Okla. Stat. tit. 12, § 2013(A) provides in part,
A. COMPULSORY COUNTERCLAIMS. 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.
The Oklahoma Supreme Court in Robinson v. Texhoma Limestone, Inc., 2004 OK 50, 100 P.3d 673, described the elements of res judicata or claim preclusion as follows,
The elements of claim preclusion are: 1) identity of subject matter and the parties or their privies in the prior litigation; 2) a court of competent jurisdiction heard the prior litigation; and 3) the judgment rendered in the prior litigation must have been a judgment on the merits of the case and not upon purely technical grounds. Carris v. John R. Thomas and Associates, P.C., 1995 OK 33, 896 P.2d 522. A judgment acquires the degree of finality requisite for application of the claim‑preclusion doctrine. Panama Processes, S.A. v. Cities Service Co., 1990 OK 66, ¶ 11, 796 P.2d 276, 283, note 27.
2004 OK 50, ¶ 12, n. 11, 100 P.3d at 677, n. 11 (emphasis in original).
If a defendant fails to assert a compulsory counterclaim in a prior lawsuit filed in Oklahoma state district court, is that defendant precluded by § 2013(A) or claim preclusion, from asserting that claim in a subsequent case filed by that defendant in Oklahoma state district court against the former plaintiff in the prior case? If there is judgment rendered in the prior case, yes. If there is no judgment rendered in the prior case, even if the former plaintiff voluntarily dismissed the prior case with prejudice, no.
Oklahoma has addressed the above question in two cases, the Robinson case mentioned above and in Winterhalder v. Burggraf Restoration, Inc., 2011 OK CIV APP 38, 256 P.3d 84. In each of these cases, the plaintiff (defendant in the prior case) had not raised what the defendant (plaintiff in the prior case) claimed was a compulsory counterclaim in the prior case. In Robinson and Winterhalder, each appellate court concluded that failure to assert a compulsory counterclaim in a prior case operates to preclude bringing that claim in a subsequent case only if there was a final judgment on the merits in the prior case.
Robinson v. Texhoma Limestone, Inc., 2004 OK 50, 100 P.3d 673, involved a collision between a pickup truck and tractor-trailer. The driver of the pickup truck was injured and his two passengers, Eddie Robinson and Jerry Meade, were fatally injured. The estates of the passengers separately sued the owner/employer of tractor-trailer and its employee/driver. In each suit the owner/employer of the tractor-trailer and its employee/driver filed third-party claims against the plaintiff in this case, Robinson. In the suit brought by the estate of Jerry Meade, the owner/employer and employee/driver dismissed the third-party petition without prejudice before Robinson filed an answer. In the suit brought by the estate of Eddie Robinson, Robinson answered the third-party petition “denying liability and reserving the right to raise affirmative defenses when discovered. [Owner/employer of tractor-trailer and its employee/driver] subsequently filed a dismissal without prejudice of the third party petition against Robinson.” 2004 OK 50, ¶ 4, 100 P.3d at 674 (footnote omitted).
In this case, Robinson sued the owner/employer of the tractor-trailer and its employee/driver for personal injury. The owner/employer of the tractor-trailer and its employee/driver moved to dismiss contending Robinson’s claim was barred by Okla. Stat. tit 12, § 2013(A) “because he failed to assert it as a compulsory counterclaim when he filed his answer to the third party petition in the Eddie Robinson wrongful death case.” 2004 OK 50, ¶ 5, 100 P.3d at 675. The trial court dismissed Robinson’s claim with prejudice, the Court of Civil Appeals affirmed it and Supreme Court reversed it.
The Supreme Court held “[f]ailure to interpose a compulsory counterclaim in a prior action operates to preclude the claim in a subsequent action only if final judgment on the merits was rendered in the prior action.” 2004 OK 50, ¶ 7, 100 P.3d at 675. The Supreme Court analyzed two lines of federal authority, one recognizing the theory underlying the compulsory counterclaim bar as “merger and res judicata” and the other as “waiver and estoppel.” The Supreme Court concluded,
Oklahoma has clearly taken the position that the bar of compulsory counterclaim is closely related to the doctrine of claim preclusion. Explaining the nature of a compulsory counterclaim, McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶ 7, 979 P.2d 252, 255‑56, said:
… A compulsory counterclaim requirement is similar in effect to a claim‑preclusion bar. [Footnote omitted.] The principle of claim preclusion (earlier known as res judicata) teaches that a judgment in an action bars the parties (or their privies) from relitigating not only the adjudicated claim, but also any theories or issues that were actually decided together with those which could have been decided in that action. [Footnote omitted.]
Since Oklahoma has rested its compulsory counterclaim bar on the doctrine of claim preclusion, the bar must rest upon the existence of a judgment on the merits rendered in the prior action. If the prior action was dismissed before judgment, a party cannot successfully invoke the compulsory counterclaim preclusive bar under § 2013(A) in a subsequent action. In that vein, the Committee Comment to Section 2013 states that “(i)f a defendant fails to assert a compulsory counterclaim in an answer but the action is dismissed before trial, the defendant is not precluded from raising his claim in a second action. . . .”
