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Original WP 5.1 Version
This case can also be found at 150 N.J. 424.
(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).
Olds v. Donnelly (A-109)
(NOTE: This is a companion case to Karpovich v. Barbarula and Donohue v. Kuhn, also decided today.)
Argued February 3, 1997 -- Decided July 16, 1997
Pollock, J., writing for a majority of the Court.
The basic issue in this case, as in Karpovich v. Barbarula, N.J. (1997) and Donohue v. Kuhn, N.J. (1997), also decided today, is the application of the entire controversy doctrine to legal-malpractice actions.
On June 27, 1985, Dr. Donahue allegedly committed medical malpractice while operating on Robert Olds. Approximately one month later, Olds retained Dennis Donnelly to represent him in a possible medical-malpractice action against Dr. Donahue. The Retainer Agreement indicated that Donnelly accepted the retainer subject to investigation.
On June 25, 1987, two days before the expiration of the statute of limitations on the medical-malpractice claim, Donnelly advised Olds that he no longer wished to represent him. Donnelly agreed, however, to prepare a pro se complaint and serve it on Dr. Donahue. Donnelly filed the complaint and attempted to serve Dr. Donahue by mail. Because Donnelly had used the wrong address, however, the summons and complaint were returned to Donnelly's office. Donnelly mailed them to a different address on August 10, 1987, by certified mail, with the return receipt addressed to Olds. Olds never received the receipt.
In 1988, Olds received notice from the Clerk of the Union County Superior Court that the case would be dismissed for lack of prosecution. Olds contacted Donnelly, who eventually sent Olds a letter stating that he had closed his files on the matter and it was up to Olds to pursue the matter.
Olds was able to effectuate service on Dr. Donahue in July 1989. In February 1991, Dr. Donahue moved to dismiss the complaint for failure to make timely service. Shortly thereafter, Joe Maran, Esq., filed a substitution of attorney for Olds. Maran appeared in opposition to Dr. Donahue's motion to dismiss on March 22, 1991. The trial court granted the doctor's motion to dismiss the complaint with prejudice after finding that Dr. Donahue was prejudiced by the two-year delay in service.
Thirteen months later, in April 1992, Olds, represented by Maran, instituted this legal-malpractice action against Donnelly. On March 18, 1994, about a month before the scheduled trial date, Donnelly moved for summary judgment, arguing that under the entire controversy doctrine, Olds should have asserted his legal-malpractice claim against Donnelly in the medical-malpractice action against Dr. Donahue. The trial court denied Donnelly's motion.
A jury returned a verdict of $500,000 for Olds. The trial court, however, granted Donnelly's motion for judgment notwithstanding the verdict, holding that the evidence did not support a finding that the legal malpractice proximately caused the dismissal of the action against Dr. Donahue.
Olds appealed. Donnelly cross-appealed, challenging the order denying summary judgment on entire controversy grounds. The Appellate Division reversed and remanded for entry of judgment in Olds's favor. 291 N.J. Super. 232. It denied Donnelly's cross-appeal, reasoning that Olds's legal-malpractice claim did
not accrue until the dismissal of the medical-malpractice action.
HELD: The party-joinder requirements of the entire controversy doctrine do not extend to claims of attorney malpractice.
1. The entire controversy doctrine seeks to assure that all aspects of a legal dispute occur in a single lawsuit. The goals of the doctrine are to promote judicial efficiency, assure fairness to all parties with a material interest in the action, and encourage the conclusive determination of a legal controversy. The mandatory joinder of claims was incorporated into the rules in 1979. The mandatory joinder of parties followed. Rule 4:30A now codifies the mandatory joinder of both claims and parties. (pp. 7-12)
2. The Court begins its analysis with Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 142 N.J. 280 (1995), which held that the entire controversy doctrine barred Circle's legal-malpractice action. In dicta, the Court stated that the doctrine applies to a client's legal malpractice claim against his or her attorney, even when the attorney is currently representing the client in an underlying action. The Court further held in Circle Chevrolet that the accrual of a legal-malpractice claim for purposes of imposing the entire-controversy bar is determined under the discovery rule, which involves two elements: actual injury and knowledge of fault. Here, the trial court's dismissal of Olds's medical-malpractice complaint for untimely service was not mandatory. Because dismissal of the complaint was not a foregone conclusion, Donnelly's negligence did not proximately cause actual damage to Olds until the trial court dismissed Olds's complaint against Donahue. Consequently, the entire controversy doctrine imposed no obligation on Olds to join Donnelly in the underlying medical-malpractice action. (pp. 12-18)
3. The Court is aware of the criticism of Circle Chevrolet's expansion of the entire controversy doctrine to attorney-malpractice actions. Critics have pointed out the adverse effect on the attorney-client relationship from requiring the joinder of an attorney who continues to represent a client in an underlying action. The Court acknowledges that the application of the doctrine to legal-malpractice claims has not fulfilled its expectations. The Court concludes that the entire controversy doctrine no longer compels the assertion of a legal-malpractice claim in an underlying action that gives rise to the claim. (pp. 18-22)
4. The New Jersey State Bar Association suggests in its amicus brief that the Court abolish the mandatory party joinder requirements found in Rule 4:30A. Similarly, the concurrence recommends overruling the rule of preclusion. Critics assert that mandatory party joinder is counterproductive and serves to complicate, prolong, and increase the cost of litigation. Others suggest expansion of party joinder under Rule 4:28. The Civil Practice Committee, to which the Court regularly looks for recommendations on proposed rule changes, already has appointed a subcommittee on the entire controversy doctrine. That subcommittee is the logical entity to consider initially the various proposals for such rule changes. Preclusion is a remedy of last resort. If a remedy other than preclusion will vindicate the cost or prejudice to other parties and the judicial system, the court should employ such a remedy. (pp. 23-31)
5. In fairness to other litigants and the judicial system, the Court determines to apply this decision not only to the present case but to all pending cases, whether on appeal or in the trial courts. (pp. 31-32)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN, concurring in part and dissenting in part, is of the view that the preclusive aspect of the entire controversy doctrine is not the appropriate mechanism to enforce mandatory party joinder, and that less intrusive measures should be used to encourage party joinder in civil litigation.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, and COLEMAN join in JUSTICE POLLOCK's opinion. JUSTICE STEIN has filed a separate opinion, concurring in part and dissenting in part.
