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Donohue v. Kuhn

July 16, 1997

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.



On certification the Superior Court, Appellate Division, whose opinion is reported 292 N.J. Super. 197, 678 A.2d 737 (1996).

The opinion of the Court was delivered by Pollock, J. 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.

The opinion of the court was delivered by: Pollock

(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).

Donohue v. Kuhn, 150 N.J. 484, 696 A.2d 664.

(NOTE: This is a companion case to Olds v. Donnelly and Karpovich v. Barbarula, also decided today.)

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, 678 A.2d 737(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), ...


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