NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0108-08T10108-08T1

LAURA HIGGINS and ROBYN

CALCATERRA,

Plaintiffs-Appellants,

v.

MARY F. THURBER and THURBER

CAPPELL, LLC,

Defendants-Respondents.

____________________________________________________

Telephonically argued February 22, 2010 - Decided

Before Judges Axelrad, Fisher and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1329-07.

Gerald J. Monahan argued the cause for appellants.

Robert B. Hille argued the cause for respondents (Kalison, McBride, Jackson & Hetzel, attorneys for respondents; Mr. Hille, of counsel and on the brief; John W. Kaveney, on the brief).

The opinion of the court was delivered by

FISHER, J.A.D.

In this appeal, we consider, among other things, whether this legal malpractice action commenced by plaintiffs Laura Higgins and Robyn Calcaterra against defendants Mary F. Thurber and Thurber Cappell, LLC, the attorneys for the estate of their late father, was properly found precluded by the disposition of earlier lawsuits or otherwise barred, at least in part, by the statute of limitations. Although the claims against defendant-attorneys may have been asserted by Laura and Robyn in an earlier probate proceeding, we reverse because we cannot conclude that they were then given a full and fair opportunity to litigate those claims or that it would otherwise be equitable to bar this subsequent suit.

I

In reviewing the entry of summary judgment, we apply the same standard that governs the trial court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., Ltd., 399 N.J. Super. 158, 180-81 (App. Div.), certif. denied, 196 N.J. 85 (2008). In applying the Brill standard, we examine the record to determine whether there are disputes of material facts relevant to the legal issues posed. Having closely canvassed the record, we agree with the trial judge that the facts relevant to the application of the entire controversy doctrine are not in dispute; indeed, that determination constituted a matter of law and equity that pivoted on an understanding of the protracted procedural history of the litigation surrounding the estate, as to which there is no legitimate question. We, thus, turn to the history of the lawsuits involving this estate.

The record reveals that Salvatore John Calcaterra (decedent or Sal) died on April 11, 1996. At that time he was married to his second wife, Donna Calcaterra. He was also survived by five children. Decedent's first wife was the mother of decedent's first four children -- Laura, Michael, Sally and Robyn. Donna was the mother of decedent's fifth child, Jenna, who was born in 1984 and a minor at the time of Sal's death.

Prior to his death, Sal and Donna became estranged. Sal commenced a divorce action and executed a Will that disinherited Donna. However, during his final illness, Sal dismissed the divorce action, but he did not change his Will. Prior to Sal's death, Donna, who held a power of attorney from Sal, transferred to herself four of six seats Sal held on the New York Mercantile Exchange (NYMEX).

Sal's Will named his son Michael as executor of his estate. In 1996, Michael, as executor, commenced an action against Donna in the Chancery Division, Bergen County. Michael retained defendant-attorneys, who filed a complaint alleging that Donna had improperly transferred the NYMEX seats and other assets (the NYMEX suit). The complaint sought, among other things, injunctive relief, a constructive trust, and return of the NYMEX seats and other property to the estate.

Slightly more than two years after the commencement of the NYMEX suit, the estate experienced problems staying current with accruing legal fees. According to an agreement executed on December 13, 1998, the estate and its beneficiaries -- including Laura and Robyn -- agreed defendant-attorneys would ultimately be entitled to a portion of the estate's gross recovery in the NYMEX suit. This written modification agreement also indicated that the beneficiaries would receive periodic invoices for the services rendered by defendant-attorneys.

Following a bench trial, the trial judge ruled in the NYMEX suit, on March 31, 1999, that the estate was entitled to four and Donna entitled to two of the NYMEX seats. Donna appealed and the estate cross-appealed. We affirmed by way of an unpublished opinion. In re Estate of Salvatore John Calcaterra, No. A-5739-98 (App. Div. Oct. 11, 2000).

On October 29, 1999, prior to our disposition of the appeal in the NYMEX suit, Donna commenced an action in the Chancery Division, Bergen County, against Michael and Robyn (the 1999 removal suit). Donna alleged that Michael had engaged in misconduct in his role as executor and that Robyn, who had been appointed Jenna's guardian ad litem pursuant to decedent's Will, had not acted in Jenna's best interests; she sought the removal of Michael and Robyn from those offices. Donna's verified complaint was dismissed with prejudice on January 14, 2000. The record on appeal does not disclose the reasons for dismissal.

On June 12, 2001, Donna commenced another action in the Chancery Division, Bergen County (the 2001 removal action). In this action, she again sought the removal of Michael and Robyn from their positions as well as Michael's submission of a formal accounting. In response, Robyn filed a certification, dated November 26, 2001, claiming she and her sisters: had "the opportunity on several occasions to meet with counsel" and Michael; "reviewed the estate information with both legal and accounting professional advisors"; "asked questions [and] received answers"; "underst[oo]d all of the estate expenses and the issues related to estate income"; and had "confidence that [Michael] has administered the estate properly and fairly for the benefit of all the beneficiaries." In addition, Robyn certified that Donna's contentions

suggest that the [informal] accounting raises many questions . . . and implies we did not ask them. She is wrong. Th[e] [informal accounting] is a summary of infor-mation we received, reviewed, and under-stood. We believe that no good can come to the Estate by providing more detail to Donna [], who is the cause of most of the significant legal expenses incurred by the estate, and also the cause of substantial delay in the finalization of tax returns. We want the draining of the estate for legal expense to end, and that can only happen if Donna is stopped.