SUPREME COURT OF NEW JERSEY
Defendant and Third Party
Third Party Defendant-
Argued February 3, 1997 -- Decided July 16, 1997
On certification to the Superior Court, Appellate Division, whose opinion is reported at 291 N.J. Super. 222 (1996).
Christopher J. Carey argued the cause for appellant (Tompkins, McGuire & Wachenfeld, attorneys; John P. O'Toole, on the brief).
Joseph Maran, Jr., argued the cause for respondent Robert Olds (Maran & Maran, attorneys).
William W. Voorhees, Jr., argued the cause for respondent Joe Maran (Voorhees & Acciavatti, attorneys).
Andrew P. Napolitano argued the cause for amicus curiae, New Jersey State Bar Association (Cynthia M. Jacob, President, attorney; Linda Lashbrook, on the brief).
The opinion of the Court was delivered by
attorney malpractice. We do not decide whether to relax the requirements of party joinder in cases involving others with a fiduciary relationship to the parties.
The facts are undisputed. On June 27, 1985, Dr. Donahue
allegedly committed medical malpractice while operating on Olds. Approximately
one month later, Olds retained Donnelly to represent him in a possible
medical-malpractice action against Dr. Donahue. The Retainer Agreement
indicated that Donnelly accepted the retainer subject to investigation.
tell him that Dr. Donahue had not been served. According to Olds, Donnelly
said that "he would take care of it." In July of 1988, Donnelly sent Olds
a letter indicating that the attempts to serve Dr. Donahue by mail were
unsuccessful and that Donnelly had closed his files on the matter. In this
letter, Donnelly also informed Olds that it was "up to [Olds] to pursue
the complaint in the underlying medical-malpractice action, thus causing
the dismissal of the suit with prejudice.
that the evidence did not support a finding of legal malpractice that
proximately caused the dismissal of the action against Dr. Donahue.
Basically, the entire controversy doctrine seeks
to assure that all aspects of a legal dispute occur in a single lawsuit.
The goals of the doctrine are to promote judicial efficiency, assure fairness
to all parties with a material interest in an action, and encourage the
conclusive determination of a legal controversy. DiTrolio v. Antiles,
N.J. 253, 267 (1995);
Prevratil v. Mohr, 145
N.J. 180, 187 (1996). One part of the doctrine, described generally
as "claims joinder," requires that parties should present all affirmative
claims and defenses arising out of a controversy. R. 4:30A; Wm.
Blanchard Co. v. Beach Concrete Co., Inc., 150
N.J. Super. 277, 292-94, certif. denied, 75
N.J. 528 (1977). Another part, known as "party joinder," requires the
mandatory joinder of all parties with a material interest in a controversy.
The 1947 Constitution recognized the doctrine by
[N.J. Const. art. VI, § 2, ¶ 4.]
The requirement of the mandatory joinder of claims
has evolved continually since the adoption of the 1947 Constitution. In
Steiner v. Stein, 2
N.J. 367 (1949), the Court recognized that to administer justice efficiently,
the Chancery Division should adjudicate legal issues, even if related equitable
issues have already been determined. Id. at 378; see also
Tumarkin v. Friedman, 17
N.J. Super. 20, 24 (App. Div. 1951) (finding that county court had
full authority to hear legal and equitable issues). In Ajamian v. Schlanger,
N.J. 483, cert. denied, 348
U.S. 835 (1954), the Court held that a plaintiff's failure to bring
a claim for damages in a prior proceeding where the plaintiff sought rescission
of an allegedly fraudulent contract required preclusion of the damages
action "if the policy to avoid undue litigation is not to be emptied of
substance." Id. at 488.
representative parties to assert counterclaims in one suit ).
In 1977, the Appellate Division in Wm. Blanchard held that the entire
controversy doctrine requires that defendants assert all cross-claims as
well as counterclaims arising out of the underlying transaction. Wm.
Blanchard, supra, 150 N.J. Super. at 294.
Because the doctrine is one of judicial fairness, we decided to proceed
step-by-step in extending it to parties. Ibid.
In a sense, Rule 4:30A advances the purpose of Rule 4:5-1, which requires each party to submit with its first pleading a certification whether the matter in controversy is the subject of any other action pending or whether any other action is contemplated. R. 4:5-1(b)(2). Rule 4:5-1 further requires that each party shall disclose in the certification the names of any other party who should be joined in the action. Ibid. Under that Rule, the court, either on its own motion or that of a party, may compel the joinder of parties in appropriate circumstances. Ibid. Since deciding Cogdell, this Court has continued to require the mandatory joinder of all parties with a material interest in a litigation. See Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co., 142 N.J. 336 (1995) (barring claims against parties omitted from earlier action in another jurisdiction if jurisdiction was available in first forum); Mystic Isle Dev. Corp. v. Perski & Nehmad, 142 N.J. 310 (1995) (barring legal-malpractice claims arising from real estate development suit because developer failed to join attorneys as defendants in first litigation); Circle Chevrolet, supra, 142 N.J. at 280 (1995) (barring attorney-malpractice claims for failure to join attorneys and assert claims in the underlying action against landlord for reformation of commercial lease agreement); DiTrolio, supra, 142 N.J. at 279 (barring physician's suit against members of hospital staff because of failure to join them as defendants in prior suit against hospital ). But see Joel v. Morocco, 147 N.J. 546 (1997) (finding that failure to join
individual partners in zoning dispute did not preclude enforcement against individual partners of partnership's money obligations under settlement reached in zoning dispute).
The Appellate Division held that Olds's legal-malpractice
claim did not accrue until the medical-malpractice complaint was dismissed
with prejudice. Reasoning that the entire controversy doctrine does not
apply to claims that are unaccrued at the time of the underlying litigation,
the court concluded that the doctrine did not bar Olds's legal-malpractice
claim against Donnelly. 291 N.J. Super. at 232. We agree that the
entire controversy doctrine does not preclude this action.
litigation settled, and Circle brought a malpractice action against
its former attorneys.
knows or should know the facts underlying [injury and fault], not necessarily
when a plaintiff learns the legal effect of those facts." Id. at
493. Thus, an appeal from an adverse judgment does not toll the accrual
of a cause of action. Id. at 496-97.
