                        NOT FOR PUBLICATION WITHOUT THE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




                                      5                                A-4965-15T3
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.




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