September 17, 2007
UNIVERSITY PROPERTY MANAGEMENT, ELLIOTT KOPLITZ AND MARSHALL KOPLITZ, PLAINTIFFS-APPELLANTS,
CHARLES SPITZ, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Monmouth County, Law Division, Docket No. L-172-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2007
Before Judges Payne and Messano.
Plaintiffs University Property Management, Elliott Koplitz and Marshall Koplitz (hereafter, collectively UPM) appeal from a May 17, 2006, order dismissing their complaint with prejudice. In the sole point raised on appeal, UPM contends that dismissal of the complaint under the "entire controversy doctrine" was "[u]nfair and should be reversed." Defendant Charles Spitz argues the dismissal of UPM's complaint, in light of the procedural history presented, was an appropriate exercise of the motion judge's discretion. We have considered these arguments in light of applicable legal standards and affirm.
On January 10, 2002, Spitz filed suit against UPM in the Law Division in Monmouth County seeking payment "for architectural services rendered pursuant to a signed retainer agreement." While the record does not include UPM's responsive pleading, apparently an answer was filed to Spitz's complaint and the matter proceeded through the normal pre-trial activities. Ultimately, after several adjournments, the case was assigned a "try-or-dismiss" trial date of February 14, 2006.
On or about January 12, 2006, UPM filed this lawsuit. The complaint alleged that Spitz had been retained to provide professional "advice and direction" regarding various fire code and construction code violations issued by the City of Long Branch.*fn1 UPM alleged that Spitz negligently provided professional services resulting in financial damages.
On February 14, 2006, UPM's counsel, who had recently been retained, sought an adjournment of the collection case and argued that the recently-filed malpractice case should be consolidated for purposes of a single trial. Although we have not been supplied with any record of the arguments raised, it is undisputed that the adjournment request was denied. Two days later, on February 16, 2006, the collection litigation proceeded to trial.*fn2
On March 17, 2006, Spitz, who had not yet filed an answer, moved for dismissal pursuant to R. 4:6-2(e). He argued that plaintiffs were barred by the entire controversy doctrine, R. 4:30A, from now prosecuting this malpractice action. He further noted that UPM acknowledged in the complaint that it was aware of defendant's alleged malpractice as early as 2000, yet it failed to file a complaint or counterclaim until the eve of trial in the collection case.
UPM opposed the motion to dismiss and argued that it filed the malpractice action within the time permitted by the statute of limitations and prior to the trial of the collection case, and that it attempted to consolidate all the actions by motion.*fn3
UPM also contended that Spiz was well aware of the claim for professional negligence for years and suffered no prejudice as a result of the filing delay.
In his oral opinion, the motion judge reasoned that UPM could have brought the claim against Spitz when the collection case was filed because the claim was not "premature." The judge further concluded that "the twin pillars of the [e]ntire [c]ontroversy [d]octrine," -- "fairness to the parties," and "fairness to the system of judicial administration" -- were advanced by "application of the [doctrine] to bar this matter." He dismissed the complaint with prejudice and this appeal ensued. R. 4:30A provides, Non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine, except as otherwise provided by R. 4:64-5 (foreclosure actions) and R. 4:67-4(a) (leave required for counterclaims or cross-claims in summary actions).
The entire controversy doctrine has evolved into "an equitable preclusionary doctrine whose purposes are to encourage comprehensive and conclusive litigation determinations, to avoid fragmentation of litigation and to promote party fairness and judicial economy and efficiency . . . ." Pressler, Current N.J. Court Rules, comment 1 on R. 4:30A (2008). "The doctrine is an equitable one whose application is left to judicial discretion based on the facts of individual cases." Thomas v. Hargest, 363 N.J. Super. 589, 596 (App. Div. 2003).
We have noted that a "plaintiff whose claim is barred must have had a fair and reasonable opportunity to fully litigate her claim in the prior action." Ibid. While the filing of "premature or unaccrued claims" are not required, K-Land Corp. No. 28 v. Landis Sewerage Auth., 173 N.J. 59, 74 (2002), when a "plaintiff had sufficient information to have included the claim in the prior suit, mandatory joinder is fair." Thomas v. Hargest, supra, 363 N.J. Super. at 596.
Here, UPM acknowledged it believed it had a claim against Spitz in 2000, fully two years before Spitz filed his suit, and six years before UPM filed any pleading that included the malpractice allegations. UPM waited until the eve of trial of the collection matter, which itself was more than four years old at the time, to assert its claim. Under these circumstances, it was entirely fair to bar the malpractice claim because it was not joined to the prior litigation in a timely fashion, and such delay was unfair to defendant.
The motion judge's decision to dismiss the complaint with prejudice served all the laudable goals of the entire controversy doctrine and was an appropriate exercise of his discretion under the facts presented. Brennan v. Orban, 145 N.J. 282, 291 (1996).