(Ga. L. 1966, p. 609, § 13.)
Cross references.- Time limitations on commencement of prosecution and enforcement of rights by way of counterclaim and cross-claim, § 9-3-97.
Form for setting forth counterclaim or cross-claim in conjunction with setting forth of defenses under § 9-11-12(b), § 9-11-120.
U.S. Code.- For provisions of Federal Rules of Civil Procedure, Rule 13, see 28 U.S.C.
Law reviews.- For article discussing counterclaims and crossclaims under the Georgia Civil Practice Act, see 4 Ga. St. B.J. 205 (1967). For article, "Current Problems with Venue in Georgia," see 12 Ga. St. B.J. 71 (1975). For article surveying 1981-1982 Eleventh Circuit cases involving civil practice and procedure, see 34 Mercer L. Rev. 1363 (1983). For article, "Compulsory Cross-Claims?," see 5 Ga. St. B.J. 48 (1999). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of trial practice and procedure, see 58 Mercer L. Rev. 405 (2006). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 81-101, 81-105 and 81-106 are included in the annotations for this Code section.
Controversies growing out of plaintiff's claim.
- Policy of the law requires controversy growing out of cause of action alleged by the plaintiff to be settled in that suit. Brewer v. Williams, 210 Ga. 341, 80 S.E.2d 190 (1954) (decided under former Code 1933, § 81-106).
One who goes into court of county other than that of one's residence, to assert a claim or set up an equity, must be content to allow that court to determine any counterclaim growing out of the original suit, which the defendant sees fit to set up by a cross action. Brewer v. Williams, 210 Ga. 341, 80 S.E.2d 190 (1954) (decided under former Code 1933, § 81-106).
Setoff is a cross action and must be pled with as much certainty and definiteness as a declaration in any suit of law. Morris v. International Agric. Corp., 53 Ga. App. 517, 186 S.E. 583 (1936); City Stores Co. v. Henderson, 116 Ga. App. 114, 156 S.E.2d 818 (1967) (decided under former Code 1933, §§ 8-101 and 81-105).
Applicability in dispossessor action.
- Trial court correctly disallowed evidence of emblements or emoluments in a dispossessory action after the defendant failed to assert any such claim in the defendant's answer or as a counterclaim, to proffer evidence of details of the alleged specific improvements that might be the basis for such a claim, or to proffer evidence as to an agreement between the parties for reimbursement of the cost of any improvements. Gentry v. Chateau Properties, 236 Ga. App. 371, 511 S.E.2d 892 (1999).
Inapplicable to contempt.
- Provisions of this section with respect to counterclaims and cross complaints are not applicable in contempt cases. McNeal v. McNeal, 233 Ga. 836, 213 S.E.2d 845 (1975); Culpepper v. Brewer, 242 Ga. 210, 248 S.E.2d 619 (1978).
This section is not applicable in contempt cases. Word v. Word, 236 Ga. 100, 222 S.E.2d 382 (1976).
Subsection (a) of this section is not applicable in contempt cases. Blease v. Blease, 238 Ga. 651, 235 S.E.2d 21 (1977).
Counterclaim for change of custody not permitted in contempt action.
- Provisions of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) authorizing counterclaims and cross complaints when not permitted prior to its enactment does not affect a contempt motion so that if the movant is not a resident of the county, wherein the contempt citation is filed, the court is without jurisdiction to consider a counterclaim or cross complaint to modify a prior judgment granting custody of the child. Davis v. Davis, 230 Ga. 33, 195 S.E.2d 440 (1973); Fernandez v. Fernandez, 232 Ga. 697, 208 S.E.2d 498 (1974).
Counterclaim seeking modification of a former custody judgment based on a change of conditions cannot be filed in answer to an application for contempt. Word v. Word, 236 Ga. 100, 222 S.E.2d 382 (1976).
In child custody cases, when the custodial parent files a contempt action in the noncustodial resident's jurisdiction for purposes of enforcing a divorce decree, a counterclaim for change of custody will not lie. Matthews v. Matthews, 238 Ga. 201, 232 S.E.2d 76 (1977).
Contempt motion is not a submission to court's jurisdiction.
- Motion filed seeking to have party to divorce proceeding held in contempt of court for failure to comply with decree of court is not tantamount to filing of complaint wherein movant submits to the venue of the court. Davis v. Davis, 230 Ga. 33, 195 S.E.2d 440 (1973); Fernandez v. Fernandez, 232 Ga. 697, 208 S.E.2d 498 (1974).
Recovery of damages for malicious use of process cannot be had by cross action or counterclaim since it is a condition precedent that the main suit must have terminated favorably to the defendant before the claim can be prosecuted in any fashion. Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835, 175 S.E.2d 910 (1970).
Logical relationship test satisfied.
- Bank sued the bank's customer to recover for an overdraft; before filing the customer's counterclaim, the customer sued the bank in another county. As the customer raised the same claims in the customer's complaint and counterclaim, and as there was a logical relationship between the parties' claims, the customer's counterclaim was compulsory; therefore, the customer's suit against the bank was barred by O.C.G.A. § 9-2-5(a). Steve A. Martin Agency, Inc. v. PlantersFIRST Corp., 297 Ga. App. 780, 678 S.E.2d 186 (2009).
Res judicata applied.
- Dismissal of the complaint was affirmed because upon the plaintiffs' voluntary dismissal of the plaintiffs' complaint in the prior action, the defendants' claims stood alone and, pursuant to O.C.G.A. § 9-11-13(a), the plaintiffs were required to file as a "counterclaim" to the defendant's claims any claims which the plaintiffs had arising out of the transaction or occurrence that was the basis of the defendant's claims. Burrowes v. Tenet Healthsystem GB, Inc., 319 Ga. App. 389, 735 S.E.2d 131 (2012).
Cited in Peacock Constr. Co. v. Turner Concrete, Inc., 116 Ga. App. 822, 159 S.E.2d 114 (1967); Maddox v. Maddox, 224 Ga. 313, 161 S.E.2d 870 (1968); Gaddis v. Moss, 117 Ga. App. 810, 162 S.E.2d 255 (1968); Best v. Georgia Power Co., 224 Ga. 669, 164 S.E.2d 125 (1968); Clark v. Perrin, 224 Ga. 307, 161 S.E.2d 874 (1968); Phillips v. Georgia Power Co., 225 Ga. 289, 168 S.E.2d 150 (1969); Shaw v. Davis, 119 Ga. App. 801, 168 S.E.2d 853 (1969); State Farm Mut. Auto. Ins. Co. v. Black, 120 Ga. App. 151, 169 S.E.2d 742 (1969); Cook & Co. v. Cross, 226 Ga. 449, 175 S.E.2d 506 (1970); Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835, 175 S.E.2d 910 (1970); Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171, 176 S.E.2d 604 (1970); Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970); Jones v. Spindel, 122 Ga. App. 390, 177 S.E.2d 187 (1970); Leggett v. Gibson-Hart-Durden Funeral Home, Inc., 123 Ga. App. 224, 180 S.E.2d 256 (1971); Georgia Heart Ass'n v. Berry, 123 Ga. App. 692, 182 S.E.2d 148 (1971); Autry v. Palmour, 124 Ga. App. 407, 184 S.E.2d 15 (1971); Martin Mgt. Corp. v. Farner, 124 Ga. App. 552, 184 S.E.2d 597 (1971); Buffington v. McClelland, 125 Ga. App. 153, 186 S.E.2d 550 (1971); Walton County Bd. of Educ. v. Academy of Social Circle, 229 Ga. 114, 189 S.E.2d 690 (1972); Gamble v. Reeves