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Pro se litigants are not entitled to greater rights than those with lawyers, a state appeals court said Monday in affirming dismissal of a legal malpractice case under New Jersey's entire controversy doctrine.
The plaintiff -- who sued his lawyer three times, two of them pro se -- was "using successive litigation as a club" and "should not be able to sue, then investigate more, then sue, then investigate even further, ad infinitum," the Appellate Division said in an unpublished opinion in Estate of Elyree Smiley v. McElnea, A-0245-08.
The judges found that the claims raised in the instant case "were well within the penumbra of the factual matrix that was litigated to a conclusion" in a probate case in 2006.
In 2003, plaintiff George Gibson became the personal representative of his aunt Elyree Smiley's estate, as directed in her will. During a contest to the will in 2005, a judge briefly appointed West Orange, N.J., solo Brenda McElnea to take over the estate, but the will was upheld and Gibson was restored to his post in June 2005.
Gibson filed a small claims action and a probate action against McElnea, claiming she failed to maintain insurance on Smiley's house, which suffered water damage while vacant, and challenging her spending of estate funds for taxes, storage fees and a high water bill.
The suits, heard together as a single Probate Part matter in Essex County Superior Court, were decided in June 2006. McElnea says Gibson won a judgment against her for the water damage sustained at the house but lost his other claims. Later, Gibson said the probate judge, Renee Jones Weeks, would not let him fully litigate some issues.
Gibson was pro se up to that point, but when he filed another suit against McElnea in the Law Division, in March 2008, he was represented by Angelo Perrucci Jr., a Washington, N.J., solo. That suit alleged a breach of fiduciary duty in failing to properly catalog the asset's estate, to insure the real estate and to hire licensed movers for personal property.
McElnea's lawyer, Anthony Ambrosio of Bloomfield, N.J., moved for summary judgment under the entire controversy doctrine, embodied in New Jersey R. 4:30A, which requires civil-case litigants to raise all affirmative claims arising from a single controversy that each party might have against another party, including counterclaims and cross-claims.
Perrucci says Gibson did not tell him about the prior litigation.
Applying the doctrine, Superior Court Judge Donald Goldman granted summary judgment to McElnea. "There are just so many bites of the apple," he said.
Gibson appealed, pleading that since he was pro se when he brought the first two suits, he was unaware of the entire controversy doctrine.
"The court in the original action was required to be sure that plaintiff was aware of his rights in pursuit of the action against the defendant," Gibson said in his appellate brief. "At no time was this done. As a result, plaintiff was limited as to what could be raised in that proceeding."
Appellate Division Judges Jonathan Harris and Richard Newman acknowledged that pro se litigants are permitted a relaxation of the rules to avoid denial of fundamental due process. "Plaintiff, however, was not deprived of such due process in this case," they said.
A plaintiff's pro se status does not abrogate procedural rules, and those who choose to represent themselves must understand they are required to follow court rules promulgated to guarantee an orderly process, the judges said.
"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," the panel wrote.
Perrucci says a transcript of the probate case showed that Judge Weeks told Gibson to take the opportunity to settle all issues with McElnea. But he adds, "You could see any layperson getting confused." Perrucci says that after learning about the earlier litigation, he told Gibson there was little chance of winning, but Gibson wanted to go ahead.
Perrucci calls the appellate ruling "very fair" and says he does not plan to appeal.
McElnea, for her part, says the representation was a difficult one because Gibson and the relative who contested the will refused to put the house up for sale and or to put its contents in storage. The property was boarded up but was occupied by a vagrant, she says. She says she was unable to get the house insured and she presented the court with two letters from insurances companies stating they would not issue policies for the contents of vacant dwellings.
