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Estate of Smiley v. McElnea

November 2, 2009

THE ESTATE OF ELYREE SMILEY, AND GEORGE GIBSON, PLAINTIFFS-APPELLANTS,
v.
BRENDA MCELNEA, ESQUIRE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2681-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 21, 2009

Before Judges J.N. Harris and Newman.

This appeal addresses the entire controversy doctrine. Plaintiffs have previously sued defendant relating to the administration of an estate. When sued again for similar remedies, defendant elected to move for summary judgment rather than answer, asserting the entire controversy doctrine as an affirmative defense. Judge Donald S. Goldman granted the motion dismissing the complaint, and this appeal followed.

We affirm.

I.

Plaintiff George Gibson is a beneficiary and the personal representative of the Estate of Elyree Smiley. The decedent died on January 27, 2003. Plaintiff immediately applied for letters testamentary, which were promptly issued. However, a will contest ensued and a temporary administrator - defendant Brenda McElnea - was appointed by the court to oversee the estate while the contest percolated through the Probate Part for two years.

On June 9, 2005, a judgment was entered validating the will and confirming Gibson's right to serve as the personal representative of the estate. He took over the management and administration of the estate from defendant. In short order, plaintiff discovered what he considered to be several questionable transactions that were completed under defendant's stewardship. For example, taxes on bank accounts that should have been borne by beneficiaries - or not paid at all - were paid by the estate upon defendant's instruction. Real estate located in Newark, owned by the estate, suffered water damage in 2004, and insurance may not have been procured to cover the loss. Storage charges were allegedly improperly assessed to the estate by defendant. An exorbitant water bill for the Newark property was improvidently paid by the estate.

In order to remedy the perceived economic damage to the estate and to protect his interests as a beneficiary, plaintiff commenced a series of actions against defendant. The first was a Small Claims action in his own name; the second was a probate action in his capacity as personal representative of the estate. They were treated as components of a single Probate Part matter.*fn1

This combined litigation - resolved by a final judgment dated June 22, 2006 - vindicated, for the most part, plaintiff's position.

Two years later, on March 31, 2008, plaintiff filed a four*fn2-count complaint against defendant in the Law Division. The primary theory against defendant was breach of fiduciary duty regarding 1) the failure to properly catalog the assets of the estate, 2) the failure to properly insure the real estate of the estate, 3) the failure to hire licensed movers for the personal property of the estate, and 4) the failure to perform other unspecified actions on behalf of the estate. Judge Goldman reviewed the prior litigation and determined that there was a failure to abide the entire controversy doctrine. He granted defendant's motion for summary judgment on that ground and dismissed the complaint:

[T]he fact of the matter is, that Judge Weeks handled these claims, dealt with them in their entirety. There are just so many bites of the apple and whether or not the claims were blown in some way, either intentionally, unintentionally, negligently, or otherwise, should not bar the application of the Entire Controversy Doctrine. Motion for summary judgment is granted.

Plaintiff argues that he was unaware of the constraints of the entire controversy doctrine when he initiated the similar, if not almost-identical, action against defendant two years earlier. He asserts that he was deprived by the Probate Part judge of fully litigating some issues, but he never filed an appeal from the alleged incomplete adjudication. He argues that a pro se litigant is entitled to "greater rights than are litigants who are represented," citing Rubin ...


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