Clear Creek v. Peterson Pipeline

2024 UT App 22

THE UTAH COURT OF APPEALS

CLEAR CREEK DEVELOPMENT, LLC,
Appellant,
v.
PETERSON PIPELINE ASSOCIATION, INC.,
Appellee.

Opinion
No. 20220565-CA
Filed February 23, 2024

Second District Court, Morgan Department
The Honorable Noel S. Hyde
No. 210500049

Ryan M. Nord, Attorney for Appellant
Douglas P. Farr, Jacob D. Barney, and
Mary-Christine Sungaila, Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

LUTHY, Judge:

¶1 This case addresses some of the contours of rule 13(a) of
the Utah Rules of Civil Procedure, which governs compulsory
counterclaims. In a prior lawsuit, Peterson Pipeline Association,
Inc. (Peterson Pipeline) brought a number of claims against Clear
Creek Development, LLC (Clear Creek). Clear Creek asserted no
counterclaims in that lawsuit, and eventually Peterson Pipeline’s
claims were dismissed without prejudice.

¶2 Clear Creek then initiated this lawsuit, asserting claims
that arise from the same transaction that gave rise to Peterson
Pipeline’s claims in the prior lawsuit. Peterson Pipeline moved for
dismissal of Clear Creek’s claims, arguing that because they arise
Clear Creek v. Peterson Pipeline

from the same transaction that gave rise to Peterson Pipeline’s
claims in the prior lawsuit, Clear Creek’s claims were compulsory
counterclaims in the prior lawsuit and rule 13(a) bars their
assertion here. The district court agreed and dismissed Clear
Creek’s claims. Clear Creek now appeals.

¶3 We conclude that when Peterson Pipeline’s claims in the
prior lawsuit were dismissed without prejudice, Clear Creek’s
once-compulsory counterclaims became compulsory no more and
that Clear Creek was therefore free to bring those claims in this
action. Accordingly, we reverse.

BACKGROUND

The Previous Litigation

¶4 Peterson Pipeline is a public water supplier that
“distributes culinary water and fire suppression water to its
members.” Clear Creek is a company involved in residential
building construction. Having received representations from
Peterson Pipeline that it was willing to provide water service,
Clear Creek installed infrastructure to connect a subdivision it
was building to Peterson Pipeline’s water system, with an alleged
understanding that Clear Creek or the lot owners in the
subdivision would pay a “$15,000 per lot [Peterson Pipeline]
membership fee if they wanted to use [Peterson Pipeline’s]
infrastructure for culinary and fire suppression water.”
Subsequently, the lot owners were allegedly “unable to agree on
whether to pay the $15,000 membership fee.”

¶5 Thereafter, without any membership fees having been paid
and apparently in order to meet code requirements for obtaining
certificates of occupancy, Clear Creek allegedly turned on the
valves connecting its subdivision to Peterson Pipeline’s water
system and pressurized the pipes in the subdivision. In response
to this alleged use of its water system without authorization,

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Clear Creek v. Peterson Pipeline

Peterson Pipeline filed a lawsuit against Clear Creek, asserting
claims for conversion, unjust enrichment, and interference with
water rights. At the same time, Peterson Pipeline also filed a
motion for a preliminary injunction to prevent Clear Creek from
accessing Peterson Pipeline’s water system as the case proceeded.
The district court granted the injunction. Clear Creek then filed an
answer to Peterson Pipeline’s complaint; it did not assert any
counterclaims.

¶6 Over the course of the next year, the parties “engaged in
extensive settlement discussions” but did not reach a settlement
agreement. They then jointly submitted a stipulated request to
extend fact discovery. The court granted that request in an order
that also included the following provision: “Defendants have
leave to file a counterclaim if they elect to do so within 14 days of
entry of this order.” Again, Clear Creek did not assert any
counterclaims.

