Indiana & Michigan Elec. Co. v. Terre Haute Industries, Inc.

• Decision Date: 14 August 1984
• Docket Number: No. 1-1283A385,1-1283A385
• Citation: 467 N.E.2d 37
• Parties: INDIANA & MICHIGAN ELECTRIC COMPANY, Plaintiff-Appellant, v. TERRE HAUTE INDUSTRIES, INC., Defendant-Appellee.
• Court: Indiana Appellate Court

Page 37

467 N.E.2d 37

INDIANA & MICHIGAN ELECTRIC COMPANY, Plaintiff-Appellant, v. TERRE HAUTE INDUSTRIES, INC., Defendant-Appellee.

No. 1-1283A385.

Court of Appeals of Indiana,

First District.

Aug. 14, 1984.

Thomas W. Yoder, C. Erik Chickedantz, Livingston, Dildine, Haynie & Yoder, Fort Wayne, for plaintiff-appellant.

James O. McDonald, Everett, Everett, McDonald & Ireland, Terre Haute, for defendant-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Indiana and Michigan Electric Company appeals from a denial of its motion for summary judgment and the granting of Terre Haute Industries' motion to dismiss. We reverse the dismissal and reverse in part the denial of summary judgment.

FACTS

The issues presented in this action appealed from Vigo Circuit Court relate to proceedings presently pending in Gibson Circuit Court. Thus a summary of the facts from the Gibson Circuit Court proceedings is necessary.

In July 1977 Terre Haute Industries (THI) agreed to act as general contractor in the construction of electrostatic precipitators and related items at Indiana and Michigan's (I & M) Fairbanks, Indiana breed generating plant. THI proceeded to hire three subcontractors, Global Lagging, Stanley Electric and Pressure Concrete, to do work on the erection project.

A dispute arose between THI and I & M and on February 22, 1979, I & M terminated its contract with THI. This dispute resulted in a law suit tried in Gibson Circuit Court brought by THI against I & M and included a counterclaim filed by I & M against THI. On January 9, 1984 judgment against I & M and in favor of THI was entered in Gibson County.

During the pendency of the Gibson County action, a dispute arose between THI and I & M regarding monies owed to the three subcontractors. THI refused to pay its subcontractors claiming that I & M was holding retainages pursuant to the contract which included the amounts claimed by the subcontractors. In 1980, I & M communicated to THI that unless it paid the outstanding claims I & M would be forced to pay such claims and include a counterclaim for this amount in the Gibson County action. I & M did in fact pay the subcontractors but never filed the counterclaim. Instead, on April 23, 1982, I & M filed a new action against THI in Allen Circuit Court ¹ for the amount it paid the subcontractors based on assignments of claim it received from the subcontractors. THI filed a motion to dismiss this action based on Indiana Rules of Procedure, Trial Rule 12(B)(8), and

later argued this second action should have been brought as a compulsory counterclaim in Gibson County. The Vigo Circuit Court sustained THI's motion but failed to state the grounds upon which the order was based. Prior to the ruling on THI's motion, I & M filed a motion for summary judgment claiming the assignments were valid and that no issue of material fact remained concerning the amount of money THI owed the subcontractors. This motion was denied. The denial of I & M's motion as well as the dismissal of its claim is now presented for review.

ISSUES

Both I & M and THI raise numerous issues for our consideration. Due to our findings, the issues necessary for review are restated as follows:

1. Did the trial court err by granting THI's motion to dismiss?

(a) Was dismissal proper pursuant to T.R. 12(B)(8) which requires that a claim be dismissed when substantially the same cause of action is pending in another state court?

(b) Was dismissal of the present action proper because the issue should have been raised as a compulsory counterclaim in the Gibson Circuit Court action?

(c) Was I & M equitably estopped from suing on the basis of the assignments?

(d) Should the doctrine of laches now preclude I & M's action on the assignments?

2. Did the trial court err by denying I & M's motion for summary judgment?

DISCUSSION AND DECISION

Issue One

The order from the trial court did not state the reasons or grounds for dismissal of the claim. Where the grounds for dismissal are not stated in the trial court's entry of judgment, the appellate court must assume that all grounds stated by the moving party supported dismissal. Constantine v. City-County Council, (1977) 267 Ind. 279, 281, 369 N.E.2d 636, 638.

