SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1954-20

MCDONALD MOTORS

CORPORATION,

Plaintiff-Appellant,

v.

JOHN J. DELANEY, ESQ., and

LINDABURY, MCCORMICK,

ESTABROOK & COOPER, P.C.,

Defendants-Respondents.

____________________________

Argued March 16, 2022 – Decided March 28, 2022

Before Judges Sumners and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Morris County, Docket No. L-1119-20.

Robert W. McAndrew argued the cause for appellant 

(McAndrew Vuotto, LLC, attorneys; Robert W. 

McAndrew, of counsel and on the briefs; Michael R. 

McAndrew, on the briefs).

Paul A. Carbon argued the cause for respondents

(Margolis Edelstein, attorneys; Paul A. Carbon, of 

counsel and on the brief; Patrick F. Kelly, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

In this legal malpractice action, plaintiff McDonald Motor Corporation 

appeals from two Law Division orders entered on November 24, 2020, and 

February 19, 2021, dismissing its first and second amended complaints for 

failure to state a claim for which relief can be granted under Rule 4:6-2(e). 

Defendants John J. Delaney, Esq. and his employer, Lindabury, McCormick, 

Estabrook & Cooper, P.C. (the law firm) (collectively defendants), represented 

HisVision, LLC (HV) before the Morristown Planning Board (Board) on 

multiple variance applications. Plaintiff's property is adjacent to HV's property. 

Plaintiff contends there were multiple errors that precluded its claims from being 

litigated and tried on the merits. For the reasons stated below, we affirm the 

orders under review.

I.

We summarize the following facts from the record and the allegations in 

plaintiff's first and second amended complaints, treating those allegations as true 

and extending all favorable inferences to plaintiff. See Craig v. Suburban 

Cablevision, Inc., 140 N.J. 623, 625-26 (1995). In 2017, HV filed an application 

with the Board to construct a restaurant at 51 Bank Street in Morristown. 

Plaintiff is the owner of 55 Bank Street and throughout the ten hearings 
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conducted over diverse dates between May 25, 2017, and June 28, 2018, it 

objected to HV's application.

Before the May 24, 2018 hearing, the ninth hearing, Delaney contacted 

the Board attorney, John Inglesino, Esq., to notify him about a potential conflict 

of interest involving Joseph Kane, a Board member. In 2014, the law firm "had 

done some estate planning work" for Kane and drafted him a will and general 

durable power of attorney. According to Delaney, "he did not draft any of 

Kane's estate documents; rather, [his] former law partner, who is no longer 

associated with [the law firm], allegedly drafted these documents."

At the May 24, 2018 hearing, Inglesino shared this information with the 

Board and recommended the members analyze whether a conflict exists under 

Wyzykowski1 before deciding the application. "The Board decided that it should 

1

 Our Court has identified four types of conflicts that could compel public 

officials to depart from their civic duties:

(1) "Direct pecuniary interests," when an official votes 

on a matter benefitting the official's own property or 

affording a direct financial gain; (2) "Indirect pecuniary 

interests," when an official votes on a matter that 

financially benefits one closely tied to the official, such 

as an employer, or family member; (3) "Direct personal 

interest," when an official votes on a matter that 

benefits a blood relative or close friend in a nonfinancial way, but a matter of great importance, as in 
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consider whether there was a conflict if Kane presided over the [a]pplication 

and, if so, what effect that might have on the proceedings." The Board carried 

the application to its June 28, 2018 meeting where it considered witness 

testimony from HV and plaintiff and "favorable comments from the public in 

favor of the [a]pplication." Kane subsequently failed to recuse himself. In its 

August 23, 2018 resolution, the Board approved HV's application.

On October 8, 2018, plaintiff filed an action in lieu of prerogative writs in 

the Law Division. In part, plaintiff "sought reversal of the Board's resolution 

and the taxed costs incurred by ordering the Board hearing transcripts." A prior

judge held a case management conference on February 20, 2019. "Rather than 

engage in discovery, the parties agreed to a [p]retrial [s]tipulation of [f]acts, 

which was filed on June 14, 2019, to clarify the nature of Kane's relationship 

the case of a councilman's mother being in the nursing 

home subject to the zoning issue; and (4) "Indirect 

Personal Interest," when an official votes on a matter in 

which an individual's judgment may be affected 

because of membership in some organization and a 

desire to help that organization further its policies.

