We address plaintiff's argument concerning vicarious liability and piercing the
corporate veil in Part V of this opinion.
                                                                         A-3205-18T1
                                       17
Till, 167 N.J. 414, 425 (2001) (citing Conklin v. Hannoch Weisman, 145 N.J.

395, 416 (1996)).

      Rodney was not retained by plaintiff to perform legal services in New

Jersey. Plaintiff and Rodney never discussed business. Plaintiff proffered no

evidence Rodney personally participated in any theft or conversion of plaintiff's

funds.   Nor is there any evidence that Rodney personally performed legal

services for plaintiff in Ecuador or the United States. Rodney's few encounters

with plaintiff in Ecuador were informal and did not involve discussions of any

transactions or legal services. Plaintiff remitted no funds to Rodney.

      Moreover, Ecuador uses a civil law system. Aguinda v. Texaco, Inc., 142

F. Supp. 2d 534, 542-43 (S.D.N.Y. 2001). Plaintiff cites no case law or statutes

imposing personal liability on Rodney under these facts pursuant to Ecuador's

civil law system. Additionally, plaintiff's legal malpractice expert, who is not

licensed to practice law in Ecuador and does not claim to have expertise in

Ecuador's civil law system, is not competent to offer an opinion regarding

Rodney's alleged liability for professional malpractice under Ecuadorian law.

Plaintiff bears the burden to establish the law of Ecuador.       See generally,

Grossman v. Club Med Sales, Inc., 273 N.J. Super. 42, 49 (App. Div. 1994)

(explaining that "a party who asserts an affirmative proposition has the burden


                                                                         A-3205-18T1
                                      18
of establishing that proposition," such as whether the law of a foreign country

was "different from the law of New Jersey"). Plaintiff did not meet that burden.

He does not support any of his arguments by reference to Ecuador's civil code

or interpretive case law.

      "Expert testimony is required in cases of professional malpractice where

the matter to be addressed is so esoteric that the average juror could not form a

valid judgment as to whether the conduct of the professional was reasonable."

Sommers, 287 N.J. Super. at 10 (citing Butler v. Acme Markets, Inc., 89 N.J.

270, 283 (1982)). "In rare cases, expert testimony is not required in a legal

malpractice action where the duty of care to a client is so basic that it may be

determined by the court as a matter of law." Ibid. (citations omitted).

      Here, the duty of care and determination of whether that duty has been

breached is not within a layperson's common knowledge. See Klimko v. Rose,

84 N.J. 496, 503-04 (1980). This case presents esoteric issues of vicarious

liability and the duty of care under Ecuadorian law that are not within the ken

of the average juror. The "jury is not competent to supply the standard by which

to measure the defendant's conduct." Sanzare v. Rosenfeld, 34 N.J. 128, 134-35

(1961).   "[T]he jury 'would have to speculate without the aid of expert

testimony.'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 407 (2014)


                                                                          A-3205-18T1
                                      19
(quoting Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001)).

Thus, admissible expert testimony is required. Without admissible supporting

expert testimony, "plaintiff[] [was] unable to satisfy [his] burden of establishing

the applicable standard of care and a breach of that standard" and Rodney was

"entitled to judgment as a matter of law." Id. at 414 (citing R. 4:46-2(c)).

      The motion court properly determined there were no material facts in

dispute concerning plaintiff's legal malpractice claim and that Rodney was

entitled to judgment as a matter of law.

      Because we affirm the summary judgment dismissal of plaintiff's legal

malpractice claim, we do not reach Rodney's arguments regarding the extension

granted to plaintiff to submit an affidavit of merit or the sufficiency of the

affidavit of merit.

                                       IV.

      We next address the barring of plaintiff's expert's testimony and report.

On the day trial was scheduled to commence, Rodney orally moved in limine to

bar the plaintiff from introducing the report and testimony of William Martin,

plaintiff's legal malpractice expert, because Martin's report only pertained to the

legal malpractice claim that was dismissed on summary judgment, and not the




                                                                          A-3205-18T1
                                       20
fraud and conversion count. Over plaintiff's opposition, the court granted the

motion.

