Arkansas Game and Fish Com'n v. Lindsey

• Decision Date: 01 June 1987
• Docket Number: No. 86-19,86-19
• Citation: Arkansas Game and Fish Com'n v. Lindsey, 730 S.W.2d 474, 292 Ark. 314 (Ark. 1987)
• Parties: ARKANSAS GAME AND FISH COMMISSION, Appellant, v. Thomas E. LINDSEY, Alfred Peitz, and C.W. Elrod, Appellees.
• Court: Arkansas Supreme Court

Page 474

730 S.W.2d 474

292 Ark. 314

ARKANSAS GAME AND FISH COMMISSION, Appellant, v. Thomas E. LINDSEY, Alfred Peitz, and C.W. Elrod, Appellees.

No. 86-19.

Supreme Court of Arkansas.

June 1, 1987.

Howell, Price, Trice, Basham & Hope by Carey E. Basham & Dale Price, P. Douglas Mays, Little Rock, for appellant.

Richard B. Adkisson, Little Rock, for appellees.

DUDLEY, Justice.

The appellees purchased two tracts of land on the shore of Lake Conway. They subdivided one of the tracts and started promoting the sale of lots. The most direct route to the subdivision is by use of a road which crosses part of the Camp Robinson Wildlife Demonstration Area which is owned by the appellant, Arkansas Game and Fish Commission. See Ark. Const.Amend., 35, § 8. The appellant Commission claims the road as a private road and placed a barricade across it. Appellees filed suit in the Chancery Court of Faulkner County to enjoin the Commission from barricading the road. The Commission responded with an ARCP Rule 12(b)(3) motion alleging that Faulkner County was not the county of proper venue, filed an answer, filed a compulsory counterclaim seeking affirmative relief, and filed a third party complaint also seeking affirmative relief. The third party answered and issues were joined.

The applicable venue statute, Ark.Stat.Ann. § 27-602 (Repl.1979), provides that all actions against State Boards or Commissions must be filed in Pulaski County. The trial court relied on cases which we decided before the current Rules of Civil Procedure were adopted, and held that the Commission waived the issue of improper venue when it asked affirmative relief against the appellees and against the third party defendant. See Foster v. Arkansas State Highway Comm'n, 258 Ark. 176, 527 S.W.2d 601 (1975); Arkansas State Racing Comm'n v. Southland Racing Corp., 226 Ark. 995, 295 S.W.2d 617 (1956). The appellant Commission argues that the trial court erred in refusing to dismiss appellees' complaint because of improper venue. We affirm the result reached by the trial court on this issue.

Prior to our adoption of the Rules of Civil Procedure, it was necessary for a party to make a special appearance in order to object to venue. If that party proceeded further and made a general appearance by some act, such as the filing of a permissive counterclaim, he waived the issue of venue and entered his appearance in a county other than the one designated by the venue statute. Thompson v. Dunlap, 244 Ark. 178, 424 S.W.2d 360 (1968). ARCP Rule 12(b) has abolished the distinction between special and general appearances. A defendant need no longer appear specially to attack venue. Bituminous, Inc. v. Uerling, 270 Ark. 904, 607 S.W.2d 331 (1980) and see Reporter's Notes to Rule 12, Note 7. Thus, the Commission did not waive venue simply by making a general appearance.

Our cases, before the current Rules of Civil Procedure, held that one who came into court and sought affirmative relief against a plaintiff by a permissive counterclaim invoked the court's jurisdiction in the case so that he could not later question the court's authority to pass on all questions between himself and his adversary. Thompson v. Dunlap, 244 Ark. 178, 424 S.W.2d 360 (1968). In Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S.W.2d 696 (1928), we explained why a demand for permissive affirmative relief enters one's appearance: "But one cannot come into court, assert a claim, ask the court for affirmative relief, and then, when there is an adverse judgment, claim that the court had no jurisdiction over his person. If this could be done, the appellant would have the opportunity and advantage of prosecuting its claim, and, in case it recovered judgment, it could collect, and at the same time take no chances of a judgment against itself."

