UNITED STATES COURT OF APPEALS TENTH CIRCUIT

SHERRY GIBSON, f/k/ a Sherry Wynne, Plaintiff–Appellant, and WILLIAM MARK BONNEY, Chapter 13 Trustee, Plaintiff–Amicus Curiae,

v. LAWRENCE W. PARISH; JEREMY T. PITTMAN, both individually and d/b/a Tolle & Parish. Defendants–Appellees. No. 08-7103 (D.C. No. 6:07-CV-00422-KEW) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and LUCERO , Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nevertheless , an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit January 13, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - After Sherry Gibson filed for bankrupt cy, two of her attorn eys submitted a proof of claim for unpaid legal fees and received payment from the bankruptcy estate. Nearly four years after the proof of claim was file d, Gibson sued those attorneys in federal district court asserting claims for breach of contract and malpractic e, and an objection to the proof of claim. The district court di smissed the action as tim e-barred. Gibson now appeals. Gibson argues that Okla. Stat. tit. 12, § 2013(C), which states that a “counterclaim shall not be barred by a statute of limitation notwithstanding that it was barred at the time the petition was filed,” makes her claim timel y. Under Gibson’s theory, her claims should be characterized as “co unterclaims” to the attorneys’ proof of claim filed in the bankruptcy court. We agree with the dist rict court that § 2013(C) applies only to counterclaims that were barred at the time th e corresponding claims were filed. Because Gibson’s claims were not barre d at the time the proof of cl aim was filed, the Oklahoma statute does not apply. Exercising jurisd iction under 28 U.S.C. § 1291, we affirm.
I A In 2001, Gibson’s home was foreclosed upon. 1 She hired Lawrence Parish and Jeremy Pittman of the law firm Tolle & Parish to defend her in the foreclosure action.

1 Because this case was dismissed under Fed. R. Civ. P. 12(b)(6), we must accept as true all well-pled facts in Gibson’ s complaint. Russell v. United States , 551 F.3d 1174, 1178 (10th Cir. 2008). The facts are recited here in a manner consistent with that standard.- 3 - Following a bench trial, the court found ag ainst Gibson, foreclosed her mortgage, and awarded attorneys’ fees and costs to the mo rtgagee. Gibson filed a notice of appeal through Tolle & Parish, but was unable to post a bond to stay execution of the judgment; a special execution was issu ed on October 7, 2003. On December 1, 2003, Gibson filed a Chapter 13 bankrupt cy petition through different counsel. An automatic stay was file d in the foreclosure case shortly thereafter. Gibson listed a “Potential Legal Malpractice clai m” valued at $60,000 in her schedule of personal property. On January 28, 2004, Tolle & Parish f iled a proof of claim in the bankruptcy case for unpaid legal fees of $11,76 2.19. No objection to this proof of claim was filed in the bankruptcy case. Tolle & Parish was later pa id in full from the bankruptcy estate. Gibson’s bankruptcy plan was approved on October 29, 2004. Under the plan, Gibson reserved the right to bring actions fo r affirmative relief agai nst creditors if such actions were filed by “the late r of two years from the date of the petition or the expiration of the applicable statute of limita tions, whichever [was] later.” Despite Gibson’s bankruptcy and poten tial malpractice claim, Tolle & Parish continued to represent Gibson in her forecl osure appeal. The state court of appeals affirmed the judgment on July 12, 2005. Gibson then hire d new counsel, who filed a motion to reconsider a nd a petition for certiorari. Certiora ri was denied on November 14, 2005. The mandate issued on December 7, 2005, and was filed with the trial court five days later.- 4 - B On December 6, 2007, Gibson and the st anding bankruptcy trus tee for the Eastern District of Oklahoma, Mark Bonney, filed suit against Parish and Pittman individually and doing business as Tolle & Parish in fede ral district court. Gibson advanced three claims: (1) an objection to Tolle & Parish’s proof of claim in the bankruptcy case; (2) breach of contract, a claim that was later ab andoned; and (3) prof essional negligence. Each claim was based on Tolle & Parish’s cond uct during the foreclosure action. Bonney sued in his capacity as bankruptcy trustee to recover th e funds paid to Tolle & Parish from the bankruptcy estate. Tolle & Parish filed a motion to dismi ss, claiming that the suit was barred by Oklahoma’s two-year statute of limitations , claim preclusion, issue preclusion, and waiver. The parties agreed that the claims were subject to a two-year limitations period but disputed whether Okla. St at. tit. 12, § 2013(C) applied. 2 That statute provides: Where a counterclaim and the claim of the opposing party arise out of the same transaction or occu rrence, the counterclaim shall not be barred by a statute of limitation notwithstanding that it was barred at the time the petition was filed, and the countercla imant shall not be precluded from recovering an affirmative judgment. Id. Gibson argued that her claims were counte rclaims to Tolle & Parish’s proof of claim

2 Gibson also argued that the two-year statute of limitati ons began to run on December 12, 2005, when the mandate in the foreclosure action was filed with the trial court, rather than November 14, 2005, when the Oklahoma Supreme Court denied certiorari. The district court rejected this argument and Gibson does not challenge the court’s conclusion on appeal.- 5 - filed in the bankruptcy action, and thus fe ll within the ambit of the statute. Considering the motion by consent of the pa rties, a magistrate judge ruled that the suit was time-barred. She held that § 2013(C) is procedural and thus inapplicable in federal court, and that the statute would not sa ve Gibson’s suit even if it had been filed in

state court. Judgment was entered in favor of Tolle & Parish, and Gibson timely appealed.