[Wyzykowski v. Rivas, 132 N.J. 509, 525-26 (1993) 

(citing Michael A. Pane, Conflict of Interest: 

Sometimes a Confusing Maze, Part II, New Jersey 

Municipalities, Mar. 1980, at 8, 9).]
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with Delaney." Based on the stipulation of facts, the judge found Delaney and 

Kane's relationship was as follows:

Delaney was designated the alternate executor under 

Kane's 2003 will, and that he witnessed this will. In 

2006, Delaney was not the primary executor of the 2003 

will, nor was he a beneficiary under this will. Delaney 

opened a file for Kane to obtain a police report for him, 

but Delaney undertook no further legal actions on 

Kane's behalf. Delaney has not personally provided 

any legal work for Kane since 2006. In 2014, when 

Kane decided to update his estate planning documents, 

he retained [the law] firm—in particular, John Chester, 

Esq.—to revise his will and power of attorney. Delaney 

was designated as the executor and successor trustee 

under the 2014 will, and as the successor attorney-infact under the 2014 power of attorney. Delaney also 

notarized Kane's 2014 estate documents, and his wife 

and son witnessed them. Chester left the [law] firm in 

December 2017. Kane and Delaney are on friendly 

terms and they occasionally see each other at local 

events. They do not actively maintain a social 

relationship, nor do they engage in any business 

ventures together.

[(Citations omitted).]

On October 25, 2019, the judge issued an order and statement of reasons 

finding an indirect conflict existed between Kane and Delaney that should have 

disqualified Kane from voting. Accordingly, the judge remanded HV's

application to the Board for reconsideration "with a replacement for Kane, if his 

absence would prevent a quorum."
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On May 26, 2020, plaintiff filed its initial complaint and jury demand

against defendants seeking compensatory damages for opposing and 

participating "in a sham proceeding," not cognizable in an action in lieu of 

prerogative writs. Plaintiff then filed its first amended complaint on October 7, 

2020, alleging three causes of action against defendants: (i) professional 

negligence; (ii) breach of fiduciary duty; and (iii) vicarious liability. In lieu of 

filing an answer, defendants filed a motion to dismiss plaintiff's first amended 

complaint for failure to state a claim upon which relief can be granted under 

Rule 4:6-2(e).2

On November 24, 2020, the motion judge conducted oral argument on 

defendants' motion. Viewing the facts alleged in a light most favorable to 

plaintiff, the judge granted defendants' motion and dismissed plaintiff's first 

amended complaint without prejudice. However, the judge "permitted 

2

 Rule 4:6-2 provides: 

Every defense, legal or equitable, in law or fact, to a 

claim for relief in any complaint, counterclaim, crossclaim, or third-party complaint shall be asserted in the 

answer thereto, except that the following defenses . . . 

may at the option of the pleader be made by motion, 

with briefs: . . . (e) failure to state a claim upon which 

relief can be granted.
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[p]laintiff to file an amended complaint within fourteen . . . days setting forth 

sufficient facts to establish a cause of action."

On December 7, 2020, plaintiff filed its second amended complaint, 

reiterating its three causes of action pled in its first amended complaint and 

adding a fourth cause of action "for intentional misrepresentation/equitable 

fraud." Defendants filed a second motion to dismiss under Rule 4:6-2(e).

In a comprehensive statement of reasons, the judge highlighted plaintiff's 

second amended complaint presents claims that are "substantially the same as 

[those] in the [f]irst [a]mended [c]omplaint, with the exception of the additional 

count for intentional misrepresentation [and] equitable fraud." The judge 

explained the elements of legal fraud are: "(1) material misrepresentation of a

presently existing or post fact; (2) knowledge or belief by the defendant of its 

falsity; (3) an intention that the other person rely on it; (4) reasonable reliance 

thereon by the other person; and (5) resulting damages," citing Banco Popular 

N. Am. v. Gandhi, 184 N.J. 161, 172-73 (2005) (quoting Gennari v. Weichert 

Co. Realtors, 148 N.J. 582, 610 (1977)).
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The judge further explained that "[f]raud claims are subject to heightened 

pleading standards," citing Rule 4:5-8.3 In reviewing the second amended 

complaint, the judge found plaintiff acknowledged "during the [p]lanning 

[b]oard process, Delaney brought up the fact that he had a long-standing 

personal relationship with Kane and his [f]irm had previously provided estate 

planning services for Board member [Kane]." Finding no intentional 

misrepresentation by defendants, on February 19, 2021, the judge granted their 

motion to dismiss the second amended complaint, this time with prejudice, and 

entered a memorializing order. This appeal ensued.

