                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0887-16T2

MEAGAN J. DE PAUL,

          Plaintiff-Appellant,

v.

THE ESTATE OF CATHERINE
DE PAUL, the Representative of
the Estate is KAREN L. ARCHETTO
as Executrix, and ANTHONY J. DE
PAUL, a/k/a ANTHONY J. DE PAUL
(POA Trustee),

     Defendants-Respondents.
_______________________________

                    Submitted April 1, 2019 – Decided April 25, 2019

                    Before Judges Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Docket No. L-1469-16.

                    Meagan J. DePaul, appellant pro se.

                    Anthony J. DePaul, respondent pro se.

PER CURIAM
      Plaintiff Meagan J. DePaul appeals from the Law Division's September

30, 2016 order granting summary judgment and dismissing her complaint with

prejudice.1 The trial court found that plaintiff's complaint was barred by the

entire controversy doctrine. For the reasons that follow, we reverse and remand.

                                       I.

      The dispute in this appeal stems from the disposition of a residential

property in Mays Landing ("the property").       The property was owned by

Catherine DePaul prior to her death on December 28, 2011. Defendant Anthony

J. DePaul is the son of Catherine. Plaintiff Meagan J. DePaul is Anthony's

daughter.2 Defendant Karen Archetto is the daughter of Catherine and the

executrix of Catherine's estate ("the Estate"). Non-party Cristy Santiago is

Meagan's mother.

      The Chancery Division, Probate Part previously adjudicated the

disposition of this property. Judge Raymond A. Batten held a two-day trial and

issued a decision in March 2015. Therefore, we also recount the facts and

procedural history of the previous action.


1
  This matter was scheduled for oral argument on April 1, 2019, but none of the
parties attended oral argument.
2
  Because some of the parties share the same last name, we refer to them by
their first names only. We intend no disrespect.
                                                                        A-0887-16T2
                                       2
                                        A.

      Pursuant to a last will and testament executed by Catherine on March 24,

1999, the property would pass to Catherine's trustee, to be held in trust for the

benefit of Anthony, at the time of Catherine's death. The will appointed Karen

Archetto as trustee of Anthony's trust. It also appointed Archetto as executor of

the Estate.

      Pursuant to the will, Anthony retained the right to occupy the property

during his lifetime, provided that he paid all costs for the upkeep of the property,

paid all real estate taxes and assessments, and maintained fire and casualty

insurance. In addition, Anthony's right of occupancy would terminate if he

failed to occupy the property for any consecutive 180-day period, or if he

attempted to transfer, assign, or lease the property.

      Upon Anthony's violation of any of these provisions, the trustee was

authorized to sell the property. The proceeds of any such sale were to be added

to the assets held in trust for Anthony. 3 The trustee would make payments of

$500 per month to Anthony until the trust was exhausted, and the $500 payments


3
  Upon Anthony's death, the trustee would sell the property and distribute the
assets as follows: (1) $15,000 to Catherine's granddaughter Catherine DePaul,
(2) $15,000 to Catherine's granddaughter Marcella DePaul, (3) $5,000 to Cristy
Santiago, and (4) $10,000 to Meagan DePaul.


                                                                            A-0887-16T2
                                         3
were to be applied directly to any mortgage that remained outstanding on the

property.

      As alleged Meagan's instant complaint in the Law Division, in February

of 2011, Catherine met with Meagan and offered to use funds from a trust fund,

which had been established and funded by Catherine, Anthony, and Santiago for

Meagan's benefit, to pay off the mortgage on the property. The agreement also

entailed using the funds from Meagan's trust fund to finance the construction of

an addition onto the property for Catherine to live in. 4 In return, Catherine

would revise her will such that Meagan would become the trustee of Anthony's

trust, and that Meagan would become the sole beneficiary of the property upon

Anthony's death. Additionally, Meagan would collect rent from Anthony to be

placed in trust for Meagan's education, health, and support, and Anthony would

continue to pay all bills related to the property. Accordingly, in March 2011,

Catherine met with an attorney to revise her will. In July 2011, Catherine wired


4
    The record is unclear as to exactly which funds were used to finance this
construction. Meagan's complaint states that the total amount of the funds from
her trust account was $104,109.82 and that all the funds were exhausted b y
paying off the mortgage, funding the construction, and by other withdrawals by
Anthony. As discussed more fully below, Judge Batten concluded that Santiago
had contributed $162,000 to the improvement of the property. The record is
unclear as to whether it was addressed in the previous Chancery Division
litigation that money from Meagan's trust fund was used to finance the
construction.
                                                                        A-0887-16T2
                                       4
$38,380.04 from Meagan's trust account to Chase Bank to pay off the mortgage

on the property.