Mere knowledge of an attorney's negligence does not
cause a legal malpractice claim to accrue. The client must sustain actual
damage. Grunwald, supra, 131 N.J. at 492. As an action
grounded in tort, "a legal-malpractice action accrues when an attorney's
breach of professional duty proximately causes a plaintiff's damages."
Id. at 495. Actual damage is "real" not "speculative." Ibid;
see also Mant v. Gillespie, 189
N.J. Super. 360, 373 (App. Div. 1983) (applying the discovery rule
and finding that "the mere threat or possibility of an unfavorable judgment
[does] not represent an actual loss which [can] generate a cause of action").
An adverse judgment may constitute damage. Grunwald, supra,
131 N.J. at 495.
malpractice action regarding attorney's negligent misrepresentation
in bankruptcy proceeding accrued on date bankruptcy court confirmed bankruptcy
plan submitted by debtor);
Zupan v. Berman, 491
N.E.2d 1349, 1352 (Ill. App. Ct. 1986) (holding that malpractice action
against attorney who defended plaintiff in dram shop action accrued on
date trial court entered judgment adverse to the client); Price v. Becker,
S.W.2d 597, 598 (Tenn. Ct. App. 1991) (reasoning that malpractice action
alleging that attorney failed to exercise reasonable care in preparing
plaintiff's case accrued on date plaintiff's prior action was dismissed).
McLaughlin, supra, 51 N.J. at 411. Thus, the passage
of time alone did not compel the dismissal of Olds's medical-malpractice
purposes until the dismissal with prejudice of the medical-malpractice action in March 1991. Consequently, the entire controversy doctrine imposed no obligation on Olds to join Donnelly in the underlying medical-malpractice action. SeeDiTrolio, supra, 142 N.J. at 273-74 (reasoning that entire controversy doctrine does not apply to unknown or unaccrued claims). Olds filed this legal-malpractice lawsuit in April of 1992, thirteen months after the action accrued and well within the six-year limitations period prescribed by N.J.S.A. 2A:14-1. Thus, the statute of limitations also presents no barrier to this legal-malpractice action.
We are aware of the criticism of Circle Chevrolet's expansion of the entire controversy doctrine to attorney-malpractice actions. In particular, critics have pointed out the adverse effect on the attorney-client relationship from requiring the joinder of an attorney who continues to represent a client in an underlying action. See, e.g., Geoffrey C. Hazard, Jr., An Examination Before and Behind the "Entire Controversy" Doctrine, 28 Rutgers L.J. 7, 24 (1996) (questioning expansion of complicated litigation to include an attack on a party's own lawyer); Albert L. Cohn & Terri A. Smith, Practice and Malpractice after Circle Chevrolet: Some Practical Considerations of the Entire Controversy Doctrine, 28 Rutgers L.J. 78, 84 (1996) (stating inclusion of legal-malpractice claims
in entire controversy doctrine creates potentiality that lawyers and
clients will become adversaries).
Furthermore, the requirement that clients join their
attorneys in the original lawsuit jeopardizes attorney-client confidences.
When clients sue their attorneys, attorney-client communications may become
discoverable. See RPC 1.6(c)(2) (allowing attorney to reveal
client confidences "to establish a defense to a . . . civil claim . . .
against the lawyer based upon the conduct in which the client was involved");
N.J.R.E. 504(2)(c) (stating that attorney-client privilege shall
not extend "to a communication relevant to an issue of breach of duty by
the lawyer to his client, or by the client to his lawyer");
2A:84A-20(2)(c) (same). Thus, the lawyer can be questioned about otherwise
privileged information involving the very subject matter of the underlying
risk of the disclosure of privileged information and the generally adverse
effects on attorney-client relationships outweigh any benefit from requiring
a client to assert a malpractice claim in the pending lawsuit.
attorneys and their firms often have a ongoing relationship with their
clients. Requiring a client to notify a trial court of a potential malpractice
claim relating to one transaction when the attorney or firm continues to
represent the client on other matters can intrude unduly on the attorney
Donnelly urges this Court to reinstate the third-party
complaint against Maran. That complaint alleges that Maran's negligence
caused the dismissal of Olds's complaint against Dr. Donahue.
divert the attorney from single-minded devotion to his client's interests"); Goldfisher v. Superior Court, 183 Cal. Rptr. 609, 615 (Ct. App. 1982) (finding that "to encourage claims of indemnification where two lawyers successively represented the same client is not for the benefit of the client" because the "inevitable consequence is a corrosion of the sacred attributes of complete confidentiality and undivided loyalty which are the heart of the relationship between lawyer and client"); Hughes v. Housley, 599 P.2d 1250, 1252 (Utah 1979) (finding that, as a matter of policy, no duty should be imposed upon succeeding counsel in favor of preceding counsel: "to impose such a duty would be to subject the second attorney to potential conflicts of interest in trying to serve two masters"). We affirm the Appellate Division's holding that the trial court properly dismissed the third-party complaint. 292 N.J. Super. at 372.
The NJSBA has suggested in its amicus brief that we abolish mandatory party joinder and amend Rule 4:30A by deleting the words "or parties." Similarly, our concurring colleague recommends overruling Cogdell's rule of preclusion. Post at (slip op. at 2-3, 34). By comparison, Professor Hazard apparently approves of a rule of preclusion, but would sustain it under expanded notions of res judicata and collateral estoppel, not by recourse to the entire controversy doctrine. Hazard, supra, 29 Rutgers L.J. at 18-19.
Critics of the doctrine assert that its requirement
of mandatory party joinder is counterproductive. According to them, mandatory
party joinder complicates, prolongs, and increases the cost of litigation.