On appeal, plaintiff argues the judge: (1) erred in dismissing the second 

amended complaint for failure to state a cause of action; (2) the facts were 

alleged with specificity to support a cause of action for intentional 

misrepresentation, breach of fiduciary duty, and vicarious liability; (3) the entire 

controversy is not a bar to its prosecuting the second amended complaint; and 

(4) reversal is warranted to prevent absolving attorneys from disclosing 

disqualifying conflicts and to mandate their candor to tribunals.

3

 Rule 4:5-8 (a) provides: "Fraud; Mistake; Condition of Mind. In all 

allegations of misrepresentation, fraud, mistake, breach of trust, willful deceit 

or undue influence, particulars of the wrong, with dates and items if necessary, 

shall be stated insofar as practicable. Malice, intent, knowledge, and other 

condition of mind of a person may be alleged generally." (Emphasis added.)
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II.

"An appellate court reviews de novo the trial court's determination of the

motion to dismiss [for failure to state a claim upon which relief can be granted] 

under Rule 4:6-2(e)." Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, 

Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019). "It owes no deference to the trial 

court's legal conclusions." Ibid. In considering a Rule 4:6-2(e) motion, this

court "examines 'the legal sufficiency of the facts alleged on the face of the 

complaint,' Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 

(1989), limiting its review to 'the pleadings themselves,' Roa v. Roa, 200 N.J. 

555, 562 (2010)." Dimitrakopoulos, 237 N.J. at 107 (2019). 

The test for determining the adequacy of a pleading is "whether a cause 

of action is 'suggested' by the facts." Teamsters Lo. 97 v. Slate, 434 N.J. Super. 

393, 412 (App. Div. 2014) (quoting Printing Mart-Morristown, 116 N.J. at 746). 

"In evaluating motions to dismiss, courts [may] consider allegations in the 

complaint, exhibits attached to the complaint, matters of public record, and 

documents that form the basis of a claim." Banco Popular N. Am., 184 N.J. at

183 (internal quotation marks omitted) (quoting Lum v. Bank of Am, 361 F.3d

217, 222 n.3 (3d Cir. 2004)). Furthermore, "the plaintiff must receive every 

reasonable inference." Ibid. "[I]t is the existence of the fundament of a cause 
10 A-1954-20

of action . . . that is pivotal[.]" Teamsters Local 97, 434 N.J. Super. at 412-13 

(second alteration in original) (quoting Banco Popular N. Am., 184 N.J. at 183.)

Finding the fundament of a cause of action in those documents is pivotal; 

a plaintiff's ability to prove its allegations is not at issue. Printing MartMorristown, 116 N.J. at 772. "Nonetheless, if the complaint states no claim that 

supports relief, and discovery will not give rise to such a claim, the action should 

be dismissed." Dimitrakopoulos, 237 N.J. at 107-08. "If the court considers 

evidence beyond the pleadings in a Rule 4:6-2(e) motion, that motion becomes 

a motion for summary judgment, and the court applies the standard of Rule

4:46." Id. at 107.

In order for plaintiff's complaint to survive a motion under Rule 4:6-2(e), 

it must have pled sufficient allegations to establish a claim for legal malpractice. 

A claim for "[l]egal malpractice is a variation on the tort of negligence" relating 

to an attorney's representation of a client. Garcia v. Kozlov, Seaton, Romanini 

& Brooks, P.C., 179 N.J. 343, 357 (2004) (citing McGrogan v. Till, 167 N.J. 

414, 425 (2001)).

