Civil Procedure - Reconventional Demand - Amount in Dispute

Similar documents
Reconventional Demand

Appellate Review in Bifurcated Trials

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT GOLD, WEEMS, BRUSER, SUES & RUNDELL VERSUS **********

Public Law: Local Government Law

Civil Procedure - Abandonment of Suit

Mineral Rights - Unitization - Prescription

Reservation of Rights to Personal Jurisdiction

Louisiana Practice - Waiver of Right to Claim Abandonment

Public Law: Expropriation

Jurisdiction in Personam Over Nonresident Corporations

No. 45,305-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * versus * * * * *

Remission of Debt - Donation Not in Authentic Form

Jurisdiction Ratione Materiae et Personae - Suits Against Insolvent Corporations in Receivership

Louisiana Law Review Streamlined Citation Manual

Sales - Automobiles - Bona Fide Purchaser Doctrine

Contracts - Implied Assignment - Article 2011, Louisiana Civil Code of 1870

Criminal Procedure - Pleas of Guilty Not Responsive to Bill of Information - Right of State to Correct Proceedings

Criminal Procedure - Three-Year Prescription on Indictments

Civil Law Property - The Law of Treasure and Lost Things

Louisiana Practice - Effect of Application for Supervisory Writs on Trial Court Proceedings

Corporations - Right of a Stockholder to Inspect the Corporate Books

Corporations - Ex Parte Appointment of Temporary Receiver - Receivership

Practice and Procedure - Intervention by Insured in Actions Brought Under the Direct Action Statute

Rendition of Judgements

MICHAEL EDWARD BLAKE NO CA-0655 VERSUS COURT OF APPEAL ALICIA DIMARCO BLAKE FOURTH CIRCUIT STATE OF LOUISIANA * * * * * * * CONSOLIDATED WITH:

Procedural Delays. Louisiana Law Review. Sam J. Friedman

Discontinuance and Nonsuit

States - Amenability of State Agency to Suit

Public Law: Bankruptcy

Evidence - Applicability of Dead Man's Statute to Tort Action

Civil Code and Related Subjects: Negotiable Instruments and Banking

Security Devices - Mortgages on Immovables - When Effective Against Third Persons

Union Enforcement of Individual Employee Rights Arising from a Collective Bargaining Contract

Louisiana Practice - Application of the Exception of Res Judicata in Petitory Actions

* * * * * * * * * * * * * APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO , DIVISION K-14 Honorable Louis A. DiRosa, Judge Pro Tempore

Conflict of Laws - Jurisdiction Over Foreign Corporations - What Constitutes Doing Business

Pleading and Practice - Right to Discontinuance or Nonsuit After Plea of Prescription

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE NO CA-0506 COURT OF APPEAL FOURTH CIRCUIT VERSUS

SUSAN M. CHEHARDY CHIEF JUDGE

Louisiana Practice -Splitting Causes of Action

CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA GOLF CLUB OF NEW ORLEANS, L.L.C. AND EASTOVER REALTY, INC.

NOT DESIGNATED FOR PUBLICATION

Civil Code and Related Subjects: Mineral Rights

IN THE SUPREME COURT OF TEXAS

Criminal Procedure - Right to Bill of Particulars After Arraignment

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

IN THE SUPREME COURT OF TEXAS

CORRECTIONS LOUISIANA BOARD OF PAROLE

Louisiana Practice - Declaratory Judgment Action As Substitute for Bill In Nature of Interpleader and As Alternative Remedy

Civil Procedure - Filing Suit In Court of Incompetent Jurisdiction

Judicial Mortgage Rights: Recordation of Non- Executory Judgments

Measures of Damages - Vendor's Breach of Bond for Deed - Fruits and Revenue of the Land

No. 51,049-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * Versus * * * * *

Donations - Revocation For Non-Fulfillment of Condition

Expropriation by Ex Parte Order for Highway Purposes in Louisiana

Constitutional Law - Applicability of the Fifth Amendment to the Federal Constitution to State Proceedings