Economy, economy shalt thou follow, 6
N.J.L. 558 (March 10, 1997) (editorial); Allan R. Stein,
Power, Duty and the Entire Controversy Doctrine, 28
27, 39-40 (1996). They state the doctrine generates uncertainty and is
too difficult for lawyers and judges to understand. Hazard, supra,
28 Rutgers L.J. at 7. Also, they contend that the doctrine impairs
valuable relationships by requiring the assertion of claims against parties
one otherwise would not sue. Allan R. Stein, Is New Jersey Out on a
Limb With the Entire Controversy Doctrine?, 182
N.J.L. 12, 14 (Jan./Feb. 1997). Finally, they assert that the preclusion
of a claim because of the failure to assert the claim in an earlier proceeding
is overkill. Stein, supra, 28 Rutgers L.J. at 30.
What Price Economy in New Jersey?, 48 Rutgers L. Rev.
1273, 1313 n. 241 (1996). Some may be exaggerated or speculative.
which we regularly look for recommendations on proposed rule changes,
already has appointed a subcommittee on the entire controversy doctrine.
That subcommittee is the logical entity to consider initially the various
proposals concerning the doctrine.
dismissing claims or parties to a suit"). The purpose of the doctrine
is not to bar meritorious claims, but to encourage litigants to bring to
the attention of trial courts persons who should be joined in a proceeding.
See id. at 567 (stating "the purpose of the rule is not just
to notify a new party of the imminence of a future law suit, the purpose
of the rule is to secure the coordination and consolidation of all litigation
emanating from a single controversy through the joinder of all participants
in that controversy in a current action and to subject joinder issues to
the supervisory authority of the court"); Petrocelli v. Daniel Woodhead
F.2d 27, 31 (3d Cir. 1993) (entire controversy doctrine does not require
that all claims and parties culminate in one litigation; rather all claims
and parties must initially be joined together for the court, which can
then determine how to proceed with various claims and parties); cf.
Brown v. Brown, 208
N.J. Super. 382, 382 (App. Div. 1986) (stating "we therefore hold that
a party whose constituent claim arises during the pendency of the action
risks its loss unless he appraises the court and his adversary of its existence
and submits to judicial discretion the determination of whether it should
be joined in that action or reserved"). Essentially, the point is to require
submission of issues concerning joinder to the discretion of the trial
court, which then can decide how best to manage them.
defendants to join in an action. They theorize that most plaintiffs'
attorneys rationally want to join as many parties as possible, post
at ___ (slip op. at 11), Hazard, supra, 28 Rutgers L.J. at
21. The reality, however, is that some attorneys have elected to conceal,
Crispin, supra, 96
N.J. 336, or withhold,
Cogdell, supra, 116
N.J. 7, claims against additional parties. That practice reveals the
limitations of party joinder under Rule 4:28. It also illustrates
the need for a procedural device, such as Rule 4:30A, to protect
parties, the courts and the public from excessive and costly litigation.
See Gelber, supra, 147 N.J. at 565 (stating
"the twin pillars of the entire controversy doctrine are fairness to the
parties and fairness to the system of judicial administration"); Prevratil,
supra, 145 N.J. at 197 (stating "one of the twin pillars
of the entire controversy doctrine is fairness"). In that limited context,
when no lesser remedy would suffice, a court may resort to preclusion.
So perceived, mandatory joinder should not be confused with mandatory preclusion.
See Post at (slip op. at 10) (stating that the Court "adopted a
preclusive mandatory party-joinder rule" in Cogdell).
notice was required, the court must discern whether the plaintiff complied
with the requirements of the rules in the prior litigation. Although unnecessary,
a formal motion under Rule 4:28 to join a party would suffice. The
plaintiff need only notify the first trial court of the party now alleging
preclusion. Failure to comply with those requirements need not lead to
preclusion of the second action. Gelber, supra, 147 N.J.
at 565 ("the court did not intend the violation of the notice requirements
of Rule 4:5-1 should result in automatic orders for dismissal.").
If a remedy other than preclusion will vindicate the cost or prejudice
to other parties and the judicial system, the court should employ such
a remedy. Cf. Abtrax Pharmaceuticals, Inc. v. Elkins-Sinn, Inc.,
N.J. 499, 514 (1995) ("Since dismissal with prejudice is the ultimate
sanction, it will normally be ordered only when no lesser sanction will
suffice to erase the prejudice suffered by the non-delinquent party . .
exemptions from mandatory party joinder under the entire controversy doctrine. We are asking the Committee to broaden the examination to include all other aspects of the doctrine. Consistent with our traditional practice, we shall provide the opportunity for the bar and others to comment on any modification of the entire controversy doctrine, including any proposed amendment to Rule 4:30A.
The parties have not briefed or argued the issue
whether the within decision should apply retroactively or prospectively.
In fairness to other litigants and the judicial system, however, we conclude
that our decision should apply not only to the present case, but to all
pending cases, whether on appeal or in the trial courts.
Here, those considerations point toward limited or
"pipeline" retroactivity of our decision. First, we decided
only two years ago, a factor that affects the extent to which litigants
reasonably have relied on the application of the entire controversy doctrine
to legal-malpractice claims. Second, the general purpose of the legal-malpractice
exception is to preserve the attorney-client relationship. Limited retroactivity
will adequately protect existing relationships. Giving the benefit of our
decision to litigants with pending cases serves the interests of justice
by permitting resolution of their claims on the merits. Complete retroactivity,
however, potentially would expose the judicial system to the undue burden
of resolving numerous concluded matters.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, and COLEMAN join in JUSTICE POLLOCK's opinion. JUSTICE STEIN has filed a separate opinion, concurring in part and dissenting in part.
SUPREME COURT OF NEW JERSEY
A- 109 September Term 1996
Defendants and Third Party
Third Party Defendant Appellants.
STEIN, J., concurring in part and dissenting in part.
The old adage that "the squeaky wheel gets the grease" perhaps offers the simplest explanation for the Court's disposition of these related entire controversy appeals. The general criticism of the preclusive application of the entire controversy doctrine to party joinder has been mild in comparison with the organized bar's criticism of the holding in Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 142 N.J. 280, 303 (1995), requiring a client to assert a malpractice claim against its former attorney in the same adversarial litigation that would determine whether the attorney's alleged negligence caused the client damage. Acknowledging that "application of the entire controversy doctrine to legal malpractice claims has not
fulfilled our expectations," ante at ___ (slip op. at 20), the
Court, electing to treat a symptom rather than the underlying ailment,
holds that attorney-malpractice claims are exempt from the entire controversy
doctrine, ante at ___ (slip op. at 23-24).
