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RULE. 13 COUNTERCLAIM AND CROSS-CLAIM

July 25, 2011

RULE 13.01: COMPULSORY COUNTERCLAIMS.

A pleading shall state as a counterclaim any claim, other than a tort claim, which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, except that a claim need not be stated as a counterclaim if at the time the action was commenced the claim was the subject of another pending action. This rule shall not be construed as requiring a counterclaim to be filed in any court whose jurisdiction is limited either as to subject matter or as to monetary amount so as to be unable to entertain such counterclaim.

RULE 13.02: PERMISSIVE COUNTERCLAIM.

A pleading may state as a counterclaim any claim against an opposing party, whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

RULE 13.03: COUNTERCLAIM EXCEEDING OPPOSING CLAIM.

A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.

RULE 13.04: COUNTERCLAIM AGAINST THE STATE OF TENNESSEE.

These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the state ofTennesseeor an officer or agency thereof or any subdivision thereof.

RULE 13.05: COUNTERCLAIM MATURING OR ACQUIRED AFTER PLEADING.

A claim which either matured or was acquired by the pleader after serving the pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.

RULE 13.06: OMITTED COUNTERCLAIM.

When a pleader fails to set up a counterclaim through oversight, inadvertence or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.

RULE 13.07: CROSS-CLAIM AGAINST CO-PARTY.

A pleading may state as cross-claim any claim by one (1) party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such a cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

RULE 13.08: ADDITIONAL PARTIES MAY BE BROUGHT IN.

When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court may order them to be brought in as defendants as provided in these rules, if jurisdiction of them can be obtained.

RULE 13.09: SEPARATE TRIALS — SEPARATE JUDGMENTS.

If the court orders separate trials as provided in Rule 42, judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54 when the court has jurisdiction to do so, even if the claims of the opposing party may have been dismissed or otherwise disposed of.

Advisory Commission Comments.

13.01: Rule 13.01 requires that a party who has a claim, other than a tort claim, which arose out of the same transaction or occurrence as the claim of the opposing party, assert the claim by way of counterclaim. Multiplicity of suits is avoided by requiring all matured claims arising between the parties out of the same transaction or occurrence to be settled in a single proceeding. Exceptions are made to protect a party against injustice. The exception of tort actions from this Rule was made because these Rules do not affect the law of venue; in tort actions, a claimant may have a legitimate choice of venue among several counties. So long as the venue laws permit such choice, the Committee felt that injustice could result from making tort claims subject to this Rule.

13.02: Rule 13.02 is very broad and allows a party to state by way of counterclaim any claim which he or she may have against the opposing party, without regard to the source of the claim. In the event that the counterclaim should make it difficult for the jury or court to follow the issues in a single trial, the court may order a separate trial of the counterclaim under Rule 42.02.

13.03: Rule 13.03 provides that a counterclaim may claim relief exceeding in amount or different in kind from the relief sought in the pleading of the opposing party. As the scope of counterclaim is greatly enlarged, it is necessary that the relief granted on a counterclaim not be limited to the same amount or kind claimed in the original complaint.

13.04: The right to assert claims against the State or an officer, agent or subdivision thereof should not be enlarged by procedural rules. Accordingly, the disclaimer of Rule 13.04 is inserted.

13.05: Rule 13.05 allows a claim acquired or matured after suit has begun to be presented as a counterclaim by supplemental pleading. The right is dependent on the permission of the court; permission could be denied where the introduction of the counterclaim could unreasonably delay the suit or otherwise defeat the ends of justice.

13.06: Rule 13.06 provides an element of flexibility in the handling of counterclaims. Since, under Rule 13.01 certain matters must be asserted, if at all, by way of counterclaim, it is important to empower the court to allow counsel to correct by amendment any error of oversight, excusable neglect or inadvertence which would bar a just claim of counsel’s client.

13.09: Rule 42 empowers the court, in order to avoid inconvenience or prejudice to a party, to order separate trials of one or more cross-claims, counterclaims, etc. Rule 13.09 empowers the court to enter judgment on a cross-claim or counterclaim, even though the claims of the opposing party have been already disposed of.

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