Monday, July 31, 2006
Court permit and may even require trial and pledings of the underlying cause along with the declaratory judgment action HEIMBOUCH, v.VICTORIO INSURANCE SERVICE, INC 369 N.W.2d 620, 220 Neb. 279  June 28, 1985 In a declaratory judgment action on a contract, the court may not only construe the contract but it is authorized to enter judgment for the amount due thereunder in the light of the interpretation made. The district court clearly has power to retain jurisdiction and grant further relief where it has entered a declaratory judgment declaring the rights of the parties under a contract. n its second assignment of error the defendant contends that the trial court erred in entering a present judgment for future installment payments of termination compensation. Pursuant to Neb. Rev. Stat. §§ 25-21,149 et seq. (Reissue 1979), an action for declaratory judgment determines the rights of the parties in a justiciable controversy and is binding on any further adjudication between the parties as to the rights so declared. Russell v. First York Sav. Co., 218 Neb. 112, 352 N.W.2d 871 (1984). Furthermore, this court has said: "'In a declaratory judgment action on a contract, the court may not only construe the contract but it is authorized to enter judgment for the amount due thereunder in the light of the interpretation made.'" Dixon v. O'Connor, 180 Neb. 427, 433, 143 N.W.2d 364, 368 (1966); Richardson v. Waterite Co., 169 Neb. 263, 99 N.W.2d 265 (1959). In the case at bar the district court properly entered a judgment for the amount of principal and interest due at the time of trial. See Richardson, supra. Although the trial court specifically found when and in what amounts the remaining payments were payable, no judgment was entered in that regard. Rather, the court said: "Plaintiff is granted a declaratory judgment that the defendant is obligated to pay to the plaintiff the sum of $17,182.02 in annual installments of principal and interest in accordance with the parties' contract."  This case is distinguishable from First Nat. Bank v. Omaha Nat. Bank, 191 Neb. 249, 214 N.W.2d 483 (1974), cited by the defendant. In First Nat. Bank the judgment ordered that certain unmatured installments of rent, taxes, and insurance were to be paid as they fell due, that the court would retain jurisdiction, and that the judgment "'shall mature and become effective as to each unmatured installment . . . on the day after said installment or payments are due and execution may then issue . . . .'" Id. at 251, 214 N.W.2d at 485. We vacated that part of the judgment relating to future installments and the issuance of execution as to any unmatured installments of rent, taxes, and insurance. We stated, however: "The District Court clearly has power to retain jurisdiction and grant further relief where it has entered a declaratory judgment declaring the right of the parties under a contract." Id. at 252, 214 N.W.2d at 485. The specific findings concerning future amounts payable made in the case at bar were not determined from such indefinite and variable subject matter, nor was any provision made regarding the entry of judgment and the issuance of execution.  DANIEL HOIENGS, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED, APPELLANT,v. COUNTY OF ADAMS ET AL., APPELLEES. 516 N.W.2d 223, 245 Neb. 877May 13, 1994 It is true that Hoiengs asks for more than a declaration as to the contributions the retirement act requires of the counties, he also asks that the counties be required to pay the system the difference between the contributions they have made and those they should have made. The fact is, however, that a court may, among other things, grant a money judgment as consequential relief in a declaratory judgment action. Heimbouch v. Victorio Ins. Serv., Inc., 220 Neb. 279, 369 N.W.2d 620 (1985) (court in declaratory judgment action may not only construe contract, but is authorized to enter judgment for amount due thereunder); Dixon v. O'Connor, 180 Neb. 427, 143 N.W.2d 364 (1966) (where in declaratory judgment action court found relationship of parties to be that of landlord and tenant, granting of accounting was within equitable jurisdiction of court).  