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60-213. Counterclaims and cross-claims. (a) Compulsory counterclaims. (1) In general. A pleading must state as a counterclaim any claim that, at the time of its service, the pleader has against an opposing party if the claim:

(A) Arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and

(B) does not require adding another party over whom the court cannot acquire jurisdiction.

(2) Exceptions. The pleader need not state the claim if:

(A) When the action was commenced, the claim was the subject of another pending action; or

(B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this section.

(b) Permissive counterclaims. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

(c) Relief sought in a counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.

(d) Effect of death or limitations. If a party's claim arises out of the contract or transaction that is the basis of an opposing party's claim or is connected with the subject of the action and it could have been asserted as a counterclaim or crossclaim against a person if the person had asserted a claim against the party previously, the party's claim is not extinguished by: (i) An assignment by the person; (ii) the death of the person; or (iii) the expiration of the statute of limitations. However, the party's claim may be asserted in these circumstances only to the extent that it does not exceed the amount awarded to the opposing party.

(e) Counterclaim maturing or acquired after pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.

(f) Compulsory crossclaim against a co-party. When a claim is governed by K.S.A. 60-258a, and amendments thereto, a party must state as a crossclaim any claim that party has against any co-party, if the claim arises out of the transaction or occurrence that is the subject matter of the claim governed by K.S.A. 60-258a, and amendments thereto.

(g) Permissive crossclaim against a co-party. A pleading may state as a crossclaim any claim by one party against a co-party, if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the co-party is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.

(h) Joining additional parties. K.S.A. 60-219 and 60-220, and amendments thereto, govern the addition of a person as a party to a counterclaim or crossclaim.

(i) Separate trials; separate judgments. If the court orders separate trials under subsection (b) of K.S.A. 60-242, and amendments thereto, it may enter judgment on a counterclaim or crossclaim under subsection (b) of K.S.A. 60-254, and amendments thereto, when it has jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.

(j) Appealed and removed actions. When an action filed pursuant to chapter 61 of the Kansas Statutes Annotated is transferred as provided in K.S.A. 61-2910, and amendments thereto, or an action heard by a district magistrate judge is appealed, any counterclaim or crossclaim made compulsory by subsection (a) or (f) must be stated in an amended pleading within 21 days after service of the order of transfer or notice of appeal, or such other time as the court allows. Other counterclaims and crossclaims are permitted as provided in this chapter.

History: L. 1963, ch. 303, 60-213; amended by Supreme Court order dated July 17, 1969; L. 1976, ch. 251, § 3; L. 1986, ch. 115, § 90; L. 1986, ch. 215, § 2; L. 1986, ch. 215, § 3; L. 2000, ch. 161, § 110; L. 2010, ch. 135, § 80; July 1.

Source or prior law:

(a). G.S. 1868, ch. 80, §§ 95, 98; L. 1909, ch. 182, §§ 98, 100; R.S. 1923, 60-711, 60-713.

(b). G.S. 1868, ch. 80, § 94; L. 1909, ch. 182, § 97; R.S. 1923, 60-710.

(d). G.S. 1868, ch. 80, § 100; L. 1909, ch. 182, § 102; R.S. 1923, 60-715.

(g). G.S. 1868, ch. 80, §§ 97, 99; L. 1909, ch. 182, §§ 99, 101; R.S. 1923, 60-712, 60-714.

(h). G.S. 1868, ch. 80, §§ 97, 99; L. 1909, ch. 182, §§ 99, 101; R.S. 1923, 60-712, 60-714.

(i). G.S. 1868, ch. 80, § 268; L. 1909, ch. 182, § 280; R.S. 1923, 60-2904.

Cross References to Related Sections:

Pleading claims for relief, see 60-208(a).

Summary judgment, see 60-256.

Third-party practice, see 60-214.

Joinder of claims, see 60-218(a).

Defenses and objections, see 60-212.

Pleadings allowed, see 60-207(a).

Mistake in designating defense, effect, see 60-208(c).

Dismissal of claims, see 60-241(c).

Use of counterclaims and cross-claims under code of civil procedure for limited actions, see 61-2905.

Grounds for appeal in limited actions, see 61-3901.

Law Review and Bar Journal References:

Certain provisions commented upon prior to legislative enactment, George Templar, 31 J.B.A.K. 168 (1962).

Pleadings discussed, Marlin M. Volz, 11 K.L.R. 203, 209 (1962).

G.S. 60-711 mentioned in survey of law of administration of estates, Richard C. Harris, 12 K.L.R. 127, 130 (1963).

G.S. 60-711, 60-715 mentioned in survey of debtor-creditor law, Robert B. Morton, 12 K.L.R. 211, 227 (1963).

Cause of action barred by statute of limitations, Earl B. Shurtz, 14 K.L.R. 171, 177 (1965).