      On September 28, 2011, Catherine was hospitalized after falling and

suffering an arterial puncture. Catherine was suffering from kidney failure and

needed dialysis three times per week, and was also mentally deteriorating.

Catherine had been residing with Archetto, but Archetto did not believe it was

safe for Catherine to continue to reside with her given her health needs.

Therefore, upon her discharge from the hospital on October 5, 2011, Catherine

began living with Anthony at the Mays Landing property.

      On October 20, 2011, Catherine again met with an attorney and executed

a power of attorney appointing Anthony as her attorney-in-fact. Additionally,

the attorney prepared a draft of a revised will, but this draft was never executed

by Catherine. The draft will appointed Meagan as trustee of all trusts established

pursuant to the will, except that Anthony would serve as temporary trustee if

Meagan was not yet eighteen years old at the time of Catherine's death. It

appointed Anthony as executor of the Estate. The draft will directed that the

trustee (Meagan) would retain the property in trust, but permit Anthony to

continue to reside there provided that he paid fair market rent and paid all




                                                                          A-0887-16T2
                                        5
expenses related to the property. The trustee retained the discretion to sell the

property if Anthony no longer wished to reside there.

      Additionally, the draft will provided that the residuary was to be held in

trust for the benefit of Anthony and Meagan.5 The trustee (Meagan) retained

the sole discretion to distribute funds from the trust as needed for the health,

maintenance, and support of Anthony and Meagan. Moreover, upon the death

of Anthony, the trustee (Meagan) was to pay over the balance of the trust fund

to Meagan, including any real property held in trust. Accordingly, Meagan

would receive the property in her name upon the death of Anthony.

      Catherine, however, never executed this draft will.        Catherine was

hospitalized two more times in November and December of 2011. She passed

away while at the hospital on December 28, 2011.

      Eight days prior to Catherine's death, however, Anthony executed a

quitclaim deed in his capacity as Catherine's attorney-in-fact, transferring the

property from Catherine to himself for consideration of $1. Anthony avers that

he attempted to place the property in trust for Meagan. Additionally, it appears

that Anthony, as Catherine's attorney-in-fact, entered into a written agreement


5
  The draft will also specifically provided that Karen Archetto, Dean Archetto,
Benjamin Archetto, Catherine DePaul and Marcella DePaul would have no right
or interest in any part of the Estate.
                                                                         A-0887-16T2
                                       6
with Santiago for her to contribute money to the improvement of the property in

exchange for Anthony placing the property in trust for Meagan's benefit until

she turned eighteen, at which time the property would be deeded to Meagan

individually.6

                                       B.

      A few weeks after Catherine death, Archetto probated Catherine's 1999

will and was appointed executrix. On January 10, 2014, Archetto filed a verified

complaint in the Chancery Division, Probate Part, alleging that Anthony had

impermissibly conveyed the property to himself and had also inappropriately

retained funds from Catherine's accounts.

      Meagan avers that Archetto never served her with the verified complaint

even though Meagan was a named beneficiary of the 1999 will. According to

Meagan, she contacted the Superior Court, and was advised to contact the

Surrogate's Office.   The Surrogate's Office advised Meagan to submit an

affidavit to be considered by the judge, and Meagan submitted an affidavit

stating that she had not been served even though she was a named beneficiary

and would like to be a party to the litigation. According to Meagan, Judge Batten


6
   Neither this written agreement nor the quitclaim deed are contained in the
record for the instant matter.


                                                                         A-0887-16T2
                                       7
acknowledged on the record on March 24, 2015 that this affidavit was not

received in chambers.7 Anthony also filed a motion to join Meagan as an

indispensable party on March 9, 2015, but the motion was denied due to lateness.

      After presiding over a two-day bench trial, Judge Batten rendered an oral

decision on March 31, 2015. Initially, the judge found that Anthony's attempted

conveyance of the property via quitclaim deed was invalid, because he was not

authorized to convey the property to himself by the terms of the power of

attorney. Therefore, the judge concluded that Meagan enjoyed no legal interest

in the property because the transaction was "structurally flawed." Accordingly,

the court voided the quitclaim deed and adjudicated the property to be an asset

of the Estate that passed through the estate and into trust for the benefit of

Anthony.

