THE ESTATE OF ELYREE SMILEY AND GEORGE GIBSON v. BRENDA McELNEA, ESQUIRE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0245-08T20245-08T2

THE ESTATE OF ELYREE SMILEY,

AND GEORGE GIBSON,

Plaintiffs-Appellants,

v.

BRENDA McELNEA, ESQUIRE,

Defendant-Respondent.

 

 

Submitted October 21, 2009 - Decided

Before Judges J.N. Harris and Newman.

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

Perrucci Law Offices, attorneys for appellants (Angelo M. Perrucci, Jr., on the brief).

Anthony P. Ambrosio, attorney for respondent (Batya G. Wernick, on the brief).

PER CURIAM

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. 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-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 v. Rubin, 188 N.J. Super 155 (App. Div. 1982) for that proposition. He chides the Probate Part, stating in his brief:

[T]he court in the original action was required to be sure that plaintiff was aware of his rights in pursuit of the action against this defendant. At no time was this done. As a result, plaintiff was limited as to what could be raised in that proceeding.

II.

The entire controversy doctrine requires litigants in a civil action to raise all affirmative claims arising from a single controversy that each party might have against another party, including counterclaims and cross-claims. R. 4:30A. It is a preclusionary device, intended to prevent fractionalized litigation by insisting that a party assert all claims arising from a single controversy in a single action. Prevratil v. Mohr, 145 N.J. 180, 190 (1996). See also DiTrolio v. Antiles, 142 N.J. 253, 267 (1995) (citing Cogdell v. Hospital Center, 116 N.J. 7, 15 (1989)).

The doctrine applies to successive suits with interrelated claims. Id. at 268. "In determining whether successive claims constitute one controversy for purposes of the doctrine, the central consideration is whether the claims against the different parties arise from related facts or the same transaction or series of transactions." Id. at 267. It is the factual context "giving rise to the controversy itself, rather than a commonality of claims, issues or parties, that triggers the requirement of joinder to create a cohesive and complete litigation." Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310, 323 (1995); see also DiTrolio, supra, 142 N.J. at 267-68 ("It is the core set of facts that provides the link between distinct claims against the same or different parties and triggers the requirement that they be determined in one proceeding.").

Although it is designed to promote effective use of the courts, it cannot be used as an inequitable sword against a litigant. Here that efficacy was not realized. Rather, it appears that plaintiff is using successive litigation as a club against defendant. He should not be permitted to sue, then investigate more, then sue, then investigate even further, ad infinitum. All of the claims that plaintiff asserted against defendant in this action were well within the penumbra of the factual matrix that was litigated to a conclusion in 2006 in the Probate Part. Plaintiff was not obliged, even as a fiduciary, to race to the courthouse and sue defendant upon retaking the role as personal representative of the estate. Instead, plaintiff was under the equally important duty of ensuring fairness to defendant and to the administration of justice by completing his due diligence and combining all claims in one action.

We are unpersuaded by the authorities upon which plaintiff relies. In Rubin, we held that the trial court mistakenly exercised its discretion in refusing to permit a pro se litigant to address, either orally or in writing, the merits of a motion he opposed, because "[w]hen an unrepresented litigant appears in court pursuant to a notice of motion, reasonably expecting from the text of the notice that his procedural rights will be protected by his appearance in court on the noticed date, he is ordinarily owed the fulfillment of that expectation." Rubin v. Rubin, supra, 188 N.J. Super. at 159. We permit an appropriate relaxation of the strictures of our rules for a pro se litigant to avoid the denial of fundamental due process. Nevertheless, while a pro se litigant who fails to abide by court rules is not entitled to greater rights than one represented by counsel, he is still entitled to procedural due process. Plaintiff, however, was not deprived of such due process in this case.

"Procedural rules are not abrogated or abridged by plaintiff's pro se status." Rosenblum v. Boro. of Closter, 285 N.J. Super. 230, 241 (App. Div. 1995), certif. denied, 146 N.J. 70 (1996). Significantly, if litigants choose to represent themselves, "they must understand that they are required to follow accepted rules of procedure promulgated by the Supreme Court to guarantee an orderly process." Id. at 241-42 (quoting Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989)).

We find plaintiff's arguments unimpressive, particularly in the absence of an appeal from any of the Probate Part proceedings. Plaintiff cannot collaterally attack alleged deprivations of his rights as a result of an incomplete adjudication in the Probate Part. His remedy for those perceived grievances would have been a direct appeal. Likewise, he cannot bootstrap those allegations into a loophole in an attempt to circumvent our entire controversy jurisprudence.

Affirmed.

 

The order of the Probate Part that disposed of plaintiff's grievances refers to a third action, George Gibson v. Juanita Coachman and Brenda McElnea, Docket No. DC-4642-06. We have not been provided with a copy of the pleadings from that action by either plaintiff or defendant.

The complaint skips from Count Three to Count Five without missing any pagination or numbered paragraphs, resulting in a four-count complaint even though the headings include a "Count Five."

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A-0245-08T2

November 2, 2009