NOT FOR PUBLICATION WITHOUT THE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-4965-15T3
VERONICA BARLEY,
Plaintiff-Respondent,
and
GLEN BEST,
Plaintiff,
v.
ARNELL D. BARLEY,
Defendant-Appellant,
and
DARRELL R. ANDERSON, SHOHN W.
BINGHAM and SHARON C. THOMAS,
Defendants.
______________________________
Argued February 8, 2017 – Decided October 20, 2017
Before Judges Simonelli, Carroll and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County, Docket
No. L-6976-15.
Glenn A. Montgomery argued the cause for
appellant (Montgomery Chapin & Fetten, PC,
attorneys; Mr. Montgomery and Michael D.
Noblett, on the briefs).
Cory J. Rothbort argued the cause for
respondent (Sellar Richardson, PC, attorneys;
John M. Kearney, of counsel; Mr. Rothbort, on
the brief).
The opinion of the court was delivered by
SIMONELLI, J.S.C.
By leave granted, defendant Arnell D. Barley appeals from the
March 29, 2016 Law Division order, which dismissed her counterclaim
with prejudice based on the two year statute of limitations (SOL),
N.J.S.A. 2A:14-2(a). Defendant also appeals from the May 13, 2016
order, which denied her motion for reconsideration. For the
following reasons, we reverse and remand for further proceedings.
The facts are straightforward. Defendant and plaintiff
Veronica Barley are stepsisters. According to plaintiff, on April
5, 2013, she and defendant had a verbal dispute that turned into
a physical altercation, during which defendant scratched her arms
and tried to run her over with a car, causing her to fall and
sustain injuries. According to defendant, plaintiff was the
aggressor and caused her injuries that required medical treatment.
On April 6, 2015, plaintiff filed a complaint against
defendant, seeking damages for the injuries sustained on April 5,
2 A-4965-15T3
2013.1 Because April 5, 2015 was a Sunday, the complaint was
timely filed on Monday, April 6, 2015. See R. 1:3-1. In her
first responsive pleading, defendant asserted a counterclaim,
seeking damages for injuries sustained as a result of the same
incident.
Plaintiff filed a motion to dismiss the counterclaim pursuant
to Rule 4:6-2(e) based on the SOL. The motion judge granted the
motion, and later denied defendant's motion for reconsideration.
The judge acknowledged that in Molnar v. Hedden, 138 N.J. 96
(1994), our Supreme Court left open the question of whether a
counterclaim filed after the SOL expired could relate back to a
timely filed claim by an opposing party. However, the judge
concluded that the relation-back doctrine under Rule 4:9-3 and
equitable tolling did not apply to permit the untimely
counterclaim. This appeal followed.
Our review of a trial court's decision on a Rule 4:6-2(e)
motion to dismiss is plenary and we owe no deference to the trial
judge's conclusions. Rezem Family Assocs., LP v. Borough of
Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied,
208 N.J. 366 (2011). We also owe no deference to a trial court's
1
Plaintiff also asserted claims against other defendants for
alleged injuries she sustained in an unrelated motor vehicle
accident. The trial court severed plaintiff's claims against
defendant from the claims against the other defendants.
3 A-4965-15T3
legal conclusions, and review issues of law de novo. Mountain
Hill, LLC v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193
(App. Div. 2008), certif. denied, 199 N.J. 129 (2009).
Defendant's contentions on appeal focus on principles of
equity and fairness. Citing Molnar, supra, defendant argues that
if equitable considerations exist, as they do here, courts should
use them to determine whether the purpose of the SOL -- to protect
against the litigation of stale claims, stimulating diligent
prosecution of claims, penalizing dilatoriness, and serving as a
measure of repose -- is served by its application. Defendant also
argues that barring a germane counterclaim undermines the
principal consideration behind SOLs of fairness to the defendant.
Defendant posits it is inequitable and unfair to bar a germane
counterclaim in an initial responsive pleading that arises out of
the same facts and circumstances of the complaint, where, such as
here, the plaintiff files a complaint on the last day of the SOL.
Defendant also argues that barring her counterclaim serves no
purpose of the SOL, as the claims asserted therein do not promote
any measure of repose and are not stale because the same facts are
required to support the affirmative relief sought by both parties.
In Molnar v. Hedden, 260 N.J. Super. 133, 136 (App. Div.
1992), the defendant had filed a responsive pleading and later
filed a motion for leave to amend to assert a counterclaim arising
4 A-4965-15T3
out of the same transaction as pleaded in the complaint after the
SOL had expired. Id. at 140. Viewing the matter under the Rule
4:9-3 relation-back lens, we held that the plaintiff's action was
still pending when the motion was filed and that
application of our well-settled and liberal
procedural jurisprudence dictates the
conclusion that a counterclaim arising out of
the same transaction as pleaded by the
complaint and therefore meeting the test of
R. 4:9-3 -- that is to say, a litigation
component embraced by the entire controversy
doctrine -- is eligible for the relation-back
principle of the rule and consequently for
protection from the limitations bar.
[Ibid.]