Transp. Co., 126 Ga. App. 161, 190 S.E.2d 95 (1972); Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 190 S.E.2d 98 (1972); Peckham v. Metro Steel Co., 126 Ga. App. 685, 191 S.E.2d 559 (1972); Watts v. Kundtz, 128 Ga. App. 797, 197 S.E.2d 859 (1973); Walker v. Anderson, 131 Ga. App. 596, 206 S.E.2d 833 (1974); Benefield v. Elder Bldg. Supply Co., 132 Ga. App. 195, 207 S.E.2d 678 (1974); Baitcher v. Louis R. Clerico Assocs., 132 Ga. App. 219, 207 S.E.2d 698 (1974); Frank B. Wilder & Assoc. v. St. Joseph's Hosp., 132 Ga. App. 373, 208 S.E.2d 145 (1974); Von Waldner v. Baldwin/Cheshire, Inc., 133 Ga. App. 23, 209 S.E.2d 715 (1974); Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974); Florida E. Coast Properties, Inc. v. Davis, 133 Ga. App. 932, 213 S.E.2d 79 (1975); Coffey Enters. Realty & Dev. Co. v. Holmes, 233 Ga. 937, 213 S.E.2d 882 (1975); Snead v. Pay-Less Rentals, Inc., 134 Ga. App. 325, 214 S.E.2d 412 (1975); Coop Mtg. Invs. Assocs. v. Pendley, 134 Ga. App 236, 214 S.E.2d 572 (1975); Register v. Kandlbinder, 134 Ga. App. 754, 216 S.E.2d 647 (1975); Monumental Properties, Inc. v. Johnson, 136 Ga. App. 39, 220 S.E.2d 55 (1975); W.L. Pettus Constr. Co. v. Commercial Union Ins. Co., 138 Ga. App. 281, 226 S.E.2d 77 (1976); Greer v. State Farm Fire & Cas. Co., 139 Ga. App. 74, 227 S.E.2d 881 (1976); Latex Filler & Chem. Co. v. Chapman, 139 Ga. App. 382, 228 S.E.2d 312 (1976); Cel-Ko Bldrs. & Developers, Inc. v. BX Corp., 140 Ga. App. 501, 231 S.E.2d 361 (1976); Wolski v. Hayes, 144 Ga. App. 180, 240 S.E.2d 720 (1977); P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3, 251 S.E.2d 72 (1978); Scroggins v. Harper, 144 Ga. App. 548, 241 S.E.2d 648 (1978); Retail Union Health & Welfare Fund v. Seabrum, 240 Ga. 695, 242 S.E.2d 18 (1978); Coker v. Jay Hambridge Art Found., 144 Ga. App. 660, 242 S.E.2d 323 (1978); Smith v. Smith, 145 Ga. App. 816, 244 S.E.2d 917 (1978); Alesi v. Conant, 146 Ga. App. 455, 246 S.E.2d 464 (1978); Mickel v. Pickett, 241 Ga. 528, 247 S.E.2d 82 (1978); Match Point, Ltd. v. Adams, 148 Ga. App. 673, 252 S.E.2d 90 (1979); Morton v. Skrine, 242 Ga. 844, 252 S.E.2d 408 (1979); Carl E. Jones Dev., Inc. v. Wilson, 149 Ga. App. 679, 255 S.E.2d 135 (1979); Harris v. Harris, 149 Ga. App. 842, 256 S.E.2d 86 (1979); Teague v. First Bank & Trust Co., 244 Ga. 360, 260 S.E.2d 72 (1979); Wilkerson v. Chattahoochee Parks, 244 Ga. 472, 260 S.E.2d 867 (1979); Spurlock v. Commercial Banking Co., 151 Ga. App. 649, 260 S.E.2d 912 (1979); Ransom v. Waldrip, 152 Ga. App. 711, 263 S.E.2d 682 (1979); Schoen v. Home Fed. Sav. & Loan Ass'n, 154 Ga. App. 68, 267 S.E.2d 466 (1980); Roush v. Dan Vaden Chevrolet, Inc., 155 Ga. App. 372, 270 S.E.2d 902 (1980); Prescott v. Carithers, 158 Ga. App. 366, 280 S.E.2d 361 (1981); White v. First Fed. Sav. & Loan Ass'n, 158 Ga. App. 373, 280 S.E.2d 398 (1981); Peters v. Peters, 248 Ga. 490, 283 S.E.2d 454 (1981); Hazzard v. Phillips, 249 Ga. 24, 287 S.E.2d 191 (1982); H.R.H. Prince Ltc. Faisal M. Saud v. Batson-Cook Co., 161 Ga. App. 219, 291 S.E.2d 249 (1982); Atlanta Window Co. v. Haskell Assocs., 162 Ga. App. 789, 293 S.E.2d 51 (1982); David J. Joseph Co. v. S & M Scrap Metal Co., 163 Ga. App. 685, 295 S.E.2d 860 (1982); Sawyer v. Citizens & S. Nat'l Bank, 164 Ga. App. 177, 296 S.E.2d 134 (1982); Automated Medical Servs., Inc. v. Holland, 166 Ga. App. 57, 303 S.E.2d 127 (1983); Christian v. M & R Collection Adjustment, Inc., 167 Ga. App. 712, 307 S.E.2d 523 (1983); B.J. Howard Corp. v. Skinner, Wilson, Strickland, Hardy & Benson, 172 Ga. App. 446, 323 S.E.2d 664 (1984); Nindos v. Katra, Inc., 173 Ga. App. 326, 326 S.E.2d 530 (1985); Cable Holdings of Battlefield, Inc. v. Lookout Cable Serv., Inc., 173 Ga. App. 355, 326 S.E.2d 552 (1985); Medlin v. Carpenter, 174 Ga. App. 50, 329 S.E.2d 159 (1985); Hall v. Cel Oil Prods. Corp., 175 Ga. App. 813, 334 S.E.2d 724 (1985); Idowu v. Lester, 176 Ga. App. 713, 337 S.E.2d 386 (1985); Citizens Exch. Bank v. Kirkland, 256 Ga. 71, 344 S.E.2d 409 (1986); Williams v. Patel, 179 Ga. App. 570, 347 S.E.2d 337 (1986); Spence v. Hilliard, 181 Ga. App. 767, 353 S.E.2d 634 (1987); Clark v. GMAC, 185 Ga. App. 130, 363 S.E.2d 813 (1987); Pierce County Sch. Dist. v. Greene, 185 Ga. App. 269, 363 S.E.2d 825 (1987); Edenfield v. Trust Co. Mtg., 185 Ga. App. 678, 365 S.E.2d 520 (1988); Trust Co. Bank v. Shaw, 186 Ga. App. 347, 367 S.E.2d 82 (1988); A.L. Williams & Assocs. v. Faircloth, 190 Ga. App. 872, 380 S.E.2d 471 (1989); Holcomb v. Ellis, 259 Ga. 625, 385 S.E.2d 670 (1989); Coxwell Tractor & Equip. Sales, Inc. v. Burgess, 192 Ga. App. 663, 385 S.E.2d 753 (1989); Hill v. Federal Employees Credit Union, 193 Ga. App. 44, 386 S.E.2d 874 (1989); Trust Co. Bank v. Citizens & S. Trust Co., 260 Ga. 124, 390 S.E.2d 589 (1990); Norman v. Farm Fans, Inc., 203 Ga. App. 97, 416 S.E.2d 374 (1992); Haire v. Suburban Auto Body, Inc., 204 Ga. App. 16, 418 S.E.2d 163 (1992); McLain Bldg. Materials, Inc. v. Hicks, 205 Ga. App. 767, 423 S.E.2d 681 (1992); Booksing v. Holley, 210 Ga. App. 869, 437 S.E.2d 857 (1993); Block v. Woodbury, 211 Ga. App. 184, 438 S.E.2d 413 (1993); Applied Ecological Sys. v. Weskem, Inc., 212 Ga. App. 65, 441 S.E.2d 279 (1994); DOT v. Hall, 221 Ga. App. 178, 470 S.E.2d 775 (1996); Oh v. Bell, 221 Ga. App. 276, 470 S.E.2d 807 (1996); Hovendick v. Presidential Fin. Corp., 230 Ga. App. 502, 497 S.E.2d 269 (1998); Womack v. State, 270 Ga. 56, 507 S.E.2d 425 (1998); McKesson HBOC, Inc. v. Adler, 254 Ga. App. 500, 562 S.E.2d 809 (2002); Yates Paving & Grading Co. v. Bryan County, 265 Ga. App. 578, 594 S.E.2d 756 (2004); Sampson v. Haywire Ventures, Inc., 293 Ga. App. 779, 668 S.E.2d 286 (2008); Artson, LLC v. Hudson, 322 Ga. App. 859, 747 S.E.2d 68 (2013).
Counterclaims
1. In General
Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) allows the broadest assertion of counterclaims. Cities Serv. Oil Co. v. Cronan, 123 Ga. App. 794, 182 S.E.2d 484 (1971).
Counterclaim must have matured.
- To come within the scope of this section, a counterclaim must have "matured." Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835, 175 S.E.2d 910 (1970).
Time limitations.
- Counterclaim was timely if filed within the time that a party was obligated to answer the main action as long as the limitations period for the counterclaim had not expired before the main action was filed. When both the main action against a truck driver and the truck driver's third party complaint against an injured person were filed within the two year statute of limitations period, the injured person's personal injury counterclaim against the truck driver was not barred, even though the counterclaim was filed beyond the two year period, and the trial court erred in dismissing the counterclaim. Harpe v. Hall, 266 Ga. App. 340, 596 S.E.2d 666 (2004).
Plaintiff must have complete cause of action when suit filed.
- Rule that there can be no recovery unless the plaintiff had a complete cause of action at the time the suit is filed, and that a cause of action accruing pending suit will not entitle the plaintiff to recover, applies equally to a counterclaim. Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835, 175 S.E.2d 910 (1970).
Counterclaim sets up affirmative demand.
