Keyes v. Berry
| Docket Number: | 2007-CA-00618-COA Linked Case(s): 2007-CA-00618-SCT |
|
| Court of Appeals: |
Opinion Link Opinion Date: 11-25-2008 Opinion Author: CARLTON, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Personal injury - Compulsory counterclaim - M.R.C.P. 13 - M.R.C.P. 7 Judge(s) Concurring: Myers, P.J., Irving, Chandler, and Roberts, JJ. Dissenting Author : Griffis, J., with separate written opinion. Dissent Joined By : Lee, P.J., Barnes and Ishee, JJ.; and King, C.J., joins in part. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
|
| Trial Court: |
Date of Trial Judgment: 03-16-2007 Appealed from: SIMPSON COUNTY CIRCUIT COURT Judge: Robert G. Evans Disposition: COUNTERCLAIM DISMISSED Case Number: 2004-284 |
|
| Consolidated: Consolidated with NO. 2007-IA-00669-COA: ANTHONY KEYES, APPELLANT v. DONALD BERRY AND HIRED TRUCKS, INC., APPELLEES | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | ANTHONY KEYES |
DON H. EVANS |
||
| Appellee: | DONALD BERRY, HIRED TRUCKS, INC. AND SIMPSON COUNTY, MISSISSIPPI | MICHAEL J. TARLTON, JOE S. DEATON, III, DAVID MICHAEL BRISOLARA, D. CHRISTOPHER DANIEL |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Personal injury - Compulsory counterclaim - M.R.C.P. 13 - M.R.C.P. 7 |
| Summary of the Facts: | Anthony Keyes and Donald Berry were involved in an automobile accident. At the time, both Keyes and Berry were acting within the course and scope of their employment. Keyes was employed by Simpson County, and Berry was employed by Hired Trucks, Inc. Berry and his wife filed suit, naming as defendants Keyes, Simpson County, and four fictitious parties. Berry properly served Simpson County, which filed an answer that did not indicate that such answer was also filed on Keyes’s behalf. Keyes did not file an answer. Keyes first appeared in the action by filing a “counter complaint” against Berry and Hired Trucks, Inc., which was not yet made a party to the action. Berry and Hired Trucks filed motions to dismiss the counterclaims made against them. The court granted the motions to dismiss and dismissed Keyes’s counterclaims with prejudice. Keyes appeals. |
| Summary of Opinion Analysis: | Keyes argues that he was not required to first seek leave of court to add Hired Trucks, Inc., as a party, and even though he was never properly served with process, he voluntarily appeared in the action and had standing to file the counterclaims. Keyes’s counterclaims against Berry and Hired Trucks, Inc., were compulsory, as they arose out of the same transaction or occurrence as the claim against him (the automobile accident). Pursuant to M.R.C.P. 13(a), a compulsory counterclaim “shall” be asserted. A compulsory counterclaim that is not raised is waived in future actions by principles of res judicata and collateral estoppel. Therefore, Keyes’s counterclaim was compulsory and was required to be raised to avoid waiver in subsequent litigation. Because the counterclaim was compulsory, Keyes was not required to first seek permission from the trial court. However, the more relevant determination is whether Keyes’s attempt to assert a counterclaim without filing a responsive pleading was procedurally proper. Under M.R.C.P. 7 and 13, Keyes was required to assert his counterclaim in a responsive pleading, in this case an answer. However, at the time Keyes asserted his counterclaim he had filed no answer. Merely setting forth an independent claim or cause of action against the other party falls short of sufficiency for answer, particularly in a comparative negligence state. Therefore, Keyes’s counterclaim was not properly before the court. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