Thus, the fact that Hoiengs asks for relief which may include a money judgment does not mean he has failed to state a cause of action for declaratory relief. Federal courts held that the comparable federal rule in 28 usc 2202 allowing for the court's discretion to conduct further proceedings did not relieve a party from filing a counterclaim to a declaratory judgment action when it would be mandatroy under frcp 13 United States Court of Appeals for the Federal Circuit 03-1176 347 F.3d 935, 938 (Fed. Cir. 2003 POLYMER INDUSTRIAL PRODUCTS COMPANYand POLYMER ENTERPRISES CORPORATION,Plaintiffs-Appellants,v.BRIDGESTONE/FIRESTONE, INC., ..II,,PIPCO challenges the district court's dismissal of its claim under Fed. R. Civ. P. 12(b)(6), arguing that the Declaratory Judgment Act's "further relief" section, 28 U.S.C. § 2202, allows PIPCO to now seek further relief of damages based on the declaratory judgment of infringement in the previous litigation. ...The district court held that PIPCO's present infringement claim was a compulsory counterclaim to Bridgestone's declaratory judgment claim of noninfringement in the prior litigation. Consequently, having failed to bring it then, PIPCO is forever barred from revisiting the issue. In arriving at this conclusion, the district court relied on Fed. R. Civ. P. 13(a). The district court held that PIPCO's present infringement claim was a compulsory counterclaim to Bridgestone's declaratory judgment claim of noninfringement in the prior litigation. Consequently, having failed to bring it then, PIPCO is forever barred from revisiting the issue. In arriving at this conclusion, the district court relied on Fed. R. Civ. P. 13(a). § 2202. Further relief Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. 28 U.S.C. § 2202 (2000). This court addressed the Declaratory Judgment Act in B. Braun Medical, Inc. v. Abbott Laboratories, 124 F.3d 1419 (Fed. Cir. 1997). In particular, this court noted: [T]he [Declaratory Judgment] Act is a procedural device that provides a new, noncoercive remedy (a declaratory judgment) in cases involving an actual controversy that has not reached the stage at which either party may seek a coercive remedy (such as an injunction or damages award) and in cases in which a party who could sue for coercive relief has not yet done so. Id. at 1428. PIPCO relies on this statement to support the proposition that § 2202 serves as an exception to the compulsory counterclaim doctrine of Rule 13(a). To the contrary, the language in Braun simply explains that a declaratory judgment is appropriate in cases in which a party who could sue for coercive relief has not yet done so. That proposition has no bearing on the application of Rule 13(a) after a declaratory judgment action. Under Rule 13(a), a party who has waived a compulsory counterclaim has no right to sue for relief in a separate and later case. Braun simply does not address the effect of a compulsory counterclaim. Finally, in Braun, unlike the case at bar, the court authorized further relief in a separate trial conducted in the same case. Id. Braun did not deal with further relief in a case brought after final judgment in the initial declaratory judgment case. In Braun, Braun sued Abbott for patent infringement; Abbott filed a declaratory judgment counterclaim for, inter alia, noninfringement. The jury returned a verdict in favor of Abbott, finding no infringement and further concluding that Braun had misused the patent. After this verdict, the district court held a separate eight-day trial to determine whether Braun's patent misuse had caused any damages to Abbott. The district court based this trial on § 2202 of the Declaratory Judgment Act. PIPCO does not cite a case from any circuit that has applied § 2202 of the Declaratory Judgment Act to allow a claim for patent infringement damages in a new action based upon a declaratory judgment ruling in a previous action. In sum, this court discerns no authority for the notion that § 2202 operates as an exception to Rule 13(a). Indeed, § 2202 merely states that further relief based on a declaratory judgment "may be granted." 28 U.S.C. § 2202 (2000). This section creates no statutory right to relief. If Rule 13(a) does not operate as a bar, § 2202 may acknowledge that a party may obtain further relief in a subsequent and separate action. See, e.g., Horn & Hardart Co. v. Nat'l Rail Passenger Corp., 843 F.2d 546, 549 (D.C. Cir. 1988) (A separate action for further relief under § 2202 was not barred where "Rule 13(a)'s compulsory counterclaim requirement never became relevant."). In this case, however, PIPCO could have requested the further relief it now seeks in the previous action following the jury verdict. PIPCO admits that it chose not to do so. PIPCO's choice has consequences, one of which flows from Rule 13(a). Nothing in § 2202 authorizes a party to seek further relief based on a declaratory judgment without regard for other established rules of procedure. Accordingly, this court holds that § 2202 of the Declaratory Judgment Act does not permit a party to assert an infringement claim, which was a compulsory counterclaim to a declaratory judgment action in a prior litigation. The district court's judgment of dismissal is, therefore, affirmed.
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