¶7 The following month, Peterson Pipeline moved to dismiss
its complaint without prejudice, explaining, “While [Peterson
Pipeline] believes it was damaged by [Clear Creek’s] actions, the
[preliminary injunction] prevented additional damage and
[Peterson Pipeline] has opted not to pursue its other claims at this
point.” Clear Creek opposed the motion, arguing that dismissal
should be denied or, alternatively, that any dismissal should be
with prejudice. In support of its objection, Clear Creek observed
that the parties had engaged in “more than a year of litigation,”
that the case was “more or less prepared for trial,” and that
dismissing Peterson Pipeline’s claims without prejudice would
leave Peterson Pipeline free to “subject [Clear Creek] to further
litigation on the same matters after having [already had] a full and
fair opportunity to discover its claims and to pursue this matter.”
The court was “unpersuaded” by Clear Creek’s objection and
granted the dismissal of Peterson Pipeline’s claims without
prejudice.

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Clear Creek v. Peterson Pipeline

The Instant Case

¶8 Within two months of the dismissal of Peterson Pipeline’s
lawsuit, Clear Creek filed this action, asserting claims of fraud and
breach of contract against Peterson Pipeline stemming from the
same circumstances that had given rise to Peterson Pipeline’s
claims in the prior lawsuit—the subdivision’s connection to and
use of Peterson Pipeline’s water system. Specifically, Clear Creek
alleged, among other things, that Peterson Pipeline had agreed to
provide water service for at least one of the lots in the subdivision
but later, after Clear Creek incurred significant infrastructure
expenses, refused to provide water service to any lots unless all
lot owners agreed to a land use restriction prohibiting the
construction of wells on their lots.

¶9 Peterson Pipeline moved to dismiss Clear Creek’s
complaint. Peterson Pipeline argued that because Clear Creek’s
claims “arise from the same operative facts and the same
transaction” as did Peterson Pipeline’s claims in the previous case,
Clear Creek’s claims had been compulsory counterclaims under
rule 13(a) of the Utah Rules of Civil Procedure in the previous case
and, as such, could not be asserted in this case.

¶10 Clear Creek opposed the motion, contending that its claims
had not been compulsory counterclaims in the previous case and
that, even if they were, rule 13(a) did not bar them. Clear Creek
observed that while rule 13(a) defines compulsory counterclaims,
it sets forth no specific remedy for when a defendant fails to file a
compulsory counterclaim in an initial lawsuit and then later
pursues the claim in a separate lawsuit. On that basis, Clear Creek
asserted that any preclusion of an initially unpled counterclaim
subsequently raised in separate litigation must be through
application of the doctrine of claim preclusion, which prohibits
the relitigation of claims that could have been brought in a
previous action only when “the first suit . . . resulted in a final
judgment on the merits.” Macris & Assocs. v. Neways, Inc., 2000 UT

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Clear Creek v. Peterson Pipeline

93, ¶ 20, 16 P.3d 1214 (cleaned up). Because there was no final
judgment on the merits in the previous case, Clear Creek
contended that “there is no basis under [r]ule 13 to dismiss” its
claims here.

¶11 After a hearing on the matter, the district court granted
Peterson Pipeline’s motion to dismiss. In its written order, the
court rejected Clear Creek’s view that rule 13(a) provides no
independent remedy for a party’s failure to file a compulsory
counterclaim, reasoning that although “no express remedy
appears in the language of [r]ule 13 itself, such a remedy does
appear in case law.” The court further determined that “a [r]ule
13(a) analysis focuses on whether a party waived its claims by
failing to bring them as counterclaims in a prior action,” not on
whether the party’s claims were “previously . . . adjudicated”
under “a claim preclusion analysis.” The court then concluded
that because Clear Creek’s claims in this lawsuit “arise out of the
same transaction or occurrence as [Peterson Pipeline’s] claims in
the prior lawsuit,” Clear Creek’s claims were compulsory
counterclaims in the prior action and were waived when Clear
Creek did not bring them in the prior action. On that basis, the
court dismissed Clear Creek’s claims with prejudice. Clear Creek
now appeals.

