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Laprade v. Rosinsky9/1/2005
skys are barred by laches to keep the Rosinskys from raising a defense on the merits against her action for partition. A plaintiff may not use laches to bar a right asserted merely by way of defense. Northern Pac. R.R. Co. v. United States, 277 F.2d 615, 624 (10th Cir. 1960) (plaintiff could not successfully plead laches on part of defendant where, after dismissal of their counterclaim, defendants did not seek affirmative relief by cross complaint, cross action, or other like pleading); Howorka, 356 S.E.2d at 435; see generally 30A C.J.S. Equity ยง 128. The trial court did not address the issue of appellees' alleged laches in disposing of LaPrade's complaint, nor was it necessary for it to do so. LaPrade initiated the litigation and, for the reasons stated above, could not use laches to defeat appellees' defense.
III.
Having granted summary judgment in favor of the Rosinskys on LaPrade's complaint, the trial court turned to LaPrade's cross-motion for summary judgment on the Rosinskys' counterclaims. The court ruled that its disposition of LaPrade's complaint rendered moot the Rosinskys' counts alleging adverse possession and seeking an order quieting title and the imposition of a constructive trust. The court further ruled that the Rosinskys had failed to make out a prima facie case of slander of title and entitlement to punitive damages. The Rosinskys have not challenged these rulings on appeal, and we need not address them. After the court entered its rulings on the foregoing aspects of their counterclaims, the Rosinskys voluntarily dismissed their count seeking an accounting, thus disposing of all claims and counterclaims and making the case ripe for appeal.
We are aware that LaPrade has argued vigorously that laches should have been applied by the trial court to bar various of the Rosinskys' counts for relief, but given the procedural posture of the proceedings, it was not necessary for the trial court to consider them, nor need we do so.
Accordingly, the judgments on appeal are Affirmed.
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