Jimmy W. CURLINGS and Wife, Martha Curlings
v.
Henderson W. MACEMORE and Wife, Sally Macemore.
No. 8123DC904.
Court of Appeals of North Carolina.
May 4, 1982.William M. Allen, Jr., Yadkinville, for plaintiffs-appellants.
Finger, Park & Parker by Daniel J. Park, Elkin, for defendants-appellees.
*726 BECTON, Judge.
We agree with plaintiffs. The trial court erred in dismissing plaintiffs' action on the ground that it should have been asserted as a counterclaim in a prior action brought by defendants against plaintiffs.
G.S. 1A-1, Rule 13(a) states in relevant part that:
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 Apartments, Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323 (1980), this Court, faced with a factual situation that was the reverse of the factual situation presented in the case at bar, held that plaintiffs' claim for summary ejectment was not a compulsory counterclaim in defendants' prior action for breach of a lease agreement, breach of covenants of fitness and habitability, and breach of duty of repair since the nature of the actions and remedies sought were too divergent. We said the following in Landrum:
In order to find that an action must be filed as a compulsory counterclaim pursuant to G.S. 1A-1, Rule 13(a), a court must first find a logical relationship between the factual backgrounds of the two claims. In addition, the court must find a logical relationship between the nature of the actions. Rule 13(a) is a tool designed to further judicial economy. The tool should not be used to combine actions that, despite their origin in a common factual background, have no logical relationship to each other.
Id. at 494, 263 S.E.2d at 325.
Our interpretation of Rule 13(a) is no different than the interpretation placed on Rule 13(a) of the Federal Rules of Civil Procedure by numerous federal courts. See Valencia v. Anderson Bros. Ford, 617 F.2d 1278, 1291 (7th Cir. 1980); Whigham v. Beneficial Finance Co. of Fayetteville, 599 F.2d 1322 (4th Cir. 1979); 6 Wright and Miller, Federal Practice and Procedure : Civil Section 410 (1971). In Whigham, the Fourth Circuit, in determining that a lender's claim for debt against a borrower who sued for a violation of the Truth-In-Lending Act was not a compulsory counterclaim, listed the following criteria to consider when determining whether a claim is a compulsory counterclaim: "[ (1) ] whether the issues of fact and law raised by the claim and counterclaim are largely the same[; (2) ] whether substantially the same evidence bears on both claims[;] and [ (3) ] whether any logical relationship exists between the two claims." Id. at 1323.
Turning now to an examination of the facts in the case at bar, we note first that the trial court did not find as a fact that plaintiffs' present action for damages logically relates to defendants' prior action in summary ejectment either "factually" or in "nature." Indeed, the common factual background is at best tenuous since the only relationship common to both actions is the landlord-tenant relationship. Second, the issues of fact and law are different in a summary ejectment proceeding from the issues involved in a negligence proceeding. Plaintiffs' claim is whether the defendant landlord had a duty of care for the maintenance of leased property and breached that duty; the defendant landlord's claim, on the other hand, was based on a simple statutory right to eject once the lease was terminated. Plaintiff must show evidence of a duty of care and a breach of that duty to prove damages. The defendant needed only to produce a lease agreement for consideration in light of the statutory provisions. Further, plaintiffs' claim was for a substantial amount of damages whereas defendants' claim was solely for ejectment.
We hold that plaintiffs' negligence action and defendants' summary ejectment action were highly divergent in nature and in remedies sought. Defendants' affirmative defense should have been stricken from the Answer. Consequently, it was error for the trial court to dismiss plaintiffs' claim on the *727 ground that it should have been asserted as a compulsory counterclaim in defendants' prior action.
For the foregoing reasons, the Order of the trial court is
Reversed.
HEDRICK and HILL, JJ., concur.