II We review de novo a district court’s gr ant of a motion to dismiss. Russell v. United States , 551 F.3d 1174, 1178 (10th Cir. 2008). Although a statute of limitations bar is an affirmative defense, it may be re solved on a Rule 12(b)(6) motion to dismiss “when the dates given in the complaint make clear that th e right sued upon has been extinguished.” Aldrich v. McCulloch Props., Inc. , 627 F.2d 1036, 1041 n.4 (10th Cir. 1980). When the application of a statute of li mitations is based on undisputed facts, our review of the district court’s determination is de novo. Nelson v. State Farm Mut. Auto.
Ins. Co. , 419 F.3d 1117, 1119 (10th Cir. 2005). A district court’s interpretation of state law is also reviewed de no vo. United States v. Grasso , 369 F.3d 1139, 1144 (10th Cir. 2004). The court provided two independent base s for dismissal: (1) § 2013(C) is procedural in nature and thus inapplicable in federal cour t under Erie Railroad Co. v. Tompkins , 304 U.S. 64 (1938); and (2) Gibson’ s claim falls outside the scope of § 2013(C) because the statute applies only wh en a counterclaim was time-barred at the- 6 - time the corresponding claim was filed. A The first basis for dismissal was error. The court correctly ruled that Oklahoma’s statute of limitations applies to this dive rsity action, but it failed to employ the longstanding rule that a federal court must a dopt state tolling and revi val provisions along with statutes of limitations. See Chardon v. Fumero Soto , 462 U.S. 650, 657 (1983); Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1513 (10th Cir. 1997 ). “In virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling, re vival, and questions of applic ation. In borrowing a state period of limitation . . . a federal court is re lying on the State’s wisdom in setting a limit, and exceptions thereto . . . .” J ohnson v. Ry. Express Agency, Inc. , 421 U.S. 454, 464 (1975). There may be exceptions to this doctrine, such as when a state rule would violate federal constitutional rights or otherwise conflic t with federal law, but the parties advance no such rationale here. Further, this court has previously held that Fe d. R. Civ. P. 13(a), the federal rule regarding co mpulsory counterclaims, “reflects no federal policy on” the tolling or revival of counterclaims. Fed. Deposit Ins. Corp. v. Palermo , 815 F.2d 1329, 1340 (10th Cir. 1987) (citation omitted). Accord ingly, the tolling or re vival provisions of § 2013(C) should be applied in Gibson’s federal case.
B With respect to the district court’s alte rnative basis for dism issal, we affirm.- 7 - Gibson’s untimely claims ca nnot be rescued by § 2013(C).