      Plaintiff argues this was error because Martin's report stated: (1) Thomas

"represented himself falsely as an attorney"; (2) "[i]n holding himself out as an

attorney for Youman & Abad, [Thomas] induced plaintiff to be a client . . . and

to deposit funds with him"; and (3) Rodney, "an attorney and partner in the law

firm, completely failed to supervis[e] his employee Thomas Youman's activity

and permitted this fraudulent activity to take place."

      Plaintiff also points out that Martin's report asserted that Rodney breached

his "nondelegable [fiduciary] duty to preserve clients' funds." (Citing Matter of

Irizarry, 141 N.J. 189, 193 (1995)). Accordingly, plaintiff argues that "[a]

breach of a fiduciary duty is 'sometimes also described as constructive fraud.'"

(Citing Restatement (Third) of the Law Governing Lawyers, § 49, cmt. a (Am.

Law Inst. 2000)).

      "[A] trial court's evidentiary rulings are entitled to deference absent a

showing of an abuse of discretion." State v. Nantambu, 221 N.J. 390, 402 (2015)

(alteration in original) (quoting State v. Harris, 209 N.J. 431, 439 (2012)).

"Ordinarily, the competency of a witness to testify as an expert is remitted to

the sound discretion of the trial court. Absent a clear abuse of discretion, an


                                                                         A-3205-18T1
                                       21
appellate court will not interfere with the exercise of that discretion." Carey v.

Lovett, 132 N.J. 44, 64 (1993) (citing Henningsen v. Bloomfield Motors, Inc.,

32 N.J. 358, 411 (1960)). Reversal is not warranted unless the trial judge's ruling

was "so wide of the mark that a manifest denial of justice resulted." State v.

Carter, 91 N.J. 86, 106 (1982).

      "If scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education

may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702.

Accordingly, "the witness must have sufficient expertise to offer the intended

testimony." Muise v. GPU, Inc., 371 N.J. Super. 13, 58 (App. Div. 2004)

(quoting State v. Kelly, 97 N.J. 178, 208 (1984)).

      Plaintiff intended to use Martin as an expert in New Jersey law. Here,

none of the transactions occurred in New Jersey or the United States. Plaintiff

is a Canadian citizen. His interactions with Thomas and the law firm were either

in Ecuador or through communications between Ecuador and Canada. The real

estate transactions, transfers, depositing of plaintiff's funds, and execution of the

contracts, occurred in either Ecuador or Canada.




                                                                            A-3205-18T1
                                        22
      Martin is not licensed to practice law in Ecuador. Nor does he otherwise

claim to be an expert in Ecuadorian law or the civil law system in general. His

report is limited to analysis of Rodney's liability for legal malpractice under

New Jersey law and the Restatement (Third) of the Law Governing Lawyers.

As we have explained, the legal malpractice claim was properly dismissed on

motion for summary judgment.          His report did not address liability for

misrepresentation, fraud, theft, or conversion.

      Plaintiff also argues it was error to grant the motion in limine on the day

of trial. We recognize that "filing or consideration of in limine motions that

seek an action's termination" is improper. L.C. v. M.A.J., 451 N.J. Super. 408,

411 (App. Div. 2017) (citing Seoung Ouk Cho v. Trinitas Reg'l Med. Ctr., 443

N.J. Super. 461, 464, 470 (App. Div. 2015); Klier v. Sordoni Slanska

Construction, 337 N.J. Super. 76, 83-85 (App. Div. 2001)). Here, however, the

legal malpractice claim had already been dismissed. Martin's report and his

testimony relating to the opinions expressed in his report were not relevant or

critical to establishing the alleged misrepresentation, fraud, theft, or conversion.

The in limine motion was not dispositive; it did not seek dismissal of the fraud

and conversion count. Cf. L.C., 451 N.J. Super. at 410 (defendant's motion in

limine on the day of the final hearing sought "dismissal of his ex-wife's domestic


                                                                           A-3205-18T1
                                        23
violence complaint"); Cho, 443 N.J. Super. at 464 (defendant's motion in limine

"sought the dismissal of the complaint in its entirety").     Therefore, neither

plaintiff's right to due process of law nor the requirements imposed by Rule 4:46

were violated.