Plaintiff claims the judge "improvidently relied upon assumptions about 

what the evidence might show" when dismissing its complaints. It alleges that 

defendants' failure to disclose the nature of their relationship with Kane at the 
11 A-1954-20

onset of proceedings has tainted his right to a fair hearing. We address the four 

causes of action pled in plaintiff's second amended complaint in turn:

A. Professional Negligence

Legal malpractice claims are "grounded in the tort of negligence." Gilbert 

v. Stewart, 247 N.J. 421, 442 (2021) (quoting Nieves v. Off. of the Pub. Def., 

241 N.J. 567, 579 (2020)). "Accordingly, the elements of a legal malpractice 

claim are: '(1) the existence of an attorney-client relationship creating a duty of 

care by the defendant attorney, (2) the breach of that duty by the defendant, and 

(3) proximate causation of the damages claimed by the plaintiff.'" Id. at 442-43 

(quoting Nieves, 241 N.J. at 582). "The client bears the burden of proving by a 

preponderance of [the] credible evidence that injuries [or damages] were 

suffered as a proximate consequence of the attorney's breach of duty." Sommers 

v. McKinney, 287 N.J. Super. 1, 10 (App. Div. 1996) (citing Lieberman v. Emps.

Ins. of Wausau, 84 N.J. 325, 342 (1980)). As the judge noted in his February 

19, 2021 order, "[p]laintiff fails to allege the existence of an attorney-client 

relationship with Delaney, which omission is fatal to [its] claim of professional 

liability."

"The determination of the existence of a duty is a question of law for the 

court." Singer v. Beach Trading Co., 379 N.J. Super 63, 74 (App. Div. 2005) 
12 A-1954-20

(quoting Petrillo v. Bachenberg, 139 N.J. 472, 479 (1995)). Because of our 

Court's "ordinary reluctance to permit non-clients to sue attorneys remains 

unchanged," Green v. Morgan Props., 215 N.J. 431, 460 (2013), finding an 

attorney owed a duty to a non-client "has been applied rather sparingly," only in 

"carefully circumscribed" holdings, LoBiondo v. Schwartz, 199 N.J. 62, 102, 

116 (2009). The Court has held "the grounds on which any plaintiff may pursue 

a malpractice claim against an attorney with whom there was no attorney-client 

relationship [remain] exceedingly narrow." Green, 215 N.J. at 458. 

"Whether an attorney owes a duty to a non-client third party depends on 

balancing the attorney's duty to represent clients vigorously, with the duty not 

to provide misleading information on which third parties foreseeably will rely." 

Petrillo, 139 N.J. at 479 (citations omitted); accord Davin, L.L.C. v. Daham, 329 

N.J. Super. 54, 76 (App. Div. 2000) ("When considering the imposition of a duty 

upon an attorney, [this court] must therefore consider the impact that duty will 

have upon the public, in general, and the attorney's client's right to vigorous and 

effective representation.").

"In determining whether a duty exists, the court must identify, weigh and 

balance the following factors: the relationship of the parties; the nature of the 

attendant risk; the opportunity and ability to exercise care; and the public 
13 A-1954-20

interest in the proposed solution." Davin, 329 N.J. Super. at 73. The ultimate 

question is one of fairness. Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 

213 (App. Div. 2014) (holding "privity between an attorney and a non-client is 

not necessary for a duty to attach where the attorney had reason to foresee the 

specific harm which occurred.").

Indeed, we have recognized "[p]rivity between an attorney and a nonclient is not necessary for a duty to attach 'where the attorney had reason to 

foresee the specific harm which occurred.'" Ibid. (quoting Est. of Albanese v. 

Lolio, 393 N.J. Super. 355, 368-69 (App. Div. 2007)) (alternation in original). 

In limited circumstances, a duty to a non-client has been found when the attorney 

knew, or should have known, that the non-client would rely on the attorney's 

representation and the non-client is not too remote from the attorney to be 

entitled to protection. Ibid.; accord Banco Popular N. Am., 184 N.J. at 181 

("[T]he invitation to rely and reliance are the linchpins of attorney liability to 

third parties."). For example, we have imposed third-party liability on an 

attorney for negligent acts or omissions when third-party reliance on such acts 

was foreseeable. See, e.g., Atl. Paradise Assocs. v. Perskie, Nehmad & Zeltner, 

284 N.J. Super. 678, 685-86 (App. Div. 1995) (finding cause of action by 
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plaintiff-purchasers against defendant law firm where plaintiffs relied on 

misrepresentations in public offering statement).

