Donohue v. Kuhn

• Decision Date: 16 July 1997
• Citation: 696 A.2d 664,150 N.J. 484
• Parties: 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.
• Court: New Jersey Supreme Court

Page 484

150 N.J. 484

696 A.2d 664

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.

Supreme Court of New Jersey.

Argued Feb. 3, 1997.

Decided July 16, 1997.

James M. Nardelli, Fair Haven, for plaintiffs-appellants (Parsons Cappiello & Nardelli, attorneys).

Michael B. Oropollo, Montclair, for defendant-respondent (Harwood Lloyd, attorneys).

Andrew P. Napolitano, Newark, 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, 678 A.2d 737 (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, 678 A.2d 737. 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. F...