      An in limine motion filed at the time of trial "is permissible only when it

addresses preliminary or evidentiary issues." L.C., 451 N.J. Super. at 411.

Rodney's motion was permissible since it only sought resolution of an

evidentiary issue—barring Martin's report and testimony from evidence.

      For these reasons, barring Martin's report and testimony at trial was not

an abuse of discretion or error.

                                       V.

      We next address the dismissal of plaintiff's claim for misrepresentation,

fraud, theft, or conversion.

      As we have noted, the only nexus to New Jersey is that Rodney is a New

Jersey resident, is licensed to practice law in New Jersey, and made some

internet postings, advertisements, or statements regarding Thomas while present

in New Jersey. Plaintiff admittedly has no evidence that Rodney personally

participated in, or had knowledge of, the fraudulent scheme or conversion of

funds that Thomas perpetrated against plaintiff. Nor does plaintiff claim he


                                                                        A-3205-18T1
                                      24
relied on any of the internet postings, business cards, or advertisements placed

by Rodney in engaging Thomas to handle the real estate funds or in retaining

the law firm to represent him.

      To establish fraud, plaintiff must prove "(1) a material misrepresentation

of a presently existing or past fact; (2) knowledge or belief by the defendant of

its falsity; (3) an intention that the other person rly on it; (4) reasonable reliance

thereon by the other person; and (5) resulting damages." Banco Popular N. Am.

v. Gandi, 184 N.J. 161, 172-73 (2005) (quoting Gennari v. Weichert Co.

Realtors, 148 N.J. 582, 610 (1997)). A person can also be liable if he "knows

that the other's conduct constitutes a breach of duty and gives substant ial

assistance or encouragement to the other so to conduct himself." Judson v.

Peoples Bank & Trust Co., 25 N.J. 17, 29 (1957) (citation omitted).

      The lack of any personal participation by Rodney in the fraud or

conversion of plaintiff's funds coupled with the absence of any reliance of

plaintiff on Rodney's internet postings, or other representations regarding

Thomas' legal credentials, precludes recovery against Rodney for fraud or

conversion.8


8
  New Jersey does not recognize separate torts of misrepresentation or theft.
Rather, misrepresentation is encompassed in the tort of fraud and theft is


                                                                             A-3205-18T1
                                         25
      Rodney was a shareholder of the law firm. Plaintiff argues Rodney is

personally liable for the torts committed by Thomas or the law firm because

Rodney was a principal of the firm. While a partner of a general partnership is

liable for the torts committed by another partner or employee, Youman & Abad

was incorporated in Ecuador. Notably, Rodney was not an officer of the firm.

      Under New Jersey law, a shareholder or employee of a corporation or LLC

is not personally liable for the debts, negligence, or intentional torts committed

by the corporation or LLC, unless they were a borrower, co-signor on the debt;

were personally negligent; or personally participated in the intentional tort. See

N.J.S.A. 42:2C-30.

      A corporation is a separate entity from its shareholders. Lyon v. Barrett,

89 N.J. 294, 300 (1982). A primary reason for incorporation is the insulation of

shareholders from the liabilities of the corporate enterprise. Adolf A. Berle, Jr.,

The Theory of Enterprise Entity, 47 Colum. L. Rev. 343 (1947); Note, Piercing

the Corporate Veil: The Alter Ego Doctrine Under Federal Common Law, 95

Harv. L. Rev. 853, 854 (1982); H. Henn, Law of Corporations § 146, at 250 (2d

ed. 1961).




encompassed within the tort of conversion. Accordingly, we do not discuss
misrepresentation or theft separately.
                                                                          A-3205-18T1
                                       26
      Nevertheless, the power to look beyond the corporate form is well

established. Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388,

393 (App. Div. 1989). Piercing the corporate veil is a doctrine designed to

prevent a corporation or limited liability company "from being used to defeat

the ends of justice, to perpetrate fraud, to accomplish a crime, or otherwise to

evade the law." Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 500 (1983)

(citations omitted).