- Counterclaim, by its essential nature, goes beyond the defensive and sets up an affirmative demand; it must state the elements of such a demand, and should state a cause of action in favor of the party alleging it against the plaintiff. Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835, 175 S.E.2d 910 (1970).
Ex delicto counterclaim may be asserted against an ex contractu action. Elsner v. Cathcart Cartage Co., 124 Ga. App. 615, 184 S.E.2d 685 (1971); Ben L. O'Callaghan Co. v. Bond Supply Co., 138 Ga. App. 186, 225 S.E.2d 774 (1976).
Ex contractu counterclaim may be asserted against an ex delicto action. Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13, 282 S.E.2d 670 (1981).
Counterclaim for damages from plaintiff's action.
- Generally, the defendant cannot by counterclaim bring an action for damages against the plaintiff for having filed and prosecuted the very action in which the defendant asserts the counterclaim. Ferguson v. Atlantic Land & Dev. Corp., 158 Ga. App. 33, 279 S.E.2d 470, rev'd on other grounds, 248 Ga. 69, 281 S.E.2d 545 (1981).
Effect of pending counterclaim on summary judgment.
- When there is a pending valid counterclaim, the trial court need not deny a persuasive and valid motion for summary judgment, and it is not error per se to grant a motion for summary judgment when there is a pending, valid counterclaim. Williams v. Church's Fried Chicken, Inc., 158 Ga. App. 26, 279 S.E.2d 465 (1981).
Application of the prior pending doctrine.
- In a personal injury accident between two drivers, the trial court erroneously denied the first driver's motion to dismiss a counterclaim asserted by the second driver because the second driver had a prior pending action against the first driver in another county, and the parties' status in both actions was identical. Moreover, given the first driver's assurances that the instant suit would be dismissed in favor of defending the second driver's claims in the prior pending action, the denial of the first driver's motion to dismiss the second driver's counterclaim was inconsistent with the purpose of O.C.G.A. § 9-2-5. Jenkins v. Crea, 289 Ga. App. 174, 656 S.E.2d 849 (2008).
Pleading which places corporation as third-party plaintiff in derivative suit.
- When the affirmative pleading filed by defendant officers, under former §§ 14-2-153 and14-2-154 (see now O.C.G.A. §§ 14-2-831 and14-2-832), in a corporate action in tort for breach of a fiduciary duty would have the result of placing the corporation as a third-party plaintiff in a stockholders' derivative suit, the purpose of which is to procure certain relief for the benefit of the corporation, such pleading does not appear to be either a compulsory counterclaim arising out of the transaction which is the subject of the complaint under subsection (a) of O.C.G.A. § 9-11-13 or a permissive counterclaim under subsection (b) of § 9-11-13. Henderson v. Kent, 158 Ga. App. 206, 279 S.E.2d 503 (1981).
Counterclaim in declaratory judgment action.
- Since the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) is applicable to declaratory judgment actions, it would appear that the defendant in such an action could interpose a counterclaim against the plaintiff. Harrison v. Speidel, 244 Ga. 643, 261 S.E.2d 577 (1979).
Counterclaims and cross-claims are not properly maintainable in a declaratory judgment action when those claims do not arise out of a transaction or question presented by an action for declaratory judgment. Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 291 S.E.2d 410 (1982).
Counterclaim for contribution is permissive.
- Party who chooses not to assert his or her claim for contribution as a counterclaim is not barred from bringing a separate suit for contribution after a judgment has been entered in the original tort action. Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 410 S.E.2d 154 (1991).
Counterclaim for breach of warranty not redundant with affirmative defense of nonconformity.
- In suit to recover on purchase order, the trial court errs in striking a counterclaim for breach of warranty because it is allegedly redundant in view of an affirmative defense of right to refuse payment because of nonconformity. Bingham, Ltd. v. Tool Technology, Inc., 166 Ga. App. 220, 303 S.E.2d 761 (1983).
Subsequent condemnation action.
- Condemnee's counterclaim for damages arising from condemnor's use of previously condemned land could not be raised in condemnor's action to condemn additional land. Flo-Rob, Inc. v. Colonial Pipeline Co., 170 Ga. App. 650, 317 S.E.2d 885 (1984).
Counterclaim outside bounds of condemnation proceeding.
- After the Department of Transportation had initiated condemnation proceedings against a property owner, the owner was not permitted to file a counterclaim to recover damages for unauthorized use of the remainder because the subject of the counterclaim was outside the bounds of this type of condemnation. DOT v. Fina Oil & Chem. Co., 194 Ga. App. 185, 390 S.E.2d 99 (1990).
Late filing of a counterclaim pursuant to subsection (f) of O.C.G.A. § 9-11-13 is permitted only as an amendment to pleadings already on file. Thus, once a case is in default, the defendant may not file responsive pleadings unless and until the default is opened. Ragan v. Smith, 188 Ga. App. 770, 374 S.E.2d 559 (1988).
Jurisdiction of property damage counterclaim in Civil Court of Fulton County.
- Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), the Civil Court of Fulton County has jurisdiction when actions based on property damage is raised as a counterclaim. Cities Serv. Oil Co. v. Cronan, 123 Ga. App. 794, 182 S.E.2d 484 (1971).
Permission of court required.
- While a trial court erred in dismissing a director's permissive counterclaim with prejudice, the trial court would not have erred in dismissing the claim without prejudice because the director did not seek the trial court's permission before filing the claim. Sampson v. Haywire Ventures, Inc., 278 Ga. App. 525, 629 S.E.2d 515 (2006).
Although the defendants filed a motion seeking leave to amend the counterclaim, the defendants did not obtain such leave before filing the amended counterclaim, and the record contained no ruling on the motion; thus, the trial court did not err in dismissing the defendants' amended counterclaim. Douglas Asphalt Co. v. Martin Marietta Aggregates, 339 Ga. App. 435, 793 S.E.2d 615 (2016).
Judicial immunity prevented counterclaim.
- Counterclaims filed by the county and the county's commissioner were properly dismissed as the judge's handling of traffic cases, including dismissal of 60 cases after the judge lost in a general election, was protected by judicial immunity. Heiskell v. Roberts, 295 Ga. 795, 764 S.E.2d 368 (2014).
Claims did not arise out of the same transaction.
- As a developer's tort claims did not arise out of the same transaction or occurrence as the prior claims brought by investors, the claims were properly not deemed compulsory counterclaims; rather, the developer's claims were based on the investors' filing of a lis pendens that occurred in the investors' action. Meadow Springs, LLC v. IH Riverdale, LLC, 323 Ga. App. 478, 747 S.E.2d 47 (2013).
Bad faith award available to defendant asserting counterclaim.
- Supreme Court of Georgia reversed the court's decision in Byers v. McGuire Properties, Inc., 285 Ga. 530 (2009) and held that a defendant who brings a counterclaim against a plaintiff becomes the plaintiff as to that counterclaim and, thus, as a plaintiff-in-counterclaim asserting an independent claim, they may seek, along with that claim, attorney fees and litigation expenses under O.C.G.A. § 13-6-11, regardless of whether the independent claim is permissive or compulsory. SRM Group, Inc. v. Travelers Prop. Cas. Co. of Am., 308 Ga. 404, 841 S.E.2d 729 (2020).
2. Compulsory Counterclaims
When counterclaim compulsory.
- This section makes counterclaims mandatory when the counterclaims arise out of the same transaction or occurrence. Coastal Air Serv., Inc. v. Tarco Aviation Serv., Inc., 301 F. Supp. 586 (S.D. Ga. 1969).
Party must raise any claim against an opposing party which arises out of the transaction or occurrence that is the subject-matter of the opposing party's claim as long as the presence of a third party is not required. Southern Jam, Inc. v. Robinson, 675 F.2d 94 (5th Cir. 1982).
Compulsory counterclaim is one which: (1) arises out of the same transaction or occurrence as the main claim; and (2) has matured at the time the answer is filed. Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 410 S.E.2d 154 (1991).
Claim which has not yet accrued cannot be treated as a compulsory counterclaim. Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 410 S.E.2d 154 (1991).
Under Georgia law, claims that have not accrued by the time of the first pleading are not compulsory counterclaims, such that neither a civil conspiracy claim nor an unjust enrichment claim brought on behalf of a software subsidiary constituted compulsory counterclaims, for failure to accrue until a prior action had already concluded in the entry of a default judgment. Akin v. PAFEC Ltd., 991 F.2d 1550 (11th Cir. 1993).
"Occurrence" or "same transaction" construed.
- Term "occurrence" or "same transaction" may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship. Myers v. United Servs. Auto. Ass'n, 130 Ga. App. 357, 203 S.E.2d 304 (1973).
Term "occurrence" or "same transaction" as used in this section has been given a broad and realistic interpretation by the courts. P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3, 251 S.E.2d 72 (1978).
