Faggart Ex Rel. Faggart v. Biggers , 18 N.C. App. 366 ( 1973 )

197 S.E.2d 75 (1973) 18 N.C. App. 366

Floyd B. FAGGART, by his Guardian Ad Litem Johnson B. Faggart, Plaintiff,
v.
John Thomas BIGGERS and Harry Shoaf, Defendants, and
John Thomas Biggers, Jr., Third-Party-Defendant.

No. 7319SC465.

Court of Appeals of North Carolina.

June 13, 1973. Certiorari Denied August 31, 1973.

Hartsell, Hartsell & Mills, by W. Erwin Spainhour, Concord, for defendant appellant John Thomas Biggers and third party defendant appellant John Thomas Biggers, Jr.

Kluttz & Hamlin, by Lewis P. Hamlin, Jr. and Richard R. Reamer, Salisbury, for defendant appellee Harry Shoaf.

Certiorari Denied by Supreme Court August 31, 1973.

PARKER, Judge.

G.S. § 1A-1, Rules 13(f), provides that:

"(f) Omitted counterclaim.—When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment."

In their motion to amend and in their brief before this Court, appellants contend that justice requires that they be allowed to amend their pleadings. They contend that their counterclaims appear to be compulsory, and from this argue that the denial of their motion will be severely prejudicial, and, implicitly, that the refusal by the trial judge to grant the motion amounted to an abuse of discretion, reviewable on appeal.

Under G.S. § 1A-1, Rule 13(a), a counterclaim is compulsory only when (1) it is in existence at the time of serving the pleading against the opposing party, (2) it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim, and (3) does not require the presence of third parties of whom the court cannot acquire jurisdiction. However, a counterclaim is not compulsory, even if it meets the three tests stated above, if "at the time the action was commenced the claim was the subject of another pending action. . . ." G.S. § 1A-1, Rule 13(a)(1).

We are of the opinion that the term "at the time the action was commenced" as used in Rule 13(a)(1) refers to the action against which the pleader is required to counterclaim, and not necessarily the primary action originally commencing the lawsuit. Thus, where, as here, the defendant institutes a cross claim and a third party action, the court should look to the times of filing such cross claim and third party action to determine whether, at those times, there was pending an action whose claim involved the same subject matter as that of the proposed counterclaims.

By the stipulated facts and filing dates of the pleadings appearing in the record, it appears that on 31 January 1972, the date defendant Shoaf in this Case No. 70CVS775 filed his cross claim against the appellant Biggers, and on 8 February 1972, the date defendant Shoaf commenced his third party action against appellant Biggers, Jr., there was pending in the Superior Court in Cabarrus County Case No. 71CVS119, an action involving the same claims as set forth in the proposed counterclaims of the appellants. Therefore, the proposed counterclaims were in this case permissive and not compulsory.

Further, we agree with Judge Armstrong's conclusion that the allowance of appellants' motion to amend their responsive pleadings would result in this case in a consolidation of actions which "would be cumbersome and undesirable from the standpoint of judicial economy and administration in the trial of these cases."

The appellants have failed to show any abuse of discretion in the denial of their motion to amend their responsive pleadings, and the order denying their motion is

Affirmed.

BRITT and MORRIS, JJ., concur.