§7.6 Analysis

• Jurisdiction: Washington

§7.6ANALYSIS

This section analyzes the pleading requirements of CR 7, the exceptions to those requirements, and the motion requirements under CR 7 as applied by Washington case law.

(1) Pleadings

CR 7 provides that only certain pleadings are allowed. There must be a complaint. There must be an answer to the complaint. If the answer contains no counterclaim denominated as such, no cross claim, and no third-party complaint, then no further pleading is required or allowed. If the answer does contain a counterclaim denominated as such, however, then there must be a reply to that counterclaim. The reply may contain a response to the counterclaim only; it cannot be a general reply to the whole answer. Other documents are not "pleadings" and are not sufficient to assert claims or preserve defenses. Lybbert v. Grant County, 141 Wn.2d 29, 1 P.3d 1124 (2000) (filing notice of appearance without waiving defects in service of process did not preserve the affirmative defense, which must be asserted in an answer).

If a plaintiff has a compulsory counterclaim to a counterclaim in the answer, then the plaintiff must plead the compulsory counterclaim or be barred from asserting it in a subsequent action. CR 13(a). There is some controversy over whether a permissive counterclaim may be pleaded in a reply to a counterclaim, stemming from the conflict between CR 13 (providing for counterclaims) and CR 7(a), which contains no mention of counterclaims in reply to an answer. Although there is no Washington authority relating to this controversy, construction of FED. R. CIV. P. 7 is applicable to CR 7. Harding v. Will, 81 Wn.2d 132, 500 P.2d 91 (1972). For federal case authority on whether a permissive counterclaim may be pleaded in a reply, compare Cornell v. Chase Brass & Copper Co., 48 F. Supp. 979 (S.D.N.Y. 1943), aff'd, 142 F.2d 157 (2d Cir. 1944), with Gretener, A.G. v. Dyson-Kissner Corp., 298 F. Supp. 350 (S.D.N.Y. 1969). In view of the uncertainty, the better practice is to move under CR 15(a) to amend the original complaint to include the new claim. Further to the relationship between CR 7(a) and CR 13(a), in one unpublished Washington decision the court held that a motion is not a "pleading" under CR 7(a), and is therefore not a "pleading" to which a compulsory counterclaim must be asserted under CR 13(a). Monk v. Driessen, 171 Wn. App. 1009, No. 67503-6-I, 2012 WL 4857208, *3 (Oct. 15, 2012) (motion to enforce attorney fee lien was not a pleading under CR 7(a), and therefore did not require assertion of a counterclaim for legal malpractice; consequently, client was not collaterally estopped to assert malpractice claim in subsequent action).

A reply is required only to a counterclaim that is denominated as such. Therefore, if an answer contains a counterclaim, but it is not denominated as such, no reply is required. In these circumstances you may obtain leave of the court to make a reply. The best practice is to make a reply to a counterclaim, even if it is not denominated as such. Similarly, if an affirmative defense has been improperly designated as a counterclaim in an answer, no reply is required. Nonetheless, you should reply to material designated as a counterclaim even if it has been improperly designated. The failure to reply to a counterclaim designated as such operates as an admission of the counterclaim's averments. Jansen v. Nu-West, Inc., 102 Wn.App. 432, 438, 6 P.3d 98 (2000), review denied, 143 Wn.2d 1006 (2001).

There may also be a third-party complaint and a third-party answer. See Chapter 14 (Rule 14. Third Party Practice) of this deskbook. If a third-party answer contains a counterclaim, there should also be a reply to that counterclaim. Whether a counterclaim may be interposed in a reply to a counterclaim to a third-party complaint is, again, an unresolved issue. As is the case with counterclaims to counterclaims in an original answer, if the counterclaim is compulsory, it should be asserted in a reply to a counterclaim to a third-party complaint. If the counterclaim is permissive, the better procedure is to amend the third-party complaint to include the new claim.

There must be an answer to a cross claim. The failure to reply to a cross claim designated as such operates as an admission of the cross claim's averments. Cf. Jansen, 102 Wn.App. 432. The rules that apply to counterclaims in answers to third-party complaints also apply to both cross claims and answers to cross claims. See, e.g., White v. Matthews, 420 F. Supp. 882 (D.S.D. 1976).