Subsection (a) and
§ 9-10-30 compared. - Subsection (a) of Ga. L. 1966, p. 609, § 13 (see now O.C.G.A. § 9-11-13), allowing counterclaims arising out of the transaction on which the complaint is based, may be compared to Ga. L. 1962, p. 659, § 1 (see now O.C.G.A. § 9-10-30), allowing equitable relief in the county where proceedings are pending, rather the than county of residence, as to matters included in the litigation. Howard Concrete Pipe Co. v. Cohen, 139 Ga. App. 491, 229 S.E.2d 8 (1976).
Key phrase in subsection (a) is that the claim "arises out of the transaction or occurrence that is the subject-matter of the opposing party's claim"; the cause of action has no express bearing on the issue, nor would the fact that the plaintiff might have a different status in the second suit, as opposed to the first, be of any consequence. Harbin Lumber Co. v. Fowler, 137 Ga. App. 90, 222 S.E.2d 878 (1975).
When there was some superficial relation between various libel claims, as the claims were all based upon statements made in the context of a disputed election, but it was not the election itself that was the subject matter of each of the claims but rather the individual statements themselves, evidence regarding the plaintiffs' alleged defamatory statements was largely irrelevant to the question of whether the defendant's statements were false and defamatory, and the trial court erred in dismissing the plaintiffs' claims on the ground that the claims constituted compulsory counterclaims in defendant's prior actions. Bigley v. Mosser, 235 Ga. App. 583, 509 S.E.2d 406 (1998).
Any claim that is logically related to a claim being sued on is properly the basis for a compulsory counterclaim. Myers v. United Servs. Auto. Ass'n, 130 Ga. App. 357, 203 S.E.2d 304 (1973); P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3, 251 S.E.2d 72 (1978).
Test to be applied in determining whether a counterclaim is compulsory is whether there is any logical relationship between the claim advanced by the plaintiff and the claim asserted by the defendant. Myers v. United Servs. Auto. Ass'n, 130 Ga. App. 357, 203 S.E.2d 304 (1973); P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3, 251 S.E.2d 72 (1978); Goss & Goss Dev. Co. v. First Union Nat'l Bank, 196 Ga. App. 436, 396 S.E.2d 19 (1990).
Broad test to be applied in determining whether a counterclaim is compulsory is whether a logical relationship exists between the respective claims asserted by the opposing parties. Schoen v. Home Fed. Sav. & Loan Ass'n, 167 Ga. App. 644, 307 S.E.2d 72 (1983).
Test to be applied in determining whether a counterclaim is compulsory under O.C.G.A. § 9-11-13(a) is whether there is any logical relationship between the claim advanced by the plaintiff and the claim asserted by the defendant; any claim that is logically related to another claim that is being sued on is properly the basis for a compulsory counterclaim. Kennestone Hosp., Inc. v. Hopson, 264 Ga. App. 123, 589 S.E.2d 696 (2003).
Separate action not maintainable on compulsory counterclaim.
- Under subsection (a) of this section, party may not "decline to litigate" a compulsory counterclaim in the original action and seek to bring a separate action. Myers v. United Servs. Auto. Ass'n, 130 Ga. App. 357, 203 S.E.2d 304 (1973); Brittany Apts. v. Chapman, 141 Ga. App. 168, 233 S.E.2d 27 (1977); Aycock v. Calk, 228 Ga. App. 172, 491 S.E.2d 383 (1997).
Party may not raise issues arising out of the same transaction which should have been pled as a compulsory counterclaim in another separate suit. Harbin Lumber Co. v. Fowler, 137 Ga. App. 90, 222 S.E.2d 878 (1975).
Failure to plead a compulsory counterclaim can result in losing the right to assert that claim in a subsequent action. Kitchens v. Lowe, 139 Ga. App. 526, 228 S.E.2d 923 (1976).
Failure to file and litigate compulsory counterclaim subjects party to dismissal of the party's claim when brought in a separate second litigation. P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3, 251 S.E.2d 72 (1978).
Arising out of same transaction test met.
- Hospital's home court did not err in transferring the remaining counterclaim to a patient's home court for trial as the hospital consented to the patient's home court trying the patient's counterclaim against the hospital for the improper release of the patient's mental health records when it invoked the jurisdiction of that court to pursue its suit against the patient for non-payment for medical services since: (1) both claims arose out of the contractual relationship between the hospital and the patient; (2) the common nexus between the claims was the mental health treatment the hospital gave to the patient; (3) the hospital sought to recover monies due for the treatment at issue in the patient's counterclaim; and (4) this commonality met the broad similarity or connectedness test as well as the arising out of the same transaction or occurrence test used for determining whether a counterclaim was compulsory under O.C.G.A. § 9-11-13(a). Kennestone Hosp., Inc. v. Hopson, 264 Ga. App. 123, 589 S.E.2d 696 (2003).
Trial court did not err in granting a lessee's motion to dismiss a lessor's action against the lessee because the lessor's claim for unpaid rent arose from the same transaction or occurrence as that giving rise to the lessee's prior pending action against the lessor; thus, the lessor was required to assert the lessor's claim in that action. Metro Brokers, Inc. v. Sams & Cole, LLC, 316 Ga. App. 398, 729 S.E.2d 540 (2012).
Declaratory judgment actions.
- Counterclaims based on negligence are not properly maintainable as compulsory counterclaims in a declaratory judgment action, the subject of which involves liability or nonliability of an insurance company. Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 291 S.E.2d 410 (1982).
Treatment of setoff as type of counterclaim.
- Confusion or misdesignation as to whether the defendant's defense in a loan suit was a setoff or a counterclaim would not be so harmful as to require reversal because the court can treat a setoff as a type of counterclaim, and because the court treats pleadings as if there had been a proper designation when justice requires. Gwinnett Com. Bank v. Flake, 151 Ga. App. 578, 260 S.E.2d 523 (1979).
When the defendant neither filed a compulsory counterclaim nor pled a set-off as an affirmative defense, there was no error in the trial court's failure to provide for a set-off for lease deposits prior to calculating pre-judgment and post-judgment interest. American Medical Transp. Group, Inc. v. Glo-An, Inc., 235 Ga. App. 464, 509 S.E.2d 738 (1998).
Counterclaim for contribution in the event of judgment finding the plaintiff and the defendant guilty of concurring negligence, a claim arising out of the occurrence which is the subject matter of the complaint, and as such is maintainable; it is not in the nature of an independent suit, which can be maintained only in the county of the residence of the alleged joint tortfeasor. Howard Concrete Pipe Co. v. Cohen, 139 Ga. App. 491, 229 S.E.2d 8 (1976).
Recoupment of premiums from insured was a compulsory counterclaim in response to an action by an insured against an insurer for collection of insurance proceeds. P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3, 251 S.E.2d 72 (1978).
Adjudication of Truth-in-Lending claims that are not asserted in precedent state court suits on the underlying debt are precluded by subsection (a) of this section. Chapman v. Aetna Fin. Co., 615 F.2d 361 (5th Cir. 1980).
Federal jurisdiction in case of removal.- State procedural statute requiring compulsory counterclaims does not control question of federal jurisdiction in case of removal. Coastal Air Serv., Inc. v. Tarco Aviation Serv., Inc., 301 F. Supp. 586 (S.D. Ga. 1969).
Federal, not state, law determines who is the plaintiff and who is the defendant in removal cases. Coastal Air Serv., Inc. v. Tarco Aviation Serv., Inc., 301 F. Supp. 586 (S.D. Ga. 1969).
Res judicata bars later action.
- Party may not raise issues arising out of the same transaction which should have been pleaded as a compulsory counterclaim in another separate suit. When the first suit is completed, then res judicata serves to bar proceeding with the second action. First Fed. Sav. & Loan Ass'n v. I.T.S.R.E., Ltd., 159 Ga. App. 861, 285 S.E.2d 593 (1981).
Since an insured's counterclaim for property damage against a tortfeasor, which the insured later withdrew, was a compulsory counterclaim under O.C.G.A. § 9-11-13(a), the insurer was barred by res judicata and O.C.G.A. § 9-12-40 from reasserting that claim in a subsequent suit in which the insurer sought to recover from the tortfeasor for damages the insurer paid to the insured. Allstate Ins. Co. v. Welch, 259 Ga. App. 71, 576 S.E.2d 57 (2003).
Appeals court agreed with the trial court that the doctrine of res judicata barred the negligence and breach of contract claims asserted by two property owners against a contractor as: (1) the claims were essentially identical to the allegations in a counterclaim filed in a prior Cherokee County action; (2) the parties in the two cases were identical for purposes of res judicata; and (3) the Cherokee County suit resulted in an adjudication on the merits. Perrett v. Sumner, 286 Ga. App. 379, 649 S.E.2d 545 (2007).
