Hunter v. Milhous

• Citation: 305 N.E.2d 448,159 Ind.App. 105
• Decision Date: 28 December 1973
• Docket Number: No. 2--573A117,2--573A117
• Parties: Helen HUNTER, Defendant-Appellant, v. Stanley D. MILHOUS, Defendant-Appellee, Ruth C. Milhous, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 448

305 N.E.2d 448

159 Ind.App. 105

Helen HUNTER, Defendant-Appellant, v. Stanley D. MILHOUS, Defendant-Appellee, Ruth C. Milhous, Plaintiff-Appellee.

No. 2--573A117.

Court of Appeals of Indiana, Second District.

Dec. 28, 1973.

Rehearing Denied Feb. 12, 1974.

David W. Foley, Mullin, Foley & Laswell, Indianapolis, for defendant-appellant

James A. Buck, Indianapolis, for defendant-appellee.

Sidney Horn, Howard J. DeTrude, Paul E. Blackwell, Gordon E. Tabor, Indianapolis, for plaintiff-appellee.

SULLIVAN, Judge.

Defendant-appellant Helen Hunter (Hunter) appeals from a judgment nullifying two deeds of real estate allegedly conveyed to her by co-defendant below Stanley D. Milhous (Milhous).

FACTS

Hunter first met Milhous, an 85 year old man, in the fall of 1970 while she was an employee of a drug store. Milhous frequently came into the store and the two would casually chat. In November, 1970, Hunter ceased that employment and did not see Milhous again until September of 1971 when a John Hirschler (an alleged retired minister) brought Milhous to see her. The three talked for approximately ten minutes, after which Hirschler and Milhous left. About two weeks later, Hirschler and Milhous returned to see Hunter.

The conversation at this meeting concerned a car Hunter desired to purchase. The car was advertised in a local paper by John Shindler, an attorney. The three proceeded to Shindler's residence to discuss the purchase of the car. As the trio were leaving, Shindler gave them his card and said if they ever needed an attorney to give him a call. One or two more casual visits took place between Hirschler, Hunter and Milhous.

On October 20, 1971, Shindler made up a form which designated Hunter as having Power of Attorney for Milhous. The instrument reads as follows:

'POWER OF ATTORNEY. Know all Men by These Presents, That Stanley D. Milhous of Bridgeport, County of Marion, State of Indiana has made, constituted and appointed, and by these presents do make, constitute and appoint Helen Hunter of Indianapolis, County of Marion, State of Indiana true and lawful Attorney for him and in his name, place and stead, to execute all legal documents, notes, contracts, and assignments relating to property, real and personal, tangible and intangible, wherever located, to sign bank checks and drafts, to convey and receive property of whatever description without restriction giving and granting unto Helen Hunter said Attorney, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he, Stanley Milhous might or could do if personally present, with full power of substitution and revocation IN WITNESS WHEREOF I have hereunto set my hand my (sic) and seal, this 20 day of October in the year one thousand nine hundred and 71.

hereby ratifying and confirming all that Helen Hunter said Attorney or her substitute shall lawfully do or cause to be done by virtue thereof.

/s/ Stanley D. Milhous

STANLEY D. MILHOUS

Signed and delivered in the presence of

Two Witnesses:

/s/ Deatrice Elaine Bumpus

/s/ John T. Shindler

This Document Prepared by John T. Shindler, Attorney at Law.

10--20--71

/s/ Ralph E. Hubbard

My Com. Expires Aug. 14, 1972'

(The herein emphasized portions of the instrument were typewritten insertions filling blanks in the otherwise printed form.)

Hunter was to use this power of attorney to manage Milhous' financial and business affairs. Hunter had no prior experience in such fiduciary matters.

Beginning in December, 1971, Hunter, via her Power of Attorney, withdrew $25,000 of Milhous' money which he had on account at various banks. $24,000 of Milhous' money was disposed of by Hunter in a very short period of time. The remaining $1000 was placed in Hunter's son's banking account. The bulk of the money disposed of was allegedly used to finance Milhous and Hunter's expenses for a trip to the west coast. $7000 was given to Shindler for attorney's fees for services allegedly rendered Milhous and a 1969 automobile was purchased and registered in Hunter's name with a portion of the money. In addition to the $25,000, several social security checks belonging to Milhous were sent to Shindler who then delivered them to hunter. Hunter placed the proceeds from these checks in her own account.

In March, 1972, Shindler accompanied Milhous to Las Vegas allegedly to assist Milhous in divorce proceedings against plaintiff-appellee Ruth C. Milhous (Wife). After staying at Shindler's sister's home for an undetermined period of time, Milhous was placed in a nursing home under the name of Stanley D. Brown. Hunter withdrew $400.00 from Milhous' account and sent it to Shindler's sister to pay for a portion of the nursing home bill. The check was cashed, but the bill remained unpaid. Another $580.00 was taken from Milhous' accounts by Hunter and sent to Shindler's sister for a down payment on a home in Las Vegas that Milhous allegedly wished to purchase. The $580.00 disappeared. Hunter did eventually pay $1200.00 on the nursing home bill.