Subsection (a); application abrogated in magistrate actions, "Forcible Entry and Detainer Actions in Kansas: Some Observations on Lindsey v. Normet," Russell Read, 21 K.L.R. 71, 76 (1972).

"Creditor Setoffs in Business Reorganization and Relief Cases Under the Bankruptcy Act," Robert B. Morton, 45 J.B.A.K. 163, 165 (1976).

Survey of civil procedure, Elizabeth R. Herbert, 15 W.L.J. 315, 321 (1976).

"Survey of Kansas Law: Torts," William Edward Westerbeke, 27 K.L.R. 321, 346 (1979).

"Contested Estate Matters After Court Unification," Calvin J. Karlin, 48 J.B.A.K. 97, 99 (1979).

"Uniform Reciprocal Enforcement of Support Act," Carl A. Gallagher, 20 W.L.J. 409, 422 (1981).

"Survey of Kansas Law: Civil Procedure," 29 K.L.R. 449, 467 (1981).

"Recent Development in Kansas Civil Procedure," E. Elinor P. Schroeder, 32 K.L.R. 515, 529, 530 (1984).

"Comparative Negligence. New Rules of Pleading and Burden of Proof," Vol. IX, Special Issue, J.K.T.L.A. 28 (1985).

"Survey of Kansas Tort Law," William E. Westerbeke and Reginald L. Robinson, 37 K.L.R. 1005, 1046 (1989).

"Prosecuting and Defending Forcible Entry and Detainer Actions," Stephen Kirschbaum, 65 J.K.B.A. No. 7, 20 (1996).

"General Jurisdiction in Kansas," Robert C. Casad, 76 J.K.B.A. No. 4, 27 (2007).

"What Constitutes Excusable Neglect? A Guide for the Kansas Federal & State Practitioner", Steven W. Allton, John W. Broomes, 77 J.K.B.A. No. 5, 6 (2008).

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-710 to 60-713, 60-715, 60-2904 and the 1961 Supp. thereto.

1. No error in trial court's order directing counterclaim against plaintiff and action against new party be tried in separate action. Moorman Motors, Inc. v. Phelps, 192 K. 774, 391 P.2d 311.

2. Designed to retain substance of G.S. 1949, 60-715 and case law developed thereunder applies. Rochester American Ins. Co. v. Cassell Truck Lines, 195 K. 51, 53, 54, 57, 58, 59, 402 P.2d 782.

3. Mentioned in construing 60-213(d). Rochester American Ins. Co. v. Cassell Truck Lines, 195 K. 51, 54, 402 P.2d 782.

4. One joint tortfeasor may cross-claim against the other where liability between them is controlled by contract of indemnity. Bartlett v. Heersche, 204 K. 392, 393, 406, 462 P.2d 763.

5. Subsections (d) and (g) mentioned in case concerning dismissal of actions. Gideon v. Bo-Mar Homes, Inc., 205 K. 321, 324, 327, 469 P.2d 272.

6. Subsection (d) cited in holding cross-claim asserted as a setoff in an action on an injunction bond barred. Tobin Construction Co. v. Holtzman, 207 K. 525, 533, 534, 535, 485 P.2d 1276.

7. Prevailing party authorized reasonable attorney fees; contention by cross-claim upheld. Pinkerton v. Schwiethale, 208 K. 596, 601, 493 P.2d 200.

8. Failure of junior equitable mortgage holder to cross-claim under subsection (g) waived possessory and redemption rights as lien creditor. Pine v. Pittman, 211 K. 380, 382, 506 P.2d 1184.

9. Compulsory counterclaim issue relating to divorce and separate maintenance actions not decided for failure to properly perfect appeal. Taber v. Taber, 213 K. 453, 455, 456, 516 P.2d 987.

10. Referred to in holding compulsory joinder of separate claims not required under 60-218. Parsons Mobile Products, Inc. v. Remmert, 216 K. 138, 139, 531 P.2d 428.

11. Order dismissing counterclaim not appealable in advance of final judgment. Stock v. Nordhus, 216 K. 779, 781, 533 P.2d 1324.

12. Statute inapplicable; appellee's claims never arose until appellant's claims barred. Waechter v. Amoco Production Co., 217 K. 489, 518, 537 P.2d 228.

13. Applied; claim barred by statute used as pure defense by way of setoff. Lightcap v. Mobil Oil Corporation, 221 K. 448, 463, 464, 562 P.2d 1.

14. A counterclaim filed after running of statute of limitations may be used only as defense. Belger Cartage Serv., Inc. v. Holland Construction Company, 224 K. 320, 331, 332, 582 P.2d 1111.

15. Subsection (a) construed; trial court erred in granting summary judgment and determining the action as a compulsory counterclaim of a previous action. Haysville State Bank v. Hauserman, 225 K. 671, 673, 674, 594 P.2d 172.