1 Gibson concedes that her action was not filed within two years of the date her malpractice claim accrued and is therefor e barred pursuant to Okla. Stat. tit. 12, § 95(A)(3) absent tolling or revival. Howeve r, she argues that § 2013(C) revives or tolls her malpractice claim because, wh en coupled with an objecti on to a proof of claim, the malpractice claim is treated as a counterclaim. Under this theory, Tolle & Parish’s proof of claim filed in the bankruptcy case was the “claim.” Gibson and Bonney’s objection to that proof of claim, filed al ong with the malpractice clai m several years later in the district court, is a “counterclaim.” Furt her, because Gibson’s malpractice claim was coupled with the objection, it too is treated as a “counterclaim.” This theory finds some support in the case law. In In re Peterson , 93 B.R. 323 (Bankr. Vt. 1988), a bankruptcy debtor obje cted to a proof of claim and filed an adversary proceeding complaint listing additional causes of action. Id. at 324. Considering whether the statute of limitations had run on a fraud claim, the court noted that Vermont law permits a compulsory counte rclaim to be revived after the statute of limitations has run. It then held: The [plaintiffs’] action is in the nature of a counterclaim sufficient to bring it within the realm of [the Vermont statute] because [defendant] filed a proof of claim. When a debtor object s to a proof of claim and joins a claim with the objection that claim become s an adversary proceeding. The [plaintiffs’] claim is in response to a pr oof of claim, therefore, it is in the nature of a counterclaim.- 8 - Id. at 328 (citation omitted). For this proposition, the court c ited to the advisory notes to Bankruptcy Rule 3007 , which provide: The contested matter initiated by an [o]b jection to a claim is governed by Rule 9014, unless a counterclaim by the tr ustee is joined with the objection to the claim. The filing of a coun terclaim ordinarily commences an adversary proceeding subject to the rule s in Part VII. is characterized as a counterclaim. Id. (emphasis omitted). Other courts appear to be in accord. In In re Ferris , 764 F.2d 1475 (11th Cir. 1985), the Eleventh Circ uit agreed that a similar claim brought by a debtor was “in the nature of a counterclaim agai nst the [proof of] claim filed by” a creditor in a bankruptcy case. Id. at 1477. In Kline v. Zueblin (In re American E xport Group International Services) , 167 B.R. 311 (Bankr. D.C. 1994), the c ourt held that a proof of claim is “analogous to a complaint filed in the District Court” and thus a “proof of claim is properly viewed as a compla int and the debtor’s adversar y proceeding as a counterclaim to that complaint.” Id. at 313; accord In re Answerfone , 67 B.R. 167, 168 (Bankr. E.D. Ark. 1986); In re Mktg. Res. Int’l Corp. , 43 B.R. 71, 72 (Bankr. E.D. Pa. 1984). These cases rely in part on 28 U.S.C. § 15 7(b)(2)(C), which defines “core” bankruptcy proceedings to include “counte rclaims by the estate against persons filing claims against the estate.”
2 Assuming without deciding that Gibson ’s suit can properly be treated as advancing counterclaims, we conclude that th e district court’s dismissal was nonetheless- 9 - appropriate. The district court held that § 2013(C) applies only to counterclaims that were expired at the time the petition was filed. Under Gibson’s theory of the case, the “petition” 3 was Tolle & Parish’s proof of claim, filed in the bankruptcy case on January 28, 2004. Gibson’s malpractice claim did no t expire until November 14, 2007, two years after the foreclosure action against her became fi nal. Accordingly, the district court held, Okla. Stat. tit. 12, § 2013( C) does not aid Gibson. “When interpreting a state statute in a di versity case, this court must apply state rules of statutory construc tion.” United Rentals Nw., In c. v. Yearout Mech., Inc. , 573 F.3d 997, 1001 (10th Cir. 2009). Under Oklahoma law, a court’s primary goal in construing a statute is to determin e the legislature’s intent. See Russell v. Chase Inv. Servs. Corp. , 212 P.3d 1178, 1185 (Okla. 2009). “If the legislative intent is clear from a statute’s plain and unambiguous language, [cour ts] need not resort to rules of statutory construction.” Benjamin v. Butl er (In re Estate of Jackson) , 194 P.3d 1269, 1273 (Okla. 2008). The statute at issue provides that a “counterclaim shall not be barred by a statute of limitation notwithstanding that it was ba rred at the time the petition was filed.” § 2013(C). Gibson argues that the dist rict court erred by construing the word “notwithstanding” to mean “only if” rather than “even if.” In her view, the phrase