      In so ruling, however, Judge Batten acknowledged that it appeared that it

was Catherine's intent that the property pass to Meagan:

            And I am left somewhat unsettled by concluding [the]
            decision [to void the quitclaim deed] to be the most
            appropriate, most legally correct, because it is the
            Court's sense, which Mr. DePaul does not – with which
            he does not argue, that Catherine DePaul had achieved
            agreement with Cristy Santiago that in consideration
            for the contributions by Ms. Santiago . . . that [the

7
  The record in this appeal does not contain the transcripts from the March 24,
2015 proceeding before Judge Batten.
                                                                        A-0887-16T2
                                       8
            property] was to be placed in trust for Meagan until
            such times as she turned eighteen, whereupon the
            property would be deeded to her individually.

      In this regard, Judge Batten noted that Santiago had filed a complaint

asserting that she was entitled to adjudication of a constructive trust in the

amount of $162,000, based on the written agreement entered into by Anthony as

Catherine's attorney-in-fact.    The judge found that it was undisputed that

Santiago had contributed this sum to the improvement of the property.

Accordingly, the court entered a judgment against the Estate in the sum of

$162,000 plus judicial interest, which was to act as a lien against the property.

In so ruling, the judge noted:

            That aspect of the Court's decision today certainly
            acknowledges and preserves Ms. Santiago's
            contributions to the improvements of [the property],
            and in so ruling the Court recognizes that interested
            parties – the estate, trusts for the trusts stablished in the
            last will of Catherine DePaul – may achieve a rather
            pragmatic solution yielding title ultimately in the name
            of Meagan DePaul; but I leave that to the interested
            parties, and any such pragmatic solution that yielded
            the net result would likely include, one would imaging,
            forgiveness of the judgment consistent with the
            agreement reached between Catherine DePaul and
            Cristy Santiago.

      Judge Batten entered a final judgment memorializing his ruling on April

20, 2015.    Anthony appealed Judge Batten's rulings, and Archetto cross-


                                                                            A-0887-16T2
                                         9
appealed the judgment in favor of Santiago. Meagan filed a motion to intervene

in the appeal, which we granted on November 17, 2015. After being granted

intervenor status, Meagan filed motions in the appeal. In December 2015,

Meagan filed a motion to vacate the previous judgment and dismiss Archetto's

cross-appeal as late, moot, and invalid. We denied this motion. Additionally,

in January 2016, Meagan filed a motion to dismiss Archetto as a dispensable

party or in the alternative vacate the trial court's judgment for failure to serve

and join a necessary/indispensable party. We also denied this motion.

      As neither Anthony nor Archetto filed the appropriate transcripts to

prosecute the appeal and cross-appeal, orders dismissing the appeal and cross-

appeal were entered on March 1, 2016. Meagan notes that she was not at fault

for this dismissal, as she was not required to file transcripts as an intervenor.

Indeed, a motion filing notice provided to Meagan on October 27, 2015

specifically indicated that her motion to proceed as indigent and for transcripts

at public expense was being returned and was not being filed because Meagan

was seeking to intervene in an open appeal. The letter stated that Meagan was

not required to pay a filing fee, and that the appellant was required to order and

file the transcripts.




                                                                          A-0887-16T2
                                       10
                                       C.

      On July 5, 2016, Meagan filed a five-count complaint in the Law Division.

Counts one and two sought money damages against the Estate for breach of

contract and negligence. Count three was asserted against Anthony and the

Estate for unjust enrichment and sought the imposition of a constructive trust on

the property and compensatory damages. Count four sought money damages

against the Estate for breach of fiduciary duty. Count five was asserted against

Anthony and the Estate for fraud and sought the imposition of a constructive

trust on the property.

      Archetto, as executrix of the estate, filed a pro se motion for summary

judgment, asserting that Meagan's complaint was barred by the entire

controversy doctrine. Meagan opposed the motion.          Although named as a

defendant in Meagan's complaint, Anthony also joined in Meagan's opposition.

