(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: This is a companion case to Olds v. Donnelly and Karpovich v. Barbarula, also decided today.)
Argued February 3, 1997 -- Decided July 16, 1997
Pollock, J., writing for a majority of the Court.
This is another case involving the application of the entire controversy doctrine to a legal-malpractice action.
Plaintiff, Dorothy Donohue, is the widow and executrix of the estate of William Donohue. Plaintiffs
allege that they retained defendant, Clifford N. Kuhn, to represent their interests following the murder of
William Donohue by Joseph Peplinski on May 5, 1987. At Peplinski's criminal trial in 1989, it was revealed
that his mother, Rosalind, had provided him with the murder weapon, a knife.
Plaintiffs allege that Kuhn failed to institute an action asserting wrongful death and survivorship
claims within the relevant periods of limitation. Represented by separate counsel, plaintiffs filed a complaint
asserting such claims against Rosalind Peplinski. The Law Division dismissed the wrongful death claim as
beyond the statute of limitations on September 26, 1990. It permitted the survivorship claim to proceed. In
January 1993, the Law Division granted Rosalind's motion for summary judgment for dismissal of the
survivorship claim because her conduct was not the proximate cause of William Donohue's death. Plaintiffs
appealed.
On October 14, 1993, while the appeal was pending, plaintiffs filed the present malpractice action
against Kuhn. Four months later, the Law Division entered an order that stayed discovery in the malpractice
action pending resolution of the appeal from the dismissal of the survivorship action. On July 22, 1994, the
Appellate Division reversed the summary judgment dismissing the survivorship action. Plaintiffs and
Rosalind Peplinski reached a settlement on December 4, 1994.
On December 29, 1995, Kuhn moved for summary judgment, asserting that the entire controversy
doctrine barred this legal malpractice action. He contends that after the dismissal of the wrongful death
claim and while the survivorship claim was pending, plaintiffs should have amended the complaint to include
their malpractice claim against him. The Law Division denied the motion, apparently reasoning that because
the survivorship action was still pending when plaintiffs instituted the malpractice action against Kuhn, the
entire controversy doctrine did not bar the action.
The Appellate Division reversed.
292 N.J. Super. 197 (1996). It held that plaintiffs knew or should
have known of Kuhn's legal malpractice at the time of the dismissal of the wrongful death action.
HELD: The entire controversy doctrine does not compel joinder of legal-malpractice claims in underlying
actions.
1. The Court adopts the rationale of the companion opinion of Olds v. Donnelly, N.J. (1997), also
decided today. (p. 5)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law
Division.
JUSTICE STEIN, concurring in part and dissenting in part, is of the view that the entire controversy
doctrine should no longer bar suits against parties omitted from prior litigation.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, and COLEMAN
join in JUSTICE POLLOCK's opinion. JUSTICE STEIN has filed a separate opinion, concurring in part
and dissenting in part.
SUPREME COURT OF NEW JERSEY
A-
121 September Term 1996
DOROTHY DONOHUE, Individually
and as Executrix of the Estate
of William H. Donohue; ERIN DONOHUE,
KERRY DONOHUE and SEAN DONOHUE,
Plaintiffs-Appellants,
v.
CLIFFORD N. KUHN, JR.,
Defendant-Respondent.
Argued February 3, 1997 -- Decided July 16, 1997
On certification the Superior Court,
Appellate Division, whose opinion is reported
292 N.J. Super. 197 (1996).
James M. Nardelli argued the cause for
appellants (Parsons Cappiello & Nardelli,
attorneys).
Michael B. Oropollo argued the cause for
respondent (Harwood Lloyd, attorneys).
Andrew P. Napolitano argued the cause for
amicus curiae, New Jersey State Bar
Association (Cynthia M. Jacob, President,
attorney; Linda Lashbrook, on the brief).
The opinion of the Court was delivered by
POLLOCK, J.
This is the third opinion in which we hold that the entire
controversy doctrine does not bar a subsequent legal-malpractice
action. Plaintiffs are Dorothy Donohue, widow and executrix of
the estate of William Donohue, and their children, Erin, Kerry,
and Sean. Defendant, Clifford N. Kuhn, is an attorney whom
plaintiffs claim they retained to represent their interests
following the murder of William Donohue by Joseph Peplinski on
May 5, 1987. Kuhn denies that plaintiffs retained him.
Peplinski's criminal trial in 1989 revealed that his mother,
Rosalind, had provided him with the murder weapon, a knife.
Because the matter arises on the appeal from Kuhn's motion to
dismiss, we accept plaintiffs' allegations as true.
Plaintiffs allege that Kuhn failed to institute an action
asserting wrongful death and survivorship claims within the
relevant periods of limitation. On February 26, 1990,
plaintiffs, represented by separate counsel, filed a complaint
asserting such claims against Rosalind Peplinski and a fictitious
defendant identified as "John Doe." On September 26, 1990, the
Law Division dismissed the wrongful death claim as having been
instituted beyond the two year period of limitations provided by
N.J.S.A. 2A:31-3. Plaintiffs did not appeal from the dismissal.
The Law Division permitted the survivorship claim to
proceed, reasoning that the claim did not accrue under N.J.S.A.
