Rule 13 COUNTERCLAIM AND CROSS CLAIM.

• Jurisdiction: Colorado

Rule 13. Counterclaim and Cross Claim.

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of filing 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. But the pleader need not state the claim if:

(1) At the time the action was commenced the claim was the subject of another pending action, or

(2) The opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.

(b) Permissive Counterclaim. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.

(d) [There is no section (d).]

(e) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.

(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.

(g) Cross Claim Against Coparty. A pleading may state as a cross claim any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross claim may include a claim that the party against whom it is asserted is or may be liable to the cross claimant for all or part of a claim asserted in the action against the cross claimant.

(h) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross claim in accordance with the provisions of Rules 19 and 20.

(i) Separate Trials; Separate Judgments. If the court orders separate trials as provided in Rule 42 (b), judgment on a counterclaim or cross claim may be rendered in accordance with the terms of Rule 54 (b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.

(j) Claims Against Assignee. Except as otherwise provided by law as to negotiable instruments, any claim, counterclaim, or cross claim which could have been asserted against an assignor at the time of or before notice of an assignment, may be asserted against his assignee, to the extent that such claim, counterclaim, or cross claim does not exceed recovery upon the claim of the assignee.

(k) Claims Against Personal Representative. The death of a person shall not prejudice the rights of a third person to assert a claim, cross claim, or counterclaim surviving death against the personal representative of the deceased in the time and manner provided by law.

(l) Superior Courts. Repealed May 30, 1991, effective July 1, 1991.

Source: (l) repealed May 30, 1991, effective July 1, 1991.

Cross references: For application of this rule to replevin actions, see C.R.C.P. 104(p); for claimant having same rights and remedies as a plaintiff where a counterclaim or cross claim is filed, see C.R.C.P. 110(d); for claims for relief, see C.R.C.P. 8(a); for pleadings allowed, see C.R.C.P. 7(a); for joinder of persons needed for just adjudication, see C.R.C.P. 19; for permissive joinder of parties, see C.R.C.P. 20; for jurisdiction of various courts, see title 13, C.R.S.

ANNOTATION

I. General Consideration.

II. Compulsory.

III. Permissive.

IV. Omitted.

V. Cross Claim.

VI. Joinder of Additional Parties.

VII. Claims Against Assignee.

VIII. Claims Against Personal Representative.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Notes on Proposed Amendments to Colorado Rules of Civil Procedure", see 27 Dicta 165 (1950). For article, "Amendments to the Colorado Rules of Civil Procedure", see 28 Dicta 242 (1951). For article, "Pleadings, Rules 7 to 25", see 28 Dicta 368 (1951). For article, "Pleadings and Motions: Rules 7-16", see 23 Rocky Mt. L. Rev. 542 (1951). For article, "Forms Committee Presents Standard Pleading Samples to Be Used in Divorce Litigation", see 29 Dicta 94 (1952). For article, "Plaintiff's Advantageous Use of Discovery, Pretrial and Summary Judgment", see 40 Den. L. Ctr. J. 192 (1963). For note, "One Year Review of Colorado Law — 1964", see 42 Den. L. Ctr. J. 140 (1965). For article, "Joinder of Claims and Counterclaims in Cases Under the Uniform Dissolution of Marriage Act", see 15 Colo. Law. 1818 (1986).

A counterclaim is a claim presented by a defendant in opposition to or deduction from the claim of the plaintiff. Transport Clearings of Colo., Inc. v. Linstedt, 151 Colo. 166, 376 P.2d 518 (1962).

A counterclaim is a species of setoff or recoupment of a broad and liberal character. Transport Clearings of Colo., Inc. v. Linstedt, 151 Colo. 166, 376 P.2d 518 (1962).

One who seeks relief by cross-bill or counterclaim and actively presses his claim thereby invokes the court's jurisdiction in the case so that he cannot thereafter question the authority of the court to pass upon all questions raised between himself and his adversary. T.L. Smith Co. v. District Court, 163 Colo. 444, 431 P.2d 454 (1967).

One may not claim that he was present only for the limited objectives of his answer and counterclaim. T. L. Smith Co. v. District Court, 163 Colo. 444, 431 P.2d 454 (1967).

There is nothing inherently improper about asserting a counterclaim in a reply to a counterclaim. T. L. Smith Co. v. District Court, 163 Colo. 444, 431...