      Except in cases of fraud, injustice, or the like, courts will not pierce a

corporate veil. Lyon, 89 N.J. at 300. Personal liability may be imposed upon a

controlling stockholder of a close corporation where the controlling stockholde r

disregards the corporate form and utilizes the corporation as a vehicle for

committing equitable or legal fraud. Marascio v. Campanella, 298 N.J. Super.

491, 502 (App. Div. 1997) (citing Walensky v. Jonathan Royce Int'l, Inc., 264

N.J. Super. 276, 283, (App. Div. 1993)). A party seeking to pierce the corporate

veil must establish: (1) that the entity was "dominated" by the individual owner,

and (2) "that adherence to the fiction of separate corporate existence would

perpetrate a fraud or injustice, or otherwise circumvent the law." Verni ex rel.

Burstein v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 199-200 (App. Div.

2006) (citing Ventron, 94 N.J. at 500-01).


                                                                        A-3205-18T1
                                      27
      Similarly, the Revised Uniform Limited Liability Company Act, N.J.S.A.

42:2C-1 to -94, provides in pertinent part:

            [t]he debts, obligations, or other liabilities of a limited
            liability company . . . are solely the debts, obligations,
            or other liabilities of the company[,] and [they] do not
            become the debts, obligations, or other liabilities of a
            member or manager solely by reason of the member
            acting as a member or manager acting as a manager.

            [N.J.S.A. 42:2C-30.]

      The record is devoid of any facts warranting imposition of individual

liability on Rodney for the acts of Thomas or the corporation by piercing the

corporate veil.

      Nor is there any basis to impose individual liability on Rodney under the

tort participation theory. The "essential predicate for application of the [tort

participation] theory is the commission by the corporation of tortious conduct,

participation in that tortious conduct by the corporate officer and resultant injury

to the plaintiff." Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 309 (2002).

Under that theory, corporate officers and employees could be individually liable

for their affirmative acts of misrepresentation.

      In Allen v. V and A Brothers., Inc., 208 N.J. 114 (2011), the Court held

the Consumer Fraud Act (CFA) permits the imposition of individual liability

upon one whose acts are part of a violation by a corporation. Id. at 131 (citing

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                                        28
N.J.S.A. 56:8-2). The Court made clear, however, that "individuals were not

liable merely because of the act of the corporate entity and no court suggested

that they could be." Id. at 132. In order to impose individual liability, the

individual employee or corporate officer must have personally "engaged in

conduct prohibited by the CFA." Ibid. That reasoning applies with equal force

here.

        Aside from the statements Rodney published that misrepresented Thomas

as an attorney, which plaintiff admittedly did not rely upon, plaintiff presented

no evidence that Rodney personally engaged in fraud, the conversion of

plaintiff's funds, or any conduct that led to the conversion. Accordingly, he is

not personally liable to plaintiff under the tort participation theory.

        In sum, plaintiff lacked evidence to render Rodney personally liable for

fraud or conversion for his own conduct, the acts of Thomas, or the acts or

omissions of the law firm. Accordingly, we discern no basis to overturn the

order dismissing the complaint regardless of the comments of the trial judge that

led to plaintiff deciding not to proceed with the jury trial and the ultimate

dismissal.




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                                        29
                                       VI.

      Lastly, we address the denial of Rodney's claim for frivolous litigation

sanctions. The trial court denied such sanctions because it denied summary

judgment of the fraud and conversion count, citing United Hearts.

      We review the award or denial of frivolous litigation sanctions for abuse

of discretion. McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div.

2011). Reversal is warranted "only if [the decision] 'was not premised upon

consideration of all relevant factors, was based upon consideration of irrelevant

or inappropriate factors, or amounts to a clear error of judgment.'" Ibid. (quoting

Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).

      In United Hearts, we reversed the award of frivolous litigation sanctions

where the trial court had denied summary judgment in part and allowed the case

to proceed to trial. 407 N.J. Super. at 394. We concluded the attorney was not

required to withdraw the complaint even after the court granted summary

judgment in part and denied it in part. Id. at 393. We explained:

            A court may impose sanctions upon an attorney if the
            attorney files a paper that does not conform to the
            requirements of Rule 1:4-8(a), and fails to withdraw the
            paper within twenty-eight days of service of a demand
            for its withdrawal. R. 1:4-8(b)(1).