The first ground for dismissal stated by THI was based on Indiana Rules of Procedure, Trial Rule 12(B)(8). Trial Rule 12(B)(8) states that dismissal is appropriate where the same action is pending in another state court of this state. The determination of whether two actions being tried in different state courts constitute the same action depends on whether the outcome of one action will affect the adjudication of the other. State ex rel. International Harvester Co. v. Allen Circuit Court, (1976) 265 Ind. 175, 178, 352 N.E.2d 487, 489; Thrasher v. Van Buren Township of Monroe County, (1979) Ind.App., 394 N.E.2d 215. This outcome determinative test requires that one of two contemporaneous law suits be dismissed where the parties, subject matter, and remedies are substantially the same in both suits. Id. The subject matter of the Vigo Circuit Court action involved the contractual relationship between THI and its subcontractors. In contrast, the Gibson County action was tried to determine the contractual relationship between THI and I & M. Clearly, the subject matter of the two suits differs.

THI argues that the matter now before this court was litigated as an issue in Gibson Circuit Court. While evidence of the subcontractor's claims was introduced by THI into the Gibson County action it was done for a limited purpose. When the evidence was tendered the following exchange took place:

"Q. And do these ... in these letters does ... do they deal with the question of the retention of the subcontractor of Terre Haute Industries, the same three contractors that are listed on the purchase orders.

A. Yes, they do. They deal with the same three contractors.

MR. GOODWIN [Counsel for THI]: Will offer in evidence Plaintiff's Exhibits 298, 299, and 300.

MR. YODER [Counsel for I & M]: To which the Defendants object, Your Honor on the ground that these are irrelevant, and also because the matters stated therein are the subject matter of a separate lawsuit pending in another Court.

COURT: I don't see the relevancy.

MR. GOODWIN: Ah, they again go to this same issue of percentage of completion, and I will tie that up. [Emphasis supplied.]"

Record at 194-95. Even if this constituted the litigation of an issue that is common to the Gibson and Vigo county actions, it still is not a bar to the entire claim now brought by I & M. Middelkamp v. Hanewich, (1977) 173 Ind.App. 571, 585, 364 N.E.2d 1024, 1033, trans. denied. Furthermore, the introduction of the subcontractor's claims in the Gibson County action was merely for the purpose of showing the percentage of work done under the THI-I & M contract. Matters which are incidental to, and not necessary for, the adjudication of a previous action may be raised in a subsequent suit. Peterson v. Culver Educational Foundation, (1980) Ind.App., 402 N.E.2d 448, 461. Trial Rule 12(B)(8) therefore, does not support the dismissal of I & M's claim.

A related argument raised by THI for dismissal of the Vigo County action is that I & M's present claim is barred because it should have been raised as a compulsory counterclaim in Gibson Circuit Court. A compulsory counterclaim is "any claim which at the time of serving the pleading the pleader has against the opposing party, if it arises out of the same transaction or occurrence." Indiana Rules of Procedure, Trial Rule 13(A). In the present case both parties admit that the assignment of the subcontractor's claims to I & M did not take place at any time near the pleading stage of the Gibson County action. (See appellant's brief at 37-38 and appellee's brief at 13-14.) I & M filed its answer to THI's complaint on August 27, 1979. The assignments did not take effect until July 1981. (Record at 42-53.) If a claim is not mature at the time an answer is filed it cannot be a compulsory counterclaim but is, at most, a permissive counterclaim. Rees v. Panhandle Eastern Pipeline Co., (1983) Ind.App., 452 N.E.2d 405, 408, trans. denied. "By its own language, [T.R. 13(A) ] does not require parties to plead counterclaims which have not matured at the time they plead even if the claim arises from the same transaction or occurrence." (Emphasis original.) See 6 Wright & Miller, Federal Practice and Procedure Sec. 1411 (1971); Daube and Cord v. LaPorte County Farm Bureau, (1983) Ind.App., 454 N.E.2d 891, 893. I & M's claim on the assignment was not mature at the time it answered the complaint in the prior action and was, therefore, not a matter required to be raised as a compulsory counterclaim. Thus, THI's contention that the present action is barred pursuant to T.R. 13(A) does not support dismissal.

Two further arguments set forth by THI are that I & M is now estopped to bring the present action and also that it is barred by laches. Neither of these arguments were raised by THI in its motion to dismiss and surfaced for the first time in the appellee's brief. While an appellate court will affirm a lower court's ruling on any theory supported by the evidence this rule is not without limitation. See Goodyear v. Goodyear, (1982) Ind.App., 441 N.E.2d 498, 500; Bahre v. Metropolitan School District, (1980) Ind.App., 400 N.E.2d 197, 199. Equitable estoppel and laches are fact-sensitive issues and, when raised by a party for the first time on appeal, this court is without the benefit of any guidance from the trier of fact. In Goodyear the appellate court did not allow an appellee to argue a theory that was never presented to the trial court. Goodyear, 441 N.E.2d at 500. The court stated that it offended basic fairness to affirm a trial court's judgment on a theory which opposing counsel was not able to address during the hearing on the summary judgment motion. Id. See also, Bahre, 400 N.E.2d at 199-200. In the...