Do you need to know when to answer a counterclaim in Texas?
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My original intent behind this blog was to create a reference spot full of deadline calculators to help attorneys and legal professionals quickly calculate frequently-used deadlines. Since I primarily practice in Texas, I also added yearly Texas Answer Deadlines and the Texas Rules of Civil Procedure. The blog then evolved into a place to offer case management tips and information about the importance of implementing systems and software to achieve that goal. I highly recommend checking it out, and Texas Bar members get 10% off their first year with coupon code texasbar.
According to Google Analytics, one of the most popular search terms that leads people to this blog is:
What is the deadline to file an answer to a counterclaim in Texas?
Today I am addressing this specific question because it comes up a lot. And to no surprise.
Counterclaims arise frequently in Texas cases. When a person or entity is sued, they often want to fight back.
Texas Rule of Civil Procedure 97 discusses both mandatory and permissive counterclaims. Mandatory counterclaims consist of any claim against an opposing party within the jurisdiction of the court, not the subject of the pending action, arising out of the same transaction or occurrence. A defendant is precluded from recovery in a subsequent action if they fail to file a mandatory counterclaim. Permissive counterclaims consist of “any claim against an opposing party, whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” (Tex. R. Civ. P. 97(b)).
Unfortunately Rule 97 tells us absolutely nothing about when a counter-defendant must respond to the counterclaim. And if a counter-defendant fails to file a timely answer to a counterclaim, can the counter-plaintiff then seek a default judgment in the same way a plaintiff would seek a default judgment against a defendant? Or does a counter-defendant even have to answer a counterclaim in Texas?
O’Connors’ Texas Rules: Civil Trials is an excellent resource for quickly finding the answers to questions like this. O’Connors’ rule books contain so many annotations to the Rules and procedures that you could feasibly write an entire brief using just using their books alone.
O’Connors’ books come in particularly handy when you’re looking for an answer to questions like this one about answers to counterclaims. The answer is buried in the Texas Rules, away from general information about answering petitions and claims.
Texas Rule of Civil Procedure 92 states as follows:
When a counterclaim or cross-claim is served upon a party who has made an appearance in the action, the party so served, in the absence of a responsive pleading, shall be deemed to have pleaded a general denial of the counterclaim or cross-claim, but the party shall not be deemed to have waived any special appearance or motion to transfer venue. In all other respects the rules prescribed for pleadings for defensive matter are applicable to answers to counterclaims and cross-claims.
In other words, when a counterclaim is filed, a general denial is presumed and no answer from the plaintiff/counter-defendant is required–except in certain cases where a verified denial is required under the rules or an affirmative defense is required.
If you also practice in federal court, keep in mind that the Texas rule is in stark contrast to the federal rule: In federal court, a complaint is not an answer for the purpose of a counterclaim. A party in federal court must serve an answer to a counterclaim within 21 days to avoid a default judgment. Fed. R. Civ. P. 12(a)(1)(B).
Now does this mean that in Texas you shouldn’t file an answer in any situation unless required (such as cases where one must file a verified denial or assert an affirmative defense)?
Think of it this way: just because you can (avoid filing an answer) doesn’t mean you should. Your answer is your opportunity to defend your client. It is the most common way to respond to a plaintiff (or counter-plaintiff’s) legal and factual claims. And, perhaps most importantly, it signals to the court that you absolutely intend to defend the claims against your client.
So while there are instances where you do not have to respond to a counterclaim, you might want to consider doing so anyway.