Furthermore, "a lawyer's duty may run to third parties who foreseeably 

rely on the lawyer's opinion or other legal services." Petrillo, 139 N.J. at 485. 

Here, plaintiff relies on the facts in Petrillo to support its claim that Delaney 

violated his duty of candor to plaintiff—an admitted non-client—by failing to 

disclose his relationship with Kane. In Petrillo, the Court found as a matter of 

law that the attorney for a seller of real estate owed a duty to a non-clientpotential buyer after providing him incomplete environmental reports. 139 N.J. 

at 474, 488-89. As part of the sales packet, the attorney produced only two 

pages from two separate environmental reports, which described a single series 

of two successful percolation tests out of seven when read together. Id. at 475. 

But taken together, the two reports showed that three out of thirty tests were 

successful. Id. at 474-75.

The Court held that the attorney had a duty not to negligently misrepresent 

the contents of a material document of which he knew, or should have known, a 

potential buyer might rely on to his or her detriment. Id. at 489. And, the Court 

found it was foreseeable that a potential buyer would rely on the environmental 

documents provided by a seller's attorney when deciding to purchase real
15 A-1954-20

property and the attorney's relationship, through the seller-client, was not too 

remote to render the harm to a non-client-buyer unforeseeable. Id. at 488-89; 

see also Davin, 329 N.J. Super. at 76-78 (imposing a duty on an attorney to a 

non-client during a lease negotiation for the attorney's failure to disclose facts 

that went "to the very essence of the transaction" such as the property being in 

foreclosure and inserting covenant of quiet enjoyment in the lease).

We conclude from our de novo review the judge correctly dismissed 

plaintiff's second amended complaint with prejudice because contrary to its 

arguments, plaintiff could not establish the required elements of an attorneyclient relationship or that it personally suffered any damages as a consequence 

of defendants' actions vis-à-vis the planning board. The record clearly shows 

Delaney disclosed his relationship with Kane to Inglesino and the planning 

board upon learning of the conflict. Therefore, Delaney did not invite plaintiff 

to rely on a misrepresentation of material fact. Moreover, the Board was duly 

instructed by its attorney to conduct an analysis under Wyzykowski. Hence, 

Delaney did not owe a non-client duty to plaintiff, a voluntary objector, not an 

intended victim.
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B. Intentional Misrepresentation/Fraud

To succeed "on a common law fraud claim, plaintiff must show that 

defendant: (1) made a representation or omission of a material fact; (2) with 

knowledge of its falsity; (3) intending that the representation or omission be 

relied upon; (4) which resulted in reasonable reliance; and that (5) plaintiff 

suffered damages." DepoLink Ct. Reporting & Litig. Support Servs. v. 

Rochman, 430 N.J. Super. 325, 336 (App. Div. 2013). "Equitable fraud is 

similar to legal fraud," but "the plaintiff need not establish the defendant's 

scienter." Ibid. A "defendant's scienter" is the "defendant's knowledge of the 

falsity and intent to obtain an undue advantage." Ibid. "[P]laintiff must prove 

each element by 'clear and convincing evidence.'" Ibid. (quoting Stochastic 

Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395 (App. Div. 1989)).

Plaintiff's second amended complaint asserts "[a]t the May 24, 2018 Board 

meeting, the ninth meeting and after eight days of hearings, Delaney first 

brought up the fact that he had a long-standing personal relationship with Kane 

and that [the law firm] had previously provided estate planning services for 

Board member [Kane]." We note plaintiff does not specify what Delaney 

concealed or omitted. Plaintiff's general allegation is insufficient to state a claim 

for common law fraud.
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As the judge pointed out, "While perhaps [d]efendants did not make the 

disclosure prior to the commencement of proceedings or provide the exact level 

of detail deemed adequate by [p]laintiff, [d]efendants' disclosure was made in 

time for Kane to recuse himself prior to [his] deliberation regarding HV's 

application." We are unpersuaded by plaintiff's assertion that it pled "the exact 

date and time of [d]efendants' misdeed." Plaintiff's second amended complaint 

is bereft of any particulars that adequately allege intentional misrepresentation 

or fraud.