2A:14-2, the statute of limitations pertaining to such claims,
until plaintiffs discovered in 1989 that Rosalind Peplinski had
provided the murder weapon to her son. In January, 1993, the Law
Division granted Rosalind's motion for summary judgment for
dismissal of the survivorship claim because her conduct was not
the proximate cause of William Donohue's death. Plaintiffs
appealed.
On October 14, 1993, while the appeal was pending,
plaintiffs filed the present malpractice action against Kuhn.
Four months later, the Law Division entered an order that stayed
discovery in the malpractice action, pending resolution of the
appeal from the dismissal of the survivorship action. On July
22, 1994, the Appellate Division reversed the summary judgment
dismissing that action. Thereafter, the parties reached a
settlement on December 4, 1994.
On December 29, 1995, Kuhn moved for summary judgment,
asserting that the entire controversy doctrine barred this legal-malpractice action. He contends that after dismissal of the
wrongful death claim and while the survivorship claim was
pending, plaintiffs should have amended the complaint to include
their malpractice claim against him.
The Law Division denied Kuhn's motion for summary judgment
on February 2, 1996. Although the record is not clear, the trial
court apparently reasoned that because the survivorship action
was still pending when plaintiffs instituted the malpractice
action against Kuhn, the entire controversy doctrine did not bar
the action. Additionally, the court reasoned that the stay of
discovery in the legal-malpractice action indicated that both
Kuhn and the court in that action were aware of the pendency of
the survivorship action. According to the court, Kuhn's failure
to participate in discovery in the survivorship action did not
prejudice him.
The Appellate Division reversed and entered summary judgment
for Kuhn.
292 N.J. Super. 197 (1996). It rejected plaintiffs'
contention that their legal-malpractice claim against Kuhn did
not accrue until the Appellate Division reversed the dismissal of
the survivorship action. Id. at 201. The court reasoned that
"plaintiffs were legally obligated to believe that they had a
viable action [against Kuhn] when they filed the [malpractice]
complaint" before the reversal of the dismissal of the
survivorship claim. According to the Appellate Division, on
dismissal of the wrongful death claim, plaintiffs knew or should
have known of Kuhn's alleged failure to sue within the relevant
period of limitations. Consequently, plaintiffs should have
informed the Law Division of their malpractice claim before that
court dismissed the survivorship claim. Finally, the court
stated that plaintiffs' failure to join Kuhn in the survivorship
action deprived the Law Division of the opportunity to manage the
proceedings. Id. at 204.
The Appellate Division further held that the stay of
discovery in the legal-malpractice action was "irrelevant"
because the entire controversy doctrine barred that action on
filing. Id. at 202. It also found irrelevant the fact that
another part of the Appellate Division had reversed the dismissal
of the survivorship action, explaining "we do not believe that
the failure to timely commence an action in the trial court can
be saved by the happenstance of a reversal following judgment."
Id. at 204.
In sum, the Appellate Division held that plaintiffs knew or
should have known of Kuhn's legal malpractice at the time of the
dismissal of the wrongful death action. Ibid. The court
concluded that the entire controversy doctrine required
plaintiffs to "amend their original complaint to name Kuhn as a
defendant after the wrongful-death action was dismissed while the
balance of the [survivorship] complaint was still before the
trial court." Ibid. We granted plaintiffs' petition for
certification,
146 N.J. 568 (1996), and now reverse.
In Olds v. Donnelly, the lead opinion in today's trilogy, we
have discussed the practical problems arising from the
application of the entire controversy doctrine to legal
malpractice claims. Olds v. Donnelly, N.J. , (1997)
(slip op. at 19-24). For the reasons set forth at Olds, we hold
that the entire controversy doctrine does not compel joinder of
legal-malpractice claims in underlying actions. Id. at (slip
op. at 3). Thus, the entire controversy doctrine does not bar
plaintiffs' claim against Kuhn.
The judgment of the Appellate Division is reversed, and the
matter is remanded to the Law Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN,
GARIBALDI, and COLEMAN join in JUSTICE POLLOCK's opinion.
JUSTICE STEIN has filed a separate opinion, concurring in part
and dissenting in part.
SUPREME COURT OF NEW JERSEY
A-
121 September Term 1996
DOROTHY DONOHUE, Individually
and as Executrix of the Estate
of William H. Donohue; ERIN DONOHUE,
KERRY DONOHUE and SEAN DONOHUE,
Plaintiffs-Appellants,
v.
CLIFFORD N. KUHN, JR.,
Defendant-Respondent.
STEIN, J., concurring in part and dissenting in part.
I join in the Court's disposition of this appeal, but not
because I agree with its determination that the entire
controversy doctrine should not apply to attorney-malpractice
claims. Rather, for the reasons stated in my concurring and
dissenting opinion in Olds v. Donnelly, ___ N.J. ___ (1997), also
decided today, I would overrule Cogdell v. Hospital Center at
Orange,
116 N.J. 7 (1989), and consequently no longer would apply
the entire controversy doctrine to bar suits against parties
omitted from prior litigation.
NO. A-121 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
DOROTHY DONOHUE, Individually
and as Executrix of the Estate
of William H. Donohue; ERIN DONOHUE,
KERRY DONOHUE and SEAN DONOHUE,
Plaintiffs-Appellants,
v.
CLIFFORD N. KUHN, JR.,
Defendant-Respondent.
DECIDED July 16, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Pollock
CONCURRING/DISSENTING OPINION BY Justice Stein
DISSENTING OPINION BY