Rather, the fundamental flaw in our approach to party joinder is that
the preclusive aspect of the entire controversy doctrine is not the appropriate
mechanism to enforce whatever level of mandatory party joinder the Court
ultimately deems to be essential. I was a member of the unanimous Court
Cogdell v. Hospital Center at Orange, 116
N.J. 7 (1989). I now regard as erroneous Cogdell's holding that
the entire controversy doctrine "necessarily embraces . . . joinder of
all persons who have a material interest in the controversy," id.
at 26, and its corollary holding that, prospectively, failure to join such
parties constitutes a bar to a second independent action against them,
id. at 13, 28.
best or only mechanism for enforcing party joinder. Rather, the
opinion assumed that if joinder of parties materially interested in the
litigation was a desirable goal, its implementation could be achieved only
by precluding subsequent suits against omitted parties.
resolve whether the omission of a party in a prior suit was of sufficient consequence to justify preclusion of subsequent litigation against that party. This term alone our Court will issue published opinions in six party-joinder entire controversy appeals and will have reviewed numerous petitions for certification raising similar issues. In excess of fifty opinions on the issue have been published by trial and appellate courts since Cogdell was decided. Nevertheless, the Court's opinion in this appeal demonstrates its continuing sense of uncertainty about the appropriate contours of a preclusive party-joinder doctrine, the Court electing to refer the problem to an Entire Controversy Doctrine Subcommittee of the Committee on Civil Practice to make recommendations. Ante at ___ (slip op. at 32-33). Respectfully, we do not need a committee or a subcommittee to tell us that the preclusive aspect of the entire controversy doctrine no longer should be applied to party joinder and that, like other jurisdictions, we should use less intrusive measures to encourage an appropriate level of party joinder in civil litigation.
To begin at the beginning, any misperception that the preclusive application of the entire controversy doctrine to mandatory party joinder is in some respect authorized or even
encouraged by the 1947 Constitution permanently should be dispelled.
Our Cogdell opinion hinted at such a constitutional pedigree: "The
doctrine has become such a fundamental aspect of judicial administration,
it has achieved constitutional confirmation." Cogdell, supra,
116 N.J. at 15.
in controversy between the parties may be completely determined.
Our earliest opinions applying that constitutional provision, such as
Massari v. Einsiedler, 6
N.J. 303, 307-08 (1951) and
Ajamian v. Schlanger, 14
N.J. 483, 487-89, cert. denied, 348
U.S. 835, 75
S. Ct. 58, 99
L. Ed. 659 (1954), verify that the constitutional provision was formulated
principally to effectuate the merger of law and equity to the end that
both legal and equitable claims could be adjudicated in one proceeding.
See Zuckerbrot, supra, 43 Rutgers L. Rev. at 69-70. Another
recent commentary on the question also concluded that the constitutional
provision had no bearing on the virtues or vices of mandatory party joinder:
[Editorial, Entire Controversy, 147 N.J.L.J. 406 (Jan. 27, 1997).]
Similarly, the pre-Cogdell cases that addressed
directly whether the entire controversy doctrine applied to party joinder
uniformly concluded that it did not. See Aetna, supra,
85 N.J. at 556-60; Gareeb v. Weinstein, 161
N.J. Super. 1, 9-13 (App. Div. 1978); McFadden v. Turner, 159
N.J. Super. 360, 368-72 (App. Div. 1978); Moss v. Jones, 93
N.J. Super. 179, 184-85 (App. Div. 1966). In McFadden, supra,
Judge Pressler declined to apply the entire controversy doctrine to party
joinder, noting that the party joinder rule is permissive and not mandatory:
long as his election does not result in another's compulsion.
[159 N.J. Super. at 369-70.]
In the absence of any constitutional provision or compelling precedent requiring mandatory party joinder, the most basic question -- and one that the Court, including this member, did not adequately evaluate in Cogdell -- is the extent to which mandatory party joinder is desirable in civil litigation. The Cogdell court, focusing on the facts before it as well as those in Crispin v. Volkswagenwerk, A.G., 96 N.J. 336 (1984), assumed that mandatory party joinder was justified by considerations of "fairness to parties and judicial efficiency and economy." Cogdell, supra, 116 N.J. at 17. In Cogdell, the plaintiff instituted a malpractice action against an obstetrician and an emergency-room pediatrician, the jury returning a verdict for both defendants. The plaintiff subsequently filed a second suit against the hospital, several hospital administrators and members of the operating team. Id. at 8-9. The defendants' motion to dismiss the second action under the entire controversy doctrine was denied, as was their motion for leave to appeal. Id. at 9. Observing that "[t]he failure to have joined these defendants in
the earlier action seems prejudicial and unfair," id. at 25,
this Court adopted a preclusive mandatory party-joinder rule, to be applied
only prospectively, id. at 28. In Crispin, supra,
the plaintiff sustained serious injuries in a three-car collision. He and
two other persons injured in the accident filed suits in Union County against
multiple defendants. 96 N.J. at 388-89. While the suits were pending,
Crispin filed a product-liability complaint in Bergen County against Volkswagen,
but neither issued a summons nor attempted to join Volkswagen in the Union
County litigation. Id. at 339-40. After that litigation was resolved,
Crispin served Volkswagen, resulting in a motion to dismiss based on the
entire controversy doctrine. Id. at 340-42. This Court concluded
that the entire controversy doctrine should apply to party joinder "in
certain limited circumstances." Id. at 343. The Court observed that
"where, as here, a litigant knows of a potentially responsible party, and
has already sued that party in another action . . . [the litigant] should
not be permitted to maintain such independent action when a directly related
suit is pending." Ibid. The Court's ruling applied only prospectively.
and passive role, devoting his or her energies "to resolving the disputes
framed by the litigants." Stephan Landsman, The Adversary System: A
Description and Defense 3 (1984). The implication is that the parties
define the scope of a lawsuit, including the designation of the participating
parties. "The parties are preeminent in choosing the forum, designating
the proofs, and running the process." Id. at 44. An essential element
of our adversary system is that "the parties, not the judge, have the major
responsibility for and control over the definition of the dispute." Judith
Resnik, Managerial Judges, 96
Harv. L. Rev. 374, 382 (1982).