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Trusts - The Usufruct In Trust

Security Devices - Personal Liability of Third Party Purchasers Under Revised Statutes 9:5362

Constitutional Law - Judicial Review - Legalized Gambling - Louisiana State Racing Commission

Criminal Law - Felony-Murder - Killing of Co- Felon

AUGUST 24, 2016 STATE OF LOUISIANA NO KA-0104 VERSUS COURT OF APPEAL GREGORY J. GRANT, JR. FOURTH CIRCUIT STATE OF LOUISIANA * * * * * * *

Attorney's Fees: A New Risk in Payment Under Protest Suits

Oral Argument - A New Constitutional Right?

Louisiana Practice - Res Judicata - Matters Which Might Have Been Pleaded

LYNN B. DEAN AND ELEVATING BOATS, INC. NO CA-0917 COURT OF APPEAL VERSUS DELACROIX CORPORATION AND THE PARISH OF PLAQUEMINES FOURTH CIRCUIT

Obligations - Offer and Acceptance

Civil Code and Related Subjects: Sale

NO. 47,023-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * * SUCCESSION OF WILLIAM EDINBURG SMITH * * * * * *

Torts. Louisiana Law Review. Wex S. Malone. Volume 25 Number 1 Symposium Issue: Louisiana Legislation of 1964 December Repository Citation

Private Law: Torts. Louisiana Law Review. William E. Crawford Louisiana State University Law Center

Procedure - Appellate Jurisdiction, Court of Appeal

The Writ of Supervisory Control

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Status of Unendorsed Instrument Drawn to Maker's Own Order

Mineral Rights - Mineral Reservations In Sales of Land to the United States

Apparent Authority in a Civil Law Jurisdiction

Mandamus - Compelling an Official to Perform Discretionary Duty

Louisiana Practice - Appellate Jurisdiction in Questions of Unconstitutionality or Illegality of Taxes

Exceptions. Louisiana Law Review. Aubrey McCleary

Corporate Law - Restrictions on Alienability of Stock

Court of Appeals Ninth District of Texas at Beaumont

Louisiana Practice - Deficiency Judgment Act - Applicability to Surety on Mortgage Note

No. 44,058-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * *

Honorable Janice Clark, Judge Presiding

STAR TRANSPORT, INC. NO C-1228 VERSUS C/W PILOT CORPORATION, ET AL. NO CA-1393 COURT OF APPEAL C/W * * * * * * * STAR TRANSPORT, INC.

Administration of the Minor's Property in Louisiana Under Paternal Authority

Attorney and Client - Bank Found Guilty of Unauthorized Practice of Law

Third District Court of Appeal State of Florida

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS. Division I Opinion by: JUDGE TAUBMAN Márquez and J. Jones, JJ., concur. Announced: July 12, 2007

Commercial Law: Negotiable Instruments

Civil Law Property - Encroachments on River Banks by Riparian Owners

Labor Law. SMU Law Review. Richard B. Perrenot. Manuscript Follow this and additional works at:

No. 44,215-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * versus * * * * *

Civil Code and Related Subjects: Obligations

Mandamus: Statutory Requirements and 2017 Case Law

Partition - The Effect of R.S.13:4985 On Partititons Made Without Representation of All Co-Owners

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Public Law: Criminal Law

NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA * NO KA-0122 VERSUS COURT OF APPEAL DAVID MAGEE FOURTH CIRCUIT STATE OF LOUISIANA

Transcription:

Louisiana Law Review Volume 28 Number 4 June 1968 Civil Procedure - Reconventional Demand - Amount in Dispute James R. Pettway Repository Citation James R. Pettway, Civil Procedure - Reconventional Demand - Amount in Dispute, 28 La. L. Rev. (1968) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol28/iss4/10 This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kayla.reed@law.lsu.edu.