When a suit is voluntarily dismissed, the doctrine of res judicata cannot operate to bar a compulsory counterclaim in a later lawsuit, even if the claim was not asserted in the prior suit. Walker v. Bishop, 169 Ga. App. 236, 312 S.E.2d 349 (1983).
Condemnation proceeding was not a compulsory counterclaim, under O.C.G.A. § 9-11-13(a), in a federal court action brought by a condemnee seeking damages for announcement of the condemnation and seeking to enjoin it; hence, the condemnation proceeding was not barred by res judicata. Ideal Leasing Servs. v. Whitfield County, 254 Ga. App. 397, 562 S.E.2d 790 (2002).
Setoff and recoupment are counterclaims and not defenses and when the setoff and recoupment claims arise from the same transaction as that set forth in the original pleadings of the plaintiffs' complaint, these counterclaims are compulsory and should be raised in the defendant's original answer. Swim Dixie Pool Corp. v. Kraemer, 157 Ga. App. 748, 278 S.E.2d 448 (1981).
Debtor's failure to join bank officer bars further litigation against officer.
- Since the vice-president of the bank was a person necessary for proper adjudication of the debtor's defenses and third-party claim in the prior suit and vice-president's joinder was mandatory under subsection (a) of O.C.G.A. § 9-11-13, the debtor, having failed to file a compulsory counterclaim against the vice-president or to join the vice-president as an indispensable party, was also barred from further litigation against the vice-president on these issues. Usher v. Johnson, 157 Ga. App. 420, 278 S.E.2d 70 (1981).
Claim for rentals need not be made by a counterclaim in an action wherein the possessors of certain property seek to set aside a deed to one of the present title holder's predecessors in title based on alleged fraudulent misrepresentations. Schoen v. Home Fed. Sav. & Loan Ass'n, 167 Ga. App. 644, 307 S.E.2d 72 (1983).
Although the Georgia Supreme Court has designated Yost abusive litigation claims as compulsory, this determination is not controlling in federal courts. A.L. Williams Corp. v. Faircloth, 120 F.R.D. 135 (N.D. Ga. 1987).
Waiver of defense in second action.- Compulsory counterclaim, if not asserted in the primary action, cannot later be asserted in a second action, but this preclusive effect is not present unless the party wishing to assert the defense affirmatively raises the defense in the party's responsive pleadings. If the defense is not so raised, the defense is waived. Hubbard v. Stewart, 651 F. Supp. 294 (M.D. Ga. 1987).
Amendment denied when defendant had knowledge of claim.
- When the defendant introduced in evidence two letters the defendant received from the plaintiff's attorney three to four months after the subject defaulted note was executed, the defendant's counterclaim could not be added by amendment when the defendant had knowledge of the claims at the time the defensive pleadings were prepared and filed in the first instance. Shaw v. Ruiz, 207 Ga. App. 299, 428 S.E.2d 98 (1993).
Trial court properly granted summary judgment for an executor in the child's suit seeking recovery under quantum meruit as: (1) Georgia law applied to procedural matters such as whether a claim was a compulsory counterclaim; and (2) the claim was a compulsory counterclaim in the executor's suit against the child in Florida seeking to quiet title to properties the child allegedly improperly transferred since both suits involved the child's entitlement to a portion of the estate, and if the child was entitled to payment for the child's services, the issue should have been raised in the Florida suit to offset the claim that the child had been unjustly enriched. Harper v. Harper, 267 Ga. App. 553, 600 S.E.2d 659 (2004).
Insured's counterclaim for property damage against a tortfeasor, which the insured later withdrew, was a compulsory counterclaim, under O.C.G.A. § 9-11-13(a), because the counterclaim arose out of the same incident that was the subject of the tortfeasor's suit, and there was a logical relationship between the tortfeasor's claim and the insured's claim. Allstate Ins. Co. v. Welch, 259 Ga. App. 71, 576 S.E.2d 57 (2003).
3. Permissive Counterclaims
Permissive counterclaims do not arise out of same transaction.
- Under subsection (b) of this section, permissive counterclaims do not arise out of the same transaction and in fact need not be tried with the main action. Dixie Home Bldrs., Inc. v. Waldrip, 146 Ga. App. 464, 246 S.E.2d 471 (1978).
Claims that mature or are acquired by pleader after pleading has been served are permissive rather than compulsory counterclaims. Jenkins v. Martin, 142 Ga. App. 573, 236 S.E.2d 542 (1977).
Counterclaim in tort when main action on contract.
- Permissive counterclaims may be based on a cause of action ex delicto when the main action was ex contractu. Dixie Home Bldrs., Inc. v. Waldrip, 146 Ga. App. 464, 246 S.E.2d 471 (1978).
Failure to assert a permissive counterclaim at the proper time will only result in the party being unable to make the contentions in the suit in question, not that the party will be barred in a future suit. Kitchens v. Lowe, 139 Ga. App. 526, 228 S.E.2d 923 (1976).
4. Counterclaims Maturing or Acquired After Pleading
Claims that mature or are acquired by pleader after pleading has been served are permissive rather than compulsory counterclaims. Jenkins v. Martin, 142 Ga. App. 573, 236 S.E.2d 542 (1977); Wagner v. Howell Enters., Inc., 184 Ga. App. 394, 361 S.E.2d 698 (1987).
Because the basis for a director's counterclaim for conversion of stock did not occur until after the director filed the answer, that claim matured after the answer was filed, and thus the claim was a permissive, not compulsory counterclaim pursuant to O.C.G.A. § 9-11-13(e); a trial court erred in dismissing the counterclaim with prejudice. Sampson v. Haywire Ventures, Inc., 278 Ga. App. 525, 629 S.E.2d 515 (2006).
Claim which occurs subsequent to the time of serving the pleading would fall in the category of a permissive counterclaim. Georgia Power Co. v. Jones, 122 Ga. App. 614, 178 S.E.2d 265 (1970).
Separate action permitted.
- Supplemental counterclaim brought under subsection (e) of this section is permissive rather than compulsory; the action may be brought in a separate suit, and will not be lost if permission to plead the counterclaim is denied. Jenkins v. Martin, 142 Ga. App. 573, 236 S.E.2d 542 (1977).
Permission of the court is a necessary prerequisite to supplemental pleading of a counterclaim under subsection (e) of this section. Jenkins v. Martin, 142 Ga. App. 573, 236 S.E.2d 542 (1977).
Discretion of court under subsection (e).
- Subsection (e) of this section envisions the exercise of discretion by the trial judge. Carvel Corp. v. Rabey, 140 Ga. App. 205, 230 S.E.2d 355 (1976).
Decision to grant or deny a motion or a counterclaim is totally within the trial court's discretion. Jenkins v. Martin, 142 Ga. App. 573, 236 S.E.2d 542 (1977); Feifer v. Reliance Kitchens, USA, Inc., 189 Ga. App. 653, 377 S.E.2d 28 (1988).
Counterclaim predicated on the bringing of plaintiff's claim and its unsuccessful conclusion, which the defendant claims is the basis for an action for wrongful attachment, allowing the defendant to recover under the bond issued pursuant to such attachment, was a permissive counterclaim which matured or was acquired by the defendant after serving the pleading, and could properly be brought in another action; hence, the trial judge did not err in dismissing such counterclaim, in effect denying permission for the defendant to present the claim by supplemental pleading under subsection (e) of this section. Carvel Corp. v. Rabey, 140 Ga. App. 205, 230 S.E.2d 355 (1976).
When corporation, after filing answer, assigns various instruments to its wholly owned subsidiary, and amends its counterclaim by adding claims based on these assignments, these additional causes of action do not constitute compulsory counterclaims which the corporation was required to assert at the time it filed its original answer, when there is no evidence that the subsidiary is a sham, or that it is being used to defeat a public convenience, to justify a wrong, protect fraud, defend crime, or any other reason which in equity and good conscience would justify the disregard of its separate entity. Bass v. Citizens & S. Nat'l Bank, 168 Ga. App. 668, 309 S.E.2d 850 (1983).
Action for malicious abuse of process, not being in existence at the time the plaintiff served the plaintiff's pleadings in response to the defendant's original complaint, was not a compulsory counterclaim in that action and could properly be filed as a separate action. Ostroff v. Coyner, 187 Ga. App. 109, 369 S.E.2d 298 (1988).
Counterclaim filed after party added.
- Since an owner's counterclaims were filed after a transferor's son was added as a party, and the owner acknowledged that the owner did not request leave of court to file the counterclaims, the trial court properly dismissed the counterclaims; while the owner claimed that the trial court implicitly considered the claims as properly filed, no evidence in the record supported this claim. Hale v. Scarborough, 279 Ga. App. 614, 631 S.E.2d 812 (2006).
No prejudice since specific performance was relief granted.