Two pieces of real estate were purportedly transferred by Milhous to Hunter without and consideration. It is this transaction which is the subject of this appeal. The deeds were prepared by Shindler and executed at his home. One deed contained no witness signatures and the other deed was witnessed by Shindler and a Charles Moske. Both deeds were notarized by Ralph Hubbard who was not present during the signing of the deeds.

On November 30, 1972, James Buck was appointed guardian of Milhous and his estate after the Marion County Probate Milhous' wife filed a complaint in this matter against Hunter and Milhous on February 17, 1972 seeking to set aside the conveyances which was answered by Hunter on July 28, 1972. Service upon Milhous was not obtained during that period and no answer was filed on his behalf. The case was set for trial for November 22, 1972 but on that date it was continued until December 14, 1972. On December 11, Milhous, by his Guardian, filed an answer to his wife's complaint. On December 13, 1972, Hunter filed a counterclaim against Mrs. Milhous for malicious prosecution and a request for jury trial. On December 14, 1972, Mrs. Milhous filed a motion to strike Hunter's request for jury trial and counterclaim which the trial court sustained. On this same date, Hunter made a motion for change of venue and for a continuance, both of which the trial court overruled and the case proceeded to trial.

Court adjudged Milhous to be incompetent. On December 1 and 2, 1972, Buck conversed with Milhous in Las Vegas. According to Buck's testimony, Milhous told Buck that he did not intend to convey the two pieces of real estate and that if he did convey them, he would like to have them returned. Milhous stated that when he signed papers in Shindler's office, neither Hunter nor the notary were present.

ISSUES

Hunter presents the following issues for review:

1. The court erred in striking her counterclaim.

2. The change of venue was erroneously denied.

3. The request for continuance was erroneously denied.

4. The court erred in allowing plaintiff to amend her complaint to conform to the evidence.

5. The court erred in allowing hearsay testimony.

6. The court erred in finding the deeds to be invalid.

STRIKING OF THE COUNTERCLAIM FOR MALICIOUS PROSECUTION WAS PROPER

Hunter's counterclaim was premised upon a theory that Mrs. Milhous' complaint was filed maliciously in order to place a cloud upon title to the real estate. Hunter argues that the counterclaim was compulsory and comes within the ambit of Trial Rule 13(A) because it arises out of the same transaction and occurrence as covered by the complaint. Hunter admits that compulsory counterclaims should be filed at the time the first responsive pleading is filed but argues that Trial Rule 13(F) would still allow her to file the counterclaim with leave of court. She contends that since she would be otherwise forever barred on her counterclaim, the court abused its discretion by dismissing it.

To come within the scope of Trial Rule 13(A), a claim must have 'matured'. ¹ If the claim has not matured, it states no cognizable cause. Hunter's claim for malicious prosecution had not matured because the relief sought is dependent upon Mrs. Milhous' failure to prevail in her action against Hunter. Dwyer v. McClean (1961) 133 Ind.App. 454, 175 N.E.2d 50. The interpretation herein placed upon Hunter's counterclaim is in accord with federal cases interpreting the rule from which our own Trial Rule 13 is derived. Olsen v. Puntervold (5th Cir. 1964) 338 F.2d 21; Knoshaug v. Pollman (D.C.1956) 18 F.R.D. 386; Bach v. Quigan (D.C.1945) 5 F.R.D. 34.

In Knoshaug v. Pollman, supra, the court stated:

'That the primary action upon which malicious prosecution is based has terminated in defendant's favor before the commencement of an action for malicious prosecution is necessary for its maintenance, see Schaefer v. Cremer, 19 S.D. 656, 104 N.W. 468, and Redahl v. Stevens, 64 N.D. 154, 250 N.W. 534.

A counterclaim predicated upon malicious prosecution of the action in which such counterclaim was filed should be dismissed. Park Bridge Corporation v. Elias, D.C., 3 F.R.D. 94. It is true that Rule 13, Federal Rules of Civil Procedure; 28 U.S.C.A., providing for counterclaims and cross-complaints, was designed for swift and just disposition of legal disputes, but it was not contemplated that any set of facts which might eventually constitute a claim on which relief can be granted should be interposed as a counterclaim to an action.' 18 F.R.D. at 388.

The court's dismissal of Hunter's counterclaim was proper.

THE TRIAL COURT'S DENIAL OF A CHANGE OF VENUE WAS

JUSTIFIED BECAUSE OF UNTIMELINESS AND

THE FAILURE TO SHOW GOOD CAUSE

Trial Rule 76(1) and (2) read as follows:

'(1) In all cases where the venue of a civil action may now be changed...