On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication December 18, 1997.
Before Judges Shebell, A.a. Rodriguez and Coburn. The opinion of the court was delivered by Coburn, J.A.D.
The opinion of the court was delivered by: Coburn
The opinion of the court was delivered by
Plaintiff Ralph A. Mocci appeals from a summary judgment granted to the defendants under the entire controversy doctrine. The circumstances are unusual and involve an unprecedented application of the doctrine. The defendants negligently performed engineering services for the plaintiff, or so we must assume for purposes of this decision, in connection with his contract to purchase land for development. Having analyzed the wrong property, they advised plaintiff that the property he had contracted to purchase contained wetlands. In reliance upon their opinions, he cancelled the contract, pursuant to its terms, and sued for return of his deposit. In the trial, the defendants testified on his behalf as expert witnesses. Plaintiff prevailed at the trial, but later learned that his experts had mistakenly surveyed the wrong property. He then instituted the subject lawsuit. The Law Division Judge held that the entire controversy doctrine barred the claim because of plaintiff's "failure" to join his own expert witnesses as parties in the original action. Since we are convinced that the entire controversy doctrine does not bar this action, and since we are also convinced that the principle of collateral estoppel, raised below but not addressed there by the court, is inapplicable, we reverse and remand.
On November 9, 1987, plaintiff Mocci, a real estate developer, entered into a contract with Moyfrid Whiteman Mazzella to purchase a 9.353 acre parcel of land in Old Bridge for $950,000. The agreement was contingent upon Mocci's ability to obtain site plan approval for a subdivision of at least twenty single-family houses. It also called for an initial payment of $25,000 which would be refunded to Mocci if it appeared within ninety days that there were substantial engineering soil problems on the site.
Mocci retained defendants Michael T. Carr and Carr Engineering Associates, P.A., to conduct the soil engineering analysis. The Carr defendants, in turn, retained defendant International Technology Corporation and its employee, defendant Ronald W. Prann, to delineate the presence of any wetlands on the property. When the defendants reported to Mocci that the property contained wetlands which would reduce the number of developable lots from twenty to fourteen, he unsuccessfully attempted to negotiate a reduction in the purchase price and then advised Mazzella that he was terminating the contract. She refused his demand for a return of the $25,000, and he instituted suit against her. In the trial of that action, defendants Carr and Prann testified as expert witnesses on behalf of Mocci. Mazzella testified that the experts were mistaken because there were no wetlands on her property. She insisted that they had staked and surveyed adjoining property owned by her neighbor. Her position was supported by an expert witness whose Conclusions were based on an inspection of her property. On March 19, 1991, the jury returned a verdict in favor of Mocci and a judgment was entered against Mazzella for the $25,000.
In July, 1994, Mazzella instituted an action against the Carr defendants alleging that they had either been negligent in their wetlands analysis or had conspired with Mocci to render a false report to provide him with grounds for withdrawal from the contract. In November, 1994, she also moved, unsuccessfully, for a new trial respecting the original suit. *fn1 Her motion was supported by a certification signed by Prann on October 19, 1994, in which he admitted that in carrying out his retainer for the Carr defendants he had mistakenly studied property which was 2,000 feet away from the Mazzella parcel.
The Mazzella-Carr action was dismissed on entire controversy grounds. Mazzella appealed and another part of the Appellate Division affirmed in an unreported opinion, A-3548-94T2, on November 15, 1995.
Mocci learned about the Prann certification some time in 1994 after the motion for a new trial had been denied. As a result, he instituted the instant action. Among other things, Mocci has certified, "After learning of the false, inaccurate and/or erroneous information provided by the Carr defendants and the ITC defendants, I decided not to seek execution of my judgment in Mocci v. Mazzella."
In Olds v. Donnelly, 150 N.J. 424, 696 A.2d 633 (1997), the Court overruled Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 142 N.J. 280, 662 A.2d 509 (1995), to the extent that the latter case required application of the entire controversy doctrine to attorney-malpractice cases. After noting that the doctrine continues to evolve on a ...