We then discussed tolling as an alternative for excepting a
transactionally-related counterclaim from the SOL bar. Id. at
145. Citing 6 Charles A. Wright, Arthur R. Miller & Mary Kane
Federal Practice and Procedure § 1419 at 152 (1990), we stated:
"In analyzing the cognate federal rules, Professors Wright, Miller
and Kane note that the majority of federal courts have taken the
view that 'the institution of plaintiff's suit tolls or suspends
the running of the statute of limitations governing a compulsory
counterclaim.'" Id. at 144-45. We were "persuaded that the
federal rationale of tolling in respect of compulsory
counterclaims applies fully to our definition of a required
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component of the controversy." Id. at 145. We subscribed to the
view stated in 6 Wright, supra, § 1419 at 152-53 that:
This approach precludes plaintiff, when the
claim and counterclaim are measured by the
same period, from delaying the institution of
the action until the statute has almost run
on defendant's counterclaim so that it would
be barred by the time defendant advanced it.
Nor is plaintiff apt to be prejudiced by the
tolling of the statute, since he presumably
has notice at the time he commences his action
of any counterclaim arising out of the same
transaction as his suit. Moreover, the
necessarily close relationship between the
timely claim and the untimely counterclaim
should insure that the latter is not 'stale'
in the sense of evidence and witnesses no
longer being available; they should be as
accessible for adjudicating the counterclaim
as they were for the main claim.
[Ibid. (emphasis added).]
Lastly, we noted the tolling rationale, not Rule 4:9-3, will
save a counterclaim asserted in a first responsive pleading from
the SOL bar, stating:
But it is also possible that a counterclaim
might be sought to be asserted after the
running of the [SOL] by way of a first
responsive pleading where no prior answer was
filed. In that case, the responsive pleading,
not constituting an amended pleading, would
not be technically subject to R. 4:9-3. But
the counterclaim therein asserted would
nevertheless relate back to the date of the
filing of the complaint under a tolling
rationale.
[Id. at 146 (emphasis added).]
6 A-4965-15T3
While not binding, Comment 4 to Rule 4:7-1 expresses a similar
rationale:
Although [Rule 4:7-1] does not expressly
so state, ordinarily a germane counterclaim
will not be barred by the statute of
limitations if the complaint itself is timely.
A germane counterclaim is conceptually akin to
an amended pleading that states a claim or
defense arising out of the same conduct,
transaction or occurrence as the original
claim, and R. 4:9-3 expressly provides for
relation back in that situation. The only
difference is the identity of the party raising
the germane claim, and it would seem to make
little functional difference whether a party
amends his own pleading to add a germane claim
or if the adverse party responds with a germane
claim. The policy of the [SOL] is no more
offended in one case than the other.
[Pressler & Verniero, Current N.J. Court
Rules, comment 4 on R. 4:7-1 (2018).]
The Court reversed our decision in Molnar on other grounds.
The Court found the relation-back doctrine of Rule 4:9-3 was
inapplicable because by the time the defendant sought to file his
counterclaim, the SOL had run and the plaintiff's claims had been
disposed of. Molnar, supra, 138 N.J. at 103-04. The Court did
not rule on "whether [the] counterclaim, whether considered
germane or new, pressed after the [SOL] expired but while
plaintiff's claim was still 'alive' could be saved by virtue of
the relation-back doctrine." Id. at 105.
7 A-4965-15T3
In addition, the Court did not determine whether the
plaintiff's suit tolled the defendant's SOL, stating:
The reasons for finding such a tolling is to
prevent a plaintiff from waiting until shortly
before the statute of limitations has expired
to file to prevent a defendant from asserting
a cause of action. That circumstance is not
present in this case. Nothing in the record
suggests that plaintiff delayed filing, and
defendant had time within which to file a
counterclaim before the running of the statute
of limitations. Cases that toll the statute
of limitations, thereby allowing the defendant
to assert a counterclaim after the statute of
limitations would normally have run, do so
because of the inherent inconsistency in
permitting plaintiffs to amend complaints
after the statute of limitations has expired
but refusing defendants similar
opportunities. Here, plaintiff, having
accepted $15,000 in settlement of her claim,
could not be heard thereafter to amend her
claim or to press a new claim. Therefore,
denying defendant an opportunity to pursue his
late counterclaim on a 'tolling' theory does
not create the inconsistency that otherwise
might justify a tolling of the statute. The
facts of this case do not implicate the
tolling question.
[Ibid. (emphasis added).]
The facts absent in Molnar are present here. Plaintiff's
timely-filed complaint was pending when defendant filed her first
responsive pleading asserting a germane counterclaim, and
plaintiff delayed filing her complaint until the last day of the
SOL, leaving defendant with no time within which to file a
counterclaim before the running of the SOL. Under these
8 A-4965-15T3
circumstances, justice requires that defendant's germane
counterclaim be saved from the SOL under the relation-back doctrine
of Rule 4:9-3 or the tolling rationale.
Reversed and remanded for further proceedings. We do not
retain jurisdiction.
9 A-4965-15T3