                  For purposes of imposing sanctions under Rule
            1:4-8, an assertion is deemed "frivolous" when "no

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                                       30
rational argument can be advanced in its support, or it
is not supported by any credible evidence, or it is
completely untenable." First Atl. Fed. Credit Union v.
Perez, 391 N.J. Super. 419, 432 (App. Div. 2007)
(quoting Fagas v. Scott, 251 N.J. Super. 169, 190 (Law
Div. 1991)).

      ....

       "[C]ontinued prosecution of a claim or defense
may, based on facts coming to be known to the party
after the filing of the initial pleading, be sanctionable
as baseless or frivolous even if the initial assertion of
the claim or defense was not." Iannone v. McHale, 245
N.J. Super. 17, 31 (App. Div. 1990) (applying N.J.S.A.
2A:15-59.1). The "requisite bad faith or knowledge of
lack of well-groundedness may arise during the conduct
of the litigation." Ibid. (citing Chernin v. Mardan
Corp., 244 N.J. Super. 379 (Ch. Div. 1990)).

      Sanctions are warranted "only when the pleading
as a whole is frivolous or of a harassing nature[.]" Id.
at 32 (quoting Romero v. City of Pomona, 883 F.2d
1418, 1429 (9th Cir. 1989)). "That some of the
allegations made at the outset of litigation later proved
to be unfounded does not render frivolous a complaint
that also contains some non-frivolous claims." Ibid.
(quoting Romero, 883 F.2d at 1429).

      ....

      Indeed, Rule 1:4-8(a)(3) makes clear that an
attorney need not withdraw a pleading if it is "likely"
that the allegations will have evidentiary support or
"will be withdrawn or corrected if reasonable
opportunity for further investigation or discovery
indicates insufficient evidentiary support[.]"


                                                            A-3205-18T1
                          31
                  ....

                  [S]anctions are not warranted if an attorney has a
            reasonable and good faith belief in the claims being
            asserted. In our judgment, a pleading cannot be deemed
            frivolous as a whole nor can an attorney be deemed to
            have litigated a matter in bad faith where, as in this
            case, the trial court denies summary judgment on at
            least one count in the complaint and allows the
            complaint to proceed to trial.

            [Id. at 389-94.]

      That is precisely what occurred here.        The court granted summary

judgment dismissing the legal malpractice count but denied summary judgment

as to the fraud and conversion count, allowing those claims to proceed to trial.

On the day trial was to commence, plaintiff ostensibly agreed to the dismissal

of the fraud and conversion count after the court barred him from introducing

Martin's report or testimony. Plaintiff did so without Rodney renewing his

motion to dismiss that count or the court substantively ruling that there was

insufficient evidence for plaintiff to prevail or that the fraud and conversion

count was frivolous. Instead, plaintiff followed the trial judge's suggestion that

he pursue an appeal of the dismissal of the legal malpractice count and the order

barring the introduction of Martin's testimony and report. To be sure, the trial

judge did not issue a ruling determining that the fraud and conversion allegations



                                                                         A-3205-18T1
                                       32
were frivolous. The merits of plaintiff's claims of fraud and conversion were

never adjudicated on the merits.

      Moreover, plaintiff obtained a default judgment against Thomas, Youman

& Abad, and Youman & Youman on the fraud and conversion count.

Defendant's initial motion to dismiss the complaint was denied.           Rodney

abandoned his defenses of lack of subject matter jurisdiction and forum non

conveniens at the trial level and has not pursued those defenses on appeal.

      Rodney contends the summary judgment motion judge erred in finding

that several genuine issues of material fact precluded dismissal of the fraud and

conversion count. We disagree. The judge was required to view the facts in a

light most favorable to plaintiff and afford plaintiff all reasonable inferences.

R. 4:46-2(c); Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 4:46-

2 (2020). We discern no error.

      Given the unique facts and circumstances, the denial of frivolous litigation

sanctions was not an abuse of discretion.

      To the extent we have not expressly discussed any issues raised by either

party it is because they lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed.


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