- Trial court did not abuse the court's discretion when the court permitted the defendants to file an amended counterclaim seeking specific performance of the shareholders buy-sell agreement because the minority shareholder sought specific performance anyways, which was the relief the court granted, so no prejudice occurred. Wallace v. Wallace, 345 Ga. App. 764, 813 S.E.2d 428 (2018), cert. denied, No. S18C1329, 2019 Ga. LEXIS 42, cert. denied, No. S18C1332, 2019 Ga. LEXIS 48 (Ga. 2019), cert. denied, 2019 U.S. LEXIS 6165, 205 L. Ed. 2d 30 (U.S. 2019).
5. Omitted Counterclaims
Phrase "when justice so requires" in subsection (f) of O.C.G.A. § 9-11-13 furnishes an independent ground for setting up an omitted counterclaim. Thus, a trial court should grant leave to set up an omitted counterclaim "when justice so requires" even though the other grounds, "oversight, inadvertence, or excusable neglect" are not present. White v. Fidelity Nat'l Bank, 188 Ga. App. 539, 373 S.E.2d 640, cert. denied, 188 Ga. App. 913, 373 S.E.2d 640 (1988).
Leave of court required for filing.
- Although the defendant filed a motion seeking leave to file additional counterclaims, when the defendant failed to obtain a ruling before proceeding, the trial court did not err in dismissing the defendant's additional counterclaims. Cornelius v. Auto Analyst, Inc., 222 Ga. App. 759, 476 S.E.2d 9 (1996).
Discretion of court under subsection (f).
- Subsection (f) of this section envisions the exercise of discretion by the trial judge. Carvel Corp. v. Rabey, 140 Ga. App. 205, 230 S.E.2d 355 (1976).
Under subsection (f) of this section, the trial judge is vested with discretion which will not be controlled absent a legal abuse. Clairmont Foods, Inc. v. Huddle House, Inc., 142 Ga. App. 171, 235 S.E.2d 635 (1977).
Decision to allow counterclaim to be pled is matter of judicial discretion and may be reversed on appeal only if the party can demonstrate that the court abused the court's discretion. Rohner, Gehrig & Co. v. Capital City Bank, 655 F.2d 571 (5th Cir. 1981).
Whether justice requires the grant of leave to set up an omitted counterclaim is a matter which addresses itself to the sound discretion of the trial court. White v. Fidelity Nat'l Bank, 188 Ga. App. 539, 373 S.E.2d 640, cert. denied, 188 Ga. App. 913, 373 S.E.2d 640 (1988).
Permitting an omitted counterclaim is within the discretion of the trial court; the court should be liberal in allowing such claims when no prejudice would result. Martin & Jones Produce, Inc. v. Lundy, 197 Ga. App. 38, 397 S.E.2d 461 (1990); Parks v. Multimedia Techs., Inc., 239 Ga. App. 282, 520 S.E.2d 517 (1999).
Generally, it is a matter of the trial court's discretion whether to allow the late filing of counterclaims pursuant to subsection (f) of O.C.G.A. § 9-11-13. Eudaly v. Valmet Automation (USA), Inc., 201 Ga. App. 497, 411 S.E.2d 311, cert. denied, 201 Ga. App. 903, 411 S.E.2d 311 (1991).
Trial court erred by denying a mortgagor's motion to add a counterclaim as moot because the trial court had discretion, based upon any of the factors listed in O.C.G.A. § 9-11-13(f) to permit the filing of the counterclaims, but it issued no ruling pursuant to the statute; thus, the judgment of the trial court denying the motion as moot was vacated, and the case was remanded for the trial court to exercise the court's discretion and issue a ruling on the merits of the motion. Richards v. Wells Fargo Bank, N.A., 325 Ga. App. 722, 754 S.E.2d 770 (2014).
In a lake-front lot owner's dispute with the lake bottom owner, the trial court erred in striking the bottom owner's compulsory counterclaim for trespass as untimely filed without exercising the court's discretion to consider whether the counterclaim could be filed under O.C.G.A. § 9-11-13(f). Davis v. Ganas, 344 Ga. App. 697, 812 S.E.2d 36 (2018).
Admission of second compulsory counterclaim within discretion of court.
- Whether to allow the filing of a second counterclaim which involved new theories but were clearly compulsory counterclaims based upon the same facts as the underlying complaint was within the discretion of the trial court and was not disturbed absent abuse. Conerly v. First Nat'l Bank, 209 Ga. App. 601, 434 S.E.2d 143 (1993).
Abuse of discretion.
- When the trial court had set a deadline for motions and for the filing of a pretrial order, the court abused the court's discretion in allowing the defendant to file late counterclaims without a showing of necessity or justice pursuant to subsection (f) of O.C.G.A. § 9-11-13; and, having allowed the defendant to file late counterclaims, the court prima facie abused the court's discretion in refusing the plaintiff time for discovery and for denying a continuance. Eudaly v. Valmet Automation (USA), Inc., 201 Ga. App. 497, 411 S.E.2d 311, cert. denied, 201 Ga. App. 903, 411 S.E.2d 311 (1991).
Assertion of different basis for counterclaim on appeal.
- Having first asserted grounds for adding a counterclaim which did not state a viable claim as a matter of law, the defendant could not assert a different ground on appeal, since such a claim would constitute a shifting of the position raised before and ruled upon by the trial court and, as such, it was not preserved for appellate review. Strong v. Wachovia Bank, 215 Ga. App. 535, 451 S.E.2d 524 (1994).
Subsection (f) of this section applies to both compulsory and permissive counterclaims. Kitchens v. Lowe, 139 Ga. App. 526, 228 S.E.2d 923 (1976).
Question of type of counterclaim involved is a factor to be considered by the trial judge in making a determination under subsection (f) of this section. Kitchens v. Lowe, 139 Ga. App. 526, 228 S.E.2d 923 (1976).
What is "excusable neglect" under subsection (f) of this section depends on whether or not the defendant or the defendant's counsel had knowledge of the existence of the claim when defensive pleadings were prepared and filed in the first instance, and whether, under the facts, there has been unreasonable or inexcusable delay in the tendering of the amendment. Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974); Aycock v. HFC, 142 Ga. App. 207, 235 S.E.2d 578 (1977), cert. dismissed, 240 Ga. 570, 241 S.E.2d 835 (1978).
Knowledge of claim at time of filing of pleading.
- Finding of oversight or of inadvertence is unsupported if it appears from the pleadings or the facts that the defendant or the defendant's counsel had knowledge of the existence of the claim when the defensive pleadings were prepared and filed in the first instance. Blount v. Kicklighter, 125 Ga. App. 159, 186 S.E.2d 543 (1971); Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11 (1978).
Judge should allow the amendment "when justice requires," even if other requirements are not met. Kitchens v. Lowe, 139 Ga. App. 526, 228 S.E.2d 923 (1976).
Submission of evidence and finding as to cause of delay.
- Before a delayed filing of a counterclaim is allowed pursuant to subsection (f) of this section, the court should require submission of evidence and make a finding therefrom as to whether the delay was occasioned by oversight, inadvertence, or excusable neglect. Blount v. Kicklighter, 125 Ga. App. 159, 186 S.E.2d 543 (1971); Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11 (1978); Williams v. Buckley, 148 Ga. App. 778, 252 S.E.2d 692 (1979).
It is error for court to allow late counterclaim without evidence and without requiring the defendant to make the showing required of the defendant by subsection (f) of this section. Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11 (1978).
Record insufficient to determine prejudice due to added counterclaim.
- Trial court's ruling denying the contractor leave to set up the court's omitted compulsory counterclaim was vacated because the record was devoid of any evidence regarding the magnitude of the expense or other hardship that the subcontractor would face in defending against the contractor's claim or of any evidence that late assertion of the claim would cause significantly greater expense than timely assertion would have caused. Talbot Construction, Inc. v. Triad Drywall, LLC, 333 Ga. App. 815, 777 S.E.2d 503 (2015).
Courts should be very liberal in allowing amendments to include compulsory counterclaims, and even permissive counterclaims when no prejudice would result, when the pleader has not been guilty of inexcusable neglect, or has not by reprehensible conduct deprived oneself of any claim to special consideration by the court. Blount v. Kicklighter, 125 Ga. App. 159, 186 S.E.2d 543 (1971).
As a general rule, leave to amend and set up a counterclaim shall be given freely, but this does not dispense with the necessity of showing that justice so requires. Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11 (1978).
Courts should be very liberal in allowing amendments to assert compulsory counterclaims when no prejudice would result. Williams v. Buckley, 148 Ga. App. 778, 252 S.E.2d 692 (1979).
Malpractice action against an attorney accrued on the date the attorney filed an answer without seeking leave to add an omitted counterclaim, not the date on which the statute of limitation on the counterclaim had run. Gibson v. Casto, 233 Ga. App. 403, 504 S.E.2d 705 (1998).
