Kemp v. Spivey, COA03-1022.

• Docket Nº: No. COA03-1022.
• Citation: 602 S.E.2d 686, 166 NC App. 456
• Case Date: October 05, 2004
• Court: Court of Appeal of North Carolina (US)

602 S.E.2d 686
166 NC App. 456

Lillie Freeman KEMP, Plaintiff,
v.
Kristy Gayle SPIVEY and Tabor City Rescue Squad, Defendants

No. COA03-1022.

Court of Appeals of North Carolina.

October 5, 2004.

602 S.E.2d 687

Hill & High, L.L.P., by John Alan High, Whiteville, for plaintiff-appellant

Barnes, Braswell & Haithcock, P.A., by Glenn A. Barfield, Goldsboro, for defendant-appellees.

BRYANT, Judge.

Lillie Freeman Kemp (plaintiff) appeals an order filed 19 March 2003 granting Kristy Gayle Spivey and Tabor City Rescue Squad's (defendants') joint motion to dismiss the complaint based on a violation of N.C. Gen.Stat. § 1A-1, Rule 13(a) (compulsory counterclaim).

On 14 January 1999, Kemp and Spivey were involved in an automobile accident. At the time of the collision, Kemp, a school bus driver, was operating a school bus with students on board. Spivey, an emergency technician, was operating a Rescue Squad ambulance. Several persons, both on the school bus and ambulance, were injured.

Multiple claims were filed between 1999 and 2000 in Columbus County concerning the accident. In each of the claims, the plaintiffs alleged that Spivey, in the course and scope of her employment with the Rescue Squad, negligently operated the ambulance, causing the collision. Defendants Spivey and the Rescue Squad answered in each case, denying negligence on the part of Spivey, and filed third-party complaints against Kemp, alleging Kemp's negligence caused or contributed to the collision. In each case, Kemp was represented by the Attorney General's Office of the State of North Carolina. In each case, Kemp filed an answer to the third-party complaint and counterclaimed for indemnity. Each civil action was resolved by way of a settlement agreement and a release from further liability. Kemp was represented in each settlement agreement by an attorney from the Attorney General's Office who participated in, and signed each settlement and release agreement.

Kemp filed her complaint against defendants on 21 December 2001, alleging Spivey, while acting in the course and scope of her duties as an employee of the Rescue Squad negligently operated an ambulance, causing the accident. Defendants filed an answer denying negligence on the part of Spivey and asserting the affirmative defense of contributory negligence. On 10 February 2003, defendants filed a motion to dismiss Kemp's complaint on the ground that the claim was a compulsory counterclaim that she failed to previously assert, and thus waived her right to bring the separate action. By order filed 19 March 2003, the trial court granted defendants' motion to dismiss.

Kemp presents two arguments on appeal: (I) whether her claim was mature at the time the original complaints and third-party complaints were filed; and (II) whether the trial court erred in dismissing her claim instead of allowing her to maintain a separate action.

I

Kemp first argues that her claim was not mature at the time the original complaints

602 S.E.2d 688

and third-party complaints were filed; therefore, she was not barred from filing her counterclaim thereafter. We disagree

N.C. Gen.Stat. § 1A-1, Rule 13(a) provides as follows regarding 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. But the pleader need not state the claim if

(1) At the time the action was commenced the claim was the subject of another pending action, or

(2) The opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this rule.

N.C.G.S. § 1A-1, Rule 13(a) (2003).

"The purpose of Rule 13(a), making certain counterclaims compulsory, is to enable one court to resolve `all related claims in one action, thereby avoiding a wasteful multiplicity of litigation.'" Gardner v. Gardner, 294 N.C. 172, 176-77, 240 S.E.2d 399, 403 (1978) (citation omitted). Determining whether a particular claim "arises out of the same transaction or occurrence" requires consideration of "(1) whether the issues of fact and law are largely the same; (2) whether substantially the same evidence is involved in each action; and (3) whether there is a logical relationship between the two actions." Brooks v. Rogers, 82 N.C.App. 502, 507-08, 346 S.E.2d 677, 681 (1986). In addition, there must be "a logical relationship in the nature of the actions and the remedies sought." Id. at 508, 346 S.E.2d at 681.

We are satisfied in the instant case that plaintiff's claim for damages is a compulsory counterclaim with regard to defendants' previously filed third-party claims. Kemp argues, however, at the time the third-party complaints were filed, she was unaware of the total amount of her damages; therefore, her claim was not mature.

N.C. Gen.Stat. § 1A-1, Rule 13(e) provides: "Counterclaim maturing or acquired after pleading. — A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading." In the instant case, Kemp was fully aware of the events and circumstances leading to her injury; only the exact amount of injury sustained was speculative. In Moretz v. Northwestern Bank, 67 N.C.App. 312, 313-14, ...