NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2181-19T1

CAROLYN REPKO,

Plaintiff-Respondent,

v.

OUR LADY OF LOURDES

MEDICAL CENTER, INC.,

Defendant-Appellant.

________________________

Argued telephonically April 21, 2020 -

Decided August 13, 2020

Before Judges Fisher, Accurso and Gilson.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Camden County, 

Docket No. L-3559-18.

Michael William Horner argued the cause for 

appellant (White and Williams LLP, attorneys; James 

Daniel Burger and Michael William Horner, on the 

brief).

Stephen Wayne Guice argued the cause for 

respondent.

The opinion of the court was delivered by

ACCURSO, J.A.D.

APPROVED FOR PUBLICATION

August 13, 2020

APPELLATE DIVISION
A-2181-19T1 2

We granted defendant Our Lady of Lourdes Medical Center, Inc. leave 

to appeal orders denying its motion to dismiss the complaint filed in the name 

of plaintiff Carolyn Repko ten months after her death and granting the motion 

of her estate to amend the complaint to substitute itself as plaintiff after the 

running of the statute of limitations. Because a complaint by a dead person is 

a nullity, leaving nothing for an amended complaint to "relate back" to under 

Rule 4:9-3, we reverse.

Because the timeline is everything in this case, we start there. In the 

course of picking up her son-in-law after surgery in September 2016, the 

decedent, Carolyn Repko, fell on the front steps at Lourdes, fracturing her nose 

and receiving a cut over her eye, as well as several other injuries. Three days 

later, she retained counsel to file suit on her behalf.

Repko died from unrelated causes in December 2017, fifteen months 

after her fall. Repko's counsel filed suit in her name in September 2018, 

shortly before the running of the statute of limitations, not knowing she had 

died nine months earlier. After Repko's counsel granted Lourdes an extension, 

it filed an answer in November 2018 and promptly served discovery. When 

Repko did not respond to her counsel's letters, counsel searched public records 

in February 2019, and discovered Repko had died over a year before.
A-2181-19T1 3

Counsel wrote to Repko's son in March and April 2019, eventually 

securing his agreement to continue the case. In September 2019, three years 

after the accident and twenty-one months after Repko's death, her son sent 

counsel a death certificate and Letters Testamentary. Repko's will had been 

admitted to probate in March 2018 and Letters Testamentary issued to her son 

at that time.

Counsel advised Lourdes of Repko's death in September 2019 and 

sought consent to amend the complaint. Lourdes refused, maintaining the 

complaint was a nullity because Repko was already many months dead when it 

was filed.

Repko's counsel, now representing her estate, moved to amend the 

complaint in October 2019. Lourdes cross-moved to dismiss the action. The 

judge acknowledged that a dead person has no legal standing to bring a 

lawsuit, but ruled the decedent's estate was entitled to "an equitable tolling of 

the statute until the plaintiff's counsel finds out about the death and moves to 

amend the complaint." The judge noted that if Repko had died "an hour after 

filing," Rule 4:9-3 would permit the amendment to relate back, yet "if death 

occurs an hour before filing," not allowing the amended pleading to relate back 

would mean "that's the end of the case." Ruling the result should not 
A-2181-19T1 4

"depend[] upon those types of fortuities," the judge granted the estate's motion 

to amend the complaint and denied Lourdes' motion to dismiss the action.

Because the question presented, whether decedent's estate could avoid 

the running of the statute of limitations by having its amended complaint relate 

back to the complaint filed in the decedent's name nine months after her death, 

is solely a question of law, our review is de novo. See Mejia v. Quest 

Diagnostics, Inc., 241 N.J. 360, 370-71 (2020).

In our view, this issue is simply one of standing, succinctly defined by 

the Connecticut Supreme Court as "the legal right to set judicial machinery in 

motion." Eder Bros. v. Wine Merchs. of Connecticut, Inc., 880 A.2d 138, 143 

(Conn. 2005) (quoting Gay & Lesbian Law Students Ass'n v. Bd. of Trs., 673 

A.2d 484, 491 (Conn. 1996)); N.J. Citizen Action v. Riviera Motel Corp., 296 

N.J. Super. 402, 409 (App. Div. 1997) ("Standing refers to the plaintiff's 

ability or entitlement to maintain an action before the court."). Plaintiff 

necessarily concedes that a dead person cannot sue in our courts and cannot 

continue a suit filed prior to death. See N.J.S.A. 2A:15-3; R. 4:34-1(b); Smith 

v. Cynfax Corp., 261 N.J. Super. 378, 383 (Law Div. 1992). As Vice 

Chancellor Bigelow noted seventy-five years ago, "[a]n earthly court has no 

jurisdiction over the dead. Only the living can litigate here." In re Admiral 

Sampson Bldg. & Loan Ass'n, 136 N.J. Eq. 292, 293 (Ch. 1945).
A-2181-19T1 5

While plaintiff contends that Rule 4:9-3, the relation-back rule, applies 

to plaintiffs, as well as defendants, a point we agree with, see Siligato v. State, 