In 2003, the trial judge rejected Donna's efforts to remove Michael and Robyn or to compel a distribution. When efforts to resolve the accounting disputes proved unsuccessful, the judge directed Michael to file a formal accounting.

On October 10, 2003, Michael filed a complaint in the Chancery Division, Bergen County, for approval of his formal accounting. In re Estate of Salvatore John Calcaterra, Docket No. BER-P-37-04 (the formal accounting action). Exceptions were filed by Sally's estate and by Jenna.

On March 18, 2005, while the formal accounting action remained pending and unresolved, Jenna filed suit in the Law Division, Somerset County, against Michael, Robyn and defendant-attorneys. Jenna Calcaterra and Sal Calcaterra & Company, LLC v. Mary F. Thurber, Thurber & Cappell, LLC, Michael Gerard Calcaterra and Robin Lynn Welling, Docket No. SOM-L-427-05 (the Somerset legal malpractice action). She alleged, among other things, that Michael and Robyn breached their fiduciary duties and that defendant-attorneys committed legal malpractice in representing the estate. In April 2005, Robyn filed a cross-claim against defendant-attorneys; in "denying any wrongdoing of any defendants which was the proximate cause of damage to [Jenna]," Robyn sought contribution and indemnification from the other defendants to that suit.

In November 2005, while the Somerset legal malpractice action remained pending, Robyn and Laura filed exceptions in the formal accounting action still pending in Bergen County. The exceptions were highly critical of the services rendered by defendant-attorneys and questioned the propriety of the 1998 fee agreement. All components of the Somerset legal malpractice action were dismissed by way of summary judgment on February 23, 2006.

By way of a March 20, 2006 consent order, defendant-attorneys were permitted to intervene in the formal accounting action pending in Bergen County "with respect to issues related to or arising out of [their] legal representation of the [e]state . . . and the legal fees and costs incurred in connection therewith." The March 20, 2006 order expressly stated that its entry would have no effect on the trial date, which was scheduled for May 30, 2006, slightly more than two months later.

On May 26, 2006 -- four days before the trial date -- the judge in the formal accounting action considered a motion filed by Laura and Robyn to limit the defense of defendant-attorneys to certain issues. At that time, the parties agreed, as stated in the judge's order, that Laura and Robyn's claims against defendant-attorneys were "voluntarily dismissed, with the sole exception of the claims related to legal fees and costs charged to the [e]state and [the trust] as reflected in the [a]ccountings submitted for approval," and that defendant-attorneys' participation "shall accordingly be limited to defense of those claims." The order also stated that Laura and Robyn's "motion for entry of an order limiting [defendant-attorneys'] right to assert preclusionary defenses in any future proceeding is denied," and that defendant-attorneys' "application for an [o]rder pursuant to Rule 4:30A excepting from the [e]ntire [c]ontroversy [d]octrine's application her right to pursue claims for fees and costs incurred in intervention is granted and said claims are expressly reserved."

On May 31, 2006, the judge entered a consent order that resolved other claims. That order:

-- "voluntarily dismiss[ed], without prejudice" Laura and Robyn's action against defendant-attorneys "for repayment of fees paid to her by the Estate and Trust";

-- memorialized defendant-attorneys' "waive[r] [of] the defense of the bar of the [e]ntire [c]ontroversy [d]octrine and the defense" of Laura and Robyn's "lack of standing to sue [defendant-attorneys] in a separate action seeking disgorgement of a portion of the attorney fees charged to the [e]state . . . pursuant to the [December 13, 1998 fee agreement]," but did not constitute a waiver of "any other claim";

-- declared that "[w]ith respect to any claim in a separate action" by Laura and Robyn against defendant-attorneys "for dis-gorgement of their proportionate share of the interest component of the hourly portion of the contingent fee, [defendant-attorneys] will not raise or have the benefit of any statute of limitations defense not now available to Michael Calcaterra as Executor in the [formal accounting action]."

On June 22, 2006, the judge entered final judgment with regard to the remaining aspects of the formal accounting.

On May 10, 2007, Laura and Robyn filed this action in the Law Division, Morris County, against defendant-attorneys, alleging legal malpractice, breach of contract, breach of the implied covenant of good faith and fair dealing, and the excessiveness and unreasonableness of the fees obtained by defendant-attorneys from the estate. Defendant-attorneys moved to dismiss the complaint. Properly viewing the motion as seeking summary judgment in light of the motion's referral to matters outside the pleadings, Lederman v. Prudential Life Ins. Co. of Am., Inc., 385 N.J. Super. 324, 337 (App. Div.), certif. denied, 188 N.J. 353 (2006), the judge held that the legal malpractice claim was barred by the entire controversy doctrine and the fee-disgorgement claim was barred by the statute of limitations.

We first examine the judge's application of the entire controversy doctrine and, thereafter, the judge's application of the statute of limitations.

II

In considering the application of the entire controversy doctrine to Laura and Robyn's legal malpractice claim, we start with the understanding that "the doctrine is one of judicial fairness and will be invoked in that spirit." Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 343 (1984). The doctrine was judicially created as a "reflection of . . . the unification of the state courts" in light of our Constitution's recognition of "the value in resolving related claims in one adjudication so that 'all matters in controversy between parties may be completely determined.'" Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310, 322 (1995) (quoting N.J. Const. art. VI,