dissenting.
I believe New Albany Residential’s (New Albany’s) claims were compulsory counterclaims and should have been raised in Hupp’s prior lawsuit. Therefore, I respectfully dissent from the reversal of summary judgment in favor of Hupp.
The Majority’s conclusion that the claims against New Albany were not compulsory counterclaims hinges largely on the fact that New Albany was not a party to the original lawsuit. As I understand it, the Majority concludes that New Albany’s absence as a party in the prior proceeding forecloses any possibility that it should have counterclaimed. This, because it could not have responded when it was not served with a claim in the first place. While that logic holds a certain appeal, I believe it is inapplicable here at least in part because of the close identity between Martin, Re/Max, and New Albany.
To review, Hupp had filed a breach of contract action against Martin and Poole, the sole shareholders of Southeast Realty d/b/a Re/Max (Southeast). When Poole was convicted of criminal misconduct, Martin formed New Albany, and Re/Max was transferred from Southeast to New Albany. Hupp’s lawsuit centered upon her rights under the Manager Agreement she signed with Re/Max before Re/Max was transferred from Southeast to New Albany. The close identity between Martin and his companies, i.e., Southeast and New Albany, and indeed between the companies themselves, renders untenable any suggestion that New Albany did not counterclaim because it was not aware of Hupp’s lawsuit and its potential rights and liabilities thereunder. Yet, that claim lies close to the heart of New Albany’s claim on appeal, e.g,
Moreover, [New Albany], at the time of the First Action and subsequent arbitration were pending was not even aware it had a claim against Hupp for the Manager Agreement. Only after Hupp admitted that the Agreement continued and the arbitrator ruled accordingly did Martin, the owner of [New Albany], realized [New Albany] had a claim against Hupp for breach of the Agreement.
Appellant’s Brief at 9. I reiterate that Martin, the sole shareholder for New Albany, also, along with Poole, formed Southeast. Moreover, the Manager Agreement that was the focal point of Hupp’s lawsuit was between her and Re/ Max,'which was owned first by Southeast, and then by New Albany.
Finally, and importantly, I cannot agree with the Majority’s rejection of Ratcliff v. Citizens Bank of Western Indiana, 768 N.E.2d 964 (Ind.Ct.App.2002), trans. denied, summarized in the Majority opinion, as applicable to this situation. There, the Ratcliffs contended that their claims against Fehrenbach were not compulsory counterclaims because he was not a party in the earlier foreclosure action. The Rat-cliff panel rejected that claim upon grounds that Fehrenbach could have been joined in the foreclosure action and the trial court could thereby have acquired jurisdiction over him. So it is in the instant case with respect to New Albany, which could have been joined in Hupp’s action.
For the foregoing reasons, I believe New Albany’s claim was a compulsory counterclaim that should have been raised in Hupp’s action, and on that basis I would affirm the trial court’s grant of summary judgment in favor of Hupp.