NOTES CIVIL PROCEDURE-RECONVENTIONAL DEMAND- AMOUNT IN DISPUTE Suit was filed in city court' for $795.60. Defendant admitted owing the $795.60 but reconvened alleging plaintiff had breached a contract for timely delivery of goods resulting in damages of $1,566.00. Defendant thus sought judgment for an adjusted balance of $770.40. The city court sustained plaintiff's exception of lack of jurisdiction over the subject matter because the amount in dispute exceeded the $1,000.00 jurisdictional limit of the city court. Held, the effective sum demanded in reconvention was $770.40, which is within the jurisdictional amount of the city court. Clark Equipment Co. v. Southern Mechanical Contractors, Inc., 203 So.2d 387 (La. App. 2d Cir. 1967). Reconventional demands in these courts are governed by Code of Civil Procedure article 1036: "A court shall have the jurisdiction over an incidental demand only if it would have had jurisdiction over the demand had it been instituted in a separate suit." '2 To determine whether the demand is within the jurisdictional limit of the court, one must refer to Code of Civil Procedure article 4 to determine the amount in dispute: "Where the jurisdiction of a court over the subject matter of an action depends upon the amount in dispute, or value of the right asserted, it shall be determined by the amount demanded or value asserted in good faith by the plaintiff." The sole issue on appeal was whether the amount in dispute was the full $1,566.00 defendant alleged plaintiff owed or only the $770.40 adjusted balance defendant sought. 1. LA. CODE Civ. P. art. 4834 (1960) provides: "The civil jurisdiction of city courts where the population within their respective territorial jurisdiction is twenty thousand or more is concurrent with that of districts courts in cases where the amount in dispute, or the value of the movable property involved, does not exceed one thousand dollars, exclusive of interest and attorney's fees... " 2. Id. art. 1036 continues: "The only exceptions to this rule are those provided in the state constitution. "The mode of procedure employed in the incidental action shall be the same as that used in the principal action, except as otherwise provided by law." The Comment following article 1036 states that "the exception referred to in the second sentence are those set forth In Const. Art. VII, 91, 92, granting jurisdiction to the city courts of New Orleans over certain incidental demands." [647]

LOUISIANA LAW REVIEW [Vol. XXVH1 This case appears to be one of first impression in Louisiana. Article 1036 was new with the 1960 Code of Civil Procedure 8 and there have been few cases interpreting it. Although most jurisprudence arising under article 4 has involved other aspects of jurisdictional amount, 4 some pre-1960 cases have dealt with problems similar to that in the instant case. In 1944 the Second Circuit stated that "it is perfectly true that jurisdiction must be determined upon the basis of the real amount in dispute." 5 This tendency to look to the real amount in dispute between the parties was followed in Harrison v. Crawford. 6 There the plaintiff sued in a city court with a maximum jurisdictional limit of $300.00 to recover a deposit of $120.00 made on the $1,190.00 purchase price of realty. The court of appeal held that the amount in dispute was in excess of $300.00 since the court would have had to rule on the validity of the alleged contract in its entirety to determine plaintiff's right to the $120.00.7 Koerner v. Francingues,8 a 1925 decision, presented a fact situation very close to that of the present case. Plaintiff there sued in a city court with a maximum jurisdictional amount of $300.00 to recover $283.25 allegedly due from a contract of sale. Defendant answered that plaintiff owed him $388.00 from another contract and sought to offset $283.25 of this amount against plaintiff's claim. The court ruled: "But the defendant argues that he is pleading in compensation only 'so much of which amount as may be necessary to offset plaintiff's claim.' That is immaterial as this court would have to examine and pass upon a claim in excess of $300.00. If this court decided this claim in compensation 3. Article 1036 merely codifies the established Louisiana jurisprudence. See Cross v. Parent, 26 La. Ann. 591 (1874); Heirs of Kempe v. Hunt, 4 La. 477 (1832); Standard Tile & Marble Co. v. Gray, 85 So.2d 356 (La. App. 2d Cir. 1956); Artic Pure Ice Co. v. Rathe, 3 La. App. 14 (Orl. Cir. 1925); Kaufman v. Mahen, 2 La. App. 354 (Orl. Cir. 1925); Feahney v. New Orleans Railways & Light Co., 4 Orl. App. 277 (La. App. 1907); Labarthe v. Mazzei, 2 Orl. App. 367 (La. App. 1905). 4 See the cases annotated following article 4 in 2 LA. CODe Civ. P. ANN. 25-29 (West 1960). 5. Richmond v. Newson, 17 So.2d 735, 736 (La. App. 2d Cir. 1944). 6. 29 So.2d 602 (La. App. Or. Cir. 1947). 7. This case is to be distinguished from Tenaha Oil Co. v. Caraway, 171 So.2d 683 (La. App. 2d Cir. 1965), and similar cases where the court was able to settle a dispute within its jurisdictional limits without deciding the larger dispute and consideration of the larger dispute would have involved the rights of third parties. 8. 3 Orl. App. 220 (La. App. 1925).

