Brown v. Brown
506 A.2d 29, 208 N.J. Super. 372 (1986)
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Rule of Law:
Under the entire controversy doctrine, a party must seek leave from the court to join a constituent claim that arises during the pendency of litigation. Failure to do so risks preclusion of the claim in a subsequent action, unless equitable considerations, such as the opposing party's waiver of the defense, make applying the doctrine unfair.
Facts:
- Leander Brown filed a divorce complaint against her husband of 22 years, Kenneth Brown, on March 27, 1981.
- By September 1981, the parties were living separately.
- While Leander Brown was staying at her mother-in-law's home in the Bronx to provide care, Kenneth Brown allegedly assaulted her on September 12, 1981, causing physical injuries.
- As a result of the alleged assault, Leander Brown required emergency medical care, hospitalization, and extended treatment.
- In December 1981, Leander Brown discussed the assault with her divorce attorney, who advised her that the divorce trial was imminent and declined to represent her for the personal injury claim.
- The divorce action proceeded without the inclusion of the tort claim.
Procedural Posture:
- Leander Brown filed a divorce complaint against Kenneth Brown in the trial court in March 1981.
- The divorce trial occurred in January 1982, and a final judgment was entered in April 1982.
- Leander Brown filed a separate tort complaint against Kenneth Brown in the trial court in September 1982.
- After two-and-a-half years of pretrial proceedings in the tort action, Kenneth Brown filed a motion for summary judgment, arguing the tort claim was barred by the entire controversy doctrine.
- The trial court granted Kenneth Brown's motion and dismissed the tort complaint.
- Leander Brown, as the appellant, appealed the dismissal to the Superior Court of New Jersey, Appellate Division, with Kenneth Brown as the respondent.
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Issue:
Does the entire controversy doctrine bar a personal injury lawsuit when the underlying tort was committed during the pendency of a prior divorce action between the parties, and the plaintiff did not formally move to join the tort claim in that prior action?
Opinions:
Majority - Pressler, P.J.A.D.
No, the entire controversy doctrine does not bar the claim under these exceptional circumstances. The court established that a party whose related claim arises during a pending action must seek leave to file a supplemental pleading to join it, or risk the claim being barred. This allows the court, not the litigant, to decide whether joinder or reservation of the claim best serves the interests of justice. However, in this case, equitable considerations prevent the application of the doctrine. First, the plaintiff's matrimonial lawyer refused to handle the tort claim, placing her in a difficult position. More importantly, the defendant waived the preclusion defense. He actively defended the tort action for two-and-a-half years—engaging in discovery, and even filing for bankruptcy in an attempt to discharge the potential liability—before raising the entire controversy defense on the eve of trial. This conduct constitutes acquiescence to the separate action, making it eminently unfair to dismiss the plaintiff's complaint.
Analysis:
This decision extends the entire controversy doctrine to claims arising pendente lite (during the course of litigation), establishing a procedural requirement that parties must seek leave of court to add such claims. It shifts the determination of whether to join or sever a new claim from the party to the court. The decision's primary significance, however, lies in its strong affirmation that the entire controversy doctrine is an equitable principle, not an inflexible rule. By finding that the defendant's prolonged participation in the second lawsuit constituted a waiver, the court prevents the doctrine from being used as a last-minute, 'gotcha' defense and underscores that it is an affirmative defense which can be lost through a party's conduct.