John C. McCoid, A Single Package for Multiparty Disputes, 28
L. Rev. 707, 714 (1976). In addition, the joinder of multiple parties
and their assertion of multiple claims and defenses makes discovery and
trial more complicated and protracted. Freer, supra, 50 U. Pitt.
L. Rev. at 814; Zuckerbrot, supra, 43 Rutgers L. Rev.
at 61-62. Case-specific reasons may also counsel against joinder. Professor
Hazard posits that the plaintiff's lawyer in Cogdell may have believed
that "by not joining the hospital and auxiliary staff people, the plaintiff
might obtain less hostile testimony from . . . [those] who were in a position
to observe how the doctors had handled the operation." Hazard, supra,
28 Rutgers L.J. at 21. To the extent that court rules override litigants'
strategic decisions concerning how a lawsuit should be packaged, a judicial
system runs the risk that its generalized party-joinder requirements will
be less effective in managing specific cases than would be the discretionary
choices of litigants better informed about their specific unit of litigation.
expenditure of additional resources on adjudication, or, if expenditure remains constant, it diverts those resources from resolution of other controversies of significance.
[McCoid, supra, 28 Stan. L. Rev. at 707 (footnote omitted).]
Some commentators endorse the view that expanded
application of res judicata and collateral estoppel concepts
could achieve "the most desirable end result, the adjudication in one lawsuit
of all disputes concerning the rights and obligations of all persons who
have a judicially recognized interest in the transaction giving rise to
the litigation." Herbert Semmel,
Collateral Estoppel, Mutuality and
Joinder of Parties, 68 Colum. L. Rev. 1457, 1472 (1968); see
McCoid, supra, 28 Stan. L. Rev. at 714-15. Expressing similar
objectives but focusing essentially on jurisdictional limitations in controversies
with multistate elements or involvement of state and federal law, Professors
James and Hazard assert: "There is simply no reason why a multiple-claim,
multiple-party controversy arising within the United States should not
be submissible to a single tribunal for a consistent adjudication of the
various claims and liabilities." Fleming James, Jr. & Geoffrey C. Hazard,
Jr., Civil Procedure § 10.24, at 582 (3d ed. 1985). Another
commentator advocates expansion of the federal court's power to compel
party joinder for the purpose of compelling multiple plaintiffs
to join in a single proceeding their claims against common defendants:
providing publicly financed resolution of private disputes. . . . The duplication of effort is a major cause of the protraction of time needed to resolve cases and cannot be justified by plaintiffs' selfish strategic desire to sue separately.
[Freer, supra, 50 U. Pitt. L. Rev. at 832.]
Animated by analogous concerns about the undesirability
of duplicative litigation, this Court in Cogdell, supra,
decided to address the problem directly by applying prospectively the entire
controversy doctrine to mandatory joinder of parties:
In sum, the failure to have joined these defendants in the earlier lawsuit is more than an unfortunate inconvenience. It is inconsistent with all of the policies that surround the entire controversy doctrine.
thus conclude that the entire controversy doctrine appropriately encompasses
the mandatory joinder of parties. Accordingly, we now hold that to the
extent possible courts must determine an entire controversy in a single
judicial proceeding and that such a determination necessarily embraces
not only joinder of related claims between the parties but also joinder
of all persons who have a material interest in the controversy.
[116 N.J. at 26.]
Although this Court does not stand alone in expressing
grave concern about the cost and inefficiency of duplicative litigation,
it is entirely isolated, both from other courts and from authoritative
commentators, in its choice of a remedy to compel party joinder. No other
jurisdiction authorizes dismissal of a subsequent action against a party
simply because that party could have been joined in a prior action. Allan
Commentary: Power, Duty and the Entire Controversy Doctrine,
Rutgers L.J. 27, 30-32 (1996).
absence of a party deemed indispensable. See Stein, supra, 28
L.J. at 31-32.
(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so
joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as prescribed in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined.
The Advisory Committee Note to the 1966 amendment of Rule 19 explains the shift from a formalistic to a pragmatic approach to party joinder. The Committee noted that the prior rule ambiguously implied that actions could be dismissed not only because of the absence of indispensable parties, but also because of the absence of persons "who ought to be parties if complete relief is to be accorded to those already parties." Fed. R. Civ.
P. Rule 19 advisory committee's note. The amended rule "stresses
the desirability of joining those persons in whose absence the court would
be obliged to grant partial or 'hollow' rather than complete relief to
the parties before the court[,]" the objective being to further not only
the parties' interests but also those of the public in avoiding duplicative
litigation. Ibid. Amended
Rule 19(a) authorizes the court
to order joinder of those persons whose joinder is desirable under the
Rule, provided that they are amenable to service and their joinder would
not deprive the court of subject-matter jurisdiction. When any such persons
cannot be joined, the court is to determine, based on pragmatic factors
such as those set forth in subparagraph (b) of the Rule, "whether in equity
and good conscience the action should proceed among the parties already
before it, or should be dismissed." Ibid.
being needed for a just adjudication of the first suit. The federal
practice does not contemplate a preclusive rule prohibiting subsequent
suits against parties omitted from the first action, the clear implication
of that practice being that concerns about duplicative litigation are insufficient
to justify additional efforts to bar successive suits.
against the practice of dismissing the original action merely because
the omission of a significant party made subsequent litigation inevitable:
. . . .
Courts exist for the determination of disputes among the people; in a particular litigation there is an obligation on the court to make a meaningful determination if at all possible. . . . The fact that unavoidably there may be required two or more actions to dispose of a dispute should not preclude the court from considering the case, despite the inclination to avoid repetitive litigation. If only through multiple suits can justice be done, there is nothing inherent in our judicial system forbidding those several suits. Minimization of litigation is not an end in itself, and it has its price.
[John W. Reed, Compulsory Joinder of Parties in Civil Actions, 55 Mich. L. Rev. 327, 335, 337 (1957) (footnotes omitted).]
Significantly, a number of leading state courts have adopted compulsory joinder rules modeled after Rule 19. See, e.g., Ann.
