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Mustilli v. Mustilli

November 1, 1995

ALEXANDER J. MUSTILLI, PLAINTIFF,
v.
JOAN MUSTILLI, DEFENDANT.



Clarkson S. Fisher, Jr., J.s.c.

The opinion of the court was delivered by: Fisher

Civil Action

CLARKSON S. FISHER, JR., J.S.C.

The motions recently filed by plaintiff, Alexander Mustilli, raise interesting questions regarding the applicability of the entire controversy doctrine to this matrimonial action. Before reaching those issues, it is important to review the procedural history of this case.

I

PROCEDURAL HISTORY

This once relatively simple matrimonial action was commenced by the filing of a complaint on December 20, 1994. The matter went before an ESP panel on June 20, 1995, but did not settle. That same day, the court held a settlement conference which also did not bear fruit; both counsel agreed that the only thing left to do was assign a trial date. No one suggested the need for further discovery.

The case was assigned a trial date of September 21, 1995. Prior to that time, plaintiff retained new counsel (hereinafter "plaintiff's second attorney") who promptly filed a motion for leave to file an amended complaint (to set forth a claim for damages against defendant) on August 23, 1995. Due to this late filing, the motion was made returnable on the trial date. Before arguing the motion, the parties engaged in extensive Discussions, with and without the court, in an effort to settle the case. At the Conclusion of these Discussions, plaintiff's second attorney advised that a settlement appeared at hand but desired more time to review the proposed terms with his client. In light of that representation, the motion to amend was placed in abeyance and the trial adjourned indefinitely.

A few days later, plaintiff's second attorney advised that the case was not settled and requested that the motion to amend be relisted. The court placed that motion on its calendar for October 13, 1995. The motion was denied and a trial date set for October 23, 1995.

On October 18, 1995, by way of a telephone conference, the court was advised that plaintiff had terminated his relationship with his second attorney and had retained new counsel (hereinafter "plaintiff's new counsel"). Because of the pending trial date, plaintiff's new counsel sought leave to appear pursuant to R. 1:11-2. At that time, new counsel argued that the trial should be adjourned because of the substitution and also because of a perceived need to file an amended complaint in order to assert a legal malpractice action against plaintiff's first attorney. The court indicated that the substitution of counsel would not be permitted if the adjournment was sought for any reason other than the effect of the motion to file an amended complaint to include a legal malpractice action. New counsel then advised that the adjournment would be sought only for the latter reason. The court permitted the substitution and directed that the motion for leave to file an amended complaint be filed no later than October 20, 1995, returnable on October 23, 1995, i.e., the trial date.

On the morning of October 20, 1995, the court received a motion for an adjournment of the trial date due to plaintiff's claimed need for additional discovery. The court immediately scheduled a telephone conference with plaintiff's new counsel, his second attorney and defense counsel. Since the plaintiff, contrary to the representations of new counsel on October 18, 1995, was seeking a delay of the trial for reasons previously waived, the substitution of counsel issue was revisited. The court permitted the substitution for reasons placed on the record at that time and indicated that the motion for an adjournment of the trial would be heard on October 23, 1995 along with the motion to amend the complaint which was also filed later that day. Plaintiff also moved, at the same time, for (1) reconsideration of the October 13, 1995 order (which denied leave to file an amended complaint to include a damages claim), and (2) a dismissal of defendant's counterclaim for damages.

II

THE MOTION TO AMEND THE COMPLAINT TO INCLUDE A LEGAL MALPRACTICE ACTION

The impact of the entire controversy doctrine on plaintiff's assertion of a legal malpractice claim must be assessed in the light of the quartet of entire controversy cases recently decided by our Supreme Court. *fn2 While much has been said of the entire controversy doctrine in recent days -- particularly regarding that doctrine's impact on a later-asserted legal malpractice action *fn3 -- nothing has been said about the accrual of a legal malpractice action during the pendency of a matrimonial action and very little at all about the entire controversy doctrine's impact in family part actions. In the wake of Giovine v. Giovine, 284 N.J. Super. 3, 663 A.2d 109 (App. Div. 1995) and Circle Chevrolet, these issues can be ...


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