ISSUE AND STANDARD OF REVIEW

¶12 Clear Creek contends that the district court erroneously
dismissed its claims under an incorrect application of rule 13(a) of
the Utah Rules of Civil Procedure. “A ruling on a motion to
dismiss presents a legal question that we review for correctness,
affording no deference to the district court’s decision.” Turner v.
Staker & Parson Cos., 2012 UT 30, ¶ 7, 284 P.3d 600. Likewise, “the
district court’s interpretations of rules of procedure are questions
of law reviewed for correctness.” Simler v. Chilel, 2016 UT 23, ¶ 9,
379 P.3d 1195 (cleaned up).

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Clear Creek v. Peterson Pipeline

ANALYSIS

¶13 Clear Creek first asserts that the district court erred by
determining that rule 13(a) of the Utah Rules of Civil Procedure
provides an independent remedy when a party fails to assert a
compulsory counterclaim. 1 Specifically, Clear Creek argues that
rule 13(a) “merely informs, from a procedural standpoint, when a
claim is compulsory” and that whether an unpled compulsory
counterclaim is barred in subsequent litigation depends on “a
substantive res judicata analysis (claim preclusion).” We disagree
that rule 13(a) does not provide an independent remedy for a
party’s failure to assert a compulsory counterclaim. However, we
conclude that claim preclusion principles undergird rule 13(a)
and, thus, that a counterclaim arising from the same transaction
as a plaintiff’s claims ceases to be compulsory if the plaintiff’s
claims are dismissed without prejudice before a final adjudication
on the merits.

¶14 When interpreting court rules, “our primary goal is to
evince the true intent and purpose of the rule-making body and
to render all parts of the rule relevant and meaningful.” Cox v.
Krammer, 2003 UT App 264, ¶ 10, 76 P.3d 184 (cleaned up). Rule
13 states in relevant part,

A pleading must state as a counterclaim any claim
that—at the time of its service—the pleader has
against an opposing party if the claim: (A) arises out
of the transaction or occurrence that is the subject
matter of the opposing party’s claim; and (B) does
not require adding another party over whom the
court cannot acquire jurisdiction.

1. Clear Creek does not challenge the district court’s
determination that Clear Creek’s claims “arise out of the same
transaction or occurrence as [Peterson Pipeline’s] claims in the
prior lawsuit.”

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Clear Creek v. Peterson Pipeline

Utah R. Civ. P. 13(a)(1). 2 Were we to interpret rule 13(a) as merely
procedurally informative but providing no independent
authority for barring an unpled counterclaim from being
subsequently asserted in separate litigation, we would have to
read the word “must” out of the rule, which would render the rule
of no meaningful effect. See 6 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1417 (3d ed. 2010) (stating
as to the identically worded federal rule 13(a) that “[a] failure to
plead a compulsory counterclaim bars a party from bringing a
later independent action on that claim” and recognizing that “a
contrary result would destroy the effectiveness of [r]ule 13(a)”).
We are unwilling to do this. The counterclaims addressed by rule
13(a) could hardly be called “compulsory” if the rule provided no
consequence for failing to comply with its mandate.

¶15 Our conclusion that rule 13(a) provides independent
authority for barring the subsequent litigation of compulsory
counterclaims that were unpled in prior litigation is supported by
Utah case law, which has repeatedly and consistently relied on
rule 13(a) alone to bar subsequent and separate litigation of claims
that qualified in previous litigation as compulsory counterclaims
under the rule. See, e.g., Raile Family Trust ex rel. Raile v. Promax
Dev. Corp., 2001 UT 40, ¶ 12, 24 P.3d 980 (relying on rule 13(a)
alone to uphold the dismissal of a plaintiff’s claim that was not
asserted as a counterclaim in previous litigation arising out of the
same transaction); Kimball v. Campbell, 699 P.2d 714, 716 (Utah
1985) (relying on rule 13(a) to deny a request for a remand to allow
the defendant to pursue a counterclaim that he had failed to assert
prior to entry of judgment on the plaintiff’s claim); Todaro v.
Gardner, 285 P.2d 839, 842 (Utah 1955) (quoting rule 13 and stating
that “[u]nder similar antecedent statutes, it has been held that a
counterclaim not presented to the court on a matter involving the

2. The next subsection of the rule provides two exceptions to this
requirement, but neither exception applies here. See Utah R. Civ.
P. 13(a)(2).

