C.R.C.P. 13

History

Source: (l) repealed May 30, 1991, effective July 1, 1991. Cross references: For application of this rule to replevin actions, see C.R.C.P. 104(p); for claimant having same rights and remedies as a plaintiff where a counterclaim or cross claim is filed, see C.R.C.P. 110(d); for claims for relief, see C.R.C.P. 8(a); for pleadings allowed, see C.R.C.P. 7(a); for joinder of persons needed for just adjudication, see C.R.C.P. 19; for permissive joinder of parties, see C.R.C.P. 20; for jurisdiction of various courts, see title 13, C.R.S. ANNOTATION I. General Consideration. II. Compulsory. III. Permissive. IV. Omitted. V. Cross Claim. VI. Joinder of Additional Parties. VII. Claims Against Assignee. VIII. Claims Against Personal Representative. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Notes on Pro- posed Amendments to Colorado Rules of Civil Procedure’’, see 27 Dicta 165 (1950). For ar- ticle, ‘‘Amendments to the Colorado Rules of Civil Procedure’’, see 28 Dicta 242 (1951). For article, ‘‘Pleadings, Rules 7 to 25’’, see 28 Dicta 368 (1951). For article, ‘‘Pleadings and Mo- tions: Rules 7-16’’, see 23 Rocky Mt. L. Rev. 542 (1951). For article, ‘‘Forms Committee Presents Standard Pleading Samples to Be Used in Divorce Litigation’’, see 29 Dicta 94 (1952). For article, ‘‘Plaintiff’s Advantageous Use of Discovery, Pretrial and Summary Judgment’’, see 40 Den. L. Ctr. J. 192 (1963). For note, ‘‘One Y ear Review of Colorado Law — 1964’’, see 42 Den. L. Ctr. J. 140 (1965). For article, ‘‘Joinder of Claims and Counterclaims in Cases Under the Uniform Dissolution of Marriage Act’’, see 15 Colo. Law. 1818 (1986). A counterclaim is a claim presented by a defendant in opposition to or deduction from the claim of the plaintiff. Transport Clearings of Colo., Inc. v. Linstedt, 151 Colo. 166, 376 P.2d 518 (1962). A counterclaim is a species of setoff or recoupment of a broad and liberal character. Transport Clearings of Colo., Inc. v. Linstedt, 151 Colo. 166, 376 P.2d 518 (1962). One who seeks relief by cross-bill or coun- terclaim and actively presses his claim thereby invokes the court’s jurisdiction in the case so that he cannot thereafter question the authority of the court to pass upon all questions raised between himself and his adversary. T.L. Smith Co. v. District Court, 163 Colo. 444, 431 P.2d 454 (1967). One may not claim that he was present only for the limited objectives of his answer and counterclaim. T.L. Smith Co. v. District Court, 163 Colo. 444, 431 P.2d 454 (1967). There is nothing inherently improper about asserting a counterclaim in a reply to a counterclaim. T.L. Smith Co. v. District Court, 163 Colo. 444, 431 P.2d 454 (1967). The rules of civil procedure specifically au- thorize the inclusion of counterclaims in re- plies to counterclaims, and the analogous fed- eral rules have been so interpreted by the federal courts. T.L. Smith Co. v. District Court, 163 Colo. 444, 431 P.2d 454 (1967). This rule applies in a court foreclosure action. There is no reason why the rules appli- cable to responsive pleadings and counterclaims should not apply to court foreclosures as they do to any other civil action not specifically exempted. Torbit v. Griffith, 37 Colo. App. 460, 550 P.2d 350 (1976). II. COMPULSORY. Law reviews. For note, ‘‘Pleading a Claim Barred by Statute of Limitations by Way of Recoupment’’, see 7 Rocky Mt. L. Rev. 204 (1935). For article, ‘‘Elmer Lumpkin Pinch-Hits for the Judge on Rule 14’’, see 19 Dicta 250 (1942). For article, ‘‘Comments on the Rules of Civil Procedure’’, see 22 Dicta 154 (1945). The purpose of subsection (a) is to prevent a multiplicity of lawsuits arising from one set of circumstances, and a party who fails to plead a compulsory counterclaim is barred from raising the claim in a later action against a person who was a plaintiff or in privity with a plaintiff in the prior action. Grynberg v. Phillips, 