3 In Oklahoma state court a “petition” is ro ughly equivalent to a complaint filed in federal court. See Okla. Retail Grocers Ass’n v. Wal-Mart Stores, Inc. , 605 F.2d 1155, 1156 (10th Cir. 1979).- 10 - “notwithstanding that it was barred at the tim e the petition was filed” is a clarification rather than a limitation. Under this construc tion, the statute would permit the filing of all counterclaims, even if the co unterclaim was barred at the tim e a petition was filed. Unsurprisingly, Tolle & Parish endorses the district court’s reading of the statute, arguing that § 2013(C) unambiguously revives only counterclaims that were “barred at the time the petition was filed.” Using this interpretation, “notwi thstanding” does not mean “even if,” but continues the descrip tion of the subject of the statute. We conclude that both readings are re asonable. Looking only to the ordinary meaning of the words used in th e statute, one could sensibly credit either interpretation. Accordingly, the statute is ambiguous. See Ford v. Okla. Tax. Comm’n , 285 P.2d 436, 437 (Okla. 1955) (statute is ambiguous when “reasonable minds might be uncertain or disagree as to its meaning”). “Where a stat ute’s meaning is ambiguous or unclear, we employ rules of statutory construction to give the statute a reasonable construction that will avoid absurd consequences.” Estes v. ConocoPhillips Co. , 184 P.3d 518, 525 (Okla. 2008). 3 Employing Oklahoma’s rules of statutory co nstruction, we conclude that Tolle & Parish has the better argument for four reasons. 4

4 We are, of course, bound to apply th e Oklahoma Supreme Court’s interpretation of Oklahoma statutes. See United States v. DeGasso , 369 F.3d 1139, 1145 (10th Cir. 2004). However, the Oklahoma Supreme Court ha s not decided the issue presented. We Continued . . .- 11 - First, dictionary definitions of the word “notwithstanding” tend to support Tolle & Parish’s interpretation. Cf. In re Okla. Unif. Jury Inst ructions for Juvenile Cases , 116 P.3d 119, 154 (Okla. 2005) (using dictionary definition to interpre t ambiguous statutory language). Although Gibson argues that “not withstanding” means “even if,” she does not cite to any dictionary to support her argum ent, and we have found none adopting that definition. Instead, both parties cite to We bster’s New World Dictionary (2d college ed. 1974), which defines “notwithstanding” to m ean “in spite of the fact that.” Id. at 974. That definition comports with those we have found in our independent research. See Webster’s 3d New Int’l Dictiona ry Unabridged 1545 (1993) (defining “notwithstanding” as “without prevention or obstruction from or by,” “in spite of,” nevertheless,” or “although”). Substituting the definition adva nced by both parties for the term “notwithstanding” must therefore attempt to predict how it woul d hold using Oklahoma’s rules of statutory construction. See id. at 1145. Although both parties cite to dicta in Oklahoma case law, such scattered statements are not useful in determining the statute’s meaning. Gi bson points to United States v. Hobbs , 921 P.2d 338 (Okla. 1996), in whic h the court stated that § 2013(C) “provides that a counterclaim arising out of the same tran saction or occurrence as the petition shall not be barred by a statute of limitations.” Id. at 342. She also cites to Pangaea Exploration Corp. v. Ryland , 173 P.3d 108 (Okla. Civ. App. 2007), which noted that § 2013(C) “provides that where a count erclaim and the claim of the opposing party arise out of the same transaction, the count erclaim shall not be barred by a statute of limitation, unless the counterclaim was barred before the plaintiff’s claim arose.” Id. at 112. Tolle & Parish counter that the Hobbs court also stated that the statute “allows counterclaims arising from the claim of the opp osing party to be asserted although the limitations period has expired wh en the petition is filed.” Hobbs , 921 P.2d at 342. Yet these cases did not consider a counterclaim that was timely when the corresponding claim was filed. The courts merely used shorth and to note the content of the statute.- 12 - in the statute, it would read: Where a count erclaim and the claim of the opposing party arise out of the same transaction or occurrenc e, the counterclaim shall not be barred by a statute of limitation in spite of the fact that it was barred at the time the petition was filed, and the counterclaimant shall not be preclude d from recovering an affirmative judgment. This sentence says nothing about counterclaims such as Gibson’s that were not barred at the time the petition was filed. Instead, it di scusses only those counterclaims that were barred at the time the petition was filed. The “it” following “notwith standing that” refers to the “counterclaim”—the subject of the stat ute. But the “counterclaim,” referenced in the statute (and thus the statute itself) is lim ited to certain counterclaims: those that “arise out of the same transaction or occu rrence” as the corresponding claim, and that were “barred at the time the petition was filed.” § 2013(C). If the phrase “even if” were substituted for the term “notwi thstanding,” it would imply th at the statute applies to counterclaims other than those that were barre d at the time the petit ion was filed, but “in spite of the fact” does not carry the same con notation. Because the dictionary