Allowance of late counterclaim otherwise barred by limitations.
- Trial court has discretion to allow a late counterclaim despite the fact that the statute of limitations would otherwise bar a suit on the underlying right of action. Unnever v. Stephens, 142 Ga. App. 787, 236 S.E.2d 886, aff'd, 240 Ga. 313, 242 S.E.2d 478 (1977).
Counterclaim filed after statute of limitations ran.
- Trial court did not err in dismissing a counterclaim for unjust enrichment because the four-year statute of limitations for unjust enrichment claims had run, and purchasers and the holders of two outstanding security deeds never sought leave from the trial court to file a late counterclaim as required by O.C.G.A. § 9-11-13. Chase Manhattan Mortg. Corp. v. Shelton, 290 Ga. 544, 722 S.E.2d 743 (2012).
New theories after remittitur constitute new counterclaims.
- Assertion of new theories as to an alleged defective foreclosure after remittitur constituted additional grounds for count one of the defendant's compulsory counterclaim and, thus, were new counterclaims which were barred. Bellamy v. FDIC, 236 Ga. App. 747, 512 S.E.2d 671 (1999).
Counterclaim on issue of child's custody required.
- Husband was allowed to orally raise a counterclaim during the hearing on the wife's motion to modify legal custody because justice required it since the needs of the parties' child could not be satisfied in the absence of the counterclaim and consideration of the counterclaim fostered judicial economy. Daniel v. Daniel, 250 Ga. App. 482, 552 S.E.2d 479 (2001).
Leave to file late counterclaim properly denied.
- In subscribers' class action suit against an internet access provider, the trial court did not abuse the court's discretion by denying the provider's motion under O.C.G.A. § 9-11-13(f) for leave to file omitted compulsory counterclaims against two named subscribers because: (1) the provider waited one and a half years to seek leave to file the counterclaims; and (2) the provider knew of the basis for the provider's counterclaim when the provider filed the provider's answer. EarthLink, Inc. v. Eaves, 293 Ga. App. 75, 666 S.E.2d 420 (2008).
Cross-Claims
Constitutionality.
- Subsection (g) of O.C.G.A. § 9-11-13, pertaining to cross-claims, and O.C.G.A. § 9-11-14, pertaining to third-party practice, are not in conflict with the Constitution; of course, even if they were, the venue provisions of the Constitution (Ga. Const. 1976, Art. VI, Sec. XIV, Para. VII [see now Ga. Const. 1983, Art. VI, Sec. II, Para. VIII]) would be controlling and cannot be extended or limited by the Civil Practice Act (see O.C.G.A. Ch. 11, T. 9). Lester Witte & Co. v. Cobb Bank & Trust Co., 248 Ga. 235, 282 S.E.2d 296 (1981).
Sphere of cross-claims broadened.
- Amendment to subsection (g) of this section, allowing cross-claims to be filed if relating to any property that is the subject matter of the original action, was intended to broaden the sphere of such permitted pleadings. Claude A. Hinton, Jr., Inc. v. Institutional Investors Trust, 133 Ga. App. 364, 211 S.E.2d 169 (1974).
Cross-claim is not compulsory, but is permissive. Vineyard v. Fowler, 197 Ga. App. 453, 398 S.E.2d 709 (1990), reversed on other grounds, 261 Ga. 454, 405 S.E.2d 678 (1991).
Cross-claim for contribution is permissive.
- Subsection (g) of O.C.G.A. § 9-11-13, which authorizes cross-claims, expressly authorizes the bringing of a cross-claim for contribution. The language of the statute, however, is permissive and in no way makes a cross-claim arising out of the same transaction or occurrence as the main claim compulsory. Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 410 S.E.2d 154 (1991).
Cross-claiming codefendant entitled to punitive damages.
- Codefendants who are plaintiffs in cross-claim for indemnification against the defendant can recover punitive damages. Privitera v. Addison, 190 Ga. App. 102, 378 S.E.2d 312, cert. denied, 190 Ga. App. 898, 378 S.E.2d 312 (1989).
Cross-claim against joint tort-feasor.
- When a party defendant cross-claims against another defendant under subsection (g) of this section, both of whom are being sued as joint tort-feasors, one cannot have judgment against the other prior to the determination of the plaintiffs' suit. Berry v. Cordell, 120 Ga. App. 844, 172 S.E.2d 848 (1969).
Indemnification as against joint tort-feasors.
- Fact that joint trespassers might be entitled to indemnification does not mean that other parties might not be so entitled. Privitera v. Addison, 190 Ga. App. 102, 378 S.E.2d 312, cert. denied, 190 Ga. App. 898, 378 S.E.2d 312 (1989).
O.C.G.A. § 9-11-13 does not authorize cross-claim against one who is no longer a party to the action. Smithloff v. Benson, 173 Ga. App. 870, 328 S.E.2d 759 (1985).
Person added for limited purposes.
- When a party is added by the court for limited purposes (such as to protect certain funds) and has not been designated a plaintiff or defendant by the court, provisions of O.C.G.A. § 9-11-13 governing cross-claims do not apply to that party. Spivey v. Rogers, 173 Ga. App. 233, 326 S.E.2d 227 (1984).
Res judicata bars a party who foregoes opportunity to file permissive cross-claim from bringing the claim in a subsequent action. Fowler v. Vineyard, 261 Ga. 454, 405 S.E.2d 678 (1991).
Cross-claims for indemnification and contribution, and a later personal injury claim, both arising out of the same traffic accident, involve an identity of subject matter for purposes of res judicata. Fowler v. Vineyard, 261 Ga. 454, 405 S.E.2d 678 (1991).
Additional Parties
"Complete relief" construed.
- Term "complete relief" embraces the desirability of avoiding repetitive lawsuits on essentially the same facts or subject matter, as well as the desirability of joining those in whose absence there might be a grant of hollow or partial relief to the parties before the court. Stein v. Burgamy, 150 Ga. App. 860, 258 S.E.2d 684 (1979).
Co-executors of a husband's deceased parents were improperly joined in a wife's action for alimony, and the wife's reliance on the concept of complete relief as a basis for joinder was misplaced because: (1) even if the wife were to be awarded some interest in the estate, whether the wife would have to enforce that right by litigation was entirely speculative; and (2) if further litigation were to prove necessary, the issues and subject matter of litigation attempting to force a distribution from the estate would not be the same as the issues and subject matter in the wife's present action, which involved the entitlement, as a consequence of the marriage, to support from the husband; thus, the absence of the co-executors from the present litigation would not render the relief afforded the wife partial or hollow because the wife would obtain an interest as full and complete as that presently held by the husband. Searcy v. Searcy, 280 Ga. 311, 627 S.E.2d 572 (2006).
Absence of additional alleged joint tortfeasor is no impediment to "complete relief," as stated in subsection (h) of O.C.G.A. § 9-11-13. McCabe v. Lundell, 199 Ga. App. 639, 405 S.E.2d 693, cert. denied, 199 Ga. App. 906, 405 S.E.2d 693 (1991).
Leave of court is a bare requisite when the plaintiff seeks to assert a claim against one who is not already a party to the proceedings. Housing Auth. v. Millwood, 472 F.2d 268 (5th Cir. 1973).
Venue is not relevant inquiry in initial determination of whether to add defendant-in-counterclaim. Instead, the reference in subsection (h) of O.C.G.A. § 9-11-13 to the existence of "jurisdiction of [potential defendants-in-counterclaim]" obviously contemplates only a determination as to whether jurisdiction over the person of potential defendants-in-counterclaim can be obtained. McCabe v. Lundell, 199 Ga. App. 639, 405 S.E.2d 693, cert. denied, 199 Ga. App. 906, 405 S.E.2d 693 (1991).
Procedure for bringing in additional parties.
- When additional parties should be brought in pursuant to subsection (h) of Ga. L. 1966, p. 609, § 13 (see now O.C.G.A. § 9-11-13), counterclaimant or cross-claimant should serve the pleading upon the parties to the action who are affected thereby, file it or file and then serve it, secure an order from the court that certain named persons be made defendants to the counterclaim or cross-claim, obtain a summons from the clerk directed to such persons, and then proceed to serve the pleading, which contains the counterclaim or cross-claim, and the summons in the manner provided in Ga. L. 1972, p. 689, §§ 1 and 3 (see now O.C.G.A. § 9-11-4) for service of the complaint and summons. Housing Auth. v. Millwood, 472 F.2d 268 (5th Cir. 1973).
Counterclaim not subject to estoppel.
- With regard to persons who were not parties to the plaintiff's suit, even though the defendants could have asked the trial court to add them as additional parties under subsection (h) of O.C.G.A. § 9-11-13, the trial court had the discretion to deny adding the parties; thus, estoppel did not apply to the defendant's independent action against such persons. Jacobs v. Littleton, 241 Ga. App. 403, 525 S.E.2d 433 (1999).