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Clear Creek v. Peterson Pipeline

same transaction is forever barred”); Yanaki v. Iomed, Inc., 2005 UT
App 239, ¶¶ 2–5, 12, 116 P.3d 962 (affirming the trial court’s
dismissal of the plaintiff’s claims “under rule 13(a)” because they
qualified as compulsory counterclaims under that rule in still-
pending litigation previously commenced by the opposing party).

¶16 In short, the district court was correct in concluding that
rule 13(a) independently provides a remedy for when a party fails
to bring a compulsory counterclaim.

¶17 Importantly, however, our conclusion that rule 13(a)
independently provides a remedy for when a party fails to bring
a compulsory counterclaim does not answer the question of
whether a particular claim qualifies as a compulsory counterclaim
at a particular time. In this regard, Clear Creek argues that the
principles of claim preclusion should apply to a rule 13(a) analysis
in any event. Specifically, Clear Creek asserts that even if its
claims here were initially compulsory counterclaims in the
previous litigation, because Peterson Pipeline’s claims in the
previous litigation were dismissed without prejudice—yielding
“no final judgment on the merits”—there is “no basis under [r]ule
13 to dismiss Clear Creek’s claims.” See generally Macris & Assocs.
v. Neways, Inc., 2000 UT 93, ¶ 20, 16 P.3d 1214 (“In order for claim
preclusion to bar a subsequent cause of action, a plaintiff must
satisfy three requirements: First, both cases must involve the same
parties or their privies. Second, the claim that is alleged to be
barred must have been presented in the first suit or must be one
that could and should have been raised in the first action. Third,
the first suit must have resulted in a final judgment on the merits.”
(emphasis added) (cleaned up)). On this point, we agree with
Clear Creek.

¶18 This court has previously observed a relationship between
the principles of claim preclusion and rule 13(a). In Yanaki v.
Iomed, Inc., 2005 UT App 239, 116 P.3d 962, while analyzing
whether for purposes of rule 13(a) the plaintiff’s claims arose from

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Clear Creek v. Peterson Pipeline

the same “transaction or occurrence” as claims the parties had
litigated previously, we affirmed that “[c]laim preclusion is a
concept closely related to compulsory counterclaims[] and has
been used by federal courts in analyzing whether a particular
claim arises from the same transaction or occurrence.” Id. ¶ 10 n.2
(cleaned up). We then resolved the rule 13(a) issue by applying
the reasoning of a “factually similar” Tenth Circuit case, even
though the federal court did not mention rule 13(a) and instead
“based its decision on the doctrine of claim preclusion.” Id. ¶ 10
(discussing Wilkes v. Wyoming Dep’t of Emp. Div. of Labor Standards,
314 F.3d 501 (10th Cir. 2002)). While the rule 13(a) issue here is
different from the rule 13(a) issue in Yanaki, we see no reason for
restricting the relationship between compulsory counterclaims
and the principles of claim preclusion to the issue we addressed
in Yanaki.