definition of “notwithstanding” includes “in spite of th e fact” but not “even if,” the dictionaries support Tolle & Parish. Second, under Oklahoma law “statutes must be interpre ted to render every word and sentence operative, rather than in a ma nner which would render a specific statutory provision nugatory.” State ex rel. Thompson v. Ekberg , 613 P.2d 466, 467 (Okla. 1980). If we were to adopt Gibson’s reading, the words “notwithstanding that it was barred at the time the petition was filed” would be superfluous . Gibson’s cons truction could be- 13 - achieved by a statute that si mply stated: “Where a count erclaim and the claim of the opposing party arise out of the same transact ion or occurrence, the counterclaim shall not be barred by a statute of limitation . . ., and the counterclaimant shall not be precluded from recovering an affirma tive judgment.” § 2013(C). 5 Third, Oklahoma courts have adopted the rule that “[e]xceptions to statutes of limitation are strictly construed.” Resolution Trust Corp. v. Grant , 901 P.2d 807, 813 (Okla. 1995); see also Crain v. TRW/REDA Pump , 794 P.2d 757, 758 n.8 (Okla. 1990); Hoskins v. Stevens , 185 P.2d 911, 914 (Okla. 1947). Because § 2013(C) provides such an exception, we must interp ret it narrowly. Doing so leads to the conclusion that it applies only to counterclaims that were barred when the petition was filed. Fourth and finally, Tolle & Parish’s inte rpretation is more consistent with the policies underlying statutes that permit the filing of certain untimely counterclaims. Statutes of limitations are designed to preven t “stale claims from springing up at great distances of time and surprising parties, or their representatives, when all the proper

5 We also note that Okla. Stat. tit. 12, § 2013(E) may de scribe Gibson’s counterclaim better than subsec tion C. Subsection E provides that a “claim which either matured or was acquired by the pleader af ter serving his pleading may, with the permission of the court, be presented as a co unterclaim or a cross-claim by supplemental pleading.” Had Tolle & Parish’s proof of clai m been filed as a petition in Oklahoma state court (pursuing the analog y underlying Gibson’s theory of the case), Gibson’s counterclaims would have been due forty days late r, on March 8, 2004. See Okla. Stat. tit. 12, § 2013(A). Gibson’s malpractice claim matured on November 14, 2005. Accordingly, if § 2013(E) applied to her coun terclaim she would have been required to obtain court permission to file. Because s ubsection C permits the filing of an untimely counterclaim without court permission, Gi bson’s interpretation would render subsection E a nullity in certain cases.- 14 - vouchers and evidences are lost, or the fact s have become obscure from the lapse of time or the defective memory or death or removal of witnesses.” Adams v. Coon , 129 P. 851, 853 (Okla. 1913). This rationale is less av ailing with respect to untimely counterclaims arising from the same transaction or occurre nce as a plaintiff’s claim because “the necessarily close relationship between the timely claim and the untimely counterclaim should [e]nsure that the latter is not ‘stale’ in the sense of evidence and witnesses no longer being available; they should be as ac cessible for adjudicating the counterclaim as they are for the main claim.” 6 Charles Alan Wright et al., Federal Practice & Procedure: Civil 2d § 1419, at 153 (1990). Yet Gi bson’s reading would permit her to file a counterclaim years after the corresponding claim was re solved. By focu sing on the date the corresponding claim is filed, the statute ensures that this polic y is satisfied without also rescuing counterclaims that are mo re stale than the plaintiffs’ claims. The dissent agrees that the statute is ambiguous, but suggests that our interpretation “actually preserves the stales t claims while barring the least stale.” (Dissenting Op. 2.) But it is the staleness of the count erclaim in relation to the corresponding claim that is critical, not the stal eness of a counterclaim in relation to other counterclaims. The dissent also relies on committee comments to support its position that § 2013(C) permits the filing of any counterclaim. Yet we think it extremely unlikely that the committee had the present scenario in mind when it made the seemingly broad statements cited by the dissent. Indeed, the sa me committee notes state that “[a]ll claims- 15 - that a defendant can assert against a plainti ff are called counterclaims.” Okla. Stat. tit. 12, § 2013, 1993 committee comm ent to Section 2013. Gibson ’s claims do not fit this definition; she is not a defendant in this ac tion. Rather than se arching for interpretive guidance in committee notes or legislative history, we must construe the words the legislature chose, using Oklahoma’s rules of statutory interpretation. As discussed supra , these canons compel the conclusion that § 2013(C) permits only the filing of counterclaims that were barred when the corresponding claim was asserted.
