Fid. Mut. Life Ins. Co. v. Kaminsky - 820 S.W.2d 878 (Tex. App. 1991)

Rule:

A counterclaim is compulsory if: (1) it is within the jurisdiction of the court, (2) it is not at the time of filing the answer the subject of a pending action, (3) the claim is mature and owned by the pleader at the time of filing the answer, (4) it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim, (5) it is against an opposing party in the same capacity, and (6) it does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. A claim satisfying all six of these elements must be asserted in the initial action and cannot be asserted in later actions.

Facts:

Appellee lessee filed suit against appellant building owner to recover attorney's fees incurred in a prior suit against appellant pursuant to a provision of the lease agreement. Appellee was granted summary judgment, and appellant sought review.

Issue:

Should the appellee’s claim for attorney’s fees have been raised in the previous action? 

Answer:

Yes.

Conclusion:

On appeal, the court reversed holding that appellee's claim for attorney fees should have been raised in the previous action because it was not speculative or premature at that time and that it was thus a compulsory counterclaim. The court determined that, as a compulsory counterclaim, the attorney fees demand was required to have been raised in the previous action under Tex. R. Civ. P. 97(a), and that since appellee did not raise it previously, it was now barred by res judicata.