Cal. C.C.P. § 389; Del. R. Super. Ct. R.C.P. Rule
19; Mass. R. Civ. P. Rule 19; N.Y. C.P.L.R. § 1001.
. . . .
Beyond that, I must acknowledge the real possibility that all of [the devices] may carry evils worse than the problem to which they are addressed. Use of any one of them may foment assertion of claims that otherwise would never be litigated and thereby increase the adjudication burden of courts. That risk is obvious where compulsory intervention and mandatory joinder are concerned.
. . .
do not know how to assess those risks, but their presence argues for caution
in developing a response to the multiplicity problem. . . . It is as well,
perhaps, that the responses thus far have been ad hoc and tentative. The
remedy is sometimes worse than the disease.
[Id. at 728.]
Professor McCoid endorses a modification of the federal rules that would subject the certification required by Rule 19(c) -- mandating that pleadings state the names of parties described in Rule 19(a) that are not joined and the reasons for non-joinder -- to the sanctions provision of Rule 11. Id. at 727-28. Professor Freer suggests that direct sanctions in the form of costs and counsel fees be imposed on a party who fails to notify the court of the identity of absent parties whose joinder is contemplated by Rule 19, and also proposes that Rule 19(a) be expanded to authorize compulsory joinder solely for the purpose of avoiding multiple litigation. Freer, supra, 50 U. Pitt. L. Rev. at 841, 844. Significantly, no proponent of expanded party joinder in federal practice advocates a preclusive rule that would bar a second action if the first action fails to include a party whose joinder would have been desirable.
In counseling against application of the entire controversy
rule to party joinder, the Civil Practice Committee in 1984 prophetically
warned of the onset of "second round" litigation designed to enforce mandatory
[Civil Practice Committee Memorandum, supra, at 5.]
The consequences anticipated by that warning have come to pass. Defendants in litigation of all types and degrees of complexity attempt to use the party-joinder aspect of the entire controversy doctrine to prevent meritorious adjudication of claims, and neither the lower courts nor this court have been able to promulgate clear and consistent standards that explain when the doctrine should and should not be applied. Although misapplications of the doctrine hardly are confined to attorney malpractice litigation, that class of second-round preclusion litigation has generated a number of unsound dispositions. For example, in Karpovich v. Barbarula, ___ N.J. ___ (1997), in which the Court today reversed the lower courts' preclusion of the second litigation, the record reveals that the "first" litigation consumed virtually no court resources. Karpovich and Burgio, the plaintiff and defendant in the first suit, settled their differences by Burgio agreeing to repay Karpovich all of her losses, including the losses for which Barbarula and Affinito,
attorneys for Karpovich in part of the underlying transaction, were
also responsible. The first "litigation" lasted only seven days, and consisted
merely of the filing of Karpovich's complaint on February 25, 1994, and
the entry of a default judgment against Burgio on March 3, 1994. Id.
at ___ (slip op. at 4). The burden that the first litigation imposed on
the Law Division was imperceptible. When Burgio defaulted, Karpovich instituted
the second suit to recover that portion of her loss for which Barbarula
and Affinito were responsible. Ibid. The lower courts applied the
entire controversy doctrine to bar the second litigation, apparently either
not recognizing or disregarding that the doctrine's purpose -- to avoid
duplicative litigation - was not at all implicated because of the negligible
burden that the first suit imposed on the court system. Id. at ___
(slip op. at 5-7).
at 554. The partnership agreed to settle the case, then challenged the
settlement, and the Law Division ordered the partnership to execute the
settlement agreement. After the case was marked "settled" on the court's
docket, the partnership refused to make payment. Supplementary proceedings
revealed that the partnership was without funds. Plaintiff's assignee then
sued the individual partners, resulting in dismissal on the ground that
those partners should have been joined in the first proceeding. Id.
at 551-53. Reversing, we explained the unfairness of penalizing plaintiff
for not joining in the first proceeding parties whose participation was
completely irrelevant to the relief sought. Id. at 554-56. Only
a significant misperception by the lower courts of the purpose and scope
of the doctrine's application to party joinder could explain so unjust
litigants to bring to the attention of trial courts persons who should be joined in a proceeding. . . .
The reality, however, is that some attorneys have elected to conceal, or withhold, claims against additional parties. That practice illustrates the need for a procedural device, such as Rule 4:30A, to protect parties, the courts and the public from excessive and costly litigation. In that limited context, when no lesser remedy would suffice, a court may resort to preclusion.
[Ante at ___ (slip op. at 30-31) (citations omitted).]
The Court proceeds to emphasize that all it really
seeks to achieve is notice to the trial court of the potential claim against
at ___ (slip op. at 32)
I applaud the Court's attempt to modify the adverse effects of its heretofore rigid application of the party-joinder aspect of the entire controversy doctrine. But the Court's own application of the doctrine has not been nearly as flexible as its rhetoric implies. The concessions now offered by the Court are constructive, but they will not eliminate the profusion of dismissal motions in second-tier litigation that seek to test the entire controversy doctrine's vulnerability and its outer limits.
The evidence of the doctrine's application to date points overwhelmingly to the conclusion that preclusion of the second suit is an unjust, inefficient, and counter-productive mechanism for enforcing party joinder.
Constructive and less draconian mechanisms for encouraging party joinder are available to the Court. Although I believe the party-joinder provisions of Rule 4:28 to be entirely adequate, the Court could consider amending that Rule to enhance the authority of the trial court to order joinder of omitted parties in order to avoid unnecessary duplicative litigation. The certification required to be filed with the first pleading by Rule 4:5-1(b) to disclose the identity of parties who should be joined in the action, and whether any other action or arbitration concerning the matter in controversy is pending or contemplated, could explicitly be made subject to the sanctions provisions of Rule 1:4-8(b), undoubtedly resulting in a higher level of compliance with Rule 4:5-1(b). In addition, the pretrial conference procedure authorized by Rule 4:25-1 could be expanded or modified to enable the judge to elicit at an early stage of litigation the identity of omitted parties whose joinder would be constructive and consistent with the Court's party-joinder rule. The experience of the federal courts and other state courts, combined with our own unsuccessful experiment with second-round
preclusion litigation, strongly suggests that efforts to expand party
joinder should be remitted to the case-management discretion of the trial
judge in the first litigation. That approach provides the parties, who
know their case best, and the trial court with an opportunity to determine
whether efforts should be made to seek joinder of omitted parties. Once
that determination is made, our judicial system would be far better served
by absorbing the risk of subsequent litigation than by maintaining in place
a preclusive rule of uncertain dimension that generates more litigation
than it avoids.