      After hearing oral argument on September 30, 2016, the trial court issued

a written decision granting summary judgment to Archetto and the Estate. 8

Accordingly, the trial court entered an order dismissing Meagan's complaint




8
  By this time, Judge Batten had retired from the bench, and the matter was
handled by a different judge.
                                                                         A-0887-16T2
                                      11
with prejudice. The trial court determined that Meagan's complaint was barred

by the entire controversy doctrine, reasoning:

            The Court finds that each of [Meagan's claims] arise
            from the same controversy involving the Mays Landing
            real property that was previously decided by Judge
            Batten. Specifically, all counts allege a claim for relief
            out [of] an allegedly failed agreement and plan to
            amend decedent's will to change the bequest of the
            Mays Landing property. Plaintiff concedes both in her
            [c]omplaint and her [o]pposition to motion for
            [s]ummary judgment that, after reaching the age of
            majority, she was aware of the prior estate litigation
            before its final resolution. . . . Further, despite the
            result of her efforts to intervene at the trial level, the
            Appellate Division granted [p]laintiff's motion to
            intervene, yet the case was ultimately not pursued at the
            appellate level. Additionally, [p]laintiff's complaint
            acknowledges the timeline of appellate opportunities
            from November 17, 2015 through May 3, 2016. . . .
            Thus, the Court finds no genuine issues of material fact
            in dispute; [p]laintiff was previously aware of the prior
            litigation, the prior litigation decided the issues
            underlying the counts in [p]laintiff's complaint, and
            [p]laintiff was afforded the opportunity to prosecute the
            prior litigation at the appellate level.

This appeal followed.

                                       II.

      We review a grant of summary judgment de novo, applying the same

standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320,

330 (2010). Summary judgment must be granted if "the pleadings, depositions,


                                                                         A-0887-16T2
                                       12
answers to interrogatories and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a matter of law." R.

4:46-2(c). The court considers whether "the competent evidential materials

presented, when viewed in the light most favorable to the non-moving party, are

sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995). The "trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995).

        On appeal, Meagan argues that the trial court improperly applied the entire

controversy doctrine to bar her claims. 9 In his appellate brief, Anthony again

joins Meagan in seeking reversal of the trial court's grant of summary

judgment.10 Having reviewed the record and applicable legal principles, we

agree that the entire controversy doctrine does not bar Meagan's claims.


9
  Meagan's appellate brief presents additional arguments for reversal, but we
need not address these arguments in light of our reversal of the trial court's
determination on the entire controversy doctrine.
10
     Archetto has not filed an appellate brief on behalf of herself or the Estate.
                                                                             A-0887-16T2
                                         13
      The entire controversy doctrine stems from the "long-held preference that

related claims and matters arising among related parties be adjudicated together

rather than in separate, successive, fragmented, or piecemeal litigation." Kent

Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428, 443 (2011). "A

series of court rules implement the entire controversy doctrine in our courts."

Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, PC , ___

N.J. ___, ___ (2019) (slip. op. at 17). Relevant to the instant matter, Rule 4:30A

addresses the mandatory joinder of claims:

            Non-joinder of claims required to be joined by the
            entire controversy doctrine shall result in the preclusion
            of the omitted claims to the extent required by the entire
            controversy doctrine, except as otherwise provided by
            R. 4:64-5 (foreclosure actions) and R. 4:67-4(a) (leave
            required for counterclaims or cross-claims in summary
            actions).

      In general, the entire controversy doctrine requires that a party assert all

claims arising from the same transactional facts in a single lawsuit, including

defenses, counterclaims, and cross-claims.      See Mystic Isle Dev. Corp. v.

Perskie & Nehmad, 142 N.J. 310, 322-23 (1995). In determining whether a

successive suit arises from the same transaction of a previous suit, "it is the

factual circumstances giving rise to the controversy itself, rather than a

commonality of claims, issues or parties, that triggers the requirement of joinder


                                                                          A-0887-16T2
                                       14
to create a cohesive and complete litigation." Ibid.; see also DiTrolio v. Antiles,

142 N.J. 253, 271 (1995) ("The entire controversy doctrine does not require

commonality of legal issues.").

      The determination of whether to apply the entire controversy doctrine to

bar a successive claim rests within the discretion of the trial court. Mystic Isle,

142 N.J. at 323. The Supreme Court recently reiterated that in exercising this

discretion, courts must consider fairness and equitable principles:

            Because "the polestar for the application of the [entire
            controversy] rule is judicial fairness," a court must
            apply the doctrine in accordance with equitable
            principles, with careful attention to the facts of a given
            case. K-Land Corp. No. 28 v. Landis Sewerage Auth.,
            173 N.J. 59, 74 (2002) (alteration in original) (quoting
            Reno Auto Sales, Inc. v. Prospect Park Sav. & Loan
            Ass'n, 243 N.J. Super. 624, 630 (App. Div. 1990)
            (internal quotation marks omitted)). The doctrine's
            equitable nature "bar[s] its application where to do so
            would be unfair in the totality of the circumstances and
            would not promote any of its objectives, namely, the
            promotion of conclusive determinations, party fairness,
            and judicial economy and efficiency." Id. at 70
            (emphasis omitted) (alteration in original) (quoting
            Pressler, Current N.J. Rules, cmts. 1 & 2 on R. 4:30A
            (2002)). "In considering whether application of the
            doctrine is fair, courts should consider fairness to the
            court system as a whole, as well as to all parties."
            Wadeer, 220 N.J. at 605.