16. Compulsory counterclaim does not per se entitle a party to a jury trial. First Nat'l Bank of Olathe v. Clark, 226 K. 619, 621, 602 P.2d 1299.

17. A civil action for malicious prosecution is not the proper subject of a counterclaim. H & H Farms, Inc. v. Hazlett, 6 K.A.2d 263, 270, 627 P.2d 1161.

18. Where right to indemnity not barred by statute of limitations but not sought at trial, claim is lost. U.S.D. No. 490 v. Celotex Corp., 6 K.A.2d 346, 353, 629 P.2d 196 (1981).

19. In action brought under Federal Employers' Liability Act right of contribution against third-party tortfeasor allowed by 60-258a. Gaulden v. Burlington Northern, Inc., 232 K. 205, 218, 219, 220, 564 P.2d 383 (1982).

20. Rules of civil procedure relating to compulsory counterclaims are not applicable in arbitration unless mutually agreed upon. State v. Thomas Constr. Co., 8 K.A.2d 283, 286, 655 P.2d 471 (1983).

21. Malpractice action barred for failure to raise as compulsory counterclaim in previous action. Banister v. Carnes, 9 K.A.2d 133, 137, 675 P.2d 906 (1983).

22. Claim to security deposit under 58-2550 not compulsory counterclaim under 58-2561 or this section. Asbury v. Mauk, 9 K.A.2d 699, 703, 687 P.2d 31 (1984).

23. Leave to file out of time proper where no prejudice or abuse of discretion shown. First Nat'l Bank v. Milford, 239 K. 151, 159, 718 P.2d 1291 (1986).

24. Counterclaim arising out of transaction which is subject matter of a cross-claim must be asserted or lost. Mohr v. State Bank of Stanley, 241 K. 42, 50, 51, 734 P.2d 1071 (1987).

25. Equitable setoff of unmatured obligations permissible under special circumstances at court's discretion subject to public interest considerations. Atchison County Farmers Union Co-op Ass'n v. Turnbull, 241 K. 357, 361, 736 P.2d 917 (1987).

26. Failure to plead compulsory counterclaim precludes pleader from asserting it in subsequent action. Loving v. Federal Land Bank of Wichita, 244 K. 96, 99, 766 P.2d 802 (1988).

27. Because 61-1709 incorporates 60-213 into procedure for limited actions, cross-claim compulsory when comparative negligence an issue. Patterson v. Brouhard, 246 K. 700, 703, 704, 792 P.2d 983 (1990).

28. Where counterclaim barred as affirmative action by statute of limitations, it may still be used as setoff or pure defense. Hatfield v. Burlington Northern R. Co., 747 F.Supp. 634, 641 (1990).

29. Full faith and credit allowed statute requiring mandatory cross-claim; one-action rule discussed. Joseph Mfg. Co, Inc. v. Olympic Fire Corp., 781 F.Supp. 718, 720 (1991).

30. Plaintiff not barred from bringing action against a former codefendant in previous action in which there was no judicial determination of comparative fault. Cook v. Freeman, 16 K.A.2d 555, 562, 565, 825 P.2d 1185 (1992).

31. Consideration of counterclaims in directed verdict for landlord in termination of oral farm lease pursuant to 58-2506 examined. Mendenhall v. Roberts, 17 K.A.2d 34, 46, 831 P.2d 568 (1992).

32. Indemnification claim falls within definition of this section; must be joined in cross-claim. Joseph Mfg. Co. Inc. v. Olympic Fire Corp., 986 F.2d 416, 417, 419 (1992).

33. Section does not permit party to maintain a counterclaim as an affirmative action. Nash Finch Co. v. Caspar, 813 F.Supp. 1497, 1498, 1501 (1993).

34. Whether litigant may file multiple suits arising out of negligent operation of vehicle to obtain attorney fees examined. Chavez v. Markham, 256 K. 859, 867, 889 P.2d 122 (1995).

35. Party is estopped from litigating compulsory counterclaim where prior action was settled. United States Fidelity & Guaranty Co. v. Maish, 21 K.A.2d 885, 889, 892, 908 P.2d 1329 (1995).

36. Employee's claims barred since they were compulsory counterclaims in employer's state court action. Lee v. Farmers Group, Inc., 923 F.Supp. 1391, 1399 (1996).

37. Injured party required to file counterclaim, not second lawsuit, in order to have all claims decided in one action. Bugner v. Farm Bureau Mut. Ins. Co., 28 K.A.2d 537, 18 P.3d 283 (2001).

38. Failure by plaintiff to assert malicious prosecution as counterclaim in state court did not preclude assertion in federal court. Arceo v. City of Junction City, Kansas, 182 F.Supp.2d 1062, 1083 (2002).


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