Joined party may contest venue.
- If a motion to join is granted and a defendant-in-counterclaim is thereafter served, then the actually "joined [rather than potentially joinable] party" may contest venue by filing a motion to dismiss, which is to be treated by the trial court as a motion to transfer pursuant to Uniform Superior Court Rule 19. If venue is shown to be proper elsewhere, it would then be incumbent upon the trial court to enter an appropriate order. Such an appropriate order might sever the counterclaim for separate trial pursuant to O.C.G.A. § 9-11-42(b) and transfer only the severed counterclaim, while retaining jurisdiction and venue over the main action. McCabe v. Lundell, 199 Ga. App. 639, 405 S.E.2d 693, cert. denied, 199 Ga. App. 906, 405 S.E.2d 693 (1991).
Service of process when additional party brought in.- If a motion to add a party is granted, or if the court orders an additional party brought in on the court's own motion, service of process must be made in the usual way. Housing Auth. v. Millwood, 472 F.2d 268 (5th Cir. 1973).
Trial court erred in failing to allow addition of plaintiff executrix as party in individual capacity in the defendant's counter-claim for intentional infliction of mental distress as O.C.G.A. § 9-11-13 provides for addition of necessary parties for granting of complete relief. Owens v. Owens, 248 Ga. 720, 286 S.E.2d 25 (1982).
Third-party complaint against plaintiff's agent.
- Defendant's third-party complaint against the plaintiff's agent was not cognizable against the agent under O.C.G.A. § 9-11-14 since the action could only be fairly regarded as related to the defendant's counterclaim against the plaintiff and, as such, required an order by the trial court pursuant to subsection (h) of O.C.G.A. § 9-11-13 joining the agent as a party. McCormick v. Rissanen, 177 Ga. App. 623, 340 S.E.2d 268 (1986).
Joinder in divorce actions of corporations.
- In an action for divorce pursuant to O.C.G.A. § 19-5-1, the trial court properly granted the wife's motion pursuant to O.C.G.A. §§ 9-11-13(h) and9-11-19(a)(1) to join two corporations as defendants by counterclaim because, by the husband's own design, any property that could be determined to be marital property was inextricably commingled with the property of the corporations, and, thus, joinder of the corporations was proper to ensure a just division of marital assets. Gardner v. Gardner, 276 Ga. 189, 576 S.E.2d 857 (2003).
Joinder not required.
- Trial court did not err in denying a motion for joinder in that, to the extent that the addition of the principals of a real estate developer to the movant's counterclaim was sought because they were joint tortfeasors with the developer, no joinder was required. Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, 708 S.E.2d 672 (2011).
Separate Trials and Judgments
Subsection (i) of this section is not entirely clear. Young v. Jones, 140 Ga. App. 66, 230 S.E.2d 32 (1976).
Restrictive construction not intended.
- While a literal reading of subsection (i) of Ga. L. 1966, p. 609, § 13 (see now O.C.G.A. § 9-11-13) indicates by negative implication that jurisdiction over a counterclaim or cross-claim following dismissal of the original claim can be retained only in the limited situation in which separate trials have been ordered pursuant to Ga. L. 1966, p. 609, § 42 (see now O.C.G.A. § 9-11-42(b)), it seems clear that this restrictive construction was never intended. Young v. Jones, 140 Ga. App. 66, 230 S.E.2d 32 (1976).
Dismissal of main complaint.
- Counterclaim is not necessarily subject to dismissal because of dismissal of main complaint. Weems v. Weems, 225 Ga. 19, 165 S.E.2d 733 (1969); Young v. Jones, 140 Ga. App. 66, 230 S.E.2d 32 (1976).
If a counterclaim can be adjudicated without regard to the main claim, it should be judicially considered even though the main claim has been dismissed. Young v. Jones, 140 Ga. App. 66, 230 S.E.2d 32 (1976).
Entry of summary judgment on the main case in favor of the defendant does not effect dismissal of the defendant's counterclaim. Young v. Jones, 140 Ga. App. 66, 230 S.E.2d 32 (1976).
RESEARCH REFERENCES
Am. Jur. 2d.
- 20 Am. Jur. 2d, Counterclaim, Recoupment, and Setoff, § 1 et seq. 44B Am. Jur. 2d, Interpleader, § 6. 59 Am. Jur. 2d, Parties, § 236 et seq. 61A Am. Jur. 2d, Pleading, § 355 et seq. 75 Am. Jur. 2d, Trial, §§ 60, 62.
C.J.S.- 35A C.J.S., Federal Civil Procedure, § 357 et seq. 67A C.J.S., Parties, § 131 et seq. 71 C.J.S., Pleading, § 199 et seq. 80 C.J.S., Set-off and Counterclaim, §§ 9, 10, 26 et seq.
ALR.
- Application of doctrine of res judicata to item of single cause of action omitted from issues through ignorance, mistake, or fraud, 2 A.L.R. 534; 142 A.L.R. 905.
Counterclaim or set-off as affecting rule as to part payment of a liquidated and undisputed debt, 4 A.L.R. 474; 53 A.L.R. 768.
Availability as set-off or counterclaim of claim in favor of one alone of several defendants, 10 A.L.R. 1252; 81 A.L.R. 781.
Plea of pendency of former action as affecting right of pleader to avail himself of objections to the former action, 32 A.L.R. 1339.
Setting up counterclaim, set-off, or recoupment in reply, 42 A.L.R. 564.
Right of defendant in action for injury to person or property to set up by cross-complaint claim for injury to his person or property against co-defendant, 43 A.L.R. 879.
Judgment as a contract within statute in relation to setoff or counterclaim, 55 A.L.R. 469.
May or must claim for damages from wrongful seizure of property be interposed in action or proceeding in which such seizure is made, 85 A.L.R. 644.
Necessity of process against plaintiff when cross bill or answer in nature of cross bill comes in, 96 A.L.R. 990.
Right to enjoin prosecution of action in court of limited jurisdiction because of counter rights or claims in behalf of defendant which are beyond such limited jurisdiction, 125 A.L.R. 337.
Pleading or attempting to prove by way of setoff, counterclaim, or recoupment, related claim barred by statute of limitations, as waiver of defendant's plea of limitation against plaintiff's claim, 137 A.L.R. 324.
Statutory right of setoff or counterclaim as affected by defendant's conduct inducing delay in bringing action until after maturity of the claim, or assignment to defendant of the claim, against plaintiff, 137 A.L.R. 1180.
Setoff, counterclaim, and recoupment in replevin or other action for possession of personal property, 151 A.L.R. 519.
Claim barred by limitation as subject of setoff, counterclaim, recoupment, cross bill, or cross action, 1 A.L.R.2d 630.
Claim for wrongful death as subject of counterclaim or cross action in negligence action against decedent's estate, and vice versa, 6 A.L.R.2d 256.
Cause of action in tort as counterclaim in tort action, 10 A.L.R.2d 1167.
Failure to assert matter as counterclaim as precluding assertion thereof in subsequent action, under federal rules or similar state rules or statutes, 22 A.L.R.2d 621.
Permissibility of counterclaim or cross action for divorce where plaintiff's action is one other than for divorce, separation, or annulment, 30 A.L.R.2d 795.
Right of defendant in action for personal injury, property damage, or death, to bring in new parties as cross defendants to his counterclaim or the like, 46 A.L.R.2d 1253.
Counterclaim or the like as affecting appellate jurisdictional amount, 58 A.L.R.2d 84.
Exclusion from courtroom of expert witnesses during taking or testimony in civil case, 85 A.L.R.2d 478.
Independent venue requirements as to cross complaint or similar action by defendant seeking relief against a codefendant or third party, 100 A.L.R.2d 693.
Proceeding for summary judgment as affected by presentation of counterclaim, 8 A.L.R.3d 1361.
Right in equity suit to jury trial of counterclaim involving legal issue, 17 A.L.R.3d 1321.
May action for malicious prosecution be predicated on defense or counterclaim in civil suit, 65 A.L.R.3d 901.
Appealability of order dismissing counterclaim, 86 A.L.R.3d 944.
Right of party litigant to defend or counterclaim on ground that opposing party or his attorney is engaged in unauthorized practice of law, 7 A.L.R.4th 1146.
Necessity and permissibility of raising claim for abuse of process by reply or counterclaim in same proceeding in which abuse occurred - state cases, 82 A.L.R.4th 1115.
Construction and application of claim maturity exception to compulsory-counterclaim requirement under state rules of civil procedure, 7 A.L.R.7th 7.
Construction and application of claim maturity exception to compulsory counterclaim requirement under Fed R. Civ P. 13(a)(1), 6 A.L.R. Fed. 3d 1.