2004 OK 50, ¶¶ 11, 12, 100 P.3d at 676-677 (footnote omitted, citations omitted, emphasis in original). The Supreme Court remanded the case because it could not “make a legal determination as to the preclusive effect of the passenger Eddie Robinson wrongful death action on Merwin Robinson’s present claim because the summary disposition record does not contain the complete judgment roll of the prior action.” 2004 OK 50, ¶ 15, 100 P.3d at 677-678.[
Winterhalder v. Burggraf Restoration, Inc., 2011 OK CIV APP 38, 256 P.3d 84, involved repair and restoration services provided by Burggraf to the Davises’ home after a fire, and the Davises claims of “breach of contract, negligence, fraud and home repair fraud against Burggraf.” 2011 OK CIV APP 38, ¶ 2, 256 P.3d at 86. The parties stipulated to certain facts, including a complicated procedural history of the litigation: Davises’ home suffered fire, smoke and water damage; Burggraf was employed to perform certain repair and restoration services; a dispute arose as to Burggraf’s performance regarding repair and restoration services; Davises refused to pay all of Burggraf’s last billing statement; Burggraf filed a small claims case against Davises to collect; Davises obtained a continuance of trial date to obtain counsel and consider whether to file a counterclaim; on the morning of trial, the case was settled by agreement; Davises failed to the pay settlement amount; Burggraf had the first small claims case reset for trial but failed to show up for trial and the court dismissed the case; Burggraf filed a second small claims case based on the same claim as the first small claims case; on the day of trial the parties settled and Burggraf dismissed the second small claims case with prejudice; there was no written settlement agreement in either small claims case; “[t]he court did not grant relief to either party;” and there was no “release and waiver in either of the small claims cases.” 2011 OK CIV APP 38, ¶ 2, 256 P.3d at 87. Davises then sued Burggraf in this case. 2011 OK CIV APP 38, ¶ 1, 256 P.3d at 86.
The trial court “found that the Davises’ claim in the current action was barred by section 1758 of the Small Claims Procedure Act and the doctrine of res judicata and entered judgment in favor of Burggraf.” 2011 OK CIV APP 38, ¶ 3, 256 P.3d at 87. The Court of Civil Appeals reversed and remanded, stating in part,
Because the appellate record does not include the judgment roll from either of Burggraf’s small claims actions, we are unable to determine whether the Davises agreed to release, as part of a settlement, any claims they had against Burggraf arising out of the same transaction or occurrence that was the subject of Burggraf’s prior litigation. Absent an agreement to release their claims, the Davises were not barred by 12 O.S.2001 § 1758; 12 O.S.2001 § 2013(A) or the doctrine of claim preclusion from asserting those claims in a subsequent action against Burggraf. Consequently, we reverse the judgment in favor of Burggraf and remand this case for the determination of the terms of the settlement agreement and further proceedings consistent with this Opinion.
2011 OK CIV APP 38, ¶ 18, 256 P.3d at 92-93 (footnote omitted).
With regard to Burggraf’s argument that Davises’ claims were barred by the compulsory counterclaim bar of § 2013(A), the appellate court stated in part,
… [T]he Committee comments to section 2013 are clear; the statute was not intended to bar unasserted compulsory counterclaims if the action was dismissed before trial.
If a defendant fails to assert a compulsory counterclaim in an answer, but the action is dismissed before trial, the defendant is not precluded from raising his claim in a second action.
12 Okla. Stat. Ann. § 2013, Committee cmt. (West 1993). The Supreme Court has confirmed this rule:
Since Oklahoma has rested its compulsory counterclaim bar on the doctrine of claim preclusion, the bar must rest upon the existence of a judgment on the merits rendered in the prior action. If the prior action was dismissed before judgment, a party cannot successfully invoke the compulsory counterclaim preclusive bar under § 2013(A) in a subsequent action.
Robinson, 2004 OK 50, ¶ 12, 100 P.3d at 676-77.
2011 OK CIV APP 38, ¶ 13, 256 P.3d at 90-91 (internal citations omitted).
The Court of Civil Appeals also rejected the claim preclusion argument asserted by Burggraf. Burggraf contended “its dismissal with prejudice in the second small claims suit barred future litigation of all claims, including all compulsory counterclaims, that were or could have been raised by the Davises in that case.” 2011 OK CIV APP 38, ¶ 14, 256 P.3d at 91. The Court of Civil Appeals disagreed,
Burggraf points to no case, however, holding that a plaintiff may unilaterally dismiss his case with prejudice and thereby automatically preclude the defendant from subsequently litigating his or her claims against the plaintiff. Such a rule, authorizing the use of a voluntary dismissal with prejudice as a preemptive strike against meritorious claims, would be contrary to the purpose and intent of the Oklahoma Pleading Code, which requires not only the “speedy” but also the “just” determination of every action. 12 O.S.2001 § 2001.
2011 OK CIV APP 38, ¶ 15, 256 P.3d at 91-92 (footnote omitted).
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[1]The Supreme Court described the elements of claim preclusion as,
The elements of claim preclusion are: 1) identity of subject matter and the parties or their privies in the prior litigation; 2) a court of competent jurisdiction heard the prior litigation; and 3) the judgment rendered in the prior litigation must have been a judgment on the merits of the case and not upon purely technical grounds. Carris v. John R. Thomas and Associates, P.C., 1995 OK 33, 896 P.2d 522. A judgment acquires the degree of finality requisite for application of the claim‑preclusion doctrine. Panama Processes, S.A. v. Cities Service Co., 1990 OK 66, ¶ 11, 796 P.2d 276, 283, note 27.
2004 OK 50, ¶ 12, n. 11, 100 P.3d at 677, n. 11 (emphasis in original).