148 P.3d 446 (Colo. App. 2006); Allen v. Martin, 203 P.3d 546 (Colo. App. 2008). An appellate court reviews de novo a trial court’s determination that a claim is a compul- sory counterclaim. Grynberg v. Phillips, 148 P.3d 446 (Colo. App. 2006); Allen v. Martin, 203 P.3d 546 (Colo. App. 2008). A ‘‘setoff’’ is embraced in the term ‘‘coun- terclaim’’. First Nat’l Bank v. Lewis, 57 Colo. 124, 139 P. 1102 (1914) (decided under § 63 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941). A setoff arising from the same subject mat- ter or occurrence as plaintiff’s claim is a compulsory counterclaim which must be affir- matively pleaded. Corbin Douglass, Inc. v. Kelley, 28 Colo. App. 369, 472 P.2d 764 (1970); Grynberg v. Rocky Mountain Natural Gas, 809 P.2d 1091 (Colo. App. 1991). Counterclaims arising out of events unre- lated to the event in the complaint are not compulsory counterclaims. Bohlender v. Oster, 165 Colo. 164, 439 P.2d 999 (1968). A counterclaim arises out of the same transaction or occurrence as an initial claim if the subject matter of the counterclaim is logi- cally related to the subject matter of the initial claim. Allen v. Martin, 203 P.3d 546 (Colo. App. 2008). Under this rule the best test of a compul- sory counterclaim inquires into the logical relationship between the opposing claims. Vi- sual Factor, Inc. v. Sinclair, 166 Colo. 22, 441 P.2d 643 (1968); Sladek v. dePlomb, 981 F. Supp. 1364 (D. Colo. 1997); In re Estate of Krotiuk, 12 P.3d 302 (Colo. App. 2000). The logical relationship test inquires, ‘‘Is there any logical relation between the claim and the counterclaim?’’ McCabe v. United Bank, 657 P.2d 976 (Colo. App. 1982). A counterclaim is ‘‘logically’’ related to the opposing party’s claim where separate trials on each of their respective claims would in- volve a substantial duplication of effort and time by the parties and the courts. Beathune v. Cain, 30 Colo. App. 321, 494 P.2d 603 (1971). A logical relationship exists when the coun- terclaim arises from the same ‘‘aggregate of operative facts’’ as the opposing party’s claim. McCabe v. United Bank, 657 P.2d 976 (Colo. App. 1982). Any claim that a party might have against an opposing party which is logically related to the claim brought by the opposing party and which is not within the exceptions stated in the perti- nent rule is a compulsory counterclaim. Visual Factor, Inc. v. Sinclair, 166 Colo. 22, 441 P.2d 643 (1968); Beathune v. Cain, 30 Colo. App. 321, 494 P.2d 603 (1971). A legal malpractice claim is a compulsory counterclaim in an action to collect attorney fees if the malpractice claim arises from the same representation as the collection action. Al- len v. Martin, 203 P.3d 546 (Colo. App. 2008). Even though the evidence needed to estab- lish the opposing claims may differ. A coun- terclaim may be compulsory where it arises from the same events even though the evidence needed to establish the opposing claims may be quite different. Visual Factor, Inc. v. Sinclair, 166 Colo. 22, 441 P.2d 643 (1968); Grynberg v. Rocky Mountain Natural Gas, 809 P.2d 1091 (Colo. App. 1991); Sladek v. dePlomb, 981 F. Supp. 1364 (D. Colo. 1997). Where a compulsory counterclaim is not raised in the pleadings or otherwise put into issue, the trial court is precluded from rendering a finding on the matter. Corbin Douglass, Inc. v. Kelley, 28 Colo. App. 369, 472 P.2d 764 (1970). The failure to assert a compulsory coun- terclaim bars the assertion of such claim in a subsequent action. Beathune v. Cain, 30 Colo. App. 321, 494 P.2d 603 (1971); Wood v. Jensen, 41 Colo. App. 301, 585 P.2d 309 (1978); Sladek v. dePlomb, 981 F. Supp. 1364 (D. Colo. 1997); In re Estate of Krotiuk, 12 P.3d 302 (Colo. App. 2000). The purpose of the rule is to avoid multiple lawsuits between the parties to a transaction or occurrence. In re Estate of Krotiuk, 12 P.3d 302 (Colo. App. 2000). A trial court does not err in granting