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Laura Higgins and Robyn Calcaterra v. Mary F. Thurber and Thurber Cappell

March 16, 2011

LAURA HIGGINS AND ROBYN CALCATERRA, PLAINTIFFS-RESPONDENTS,
v.
MARY F. THURBER AND THURBER CAPPELL, LLC, DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at Per curiam.

SYLLABUS

(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).

Laura Higgins v. Mary F. Thurber

(A-12-10)

(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in the opinion below.)

Argued February 8, 2011

Decided March 16, 2011

PER CURIAM

The issue in this appeal is whether plaintiffs' legal malpractice action against defendants, the attorneys for the estate of their late father, is precluded by disposition of earlier lawsuits or otherwise barred by the entire controversy doctrine.

In a prior probate proceeding, the executor filed a complaint in the Chancery Division for approval of his formal accounting of an Estate Trust formed by the plaintiffs' deceased father. In exceptions to the accounting filed by plaintiffs, facts were alleged sufficient to constitute a potential legal malpractice claim against defendants, who had intervened in the accounting action on the cusp of a firm trial date. Following the conclusion of the probate proceeding, plaintiffs filed this legal malpractice action against defendants in the Law Division. The judge entered summary judgment in defendants' favor, holding that the legal malpractice claim was barred by the entire controversy doctrine. The Appellate Division reversed and remanded, concluding that plaintiffs' legal malpractice action is not barred. Higgins v. Thurber, 413 N.J. Super. 1, 5 (App. Div. 2010).

The Court granted defendants' petition for certification. 203 N.J. 438 (2010).

HELD:The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Fisher's opinion below. Although a potential claim sounding in legal malpractice may have been raised in the probate proceeding, it cannot be said that plaintiffs had a "full and fair opportunity to litigate those claims or that it would otherwise be equitable to bar this subsequent suit" under the entire controversy doctrine.

1. The Court adds the following. An action to settle an account on an estate trust is a formalistic proceeding, unique to probate, which involves a line-by-line review on the exceptions to the accounting. In the context of this and similar proceedings in probate, the entire controversy doctrine is out of place. As Judge Pressler observed in Perry v. Tuzzio, 288 N.J. Super. 223 (App. Div. 1996), an action for an accounting provides a means for addressing "the conduct of the executor, not the conduct of others." Here, the claims actually pled and prepared for the probate proceeding did not encompass a legal malpractice claim. No affidavit of merit was submitted in support of such a claim. ...


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