Dangerud v. Dobesh

VANDE WALLE, Justice,

concurring specially.

For reasons stated below, I do not believe it is necessary to a disposition of this appeal that we reach the matter of whether or not the counterclaim was a compulsory counterclaim. However, because the majority opinion discusses that issue and because the opinion will undoubtedly be cited as precedent in the future on the issue of what constitutes a compulsory counterclaim I also express my views on that issue.

I believe the counterclaim was a compulsory counterclaim under Rule 13(a), N.D.R. Civ.P., and our construction thereof in Leo Lumber Company v. Williams, 191 N.W.2d 573 (N.D.1971). The original lawsuit was brought by Dobesh against Dan-*333gerud to collect on a note given for a debt of the livestock auction market. At the time the case was tried, Dobesh had cashed and kept the proceeds of a check given him by Dangerud to buy cattle. The reason Dobesh kept the check is that he believed Dangerud, as the successor owner of the livestock company, owed him money in excess of the amount of the note on which Dobesh brought action. If we give the term “transaction or occurrence that is the subject matter” of an action a “broad realistic interpretation” with the purpose of avoiding a multiplicity of lawsuits, as taught by the syllabus in Leo Lumber Company, supra, Dangerud’s counterclaim surely arose out of the transaction or occurrence that was the subject matter of the opposing party’s claim. Dobesh’s original action was brought to collect part of the debt he believed Dangerud owed him. He was withholding the money given to him to purchase cattle because he believed Dangerud owed him that money as part of that debt. That set of circumstances, in my estimation, constitutes a compulsory counterclaim within the meaning of Rule 13(a), N.D.R.Civ.P.

Having reached that conclusion, however, I nevertheless concur in the result reached in the majority opinion. The trial court in Dobesh’s original action stated that “the Court is not considering the check in its decision for it is not a proper counterclaim at this time” [Emphasis supplied.] The statement of the trial court in that action may be open to construction, i.e., it might indicate that the counterclaim was not timely made, as opposed to not being a permissible counterclaim, or it might indicate that the court believed the counterclaim was not, in fact, a proper counterclaim under either subsection (a) or subsection (b) of Rule 13. The statements of the trial court preceding the quoted statement appear to me to indicate that the trial court believed the counterclaim was not permitted, rather than not timely made. Although I might disagree with that conclusion of the trial court in the original Dobesh action, it appears to me the determination was res judicata with regard to that particular issue because Dobesh, perhaps naturally as he prevailed in the lawsuit, took no appeal therefrom, nor did Dangerud. Therefore, the conclusion that the counterclaim was not a proper counterclaim became the law of the case between these two parties. For that reason I do not believe it is necessary for us to determine that issue. I agree there was no accord and satisfaction and therefore agree that the judgment should be affirmed.