            [Dimitrakopoulos, ___ N.J. ___ (slip op. at 25)
            (alterations in original).]


                                                                           A-0887-16T2
                                       15
      "Because a violation of the entire controversy doctrine may result in the

preclusion of a claim, a court must consider whether the party against whom the

doctrine is sought to be invoked has had a fair and reasonable opportunity to

litigate that claim." Hobart Bros. Co. v. Nat'l Union Fire Ins. Co., 354 N.J.

Super. 229, 241 (App. Div. 2002). "Thus, the entire controversy doctrine does

not apply to unknown or unaccrued claims." DiTrolio, 142 N.J. at 273-74. Nor

does the doctrine apply to preclude a successive action if the previous action did

not result in an adjudication on the merits. See Arena v. Borough of Jamesburg,

Middlesex Cty., 309 N.J. Super. 106, 110-11 (App. Div. 1998).

      Applying these precepts to the circumstances here, we conclude the trial

court mistakenly exercised its discretion in applying the entire controversy

doctrine to bar Meagan's claims. Based on our review of the complicated factual

and procedural history of this matter, we conclude that the totality of the

circumstances and the equities at play weigh against the application of the entire

controversy doctrine.

      In weighing the equities, we find that Meagan did not have a fair and

reasonable opportunity to litigate her interests in the previous action in the

Probate Part. There is no indication in the record that Meagan was granted

intervenor status in the trial court. Indeed, Meagan contends she was never


                                                                          A-0887-16T2
                                       16
served with Archetto's complaint, and Archetto does not dispute the lack of

service.11 To be sure, Meagan turned eighteen years old on the day Archetto

filed her complaint, and Meagan made some attempts to intervene in the Probate

Part litigation. But as a non-party, Meagan did not have an actual opportunity

to litigate her interests in the trial court. Simply being aware of the litigation

and having the opportunity to attend trial does not amount to having a fair

opportunity to litigate her claims.

      Likewise, although Meagan was granted intervenor status in the previous

appeal and filed some unsuccessful motions, that appeal was never adjudicated

on the merits.     The dismissal of the appeal and cross-appeal bore no

responsibility for Meagan, as Anthony and Archetto failed to file the necessary

transcripts.

      Moreover, we find that Meagan's interests may not have been adequately

protected in the previous litigation. In this regard, Judge Batten specifically

acknowledged that it appeared that it was Catherine's intent that the property

would pass to Meagan. The unexecuted draft will provides additional support



11
   Notably, Archetto's affidavit in support of her motion for summary judgment
does not aver that Meagan obtained intervenor status in the trial court, instead
focusing on the facts that Meagan was aware of the litigation because her parents
were parties, and that Meagan was over eighteen years old by the time of trial.
                                                                          A-0887-16T2
                                       17
that it may have been Catherine's intent that the property would pass to Meagan.

Although Anthony and Santiago were taking the position that the property

should pass to Meagan in the Probate Part action, they each also had their own

independent interests in that litigation.     Santiago successfully obtained a

constructive trust for the $160,000 she contributed to the property, and Anthony

unsuccessfully defended allegations that he had inappropriately retained

Catherine's assets. For these reasons, it does not appear that Meagan's interests

were adequately protected by the parties in the Probate Part action.

      Furthermore, in the instant Law Division action, Meagan is attempting to

vindicate interests independent of becoming the beneficiary of the property. For

example, she seeks damages to compensate her for funds that were allegedly

withdrawn from her trust account and used to pay off the mortgage on the

property and to fund construction. In this respect, Meagan's interests further

diverge from the interests of her parents in the previous litigation.

      In sum, when considering the totality of the circumstances, we find that

the interests in party fairness predominate. Because the record does not support

that Megan had a reasonable opportunity to litigate her interests in the previous

Probate Part action, we conclude that the entire controversy doctrine should not

be applied to bar Meagan's claims.


                                                                         A-0887-16T2
                                       18
Reversed and remanded. We do not retain jurisdiction.




                                                        A-0887-16T2
                              19
