Sklodowsky v. Lushis
11 A.3d 420
| N.J. Super. Ct. App. Div. | 2011Background
- Plaintiff Paul G. Sklodowsky appeals from a March 19, 2010 Law Division dismissal with prejudice of his claims against attorney John F. Lushis, Jr. and the firm Tallman, Hudders and Sorrentino, P.C. (THS).
- Lushis is a Pennsylvania attorney affiliated with THS; Sklodowsky retained them in 2003 for advice on selling real property in Kingwood Township, NJ.
- Sklodowsky allegedly told Lushis he owned the property free of Joanne Sklodowsky’s consent and that he could transfer title with Joanne’s share of proceeds.
- Based on the advice, Sklodowsky entered into a contract to sell to ADNJ; due diligence revealed Joanne’s consent issue and the sale did not close.
- ADNJ asserted fraud and collusion claims in its counterclaim; THS and Lushis were named in a third-party complaint for good-faith duties; Sklodowsky later discharged Lushis in 2007; the related NJ action and a federal action followed.
- The Law Division dismissed Sklodowsky’s 2009 complaint for lack of prosecution in the state case, and later dismissed the action against Lushis/THS in a related federal matter; the court then dismissed Sklodowsky’s NJ malpractice claims as barred by the entire controversy doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the entire controversy doctrine bars plaintiff’s malpractice claims. | Sklodowsky argues the doctrine does not require asserting malpractice claims in the underlying ADNJ case. | Lushis/THS contends the doctrine should preclude the malpractice claims if related to the underlying action. | The doctrine does not require joinder of these malpractice claims; reversed. |
| Whether applying the entire controversy doctrine would be fair in this context. | Applying the doctrine would chill attorney-client relations and unfairly force a malpractice claim into the underlying action. | Defendants argue fairness and efficiency justify the doctrine’s application. | Not applied; courts should not bar the malpractice claims on fairness grounds. |
| Whether the time-bar issue (six-year NJ vs two-year PA) was properly treated or waived. | N/A | No waiver; arguments not pressed on appeal. | Issue deemed waived; court did not decide merits on limitations. |
Key Cases Cited
- Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 142 N.J. 280 (N.J. 1995) (required malpractice claim to be brought in underlying action (Circle Chevrolet) or no longer mandatory under Olds v. Donnelly)
- Olds v. Donnelly, 150 N.J. 424 (N.J. 1997) (doctrine not compel malpractice claim in underlying action; protects attorney-client relations)
- DiTrolio v. Antiles, 142 N.J. 253 (N.J. 1995) (purpose and fairness of entire controversy doctrine; considerations of judicial efficiency)
- Woodward-Clyde v. Chem. and Pollution Sciences, Inc., 105 N.J. 464 (N.J. 1987) (doctrine does not bar subsequent action when earlier suit dismissed without prejudice)
- Arena v. Borough of Jamesburg, 309 N.J. Super. 106 (N.J. Super. 1998) (doctrine not bar successive action when prior suit dismissed without prejudice)