C. Breach of Fiduciary Duty

Plaintiff argues that defendants "owed to the participants, including the 

parties and the public at large," a fiduciary duty to immediately disclose the 

relationship with Kane at the outset of the proceedings which would have forced 

Kane to recuse himself. Our Court has explained:

The essence of a fiduciary relationship is that one 

party places trust and confidence in another who is in a 

dominant or superior position. A fiduciary relationship 

arises between two persons when one person is under a 

duty to act for or give advice for the benefit of another 

on matters within the scope of their relationship.

[F.G. v. MacDonell, 150 N.J. 550, 563 (1997).]
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Where the parties' relationship is "essentially adversarial," the "general 

presumption" is the one of an arms-length transaction on equal footing. See, 

e.g., United Jersey Bank v. Kensey, 306 N.J. Super. 540, 553 (App. Div. 1997). 

In its brief, plaintiff relies on the proposition in Albright v. Burns, 206 

N.J. Super. 625, 632-33 (App. Div. 1986), that "a member of the bar owes a 

fiduciary duty to persons, though not strictly clients, who he knows or should 

know rely on him in his professional capacity." In Albright, the attorney assisted 

a client in removing assets from his estate before he passed away and later 

represented the estate. Id. at 632. We held the attorney owed a duty to the nonclient beneficiaries of the will because they relied on the attorney's advice as a 

professional representing the estate after the decedent passed, as well as his 

understanding of the assets and their location. Id. at 633-34.

Here, in contrast, plaintiff and defendants were arms-length adversaries in 

the Board proceedings. See United Jersey Bank, 306 N.J. Super. at 553. "In 

fact, [p]laintiff was represented by its own counsel in opposing HV's application 

presented by [d]efendants." Moreover, plaintiff did not rely on defendants for 

advice nor did a relationship arise where Delaney was "under a duty to act for 

or give advice for the benefit of [plaintiff] on matters within the scope of" the 
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application. F.G., 150 N.J. at 563. Instead, plaintiff had its own counsel, who 

owed it a fiduciary duty. Ibid.

Plaintiff's argument that defendants owed the public a fiduciary duty also 

lacks merit because it extends the fiduciary duty beyond a confidential

relationship. Accepting this proposition would undermine the trust and intimacy 

that distinguishes a fiduciary relationship from other transactional relationships.

See id. at 563-64. Therefore, the judge correctly dismissed plaintiff's breach of 

fiduciary claim under Rule 4:6-2(e). 

D. Vicarious Liability

In its brief, plaintiff fails to include any argument or case law relative to 

the vicarious liability issue. "An issue not briefed on appeal is deemed waived." 

Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). However, 

we add the following remarks.

A decision "which exonerates the employee from liability requires also 

the exoneration of the employer." Walker v. Choudhary, 425 N.J. Super. 135, 

152 (App. Div. 2012) (quoting Kelley v. Curtiss, 16 N.J. 265, 270 (1954)). "[I]f 

the employee is not to be held responsible for his wrongdoing, the employer 

whose liability is asserted solely upon the basis of imputed responsibility for his 

employee's wrong cannot in fairness and justice be required to respond in 
20 A-1954-20

damages for it." Ibid. (quoting Kelley, 16 N.J. at 271). Delaney is an employee 

of the law firm. Accordingly, plaintiff's cause of action for vicarious liability 

against the law firm cannot stand because its underlying liability claims are 

unsustainable. Therefore, the judge properly dismissed the vicarious liability

claim as a matter of law.

III.

We now address plaintiff's argument that the entire controversy is not a 

bar to the prosecution of its second amended complaint. Under the entire 

controversy doctrine, "[n]on-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." R. 4:30A. When considering application of the doctrine, the 

court must "guided by the general principle that all claims arising from a 

particular transaction or occurrence should be joined in a single action." Higgins 

v. Thurber, 413 N.J. Super. 1, 12 (App. Div. 2010). This "mandate encompasses 

not only matters actually litigated but also other aspects of a controversy that 

might have been litigated and thereby decided in an earlier action." Ibid. 