1968] NOTES only up to $283.25 it might leave undecided the balance of the claim for another court to pass upon. Claims cannot be divided up in this manner." 9 (Emphasis added.) Although none of these pre-1960 cases directly involved the present issue, they indicate that Louisiana courts in the past have looked at the entire amount actually in dispute between the parties. The effect of reconventional demands on jurisdictional amount has been examined in three other jurisdictions. 10 All three have held that in determining the amount in dispute on a cross-claim or reconventional demand, the plaintiff's claim cannot be credited to the reconventional demand to reduce that demand to an amount within the jurisdiction of the court." Under a fact situation identical with the present case, 12 the Supreme Court of Texas reasoned in the 1896 case of Gimbel V. Gomprecht: 13 "The plea in reconvention filed by the defendant in this case was in effect a suit by them against the plaintiffs, and the amount in controversy was the damages claimed in that plea; that is, the actual damages, $797.21, and exemplary damages, $966-aggregating $1,763.21. The fact that the debt of the plaintiffs was admitted to be due, and agreed to be taken as a credit upon the claim set up by the defendants, did not lessen the amount that was put in controversy by that plea. Under the plea, the defendants must establish their damages before they are entitled to have the amount of the 4 plaintiffs' debt satisfied by their damages so recovered."' 9. Id. at 221. 10. Arkansas: Jones v. Blythe, 138 Ark. 81, 210 S.W. 348 (1919); Colorado: Dyett v. Harney, 53 Colo. 381, 127 P. 226 (1912); Texas: Gimbel v. Gomprecht, 89 Tex. 497, 35 S.W. 470 (1896). 11. 21 C.J.S. Courts 66, at 85 (1940), states the rule: "By the weight of authority, however, in an action on a claim for an amount within its jurisdiction, a court does not have jurisdiction of a cross demand which exceeds its maximum jurisdiction; and such cross demand cannot be reduced to an amount within the jurisdiction of the court by crediting plaintiff's claim thereon... " 12. Plaintiff had sued for $764.00 in a county court with a maximum jurisdictional limit of $1,000.00. Defendant admitted owing this amount but alleged that he was due $1,763.21 from the plaintiff and demanded the difference of $999.21. 13. 89 Tex. 497, 498, 35 S.W. 470 (1896). 14. This early decision has been consistently followed in the Texas courts. See Manly v. Citizens Nat. Bank in Abilene, 110 S.W.2d 993 (Tex. Civ. App. 1937); Turner v. Larson, 72 S.W.2d 397 (Tex. Civ. App. 1934); Brook Mays & Co. v. Osborne, 70 S.W.2d 755 (Tex. Civ. App. 1934); Commercial Inv. Trust, Inc. v. Smart, 69 S.W.2d 805 (Tex. Civ. App. 1932); Nichols v. Ellis, 246 S.W.