a motion for summary judgment on the ground that the claim made in the case is compulsory counterclaim which should have been raised in another action and is therefore barred. Visual Factor, Inc. v. Sinclair, 166 Colo. 22, 441 P.2d 643 (1968). The effect of a voluntary dismissal of a compulsory counterclaim is similar to the failure to file such a claim. The purpose of this rule is to require parties to present all of their existing claims simultaneously to the court or to be forever barred. Therefore, the trial court did not err in ruling that appellant’s voluntary dis- missal of a compulsory counterclaim in a pre- vious action precluded litigation of that claim in a subsequent case. Grynberg v. Phillips, 148 P.3d 446 (Colo. App. 2006). A divorce action subsequent to one for separate maintenance is not barred by this rule as a compulsory counterclaim which should have been asserted in the earlier com- plaint for separate maintenance, inasmuch as C.R.C.P. 81(b) provides that the rules of civil procedure do not govern procedure and practice in actions in divorce or separate maintenance where they may conflict with the procedure and practice provided by the applicable statutes; provided that a decree granting separate main- tenance shall not bar either party from ‘‘subse- quently’’ bringing and maintaining an action for divorce. Moats v. Moats, 168 Colo. 120, 450 P.2d 64 (1969). No trial by jury on issues raised by coun- terclaim. Defendants whose counterclaim raises issues which would properly be matters for jury trial in a separate action are not entitled to a jury trial under C.R.C.P. 38 where plain- tiff’s action invokes the equity arm of the court, since the character of the action is thereby de- termined. Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964). Express exception to compulsory counter- claim rule applies where claim has not ma- tured at the time of the pleading, even if it arises from the same transaction or occur- rence. In re Estate of Krotiuk, 12 P.3d 302 (Colo. App. 2000); Stone v. Dept. of Aviation, 453 F.3d 1271 (10th Cir. 2006); Allen v. Martin, 203 P.3d 546 (Colo. App. 2008). If there is no controlling Colorado authority construing the language of C.R.C.P. 13, courts may look to federal precedent construing the almost identical F.R.C.P. 13 for guidance. In re Estate of Krotiuk, 12 P.3d 302 (Colo. App. 2000); Allen v. Martin, 203 P.3d 546 (Colo. App. 2008). Here, claimant’s claim for payment matured at the time he was required to file his answer, and was therefore a compulsory counterclaim in 1991 action. Accordingly, claim should have been raised in the 1991 action, and trial court properly dismissed it and granted summary judgment on that basis. This holding is consis- tent with the purpose of the compulsory coun- terclaim rule, i.e., promoting justice by avoiding multiple lawsuits between the parties to a trans- action or occurrence. In re Estate of Krotiuk, 12 P.3d 302 (Colo. App. 2000). A counterclaim that is contingent has not matured for purposes of subsection (a). Allen v. Martin, 203 P.3d 546 (Colo. App. 2008). The maturity of a noncontingent counter- claim should be measured by the discovery rule, and under the rule a claim matures when the claimant knew or reasonably should have known of the general facts underlying the claim. Allen v. Martin, 203 P.3d 546 (Colo. App. 2008). Buyer’s claim under § 38-35-126 (3) to void installment land contract was an affir- mative defense and compulsory counter- claim. As such, defense and claim should have been asserted in buyer’s responsive pleading (or amended responsive pleading) or they are waived. Buyer’s claim arose out of and related directly to the same contract claim seller sought to enforce against buyer. Buyer’s claim was related to seller’s claim and, therefore, was a compulsory counterclaim. Dinosaur Park Invs., L.L.C. v. Tello, 192 P.3d 513 (Colo. App. 2008). Assertion