The above cases dealt with permissive counterclaims but the case at bar deals with a compulsory counterclaim. In dealing with the doctrine of waiver, there is a significant distinction between the two types of counterclaim. Wright and Miller, in Federal Practice and Procedure: Civil § 1397 (1969) explain:

Although waiver is a reasonable result when the counterclaim asserted is permissive under Rule 13(b) [the permissive counterclaim rule], it seems improper to apply waiver when the counterclaim is compulsory under Rule 13(a) [the compulsory counterclaim rule]. By interposing a permissive counterclaim, a party voluntarily asks the court for affirmative relief and thus should not be allowed objections based on personal inconvenience. In addition, application of the waiver principle reinforces the policy against piecemeal litigation of claims that is reflected in all of the joinder of claims and multiparty litigation procedures in the rules. But waiver in the case of a compulsory counterclaim does not seem appropriate inasmuch as defendant is obliged by Rule 13(a) to assert his claim and does not have the option afforded by Rule 13(b).

Justice Newbern, in his book Arkansas Civil Practice and Procedure § 11-4, (1985), discusses our cases and the defendant's dilemma with a compulsory counterclaim as follows:

In deciding that a request for affirmative relief waived an objection, previously made, to improper venue, the supreme court recognized but did not answer the problem which might arise when an objection to venue is overruled and the objecting party has a claim which could be characterized as a compulsory counterclaim. The question whether the objecting party must waive either the objection or the counterclaim under those circumstances has not been addressed.

(Emphasis added.)

The language of the Rules of Civil Procedure is of no help on the issues. Rule 12(b), the pertinent part, provides:

(b) How Presented. Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: ... (3) improper venue,.... A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.

As can be seen, the rule allows a defendant to answer to the merits in the same pleading in which he raises the issue of venue, but it does not authorize a defendant to couple a counterclaim with a venue motion. The provision "[n]o defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion" is of no assistance since it is reasonably clear that a counterclaim or third party complaint is not a "defense" within the purview of the quoted passage. D. Newbern, Arkansas Civil Practice and Procedure § 11-1 (1985); C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1397 (1969).

Similarly, Rule 12(h)(1) does not answer the question. It only provides that the defense of improper venue is waived if not made either by motion or in the original responsive pleading. The rule does not provide that it is exclusive of other waiver situations.

Since the rules do not govern the issue before us, we must look to our common law. As previously stated, we do not find any prior cases involving a compulsory counterclaim, and so, we must choose what we regard as the sounder approach. We hold that the assertion of a compulsory counterclaim does not constitute a waiver of objection to venue because of the non-voluntary character of the compulsory counterclaim. As stated in Dragor Shipping Corp. v. Union Tank Car Co., 378 F.2d 241 (9th Cir.1967):

Under Rule 13(a) a party who fails to plead a compulsory claim against an opposing party is held to have waived such claim and is precluded by res judicata from bringing suit upon it again. ... However, since such a party has no alternative but to submit his compulsory claim against an opposing party, or lose it, his act in asserting it does not constitute a waiver of any jurisdictional defense he previously or concurrently asserts.

Accordingly, the appellant Commission did not waive its objection to venue by filing the compulsory counterclaim.

However, the same reasoning does not apply to a defendant who pleads improper venue and who also files a third party complaint. By filing the third party complaint he invokes the jurisdiction of the court, and by invoking it submits to it. Globig v. Greene & Gust Co., 193 F.Supp. 544 (E.D.Wis.1961); Merz v. Hemmerle, 90 F.R.D. 566 (D.C.N.Y.1981). Clearly, one should not be allowed to assert voluntarily a claim against a third party defendant, and then, if there is an adverse judgment, claim the court was not the proper venue. Therefore, the appellant Commission waived improper venue by asserting a third party complaint. The trial court reached the correct result on this point.

The Commission next contends that the trial court erred in refusing to dismiss the case because it is a suit against the State and is prohibited by ...