¶19 Indeed, the drafters of federal rule 13(a), upon which
Utah’s identically worded rule 13(a) is presumably based, compare
Utah R. Civ. P. 13(a), with Fed. R. Civ. P. 13(a), expressly indicated
that the rule’s inherent remedy would apply when the prior
action “proceeds to judgment,” Fed. R. Civ. P. 13 advisory
committee’s note 7 to 1937 adoption (“If the action proceeds to
judgment without the interposition of a counterclaim as required
by subdivision (a) of this rule, the counterclaim is barred.”
(emphasis added)). And “[c]onsidering the [federal] cases that
have dealt with the problem of the omitted counterclaim as a
group, most of the courts, but not all, have spoken in terms of ‘res
judicata’ preventing the later assertion of the claim.” 6 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1417 (3d ed. 2010) (citing cases). We find the weight of this
authority to be persuasive. See generally Tucker v. State Farm
Mutual Auto. Ins., 2002 UT 54, ¶ 7 n.2, 53 P.3d 947 (“Interpretations
of the Federal Rules of Civil Procedure are persuasive where the
Utah Rules of Civil Procedure are substantially similar to the
federal rules.” (cleaned up)).

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Clear Creek v. Peterson Pipeline

¶20 Moreover, an interpretation of rule 13(a) that grounds it in
the principles of claim preclusion best serves the purpose of the
rule, which is one of judicial economy that is largely similar to the
purposes behind the doctrine of claim preclusion, compare Raile
Family Trust ex rel. Raile v. Promax Dev. Corp., 2001 UT 40, ¶ 12, 24
P.3d 980 (“The purpose of rule 13(a) is to ensure that all relevant
claims arising out of a given transaction are litigated in the same
action.”), with Daz Mgmt., LLC v. Honnen Equip. Co., 2022 UT 15,
¶ 20, 508 P.3d 84 (“The [claim preclusion] doctrine fulfills several
important purposes, including . . . promoting judicial economy by
preventing previously litigated issues from being relitigated . . . .”
(cleaned up)). In this regard, it is notable that in Nu-Med USA, Inc.
v. 4Life Research, LC, 2008 UT 50, 190 P.3d 1264, our supreme court
focused on the judicial economy purpose of rule 13(a) to hold that
claims that had once been compulsory counterclaims under rule
13(a) could be pursued in subsequent litigation where those
counterclaims had been dismissed without prejudice in the prior
litigation. Id. ¶¶ 9‒18.

¶21 In Nu-Med, Nu-Med USA, Inc. (Nu-Med) filed claims in
state court against 4Life Research, LC (4Life) that had been
compulsory counterclaims in prior litigation that 4Life had
brought against Nu-Med in federal court. Id. ¶¶ 1–2. In the federal
litigation, 4Life’s claims against Nu-Med were resolved on
summary judgment, after which the federal court approved the
voluntary dismissal without prejudice of Nu-Med’s compulsory
counterclaims against 4Life. Id. ¶ 3. When Nu-Med later filed
those same claims in a subsequent state court proceeding, the
district court granted summary judgment against Nu-Med by
applying Utah’s rule 13(a), reasoning that “the claims should be
dismissed as ‘compulsory counterclaims’ that could only have
been litigated, if at all, in the federal case.” Id. ¶¶ 1, 4.

¶22 On appeal, our supreme court considered whether rule
13(a) supported the lower court’s determination that Nu-Med’s
failure to continue pursuing its claims in federal court prohibited

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Clear Creek v. Peterson Pipeline

its later assertion of those claims in state court. Id. ¶ 10. The
supreme court observed that rule 13(a)’s requirement to
simultaneously litigate all claims arising from a single transaction
“serves judicial economy, because litigating claims arising out of
the same transaction separately duplicates party efforts and
wastes judicial resources.” Id. ¶ 15. The court also recognized,
however, that “judicial economy ceases to present the same
concern for counterclaims the moment the underlying claims of
the opposing party are resolved permanently and without
appeal.” Id. ¶ 16. In such a situation, “[t]here is no efficiency to be
gained by compelling litigation of claims that are no longer being
simultaneously litigated with an opposing party’s claims.” Id.
Based on this reasoning, the court allowed Nu-Med to pursue in
a separate and subsequent action its claims that had once been
compulsory counterclaims in the prior case, holding that they
were “no longer compulsory under rule 13.” Id. ¶ 20.

