Moretz v. Northwestern Bank, 8310SC323
| Citation | 67 N.C.App. 312,313 S.E.2d 8 |
| Decision Date | 20 March 1984 |
| Docket Number | No. 8310SC323,8310SC323 |
| Parties | J. Douglas MORETZ v. The NORTHWESTERN BANK. |
| Court | Court of Appeal of North Carolina (US) |
Margot Roten and Kimzey, Smith, McMillan & Roten by Duncan A. McMillan, Raleigh, for plaintiff.
Tharrington, Smith & Hargrove by John R. Edwards and Elizabeth F. Kuniholm, Raleigh, for defendant.
Plaintiff contends that the trial court erred in dismissing his suit under Rule 13(a) of the Rules of Civil Procedure 1 because plaintiff's G.S. § 75-1.1 2 action for unfair trade practices had not matured at the time plaintiff answered defendant's complaint in the prior action between plaintiff and defendant and was therefore not a compulsory counterclaim. While we must disagree with this argument, we nevertheless hold for other reasons that plaintiff's suit should not have been dismissed under Rule 13(a).
It is clear from plaintiff's complaint that all of the transactions and occurrences constituting defendant's unfair practices had taken place when plaintiff filed his answer in the previous action and plaintiff concedes that when he answered defendant's complaint, he was aware of those events and circumstances. The injury was therefore then extant, the only unknown aspect of the matter being the extent of plaintiff's damages. It would appear that at the trial of the prior action, plaintiff's ultimate and entire damages would have been somewhat speculative since plaintiff incurred post trial damages in defending defendant's action against him at the appellate level.
Our decision, however, is based on principles of equity. The remedies provided pursuant to G.S. § 75-1.1 are equitable in nature and should not be frustrated by narrow or strict applications of procedural rules. At the time plaintiff filed his answer in the prior action, there was a degree of uncertainty as to the maturity of his G.S. § 75-1.1 claim against defendant sufficient to require a careful balancing of the procedural requirements of Rule 13(a) of the Rules of Civil Procedure and the equitable remedies of G.S. § 75-1.1. It would offend our sense of justice to allow defendant to avoid answering in this action for its flagrant conduct through a narrow or strict application of the provisions of Rule 13(a) of the Rules of Civil Procedure, thereby defeating the balancing process we deem necessary in this case.
For the reasons stated, the order of the trial court must be reversed and this cause must be remanded for further proceedings on the merits of plaintiff's action.
Reversed and remanded.
Though I agree that the judgment appealed from was erroneous and must be reversed and that it would be inequitable and unconscionable to bar plaintiff's claim under the circumstances recorded, I do not agree that except for the equities involved the claim that plaintiff asserts in this suit meets the requirements for compulsory counterclaims laid down in Rule 13(a) of the North Carolina Rules of Civil Procedure. In my opinion Rule 13(a) has no application to plaintiff's claim for two reasons: First, it did not arise out of the transaction or occurrence that the bank's prior suit was based on, as that rule requires. Second, the claim had not ripened into maturity when plaintiff filed answer to the bank's suit, and it is inherent that the only claims that have to, or can, be asserted are those that are in existence.
The transaction or occurrence that the bank's prior suit against plaintiff arose out of was plaintiff's endorsement of the 1977 note executed by Baker; on the other hand the transaction or occurrence that this suit by the plaintiff arose out of was the bank's foundationless lawsuit against him to collect under the endorsement. Until the spuriousness of...
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