of a compulsory counterclaim alone is insufficient to waive a personal juris- diction defense. Giduck v. Niblett, 2014 COA 86, 408 P.3d 856. Applied in Smith v. Hoyer, 697 P.2d 761 (Colo. App. 1984); Allen v. Martin, 203 P.3d 546 (Colo. App. 2008). III. PERMISSIVE. Law reviews. For article, ‘‘A Victim of ‘Per- missive Counterclaims’’’, see 18 Dicta 83 (1941). A counterclaim is a ‘‘permissive’’ counter- claim when it does not arise out of the same transaction or occurrence as the original cause of action, and is a separate and distinct claim. T.L. Smith v. District Court, 163 Colo. 444, 431 P.2d 454 (1967). A claim is not a permissive counterclaim within this rule where the claims arise out of the same transaction. Visual Factor, Inc. v. Sinclair, 166 Colo. 22, 441 P.2d 643 (1968). A court does not abuse its discretion in declining to consider as permissive counter- claims those counterclaims based on events tak- ing place substantially prior to and unrelated to the event on which the complaint is based. Bohlender v. Oster, 165 Colo. 164, 439 P.2d 999 (1968). Doctrine of claim preclusion does not bar permissive counterclaims that could have been, but were not required to be, raised in an initial civil action from being raised in a second civil action even if there is a final judgment in the first action, and identity of parties and sub- ject matter between the actions. Top Rail Ranch Estates, LLC v. Walker, 2014 COA 9, 327 P.3d 321. Claim held not to be permissive counter- claim. Visual Factor, Inc. v. Sinclair, 166 Colo. 22, 441 P.2d 643 (1968). IV. OMITTED. Compulsory counterclaim that ripens after commencement of action should be allowed in amended pleadings. Bobrick v. Sanderson, 164 Colo. 46, 432 P.2d 242 (1967). Counterclaims not waived or abandoned even though defendant failed to reassert them in the answer to the amended complaint. Plaintiff failed to timely object to defendant’s continued prosecution of its counterclaims and, therefore, implicitly consented to the counterclaims being tried. Mullins v. Med. Lien Mgmt., Inc., 2013 COA 134, 411 P.3d 798. V. CROSS CLAIM. Law reviews. For article, ‘‘Comments on the Rules of Civil Procedure’’, see 22 Dicta 154 (1945). This rule provides that the cross claims against coparties may also include a claim that the coparty may be liable to the cross claimant for all or part of the claim asserted in the action against the cross claimant. City of Westminster v. Phillips-Carter-Osborn, Inc., 164 Colo. 378, 435 P.2d 240 (1967). The wording of this rule is clearly permis- sive, not compulsory. T.L. Smith Co. v. District Court, 163 Colo. 444, 431 P.2d 454 (1967). VI. JOINDER OF ADDITIONAL PARTIES. Annotator’s note. Since section (h) of this rule is similar to § 16 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Public policy and reason, as well as equity, required that all matters pertaining to the transaction should be adjudicated at the same time. Strang v. Murphy, 1 Colo. App. 357, 29 P. 298 (1871). The law encourages the determination of all controversies in one action by bringing the either necessary or proper parties. Pollard v. Lathrop, 12 Colo. 171, 20 P. 251 (1888); Haldane v. Potter, 94 Colo. 558, 31 P.2d 709 (1934). With equal discrimination, the law disap- proves of bringing in parties whose presence is neither necessary nor proper. Russell v. Cripple Creek State Bank, 71 Colo. 238, 206 P. 160 (1922); Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929); Haldane v. Potter, 94 Colo. 558, 31 P.2d 709 (1934); Tolland Co. v. First State Bank, 95 Colo. 321, 35 P.2d 867 (1934). Jurisdiction of the subject matter is con- ferred by law. Davis v. Davis, 70 Colo. 37, 197 P. 241 (1921). Jurisdiction exists even before a suit is be- gun. Conroy v. Cover, 80 Colo. 434, 252 P. 883 (1926). Jurisdiction is not affected by the omission of a party. Conroy v. Cover, 80 Colo. 434, 252 P. 883 (1926). The court is