Harris v. Nola

• Decision Date: 03 May 1976
• Docket Number: No. KCD,KCD
• Parties: Edward N. HARRIS, Appellant, v. Anthony NOLA and Elizabeth Nola, Respondents. 27580.
• Court: Missouri Court of Appeals

Page 636

537 S.W.2d 636

Edward N. HARRIS, Appellant, v. Anthony NOLA and Elizabeth Nola, Respondents.

No. KCD 27580.

Missouri Court of Appeals, Kansas City District.

May 3, 1976.

Motion for Rehearing and/or Transfer Denied June 1, 1976.

W. H. Bates, Daniel M. Dibble, Kansas City, for appellant.

William J. Hill, Kansas City, for respondents.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

WASSERSTROM, Judge.

This is a companion case to Anthony Nola, et al. v. Merollis Chevrolet Kansas City, Inc., et al., KCD 26995, decided concurrently herewith. Since all of the complicated facts are comprehensively stated in that opinion, only so much of the circumstances will be repeated here as are necessary to bring the issues of this separate case into sharp focus.

On August 28, 1970, Merollis Chevrolet, Inc., filed suit No. 740073 against Anthony Nola and Elizabeth J. Nola on a $35,000 note signed by them. In response, Anthony Nola filed a third party petition naming Edward N. Harris as a third party defendant. On November 19, 1970, Harris filed a motion to dismiss the third party petition against him. That motion was not overruled until September 3, 1971. Thereupon, on September 16, 1971, Harris filed his answer.

After Harris had filed his motion to dismiss, but before he had filed the answer just mentioned, a promissory note from the Nolas to Harris became due on July 15, 1971. It was not until almost two years after that maturity date that Harris filed his petition in the present law suit on June 14, 1973. By that time the earlier filed litigation between these parties had been tried, and a judgment in the amount of $35,000 had been entered in favor of Anthony Nola. Both Nolas responded to Harris' new suit by filing a motion to dismiss on the ground that this suit on the note was the subject for mandatory counterclaim in the earlier litigation and that it had become barred by failure of Harris so to assert it. The trial court sustained the Nola motion, treating it as a motion for summary judgment. Harris appeals from that order and judgment. His sole point on appeal is that his present cause of action is not barred by the mandatory counterclaim rule.

This question is governed by Rule 55.32(a) which provides as follows:

'Compulsory Counterclaims. A pleading shall state as a counterclaim any 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. * * *'

In support of his contention that the present suit does not fall within those provisions, Harris sets forth two subpoints in his Points Relied Upon, and in addition he argues a third subpoint in the Argument portion of his brief.

I.

Harris argues first that he did not have this cause of action as a matured claim at the time he filed and served his 'first pleading' in case No. 740073, that therefore he could not have filed any kind of claim or counterclaim on the note at that time, and that he should not now be penalized for not doing so. This argument depends upon the validity of the following sub-arguments: 1) that Rule 55.32(a) applies only to claims existing at the time of the first responsive pleading; and 2) that Harris' motion to dismiss filed on November 19, 1970, was indeed a 'pleading' within the meaning of the rule. The validity of the first of those sub-arguments is highly problematical, and Harris offers no authority to support it. However that question need not be pursued, since Harris' present argument clearly fails with respect to whether the motion to dismiss should be considered as a 'pleading.'

That the motion to dismiss should not be considered as a pleading for present purposes is sufficiently shown by Rule 55.32(a) itself. The rule commences by saying that '(a) pleading shall state as a counterclaim * * *.' Since a motion cannot include a counterclaim, a motion cannot qualify as a pleading within the meaning of the quoted phrase. The scope and permitted content of motions are set forth in Rule None of those twelve different None of those twelve different items covers the filing of a counterclaim by way of a motion.

Moreover, others of the Rules of Civil Procedure reflect a careful distinction between the use of the term 'pleading' as opposed to the term 'motion.' Thus Rule 55.01 lists the different kinds of pleadings, and does not include any mention of motions. Rule 55.25(c) provides that the filing of any motion alters the time fixed by the rules for the filing of any required responsive pleadings. Rule 55.26(b) provides that matters of form applicable to pleadings shall also apply to motions. Rule 55.27(a) provides that every defense shall be asserted in the responsive pleading except that certain defenses may at the option of the pleader be made by motion; and this rule further goes on that if the defense be by motion, then it shall be made within the time allowed 'for responding' to the opposing party's pleading, and '(m)otions and pleadings may be filed simultaneously.' Subsection (c) of Rule 55.27 deals with certain defenses 'whether made in a pleading or by motion.'

The foregoing provisions considered separately, but even more when taken in combination, show plainly beyond question that motions are treated as separate and different from the 'pleadings.' This analysis and conclusion was reached in Lawhorn v. Atlantic Refining Company, 299 F.2d 353, l.c. 356 (5 Cir. 1962), where it was held that the Federal Rules of Civil Procedure with respect to mandatory counterclaims did not require that a counterclaim be filed at the time of a motion to dismiss, and the failure to file a counterclaim then did not precipitate the coercive sanctions of the compulsory counterclaim rule. See also, Savings Finance Corporation v. Blair, 280 S.W.2d 675 (Mo.App.1955).

As a further contention that he did not have a matured claim on the note at the time of his 'first pleading,' Harris argues that even if his motion to dismiss in case No. 740073 cannot be considered as a pleading, nevertheless he had filed an answer even earlier (on June 20, 1970) in a connected case, No. 735744, involving all the same parties and in which Anthony Nola had also filed a third party petition against various defendants, including Harris. Harris argues that his third party answer in case No. 735744 should be given effect as an answer in case No. 740073, since he says that the third party petitions in both cases were identical and were later merged when those two cases were consolidated for trial.

That argument is incorrect factually. The two third party petitions were far from being identical. The one filed by Nola in case No. 735744 was on the ground that Harris and others had induced Merollis Chevrolet Kansas City, Inc., to breach its contract of employment with Nola, for which Nola asked actual damages of $315,000 and punitive damages of $300,000; and on a second ground that Harris had breached a buy-out agreement between him and Nola, for which Nola asked actual damages of $315,000. On the other hand, Nola's third party petition in case No. 740073 was based upon an alleged conspiracy by Harris and others to oppress Nola economically, as part of which conspiracy they allegedly caused Nola to incur indebtedness including the $8,500 note here in suit and then created conditions making it impossible for Nola to meet those obligations; for which Nola asked actual damages of $35,000 and punitive damages of $150,000, to be additional to the damages prayed under the third party petition in the earlier numbered suit 735744.

Moreover, the two third party petitions were not merged when the two cases were consolidated for trial. The subject matter of the third party petition in case No. 735744 was included as Counts II and III of the amended petition in the consolidated case, while the subject matter of the third party petition in case No. 740073 became the subject of Count IV of that amended petition. Thus, the two third party petitions were at all times separately identifiable. An answer in the first was not and never became an answer to the second. The answer filed by Harris on September 16, 1972, in case No. 740073 was at a time when he had a fully matured claim on the $8,500 note, and he was obligated to file his counterclaim on that note at that time as part of that answer on penalty of being forever barred if he failed to do so.

II.

Harris as his next major contention argues that his claim on the note does not come within the compulsory counterclaim rule because it did not arise out of the same transaction that was the subject matter of Nola's third party petition in ...