Gladis v. Melloh, 571A92

• Decision Date: 06 October 1971
• Docket Number: No. 2,No. 571A92,571A92,2
• Citation: 149 Ind.App. 466,27 Ind.Dec. 131,273 N.E.2d 767
• Court: Indiana Appellate Court
• Parties: Mary A. GLADIS, Appellant, v. Ardis C. MELLOH, Appellee

Page 767

273 N.E.2d 767

149 Ind.App. 466

Mary A. GLADIS, Appellant, v. Ardis C. MELLOH, Appellee.

No. 571A92.

Appellate Court of Indiana, Division No. 2.

Oct. 6, 1971.

Rehearing Denied Nov. 1, 1971.

Bayliff, Harrigan, Cord & Maugans, Daniel J. Harrigan, Kokomo, for appellant.

Michael B. Reddington, Indianapolis, for appellee.

SHARP, Judge.

This case involves a controversy between the daughter and son of Cecilia I. Melloh, deceased. The daughter, plaintiff-appellant, Mary A. Gladis, filed her amended complaint against the son, Ardis C. Melloh, defendant-appellee.

The essential allegations of the complaint are: Mary A. Gladis and Ardis C. Melloh are the children of Cecilia I. Melloh and their father predeceased their mother. It is further alleged that Cecilia I. Melloh discovered that she had terminal cancer and, fearing a protracted period of increasing disablement concluding in death, had the family home and savings account put in the joint name with Ardis and his wife so that said son could administer the family affairs during her decline. Ardis is alleged to have promised Cecilia that upon the death of the mother he would pay to Mary an amount equal to one-half of the value of the property entrusted to his care after the expenses of the last illness and funeral expenses were deducted in reliance upon that promise. At the time of the conveyance of said real estate and the transfer of said savings account and prior thereto the mother, Cecilia, was deceived by the promise of Ardis that he would pay to his sister, Mary, on amount equal to one-half of the value of the property entrusted to his care after the expenses of the last illness and burial were deducted, when in truth and in fact Ardis had done so with the intent to obtain the title to the land and savings account by means of the promise. Cecilia I. Melloh died on March 16, 1964. Since the death of Cecilia I. Melloh, Ardis has repeatedly acknowledged his financial obligation under the antemortem agreement with his mother to his sister. The first time Ardis reputed his agreement with his mother, which he had previously acknowledged, was on November 26, 1969. Ardis has paid to Mary a sum of approximately $4100.00. Mary has demanded that Ardis pay to her said money and said demand has been refused. Said complaint further alleges that by operation of law the defendant-appellee, Ardis C. Melloh, became a trustee for the performance of his promise to his mother and Mary became the beneficiary of a constructive trust. Said complaint further alleges that defendant-appellee, Ardis, has willfully and maliciously converted the res of this trust to his own use and benefit and has fraudulently denied his obligation to his sister and has refused to pay Mary her inheritance, all for the purpose of permanently depriving her of her fifty per cent share.

To this amended complaint the defendant-appellee has filed a motion to dismiss under Trial Rule 12(B)(6) under the Indiana Rules of Procedure. Said motion to dismiss asserts that the plaintiff has failed to state a claim upon which relief can be granted. The trial court sustained the defendant-appellee's motion to dismiss and such is assigned as the sole basis of error in this appeal. The sole matter for our concern here is whether or not the amended complaint of the plaintiff-appellant as outlined above is sufficient to withstand a motion to dismiss for failure to state a claim upon which relief can be granted. Both divisions of this court have recently spoken on the question of the sufficiency of a complaint to withstand a motion to dismiss under Trial Rule 12(b)(6). See Farm Bureau Ins. Co. v. Clinton, et al., Ind.App., 269 N.E.2d 780 (1971) and Theis v. Heuer, Ind.App., 270 N.E.2d 764 (1971). We need not recite the authorities cited in Farm Bureau Ins. Co. v. Clinton and Theis v. Heuer.

In addition the Supreme Court of the United States has stated that a 'complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

Where the complaint shows the plaintiff may be entitled to some relief, the complaint is not to be dismissed even though he is not entitled to the particular relief for which he has asked in his demand for judgment. Lada v. Wilkie, 250 F.2d 211 (8th Cir. 1957).

The test is whether in the light most favorable to the plaintiff and with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claims. Knox v. First Sec. Bank of Utah, 196 F.2d 112 (10th Cir. 1952).

Since Trial Rule 12 of the Indiana Rules of Civil Procedure is quite similar to its counterpart of the Federal Rules of Civil Procedure, the above Federal authorities are relevant to a proper interpretation of the Indiana Rules.

We must, therefore, consider the allegations of the amended complaint as true on their face with all inferences most favorable to the plaintiff. (This is not a situation under Trial Rule 56 where the trial court elected to treat the motion to dismiss as a motion for summary judgment. Therefore, our consideration must be limited to the allegations on the face of the complaint and the motion addressed thereto. In this context we are not permitted to examine into extraneous documents, including depositions, answers to interrogatories and other exhibits which are not a part of the complaint although we have been invited to do so by the parties.)

As a preliminary, we would emphasize that we are concerned here with the legal sufficiency of the plaintiff-appellant's allegations in her complaint and will not speculate as to whether or not shje can persuasively prove these allegations at a trial on the merits of this case.

The appellee asserts that the allegations in the plaintiff-appellant's complaint fail to state a claim upon which relief can be granted because of the provisions of the Statute of Frauds as found in Ind.Ann.Stat. § 33--101, I.C.1971 32--2--1--1. In support of his contention the defendant-appellee cites the case of Westphal v. Heckman, 185 Ind. 88, 113 N.E. 299 (1916). IT MUST BE EMPHASIZED THAT WESTPHAL WAS DECIDED upon the failure of the plaintiff in that case to prove their case. A careful reading of Westphal will indicate that it is not authority to sustain the defendant-appellee's motion to dismiss in this case. At 185 Ind. 101, at 113 N.E. 303, our Supreme Court said:

'It does not appear from the finding in this case that at the time the conveyance was made, or prior thereto, appellant exercised any improper influence which controlled the free will of the grantor, or that the grantor was at the time misled or deceived by any statement or promise of the grantee as to his present purpose or intents. The finding does not show that at the time the conveyance was made the grantee intended to obtain the title to the land by means of the promise, and then to hold it for his own use and benefit, and that the then had the formed intention of not carrying out this promise.'

The above quotation from the Westphal case does impose the obligation upon the plaintiff-appellant to prove that at the time of the conveyance referred to in plaintiff-appellant's amended complaint the defendant-appellee intended to obtain the title to the property in question by means of a promise and to hold it for his own use and benefit and that at that time he had formed the intention of not carrying out his promise.

The quoted language form the Westphal case is in accord with the provisions of § 90 of the Restatement of Contracts which states:

'A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.'

Also, there is a multitude of authority in the case law defining fraud, and perhaps the most workable definition for our purposes here is found in § 471 of Restatement of Contracts...