When Is a Counterclaim Compulsory In Texas ?
A compulsory counterclaim is defined as any counterclaim:
(1) within the trial court's jurisdiction;
(2) not the subject of a pending action;
(3) which is mature when the pleading is filed;
(4) arising out of the same transaction or occurrence as the opposing party's claim;
(5) not requiring for adjudication the presence of parties over whom the court cannot obtain jurisdiction. Tex. R. Civ. P. 97(a).
When a counterclaim is compulsory, the defendant is barred from recovering on it against the plaintiff in a later suit. 2 R. McDonald, Texas Civil Practice in District and County Courts 9.71.
A claim is related to the opposing party's claim where separate trials on the respective claims would involve a substantial duplication of effort and time by the parties and the courts.
However, when the defendant's claim to affirmative relief asserts a theory wholly distinct from and independent of the issues raised by the plaintiff's claim, it is not a compulsory counterclaim. Astro Sign Co. v. Sullivan, 518 S.W.2d 420, 426 (Tex.Civ.App.--Corpus Christi 1974, writ ref'd n.r.e.).
The determination whether a claim is a compulsory counterclaim is a question of law. Id.
In analyzing this issue, we are instructed by the principles espoused in wrongful sequestration and attachment cases.
It has been held that a claim for wrongful sequestration or attachment does not arise out of the same transaction or occurrence as the previous action in which the wrongful sequestration or attachment occurred. Capetillo v. Burress & Rogers, 203 S.W.2d 953, 957 (Tex. Civ.App.--Galveston 1947, writ ref'd n.r.e.) (op. on reh'g).
Rather, it arises when a party to the litigation seeks to enforce rights resulting from the transaction or occurrence which is the subject matter of his suit. Id. See also Security State Bank & Trust v. Craighead, 440 S.W.2d 701, 708 (Tex. Civ.App.--San Antonio 1969, writ ref'd n.r.e.).
A wrongful sequestration proceeding based upon a wrongful act is separate and apart from the underlying cause of action upon which the party seeks a monetary recovery. See Leasure v. Peat, Marwick, Mitchell & Co., 722 S.W.2d 37, 39 (Tex.App.--Houston [1st Dist.] 1986, no writ).