required to order an indis- pensable party to be brought in. Day v. McPhee, 41 Colo. 467, 93 P. 670 (1907); Conroy v. Cover, 80 Colo. 434, 252 P. 883 (1926). This rule authorizes the joinder of parties necessary to the granting of complete relief in the determination of a counterclaim or cross claim, even though their presence is not indispensable to such determination. City of Westminster v. Phillips-Carter-Osborn, Inc., 164 Colo. 378, 435 P.2d 240 (1967). All who are interested in the subject mat- ter of an action should be made parties thereto, so that complete justice might be done and the rights of all parties in the subject matter of controversy finally determined. Denison v. Jerome, 43 Colo. 456, 96 P. 166 (1908); Buckhorn Plaster Co. v. Consolidated Plaster Co., 47 Colo. 516, 108 P. 27 (1910). It is an everyday matter on trial to admit a new plaintiff when he appears to have an inter- est in the case. Dickson v. Retallic, 80 Colo. 78, 249 P. 2 (1926). Waiver of right shall include other inter- ested parties. Where, for the purpose of a com- plete determination of all the rights involved, others should have been made parties defendant by virtue of this rule, the failure to do so could not be considered because appellants by an- swering over, after demurrer on the ground of defect of parties, waived the right to raise the question on appeal. Zang v. Wyant, 25 Colo. 551, 56 P. 565 (1898). This matter is not applicable where the court could not proceed to judgment without the presence of others who were not parties to the proceedings. McLean v. Farmers’ Highline Canal & Reservoir Co., 44 Colo. 184, 98 P. 16 (1908). See Denison v. Jerome, 43 Colo. 456, 96 P. 166 (1908). Where the defendant wishes to assert a claim against a codefendant and a third party, the correct procedure is to file a cross claim, combined with a motion under section (h) of this rule, to bring in the third party as an additional defendant on the cross claim. City of Westminster v. Phillips-Carter-Osborn, Inc., 164 Colo. 378, 435 P.2d 240 (1967). A similar combination of a counterclaim and a motion under section (h) of this rule is appropriate where the claim is against the original plaintiff and a third party. City of Westminster v. Phillips-Carter-Osborn, Inc., 164 Colo. 378, 435 P.2d 240 (1967). VII. CLAIMS AGAINST ASSIGNEE. Annotator’s note. Since section (j) of this rule is similar to § 4 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. An assignee takes no greater right than the assignor had to convey, and his rights and remedies are those of the assignor. Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929). Valid existing defenses may be interposed. Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929). Setoff against an original payee is allowed in a suit upon a promissory note by an as- signee, taking it after due. First Nat’l Bank v. Lewis, 57 Colo. 124, 139 P. 1102 (1914). Irrespective of the number of assignments, the language of this rule is as broad as it could well have been, so that a note assigned after it was due a half dozen times would be subject to any setoff or other defense that the maker had against any one or all of the assignees at the date of assignment, or before notice thereof. First Nat’l Bank v. Lewis, 57 Colo. 124, 139 P. 1102 (1914). Owner entitled to credit only up to the amount of assignee’s claim. The owner of a house was entitled to credit against building contractor’s assignee for assignor’s liabilities at time of assignment up to amount of assignee’s claim. Jones v. Panak, 84 Colo. 62, 268 P. 535 (1928). Applied in Jackson v. Hamm, 14 Colo. 58, 23 P. 88 (1890). VIII. CLAIMS AGAINST PERSONAL REPRESENTATIVE. For cases construing § 64 of the former Code of Civil Procedure from which section (k) of this rule was derived, see Rathvon v. White, 16 Colo. 41, 26 P. 323 (1891); Inland Box & Label Co. v. Richie, 57 Colo. 532, 143 P. 581 (1914).