court of its claim that it had been defrauded by three title insurance
companies, a title agency, and three employees of those entities. Although
our dismissal was without prejudice to plaintiff's right to proceed in
federal court, 142 N.J. at 348, our disposition effectively closed
our courthouse doors to the plaintiff merely because the defendants had
been omitted from the earlier federal litigation in which their joinder
was not required by the Federal Rules. That result conflicts fundamentally
with our Court's longstanding preference for meritorious dispositions unobstructed
by procedural snares. In our historic decision in Winberry v. Salisbury,
which established this Court's primacy over rules of practice and procedure,
we explained our decision in part by emphasizing that procedure should
be made "subsidiary . . . to the substantial rights of the litigants. The
courts may avoid the snarls of procedural red tape and concentrate on the
substantive questions at issue." 5
N.J. 240, 254 (1950).
to avoid the delay and duplication that results from "the splitting of a controversy," has been transformed into a bureaucratic procedural snare that closes the courthouse doors to innocent litigants with meritorious claims. The Court ignores at its peril the profound words of Justice Jacobs, one of the primary authors of the Judicial Article: "[A]fter all, justice is the polestar and our procedures must ever be moulded and applied with that in mind."
[Prevratil v. Mohr, 145 N.J. 180, 211 (1996) (Stein, J., dissenting) (citations omitted).]
The Court overestimates the value of preclusion as the ultimate means of enforcing party joinder, and underestimates the harm that the party joinder prong of the entire controversy doctrine has inflicted on our judicial system. The Court describes the value of the rule as protecting "parties, the courts and the public from excessive and costly litigation" in those rare cases in which attorneys "have elected to conceal . . . or withhold . . . claims against additional parties." Ante at ___ (slip op. at 30-31). As noted, supra at ___ (slip op. at 27-28), the imposition of sanctions, combined with more aggressive participation by trial courts at the pre-trial conference, could assist in more effective identification of omitted parties and in discouraging attorneys from withholding from the court information about potential additional parties. Preclusion, on the other hand, punishes litigants who are often innocent victims of an attorney's omission to join a party, and whose meritorious claim is barred except only for the redress that a malpractice claim against the lawyer may afford. Preclusion also breeds disrespect for the judicial process, because it substitutes for
the meritorious adjudication of litigants' claims, to which our civil
justice system heretofore has been devoted, a non-meritorious procedural
bar to justice triggered merely by a lawyer's decision, whether purposeful
or merely ill-advised, to omit a party from a prior lawsuit.
bone, but the surgery was unsuccessful. A second operation by a different
surgeon in January 1992 was successful in uniting the broken bone fragments.
However, plaintiff asserted that Dr. Altongy's negligence in selecting
an inappropriate surgical procedure resulted in permanent nerve damage
in his right arm, numbness in three fingers, and significant loss of motion.
Plaintiff sued Dr. Altongy and his orthopedic group in June 1993, claiming
damages distinct from those recovered in settlement of the first litigation.
Although Judge Lawrence Weiss initially denied defendant's motion to dismiss
based on the entire controversy doctrine, the motion was renewed and granted
by Judge Alexander Menza. In an unreported opinion the Appellate Division
affirmed, noting that plaintiff had received an expert's report describing
Dr. Altongy's negligence about sixty days prior to settlement of the first
litigation, and therefore could have joined the medical defendants in the
first suit. Slip op. at 7.
different relationship having its own set of responsibilities and obligations." 299 N.J. Super. 99, 106-07 (1997). Obviously, the liability claims in the two suits filed by plaintiff in Rapuano are based on entirely different facts and relationships, and our caselaw clearly reveals the procedure to be followed by a trial court in apportioning damages caused by both a settling and non-settling defendant. See Kiss v. Jacob, 138 N.J. 278, 283-84 (1994). Analytically, whether Cogdell contemplates mandatory joinder of the medical defendants in the original tort litigation presents at the very least an unsettled question, although in my view joinder clearly is not required. Moreover, equitable considerations suggest that the sixty-day window between receipt of the expert's report and the settlement of the automobile accident litigation is too short a time to justify the extreme remedy of dismissal of the malpractice claim for failure to join it in the original action. The added burden that the medical malpractice claim in Rapuano would have imposed on our judicial system is negligible, the liability issues being entirely distinct from those in the original tort litigation, and the injustice of dismissal and preclusion of that claim ought to be intolerable. Contrary to the Court's rhetoric, in practice preclusion proves to be the remedy of first -- not last - resort, and innocent litigants will continue to be denied their day in court as long as trial courts have the discretion to dismiss suits because of non-joinder of parties in prior litigation.
On other occasions this Court has been willing to
overrule a prior decision when a majority of the Court has become convinced
that the earlier decision was mistaken. See, e.g., Tretina Printing,
Inc. v. Fitzpatrick & Assocs., Inc., 135
N.J. 349, 358 (1994) (overruling Perini v. Greate Bay Hotel &
Casino, Inc., 129
N.J. 479 (1992)); State v. Ragland, 105
N.J. 189, 196-98 (1986) (overruling in part State v. Ragland,
N.J. 33 (1985)). We should follow that course here.
I join in the Court's disposition of this appeal, but not because I agree with its determination that the entire controversy doctrine should not apply to attorney-malpractice. Rather, I would overrule Cogdell, supra, 116 N.J. 7, and
consequently would no longer apply the entire controversy doctrine to
bar second suits against parties omitted from prior litigation. For the
same reason, I join in the majority's disposition in Karpovich v. Barbarula,
supra, ___ N.J. ___, and
Donohue v. Kuhn, ___ N.J.
___, also decided today.
SEPTEMBER TERM 1996
ON CERTIFICATION TO
Appellate Division, Superior Court
July 16, 1997
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