Furthermore, "if the entire controversy doctrine is to have true meaning 

as a principle of law in this jurisdiction, it must prevent attempts to litigate issues 

overlooked by parties in their prior related cases." Fort Lee Borough v. Dir., 
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Div. of Tax'n, 14 N.J. Tax 126, 139 (1994). Nevertheless, "the doctrine does 

not apply to bar component claims that are unknown, unarisen, or unaccrued at 

the time of the original action." Higgins, 413 N.J. Super. at 12; Pressler & 

Verniero, Current N.J. Court Rules, cmt. 3.3 on R. 4:30A (2022). For the entire 

controversy doctrine to apply, a factual nexus must exist. See Wadeer v. N.J. 

Mfrs. Ins. Co., 220 N.J. 591, 605 (2015). Designed to promote judicial 

efficiency, fairness to the parties, and complete and final dispositions, the 

doctrine avoids piecemeal litigation. DiTrolio v. Antiles, 142 N.J. 253, 267 

(1995). When determining whether to apply the doctrine, the principal 

determination is if the party asserting a claim "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).

Here, plaintiff asserts the judge erred in barring its claims under the entire 

controversy doctrine because "[t]he parties are not the same, the legal question 

is not the same, the damages sought are not the same, the forum is not designed 

to address monetary damages, and although the facts might be similar, the facts 

are not the same." Rather, "[p]laintiff seeks redress for the intentional or 

negligent misrepresentation made by Delaney that in fact necessitated the 

prerogative writs action to be filed," whereas the action in lieu of prerogative 
22 A-1954-20

writs itself sought to reverse the municipal action against the Board. Again, we 

disagree.

There is no bright-line rule that prevents interrelated claims from being 

adjudicated in connection with an action in lieu of prerogative writs action. Joel 

v. Morrocco, 147 N.J. 546, 548 (1997). "The entire controversy doctrine seeks 

to further" the objectives mentioned above "by requiring that, whenever 

possible, 'the adjudication of a legal controversy should occur in one litigation 

in [only] one court.'" Ibid. (quoting Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 

7, 15 (1989)). The judge here noted "[t]he Joel Court found critically important 

whether the facts adduced in the first action," which was a prerogative writs

action in Joel also, "would be adduced in the second action and whether the 

claims in the second action were necessary to the determination of the first 

action." Joel, 147 N.J. at 39.

Despite plaintiff's attempts to differentiate the action in lieu of prerogative 

writs from the matter under review, there is a transactional nexus. The nexus 

includes the same parties, the same set of facts, the same record, and the same 

underlying issue—whether defendants' disclosure sufficed to establish a conflict 

of interest with Kane that warranted his recusal or Delaney's. As the judge 

highlighted in his February 19, 2021 order: 
23 A-1954-20

Plaintiff requested attorneys' fees and costs incurred in 

connection with the . . . Board hearing and having to 

bring the [a]ction following Kane’s failure to recuse 

himself following the alleged inadequate disclosure by 

HV's counsel of a conflict. Unlike Joel, in this action, 

[p]laintiff seeks the same exact relief based upon the 

same facts, except now [p]laintiff seeks damages from 

HV's counsel instead of HV.

The judge's decision was based upon substantial credible evidence in the record 

and plaintiff's complaints were properly dismissed with prejudice under the 

entire controversy doctrine.

IV.

Plaintiff also claims defendants violated Rules of Professional Conduct 

(RPC) 3.3(a)(1)(5), thus warranting a reversal. RPC 3.3(a)(1) and (5) state "[a] 

lawyer shall not knowingly . . . make a false statement of fact or law to a 

tribunal" or "fail to correct a false statement of material fact or law previously 

made to the tribunal." Plaintiff argues Delaney had a disqualifying conflict and 

the judge permitted attorneys to run afoul of the RPC. We reject plaintiff's 

argument for the following reasons.

First, Delaney did not knowingly "make a false statement of material fact 

or law" to anyone, including "a tribunal"—the Board. RPC 3.3(a)(1). Second, 

he did not "fail to disclose to the tribunal a material fact knowing that the 

omission [was] reasonably certain to mislead the tribunal" because Delaney was 
24 A-1954-20

unaware of the conflict before disclosing same to the Board. RPC 3.3(a)(5). 

Third, Delaney volunteered the information, which is the subject of the appeal. 

Therefore, we discern no reversible error.

Any arguments made by plaintiff that we have not expressly addressed are 

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.