No other pleadings are allowed except when the court orders a reply to an answer, a third-party answer, or an answer to a cross claim. The court will treat an unauthorized pleading as surplusage or dismiss it on motion, except to the extent it contains admissions by the party presenting it. Generally, unauthorized pleadings should be avoided because of the danger that they may be deemed an admission (and because they are precluded by CR 7). See, e.g., Berger v. State Farm Mut. Auto. Ins. Co., 291 F.2d 666 (10th Cir. 1961). If you wish to reply to a counterclaim not denominated as such, seek leave of court to do so. As a practical matter, leave will be granted rarely and only if the answer contains new matter along with some compelling reason to justify a reply.

(2) Exceptions to the pleading requirements of CR 7for selected procedures

Although the civil rules are applicable to actions in superior court, in some proceedings the pleading requirements of CR 7 do not apply. CR 81(a) provides that the civil rules are applicable except when inconsistent with rules or statutes concerning special proceedings. Some of these exceptions include those discussed in the following sections.

(a) Garnishment

CR 81(a) makes CR 7 inapplicable in garnishment proceedings. Snyder v. Cox, 1 Wn.App. 457, 462 P.2d 573 (1969), review denied, 77 Wn.2d 962 (1970). In this case, Snyder recovered a judgment against Cox, then secured a writ of garnishment commanding National Union Fire Insurance Company to answer. National Union answered by affidavit, and Snyder noted the case for trial but failed to file the controverting affidavit required by RCW 7.32.160 (repealed 1969) and RCW 7.32.250 (repealed 1969) until more than a year later. On National Union's motion, the trial court dismissed the writ on the ground that RCW 7.32.250 (repealed 1969) required Snyder's personal signature on the controverting affidavit. The Court of Appeals affirmed, holding that RCW 7.32.250(repealed 1969) specifically required the plaintiff's controverting affidavit to put the matter at issue even though National Union's answer was merely a general denial. CR 7 does not require a response to a general denial. Garnishment proceedings are now governed by Chapter 6.27 RCW.

Caveat: Although CR 7 does not control over the statutory requirements of RCW 6.27.010 regarding the answer and controverting affidavits required to put a garnishment "at issue," other civil rules apply. For example, the notice provisions of CR 55 apply in default proceedings, requiring notice of a motion for default to a garnishee who has appeared in the action. Shreve v. Chamberlin, 66 Wn.App. 728, 731, 832 P.2d 1355 (1992), review denied, 120 Wn.2d 1029 (1993).

(b) Appeals from courts of limited jurisdiction

Unless otherwise ordered, the requirements of CR 7 that there be a complaint and an answer do not apply to appeals from district courts and other courts of limited jurisdiction. CRLJ 72 provides that appeals from courts of limited jurisdiction are governed by the RALJ. Under RALJ 1.1, some such appeals are "on the record," and others are conducted as a trial de novo. CRLJ 72. The procedures for review on the record are prescribed by the RALJ. "Appeal" by trial de novo is governed by CRLJ 73 and 75. CRLJ 72; 73(a).

Proceedings governed by CRLJ 73 and 75

Appeal from a court of limited jurisdiction by trial de novo before the superior court is available only from proceedings that are not subject to the RALJ. CRLJ 73(a). The appeal is taken by filing a notice of appeal in the court of limited jurisdiction within 30 days after the judgment is entered or decision is made. Timely filing of the notice is jurisdictional. CRLJ 73(b)(1). An acknowledgment or affidavit of service of the notice upon all other parties or their lawyers must also be filed within the same 30-day period. CRLJ 73(b)(4). A bond may be required under CRLJ 73(c), and a stay of proceedings may be ordered under CRLJ 73(d).

Within 14 days after the notice of appeal has been filed in a civil action or proceeding, the appellant must file in the superior court a transcript of all entries made in the docket of the court of limited jurisdiction, together with the process and all other filed papers. CRLJ 75(b).

Upon filing of the transcript, the case proceeds "as near as may be ..." to actions originally filed in superior court. The issue before the court of limited jurisdiction is tried in the superior court without other or new pleadings, unless otherwise ordered. CRLJ 75(b).

Proceedings governed by RALJ

Under RALJ 2.4 and 2.5, an appeal is taken by filing a notice...