LOUISIANA LAW REVIEW [Vol. XXVI The majority in the present case, in ruling that the amount in dispute was only the adjusted balance of $770.40, emphasized the words in Code of Civil Procedure article 4, referring to jurisdictional amount, that "it shall be determined by the amount demanded" and "demanded by the plaintiff."' 15 The majority opinion stated that "plaintiff in reconvention never 'demanded' $1,566.00" and that "[$770.40] is the only sum 'demanded' either in the allegations or prayer of the reconventional demand."' 16 The court quoted from the reconventional demand of the defendant to show that the only judgment sought was one for $770.40.17 As the dissenting opinion' 8 pointed out, however, plaintiff's denial that it owed $1,566.00 put that amount in dispute and the city court would in fact be passing on the validity of a $1,566.00 claim. This was the amount of damages asserted by the defendant for an alleged breach of contract and this was the amount of the dispute that the court was called upon to settle. The majority opinion also quoted 9 without further comment Code of Civil Procedure article 106220 dealing with compensation. The Louisiana Civil Code allows compensation only in cases of debts "equally liquidated and demandable." 21 Since 713, 714 (Tex. Civ. App. 1922) (where the error was referred to as "fundamental"); Billings v. Southern Supply Co., 194 S.W. 1170 (Tex. Civ. App. 1917); Pennybacker v. Hazlewood, 26 Tex. Civ. App. 183, 61 S.W. 153 (1901). The Supreme Court of Colorado arrived at the same result on similar facts In Dyett v. Harney, 53 Colo. 381, 127 P. 226 (1912); and the Arkansas Supreme Court stated this to be the rule in Jones v. Blythe, 138 Ark. 81, 210 S.W. 348 (1919). 15. 203 So.2d 387, 388. The phrase "demanded by the plaintiff" Is found In the second paragraph of LA. CODE Civ. P. art. 4 (1960): "Except as otherwise provided by law, the amount in dispute consists of the principal sum, and the attorney's fees and penalties provided by agreement or by law, demanded by the plaintiff. Interest and court costs are not a part of the amount in dispute." 16. Id. at 389. 17. Id. at 388-89. 18. Id. at 389. Judge Gladney dissented: "The proceedings, in my opinion, presented to the trial court a controversy and dispute over the sum of $1,566.00.... In view of the denial by the plaintiff in the main demand that it owes $1,566.00, that amount Is in dispute and subject to the provisions of LSA-C.C.P. arts. 4 and 1036." 19. 1d. at 388. 20. LA. CODs Civ. P. art. 1062 (1960): "Compensation may be asserted In the reconventional demand." 21. LA. CIV. CODE art. 2209 (1870): "Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable..." See also arts. 2207-2216.