268 N.J. Super. 21, 28-29 (App. Div. 1993), that begs the real question here: 

whether the estate's claim can relate back to a complaint wholly ineffective "to 

set judicial machinery in motion." When the plaintiff who attempted to set 

that judicial machinery in motion had been dead nearly a year, we do not think 

it can.

Although this precise question appears to be one of first impression in 

New Jersey, precedent supplies ample guidance for our decision. As our 

Supreme Court has explained, standing is "a threshold justiciability 

requirement." Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 424

(1991). "It neither depends on nor determines the merits of a plaintiff's claim." 

Id. at 417. Unlike subject-matter jurisdiction, which focuses on a court's legal 

authority to decide a controversy, Gilbert v. Gladden, 87 N.J. 275, 280-81 

(1981), standing's focus is on the plaintiff's ability to invoke that authority, In 

re Adoption of Baby T, 160 N.J. 332, 340 (1999). "A lack of standing by a 

plaintiff precludes a court from entertaining any of the substantive issues 

presented for determination." Ibid.
A-2181-19T1 6

Because plaintiff's death prevented her from suing in her own behalf, the 

complaint filed in her name by her counsel was a nullity.1 As we have 

explained elsewhere, the existence of a juridical entity capable of suit is not 

merely a matter of form.2 "In any suit, . . . the plaintiff must subject itself to 

1

 Although not addressed by the parties, we question counsel's ability to file 

suit on Repko's behalf following her death. The attorney-client relationship 

ordinarily terminates on the client's death. See Smith, 261 N.J. Super. at 383. 

See also Bossert v. Ford Motor Co., 140 A.D.2d 480, 481 (N.Y. App. Div. 

1988) (holding stipulation to substitute deceased plaintiff entered into by his 

counsel invalid where "agency as attorneys for the deceased plaintiff 

terminated upon his death and any subsequent actions by them on his behalf 

were null and void."); Restatement (Third) of the Law Governing Lawyers § 

31(2)(b); Restatement (Second) of Agency § 120 (1958). Counsel claims 

Repko signed a retainer agreement, but he has not made it a part of the record. 

He has not asserted it empowered him to institute suit after Repko's death.

2

 The lack of an identifiable legal entity as plaintiff distinguishes this case 

from Siligato, where we held plaintiff's error "in identifying itself should be no 

less curable than an error in identifying the adversary" under Rule 4:9-3. 268 

N.J. Super. at 29. We find Prime Accounting Dep't v. Twp. of Carney's Point, 

212 N.J. 493, 496-97 (2013) (permitting amended complaint in Tax Court to 

correct misidentification of plaintiff pled in conformity with the Township's 

tax assessment list to relate back to original filing), to be similarly 

distinguishable.

In Prime Accounting, the Court addressed the apparent frequent practice 

of tax litigators filing complaints in real property tax appeals in the name of 

the entity listed on the Township's assessment list, even when it was not the 

true party in interest, the lawyer's client or sometimes even an existing legal 

entity. Id. at 516-18. The distinguishing difference between Prime 

Accounting and this case is that the lawyer who filed the tax appeal in Prime 

Accounting knew he was filing the complaint on behalf of the aggrieved 

taxpayer with standing and intended to file the complaint on that party's 

behalf, only conforming the plaintiff's name to match that listed on the 
A-2181-19T1 7

orders enforceable against itself, as well as availing itself of favorable orders. 

Without the presence of a plaintiff capable of both suing and being sued, relief 

cannot be afforded." Options v. Lawson, 287 N.J. Super. 209, 221 (App. Div. 

1996).

Given the complaint Repko's counsel filed nine months after her death 

was ineffective "to set [the] judicial machinery in motion," Eder Bros., 880 

A.2d at 143, there was nothing for the estate's complaint to "relate back" to. 

The "relation-back" rule cannot cure the failure to file a valid complaint in the 

first instance. See Williams v. Bradshaw, 459 F.3d 846, 848-49 (8th Cir. 

