Donohue v. Kuhn, 696 A.2d 664 (N.J. 1997) 

NJ Underlying case: tort/personal injury/wrongful death

Student Contributor: John Anzalone

Facts: Plaintiffs retained Defendant attorney to represent them in a wrongful death and survivorship suit. The attorney failed to file the cases during the applicable  time period.   Plaintiffs secured another attorney after the statute of limitations passed, but the suit for wrongful death was dismissed for not being filed within the statute of limitations period. While the survivorship claim case was on going, the plaintiffs brought this malpractice suit.

Issue: Does the "entire controversy doctrine" prevent the Plaintiffs from suing Defendant attorney because they failed to add a legal malpractice claim against Defendant attorney in the survivorship case that was still before the trial court?

Ruling: In reversing the Appellate Division, the New Jersey Supreme Court held that the entire controversy doctrine did not require that the Plaintiffs had to amend their complaint to add an attorney that allegedly committed legal-malpractice claims in the survivorship suit to that case for their suit against the Defendant attorney to go forward.

Lesson: A plaintiff’s failure to add an action against an attorney to an ongoing case in which it is alleged that the attorney committed an act or acts of negligence that harmed the plaintiff is not grounds for dismissing the case. Legal Malpractice is an exception to the entire controvery doctrine in NJ (Rule 4:30A).

Editor’s Note: This case was one of three on excepting legal malpractice from the entire controversy doctrine decided by the New Jersey Supreme Court on the same day. The case of Olds v. Donnelly, 150 N.J. 424 (PDF)was the case in which the court set down at length the unstated reasoning behind its decision in this case, Donohue v. Kuhn.