RULE. 13 COUNTERCLAIM AND CROSS-CLAIM

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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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