On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-21189-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Chambers.
Defendant-counterclaimant Freddie Williamson appeals from a May 18, 2009 order of the Special Civil Part dismissing his counterclaim against plaintiff Sheltry Ward. We affirm the dismissal but modify it to a dismissal without prejudice rather than with prejudice.
Plaintiff filed a complaint on May 15, 2008. She alleged, among other things, that defendant failed to maintain the leaders and gutters on his house, resulting in water falling on her property and causing damage. Plaintiff also alleged that defendant's tenants damaged her property. Defendant filed an answer denying the allegations, and filed a counterclaim for malicious prosecution. The gist of the counterclaim was that plaintiff had sued defendant for damage that she knew had been caused by other persons, whom she had sued in another action.
The case was scheduled for trial on May 18, 2009. The trial court dismissed plaintiff's complaint with prejudice because she failed to appear. The court then questioned Mr. Williamson, who was pro se, concerning the basis for the counterclaim. Mr. Williamson explained that plaintiff was "trying to sue me for damages that was done by other people, which she already sued, already collect[ed], and already had her repairs done." Without discussing the evidence, the court indicated that it was "not satisfied by the proofs to enter a judgment in [Mr. Williamson's] favor" and dismissed the counterclaim with prejudice.
As the Supreme Court held in Penwag Property Co. v. Landau, 76 N.J. 595, 598 (1978): In addition to special grievance the plaintiff in an action for malicious prosecution of a civil suit must show that the suit was brought without reasonable or probable cause, that it was actuated by malice, and that it terminated favorably to the plaintiff.
Because a favorable termination of the underlying lawsuit is an element of the cause of action, "[i]t is not appropriate to institute a suit or file a counterclaim until the litigation has terminated in favor of the party who asserts the malicious prosecution cause of action." Ibid. Consequently, Mr. Williamson's claim for malicious prosecution should not have been filed as a counterclaim. Instead he should have waited until plaintiff's complaint was dismissed and then filed his own separate complaint, if he believed that he had sufficient evidence to support a claim for malicious prosecution at that point. Since his claim was not yet ripe, the counterclaim should have been dismissed without prejudice. Therefore, we remand this matter to the trial court to enter a modified order dismissing the counterclaim without prejudice rather than with prejudice.
Affirmed in part, modified and remanded.
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