2006) (applying state law to determine the plaintiff was not the proper party to 

bring wrongful a death action and therefore the district court did not err in 

denying the motion for leave to amend the complaint because the "complaint 

amount[ed] to a nullity [and accordingly] it cannot serve as the foundation for 

an amendment: Since the original complaint was without legal effect, there 

was nothing to amend."); Jones ex rel. Jones v. Corr. Med. Servs., Inc., 401 

F.3d 950, 952 (8th Cir. 2005) (where complaint was filed by someone 

Township's tax assessment list. The cause of action remained the same and 

was brought in conformity with statutory guidelines. Here, counsel had no 

authority to file the complaint after his client's death, and the filing was not in 

conformity with the requirements of the Survivor's Act. Neither Siligato nor 

Prime Accounting provides support for permitting amendment of a complaint 

filed by a corpse.
A-2181-19T1 8

unauthorized to practice law, court affirmed district court finding that the 

complaint was a nullity and therefore could not be amended); see also

Davenport v. Lee, 72 S.W.3d 85, 94 (Ark. 2002) ("[B]ecause the original 

complaint, as a nullity never existed, . . . an amended complaint cannot relate 

back to something that never existed, nor can a nonexistent complaint be 

corrected.").

In addition to following on the law of standing, that result is consistent 

with the legislative scheme designed to preserve the cause of action for the 

decedent's estate under the Survivor's Act. Repko's right to recover personally 

for the injuries she suffered in her fall at Lourdes ended at her death. See

Alfone v. Sarno, 87 N.J. 99, 108 (1981). Unlike at common law, however, 

when "[t]he death of the plaintiff gave his representative no remedy against the 

tortfeasor," Smith v. Whitaker, 160 N.J. 221, 233 (1999), Repko's unfiled 

claim against Lourdes was not lost. Our Survivor's Act, N.J.S.A. 2A:15-3, 

permitted her executor, suing on behalf of her estate, to recover the damages 

his "testator . . . would have had if [s]he was living."

As we have recently explained, "a claim brought under the Survivor Act 

need not be based on tortious conduct that results in death." Warren v. 

Muenzen, 448 N.J. Super. 52, 63 (App. Div. 2016). "[T]he Survivor's Act 
A-2181-19T1 9

preserves to the decedent's estate any personal cause of action that decedent 

would have had if he or she had survived." Smith, 160 N.J. at 233.

Accordingly, Repko's estate still had a viable claim against Lourdes at 

Repko's death. Although not a factor here because the two-year statute of 

limitations under N.J.S.A. 2A:14-2(a), did not expire until nine months after 

Repko died, N.J.S.A. 2A:14-23.1, adopted by the Legislature in 1977, operates 

to toll any statute of limitations on a claim belonging to a decedent for up to 

six months following death for the "salutary purpose of providing executors 

and administrators with a limited period of time after death to evaluate 

potential claims available to the estate." Warren, 448 N.J. Super. at 67-68.

The remedy adopted by the Legislature to preserve a decedent's claim 

against a tortfeasor in the Survivor's Act addresses the fortuity the trial judge 

recognized of grounding a person's "right to recover for an injury to his person 

or estate, inflicted by a tortious act, on the contingency of the party injured 

surviving to the date of trial," Kern v. Kogan, 93 N.J. Super. 459, 471 (Law 

Div. 1967) (citing Ten Eyck v. Runk, 31 N.J.L. 428 (Sup. Ct. 1866)), or, in the 

case of Rule 4:9-3, the filing of a complaint. The statutory remedy being wellestablished and readily available, there was no need to resort to the doctrine of 

equitable tolling to provide the estate an avenue of relief.
A-2181-19T1 10

Repko's counsel had no contact with his client in at least ten months 

leading up to the filing of the complaint against Lourdes, which she obviously 

was not available to authorize. Her executor delayed sending a death 

certificate and Letters Testamentary to counsel for five months after being 

informed of the suit. Their actions do not bespeak the diligence the doctrine of 

equitable tolling demands. See Binder v. Price Waterhouse & Co., 393 N.J. 

Super. 304, 312-13 (App. Div. 2007); Freeman v. State, 347 N.J. Super. 11, 31 

(App. Div. 2002). Accordingly, even were equitable tolling available in these 

circumstances, we find no basis for its application here.

Because the complaint filed in Repko's name by her counsel nine months 

after her death was ineffective to invoke the court's authority to resolve the 

claim, leaving nothing for the amended complaint proposed by her estate three 

years after the accident and twenty-one months after Repko's death to "relate 

back" to under Rule 4:9-3, we reverse the denial of Lourdes' motion to dismiss 

the complaint as barred by the statute of limitations and remand for entry of an 

order dismissing the complaint with prejudice.

Reversed.