1968] NOTES 651 these debts do not fit in this description, 22 it is submitted that article 1062 has no bearing on the principal case. The majority holding in this case appears undesirable for three reasons. First, the plaintiff is forced to defend against a breach of contract action with alleged damages of over $1,000.00 in a court that ordinarily would lack jurisdiction. In addition, until this dispute is settled, the plaintiff is denied a judgment for the sum originally sued for and which defendant admits he owes. Second, the rule laid down by the majority in this case might apply to other situations with undesirable results. The drafters of the Code of Civil Procedure did not anticipate city courts hearing disputes in excess of $1,000.00. To allow them to do so might raise problems not anticipated nor provided for by the Code. 2 3 Finally, the ruling in the principal case seems contrary to the purpose and policy behind city courts in Louisiana. These courts were established to decide relatively minor cases in a speedy and efficient manner. The limitations upon their power 24 22. In the principal case the claim of the plaintiff was admitted while the claim of the defendant was denied and not yet proven. They were therefore not "equally liquidated and demandable." See Beyer Transp. Co. v. Whiteman Contracting Co., 187 So. 143 (La. App. Orl. Cir. 1939); Brock v. Natalbany Lumber Co., 179 So. 322 (La. App. 1st Cir. 1938); Reynaud v. His Creditors, 4 Rob. 514 (La. 1843). For a brief summary of compensation and its relation to reconvention, see Comment, 21 LA. L. REv. 220, 224 (1960). 23. E.g., LA. CODE Civ. P. art. 4837 (1960) limits the power of city courts to issue injunctive orders. Perhaps the drafters would not have placed this limitation on the city courts if it had been foreseen they might be deciding disputes in excess of $1,000.00. 24. LA. CODE Civ. P. art. 4836 (1960): "A justice of the peace, or city court other than one in New Orleans, has no jurisdiction of any of the following cases or proceedings: "(1) A case involving title to immovable property, the right to public office or position, or civil or political rights; "(2) A case in which it is sought to obtain a judgment of annulment of marriage, separation from bed and board, divorce, separation of property, or for alimony; "(3) A succession, tutorship, curatorship, emancipation, partition, receivership, liquidation, habeas corpus, or quo warranto proceeding; "(4) A case in which the state, a parish, municipal, or other political corporation, or a succession, is a defendant: "(5) Any other case or proceeding excepted from the jurisdiction of these courts by law. "New Orleans city courts have no jurisdiction of any of the cases or proceedings enumerated in paragraphs (1), (2), (3), and (5) of this article." This article merely restates the provisions of LA. CONST. art. VII, 35, 48, 91, 92. The second paragraph of LA. CODE Civ. P. art. 4837 (1960) states: "A justice of the peace or city court may not issue any injunctive order except to arrest the execution of its own writ." It could be argued that since LA. CONST. art. VII, 51, limits the jurisdiction of city courts in cities containing 20,000 population or more to cases where the amount in dispute does not exceed $1,000.00 inclusive of

LOUISIANA LAW REVIEW [Vol. XXVIII indicate a strong desire on the part of the legislature that these courts should not decide large disputes. This desire was expressly recognized by at least one of our appellate courts in the previously mentioned case of Koerner v. Francingues. 25 The effect of the majority ruling in the instant case would be to expand the jurisdiction of these courts by allowing them to hear cases where the amount actually in dispute may greatly exceed their maximum jurisdictional limit. This could lead to crowding of city court calendars and the defeat of their primary purpose. For the reasons given above it is submitted that the dissenting opinion in the principal case is the correct one and should be followed. James R. Pettway EXPROPRIATION-ACTIONS EX DELICTO FOR UNLAWFUL APPROPRIATION The Highway Department expropriated a temporary servitude on defendant's land to obtain fill for an interstate highway. After the vesting of title and withdrawal of the $37,000 deposit, the Department filed an amended petition seeking to accommodate local industry by changing the location of the borrow pit to another part of defendant's land. The condemnee timely objected to the procedure and the condemnor's amended petition was set aside. The Highway Department, however, proceeded to remove dirt from the new location. After the earth had been removed, the landowners brought an action ex delicto seeking damages for trespass and conversion. The court of appeal held that the trial court erred in denying damages in the same amount as would be determined by ex delicto or article 507 standards, and increased the award to a net $111,000. The Louisiana Supreme Court reversed, holding that recovery would be restricted to just compensation as in an ordinary action to interest and attorney's fees while the other sections of the constitution speak of amounts exclusive of such interest and fees, the drafters of the constitution intended this to be a further limitation on this class of city courts. The more likely explanation of this difference in terms, however, is that expressed by McMahon in the introduction to LA. R.S. ANN.-CODE Civ. P. bk. VIII, tit. 1 (West 1960): "The word 'inclusive' in the constitutional provision is actually due to a typographical error in an earlier amendment, retained by subsequent amendments.... [T]he Louisiana State Law Institute intended to recommend the amendment of this constitutional provision to correct the error; but through inadvertence such a recommendation was not submitted to the Legislature in 1960." 25. 3 Orl. App. 220 (La. App. 1925). See material and following discussion referred to by note 8 supra.