¶23 Although the procedural facts in our case are somewhat
different from those in Nu-Med, that case’s discussion of and
emphasis on judicial economy when interpreting rule 13(a) is
relevant here. Similar to the situation in Nu-Med, where no judicial
efficiency could have been “gained by compelling litigation of
claims that [were] no longer being simultaneously litigated with
an opposing party’s claims,” id. ¶ 16, when Peterson Pipeline’s
claims in the original lawsuit were voluntarily dismissed prior to
trial, judicial efficiency would not have been served by requiring
Clear Creek to continue litigating its claims in that case. In fact,
because Peterson Pipeline’s claims were dismissed without
prejudice and could potentially be brought again in a separate
case at some future point, requiring Clear Creek to have raised
and pursued its claims to a conclusion in the prior action would
preclude, rather than facilitate, the simultaneous litigation, in the
same case, of two sets of claims arising from the same transaction.

¶24 In sum, allowing a party in the position of Peterson
Pipeline to temporarily pause its claims but retain the opportunity

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Clear Creek v. Peterson Pipeline

to pursue them in the future, while at the same time requiring a
party in Clear Creek’s position to litigate its claims only in the
initial action or be forever barred would be squarely at odds with
the judicial economy purpose of rule 13(a). On the other hand,
allowing both parties the option to bring their claims anew in a
subsequent action is more in harmony with the purposes of the
rule and is certainly the more just outcome. As with our supreme
court in Nu-Med, we eschew a result at odds with the rule’s plain
purpose and, instead, conclude that the dismissal without
prejudice of Peterson Pipeline’s claims in the prior lawsuit
rendered Clear Creek’s claims “no longer compulsory under rule
13.” Id. ¶ 20. Stated more generally, we hold that claim preclusion
principles undergird the application of rule 13(a) and, therefore,
that when a previous lawsuit has concluded without a final
judgment on the merits, rule 13(a) does not prevent the later
assertion of what otherwise would have been compulsory
counterclaims in the prior action.

¶25 Peterson Pipeline pushes back, arguing that our decision
should be based on principles of waiver, not on principles of claim
preclusion. “Waiver is the intentional relinquishment of a known
right.” Moler v. CW Mgmt. Corp., 2008 UT 46, ¶ 17, 190 P.3d 1250.
“To establish waiver, [the party asserting waiver] must show that
the [other party] had (1) an existing right, (2) knowledge of its
existence, and (3) an intent to relinquish the right.” Id. Peterson
Pipeline asserts that “Clear Creek waived its right to bring its
claims in this case” by “fail[ing] to amend its answer” in the prior
case before the stipulated “deadline” for pleading counterclaims.

¶26 Admittedly, some Utah opinions applying rule 13(a) as a
bar to the subsequent litigation of a previously unpled
compulsory counterclaim have invoked the term “waiver”
(though none of them have articulated or expressly applied the
elements of waiver). See Raile Family Trust ex rel. Raile v. Promax
Dev. Corp., 2001 UT 40, ¶ 12, 24 P.3d 980 (stating that because the
plaintiffs “failed to raise available counterclaims” in a prior case,

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Clear Creek v. Peterson Pipeline

“they have waived the right to raise those same claims in a
separate action”); Kimball v. Campbell, 699 P.2d 714, 716 (Utah
1985) (stating that a party’s “failure to file a counterclaim [in prior
litigation] resulted in a waiver”); Mark VII Fin. Consultants Corp. v.
Smedley, 792 P.2d 130, 132 (Utah Ct. App. 1990) (“If the
counterclaim arises from the same transaction as [the] plaintiff’s
claim, then the defendant must plead it as a compulsory
counterclaim under rule 13(a) or waive the right to recover on
it.”). Certainly, if a case proceeds to a final judgment without a
defendant attempting to raise a compulsory counterclaim, the
defendant’s actions would satisfy the waiver requirements. That
is, we could infer from such total inaction an intention to
relinquish a known right. However, the problem with applying a
waiver analysis to a case like the one before us, where the claims
in the prior action did not proceed to a final judgment, is that it is
difficult to infer a moment at which the potential counterclaimant
intended to relinquish its claims.

