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Higgins v. Thurber

April 21, 2010


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1329-07.

The opinion of the court was delivered by: Fisher, J.A.D.



Telephonically argued February 22, 2010

Before Judges Axelrad, Fisher and Sapp-Peterson.

In this appeal, we consider, among other things, whether this legal malpractice action commenced by plaintiffs Laura Higgins and Robyn Calcaterra against defendants Mary F. Thurber and Thurber Cappell, LLC,*fn2 the attorneys for the estate of their late father, was properly found precluded by the disposition of earlier lawsuits or otherwise barred, at least in part, by the statute of limitations. Although the claims against defendant-attorneys may have been asserted by Laura and Robyn in an earlier probate proceeding, we reverse because we cannot conclude that they were then given a full and fair opportunity to litigate those claims or that it would otherwise be equitable to bar this subsequent suit.


In reviewing the entry of summary judgment, we apply the same standard that governs the trial court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., Ltd., 399 N.J. Super. 158, 180-81 (App. Div.), certif. denied, 196 N.J. 85 (2008). In applying the Brill*fn3 standard, we examine the record to determine whether there are disputes of material facts relevant to the legal issues posed. Having closely canvassed the record, we agree with the trial judge that the facts relevant to the application of the entire controversy doctrine are not in dispute; indeed, that determination constituted a matter of law and equity that pivoted on an understanding of the protracted procedural history of the litigation surrounding the estate, as to which there is no legitimate question. We, thus, turn to the history of the lawsuits involving this estate.

The record reveals that Salvatore John Calcaterra (decedent or Sal) died on April 11, 1996. At that time he was married to his second wife, Donna Calcaterra. He was also survived by five children. Decedent's first wife was the mother of decedent's first four children -- Laura, Michael, Sally and Robyn. Donna was the mother of decedent's fifth child, Jenna, who was born in 1984 and a minor at the time of Sal's death.

Prior to his death, Sal and Donna became estranged. Sal commenced a divorce action and executed a Will that disinherited Donna. However, during his final illness, Sal dismissed the divorce action, but he did not change his Will. Prior to Sal's death, Donna, who held a power of attorney from Sal, transferred to herself four of six seats Sal held on the New York Mercantile Exchange (NYMEX).

Sal's Will named his son Michael as executor of his estate. In 1996, Michael, as executor, commenced an action against Donna in the Chancery Division, Bergen County. Michael retained defendant-attorneys,*fn4 who filed a complaint alleging that Donna had improperly transferred the NYMEX seats and other assets (the NYMEX suit). The complaint sought, among other things, injunctive relief, a constructive trust, and return of the NYMEX seats and other property to the estate.

Slightly more than two years after the commencement of the NYMEX suit, the estate experienced problems staying current with accruing legal fees. According to an agreement executed on December 13, 1998, the estate and its beneficiaries -- including Laura and Robyn -- agreed defendant-attorneys would ultimately be entitled to a portion of the estate's gross recovery in the NYMEX suit. This written modification agreement also indicated that the beneficiaries would receive periodic invoices for the services rendered by defendant-attorneys.

Following a bench trial, the trial judge ruled in the NYMEX suit, on March 31, 1999, that the estate was entitled to four and Donna entitled to two of the NYMEX seats. Donna appealed and the estate cross-appealed. We affirmed by way of an unpublished opinion. In re Estate of Salvatore John Calcaterra, No. A-5739-98 (App. Div. Oct. 11, 2000).

On October 29, 1999, prior to our disposition of the appeal in the NYMEX suit, Donna commenced an action in the Chancery Division, Bergen County, against Michael and Robyn (the 1999 removal suit). Donna alleged that Michael had engaged in misconduct in his role as executor and that Robyn, who had been appointed Jenna's guardian ad litem pursuant to decedent's Will, had not acted in Jenna's best interests; she sought the removal of Michael and Robyn from those offices. Donna's verified complaint was dismissed with prejudice on January 14, 2000. The record on appeal does not disclose the reasons for dismissal.

On June 12, 2001, Donna commenced another action in the Chancery Division, Bergen County (the 2001 removal action). In this action, she again sought the removal of Michael and Robyn from their positions as well as Michael's submission of a formal accounting. In response, Robyn filed a certification, dated November 26, 2001, claiming she and her sisters: had "the opportunity on several occasions to meet with counsel" and Michael; "reviewed the estate information with both legal and accounting professional advisors"; "asked questions [and] received answers"; "underst[oo]d all of the estate expenses and the issues related to estate income"; and had "confidence that [Michael] has administered the estate properly and fairly for the benefit of all the beneficiaries."*fn5 In addition, Robyn certified that Donna's contentions suggest that the [informal] accounting raises many questions . . . and implies we did not ask them. She is wrong. Th[e] [informal accounting] is a summary of information we received, reviewed, and understood. We believe that no good can come to the Estate by providing more detail to Donna [], who is the cause of most of the significant legal expenses incurred by the estate, and also the cause of substantial delay in the finalization of tax returns.

We want the draining of the estate for legal expense to end, and that can only happen if Donna is stopped.

In 2003, the trial judge rejected Donna's efforts to remove Michael and Robyn*fn6 or to compel a distribution. When efforts to resolve the accounting disputes proved unsuccessful, the judge directed Michael to file a formal accounting.

On October 10, 2003, Michael filed a complaint in the Chancery Division, Bergen County, for approval of his formal accounting. In re Estate of Salvatore John Calcaterra, Docket No. BER-P-37-04 (the formal accounting action). ...

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