III For the foregoing reasons, the ju dgment of the district court is AFFIRMED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge08-7103, Gibson v. Parish McKAY , Circuit Judge, concurring in part and dissenting in part

. I join the majority’s opinio n with two exceptions. First, I would settle the issue of how to classify Ms. Gibson’s malpractice claim by holding that it, coupled with her objection to Tolle & Parish’s proof of clai m, constitutes a counterclaim. Second, I respectfully dissent from the opinion so far as it deals with the meaning of “notwithstanding.” I agree with the major ity that the term “notwithstanding” is ambiguous as used in the stat ute. Therefore, to determin e the meaning of the word we must consider how it is used “in th e context of the statute” at issue, Consol. Grain & Barge Co. v. Structural Sys., Inc. , 212 P.3d 1168, 1175 (Okla. 2009), to arrive at a meaning “consistent with the real or obvi ous purpose of the legislative enactment,” World Pub. Co. v. White , 32 P.3d 835, 842 (Okla. 2001). To resolve this ambiguity the majority has attached too much importance to a general defi nition of “notwithstanding,” divorced from the context in which it is used here. The intent of the legislature in enacting th is statute, as articulated in the advisory committee comments on the ru le, was to “permit[] a defendant to assert any counterclaim that he has against the plaintiff that arose out of the transaction or occurrence that is the basis of the plaintiff’s claim. . . . [T]h e statute of limitations has no effect on the defendant’s right to recover.” Okla. Stat. tit. 12, § 2013, 1993 committee comment to Section 2013 (emphasis added). In accordance with this intent, the statute says that a counterclaim shall not be barred by a statut e of limitations. That is the mandate; what follows is merely a clarificat ion. The governing limiting fact or in the statute is whether- 2 - there is a counterclaim, not whether the statut e ran before or after the petition was filed. It makes perfect sense that the intent of the Oklahoma legislature was to preserve counterclaims “even if” the statute of limitations had r un at the time the petition was filed. See J.J. Rodale, The Synonym Finder 789 (Laurence Urdang & Nancy LaRoche eds., 1978) (listing “even if” and “regardle ss of” as synonyms of “notwithstanding”); Webster’s Collegiate Thesaurus 510 (1988) (listing “regar dless of” as a synonym of “notwithstanding”); cf. Conoco, Inc. v. Skinner , 970 F.2d 1206, 12 24 (3d. Cir. 1992) (holding, in a different context, that “courts must discern the meaning of ‘notwithstanding’ from the legislative hist ory, purpose, and structure of the entire statute”). In justifying its interpretation, the majo rity has cited concerns that interpreting “notwithstanding” as a clarification rather than a limitation would “perm it [a party] to file a counterclaim years after the corresponding claim was re solved.” Major ity Op. at 14. However, in my mind, all the discussion of th e evils of staleness cuts the other way; indeed, the majority’s interpre tation actually preserves the stalest claims while barring the least stale. For example, im agine that P files a petition agai nst D, who has a proper, nontime-barred counterclaim arising from the same transaction or occurrence as P’s claim, but before D can file a res ponsive pleading asserting her counterclaim the statute of limitations runs, barring her claim. Under the majority’s interpretation of Section 2013(C), D would now not be able to assert he r claim, even though it was not stale at the time P’s claim was filed. Such an interpretation of the stat ute clearly “defeat[s] the real- 3 - or obvious purpose of [the] legislative enactment,” TRW/Reda Pump v. Brewington , 829 P.2d 15, 20 (Okla. 1992), and for that reason I cannot join this portion of the majority’s opinion. See Dean v. Multiple Injury Trust Fund , 145 P.3d 1097, 1101 (Okla. 2006) (“If the statute is ambiguous or its meaning un certain, it is to be given a reasonable construction, one that will avoid absurd co nsequences, if this can be done without violating legislative intent.”). It makes no sense to save the staler claims, while allowing the fresher ones to die.