¶27 This case illustrates the problem. Although the court in the
previous litigation gave Clear Creek a fourteen-day window
during which it could raise counterclaims, the reality is that Clear
Creek’s opportunity to amend its answer was not entirely
foreclosed at the end of those fourteen days. Under rule 15 of the
Utah Rules of Civil Procedure, the district court has discretion to
permit the belated amendment of a pleading and “should freely
give [such] permission when justice requires.” Utah R. Civ. P.
15(a)(2); see also Daniels v. Gamma West Brachytherapy, LLC, 2009
UT 66, ¶ 58, 221 P.3d 256 (“Trial courts should liberally allow
amendments unless the amendments include untimely,
unjustified, and prejudicial factors.”). Thus, there is no “extreme
last moment at which a compulsory counterclaim can be filed.”
Landers v. Smith, 379 S.W.2d 884, 887–88 (Mo. Ct. App. 1964).
Moreover, because Clear Creek contended in the previous lawsuit
that Peterson Pipeline’s claims should be dismissed, if at all, only
with prejudice, we cannot infer from Clear Creek’s conduct an
intent to relinquish its right to pursue its claims while Peterson

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Clear Creek v. Peterson Pipeline

Pipeline retained the option to renew its claims later. For these
reasons, we find the wavier doctrine to be problematic in cases
such as this. Cf. id. at 886–88 (noting that Missouri courts generally
“seem to hold” that “failure to plead a compulsory counterclaim”
yields “a waiver of the unasserted claim,” but concluding that
“the bar of the compulsory counterclaim rule does not become
complete, nor is the counterclaim wholly foreclosed, until the
action proceeds to judgment”).

¶28 Finally, Peterson Pipeline argues that our opinion in Yanaki
v. Iomed, Inc., 2005 UT App 239, 116 P.3d 962, “undermines Clear
Creek’s claim preclusion argument” because in Yanaki we
affirmed the application of rule 13(a) to preclude unpled
counterclaims from being brought in separate litigation even
though the initial litigation in that case had not resulted in a “final
decision on the merits.” See id. ¶¶ 2‒4, 12. Yet Yanaki is clearly
distinguishable. The initial litigation in that case had not resulted
in a final judgment on the merits because the initial case was still
pending. See id. ¶¶ 2, 7. Thus, the Yanaki plaintiff’s claims were
not dismissed with prejudice for not having been timely raised as
counterclaims in the initial litigation; instead, based on
considerations of judicial economy, the plaintiff’s claims were
dismissed without prejudice so that the plaintiff could seek to
include them in the already pending case, where they
appropriately belonged. See id. ¶ 7 (“Requiring [the plaintiff] to
bring his claims from the instant case as counterclaims in the first
case will ensure that all the relevant claims arising out of his
employment relationship . . . will be litigated in the same action.”);
see also 6 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1417 (3d ed. 2010) (“These cases [where prior
litigation is still pending] may be resolved easily . . . since it is not
too late for the erring pleader to seek to have the suits
consolidated or to seek leave to amend the answer to plead the
claim as an omitted counterclaim.” (footnote omitted)). Hence,
Yanaki does not require an outcome contrary to the holding we
have articulated above.

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CONCLUSION

¶29 The district court correctly concluded that rule 13(a) of the
Utah Rules of Civil Procedure provides an independent remedy
for a party’s failure to file a compulsory counterclaim. The court
erred, however, in concluding that rule 13(a)’s remedy was
appropriate here. When Peterson Pipeline’s claims were
dismissed without prejudice in the previous lawsuit, Clear
Creek’s potential counterclaims in that action were no longer
compulsory and should not have been dismissed under rule 13(a)
when they were later asserted in a separate suit. Accordingly, we
reverse the district court’s dismissal of Clear Creek’s claims and
remand the case for further proceedings.

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