Original Cross-Claim in Texas

What Is an Original Cross-Claim?

Background

Rule 97(e) of the Texas Rules of Civil Procedure provides "[a] pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein." (Solar v. Prince (2007) 234 S.W.3d 814, 821 citing Tex. R. Civ. P. 97(e).)

How to Structure the Motion

A 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. (McBryde v. Curry (1995) 914 S.W.2d 616, 620 citing Tex. R. Civ. P. 97(e).)

“Where two parties are aligned in the first action and no issues are drawn between them, the judgment in that action does not preclude later claims between those parties.” (See Smith v. Baker (1964) 380 S.W.2d 725, 726.) “However, where a defendant does assert a cross-claim against a co-party, they become adverse, and the principles of res judicata apply. The cross-claimant becomes a plaintiff for res judicata purposes, and is required to assert all claims against the cross-defendant arising from the subject matter of the original cross-claim.” (Getty Oil Co., supra, id., citing Cf. Restatement (Second) Judgments § 23 (1980) [“Where a defendant interposes a claim as a counterclaim and a valid and final judgment is rendered against him on the counterclaim, the rules of bar are applicable to the judgment.”])

Who May File a Cross-Claim

“As a general matter, both defendants and plaintiffs can file counterclaims, cross-claims, and third-party claims. A plaintiff becomes a cross-claimant by asserting a claim against a fellow plaintiff. If the plaintiff defending against the cross-claim then files a claim against the cross-claimant, the plaintiff-defendant would be a counterclaimant.” (In re Ford Motor Co. (2014) No. 12-0957, at *8.)

Res Judicata and Cross-Claims

“For the purposes of res judicata, co-parties have issues drawn between them and become adverse when one co-party files a cross-action against a second co-party.” (Getty Oil Co. v. Ins. Co. of N. Am. (1992) 845 S.W.2d 794, 800; see also, State and County Mutual Fire Insurance v. Miller (2001) 52 S.W.3d 693, 696.)

“The cross-claimant becomes a plaintiff for res judicata purposes, and is required to assert all claims against the cross-defendant arising from the subject matter of the original cross-claim.” (State and County Mutual Fire Insurance, supra, 52 S.W.3d at 696.)

The Court’s Decision

“[The court] does not hold that a defendant must assert a cross-claim against a co-defendant simply because it arises from the same subject matter as plaintiff's claim.” (Getty Oil Co. v. Insurance Co. of North America (1993) 845 S.W.2d 794, 800.) “Tex.R.Civ.P. 97(e) clearly makes such a cross-claim permissive; the defendant may assert it, but is not required to.” (Id.) “Rule 97(e) comports with the principle that res judicata applies only to adverse parties.” (Id.)

Documents for Original Cross-Claim in Texas

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