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Tuesday, February 08, 2005

Ind. Decisions - Two Court of Appeals and two Tax Court decisions today

Mary D. McCall v. Department of Natural Resources (2/8/05 IndCtApp) [Statute of Limitations]
Mathias, Judge

Mary McCall (“McCall”) filed a complaint against the Indiana Department of Natural Resources Division of Forestry, Vallonia State Nursery, and Orange County (collectively “the Defendants”) in Marion Superior Court alleging that those defendants negligently supplied McCall with defective black walnut seedlings. The trial court dismissed the case with prejudice after concluding that McCall’s complaint was not filed within the applicable statute of limitations. McCall appeals arguing that the trial court erroneously dismissed her complaint because it was filed within the ten-year statute of limitations for breach of contract claims. Concluding that the trial court properly dismissed McCall’s complaint, we affirm. * * *

The nature and substance of McCall’s complaint raises a claim, not of tort or contract, but of breach of implied warranty. McCall has alleged that the Defendants failed to provide suitable black walnut tree seedlings despite their stated mission: to provide “high quality plant materials.” “Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is, unless excluded or modified under IC 26-1-2-316, an implied warranty that the goods shall be fit for such purpose.” Ind. Code § 26-1-2-315 (2002). See also Weller v. Becktell, 2 Ind. App. 228, 232, 28 N.E. 333, 334 (1891) (“In the sale of nursery trees for transplanting, the law implies a warranty upon the part of the seller that they shall be reasonably fit for and adapted to that purpose.”).

A claim of breach of implied warranty must be commenced within four years after the cause of action accrues. Ind. Code § 26-1-2-725 (2002). See also Stumler v. Ferry-Morse Seed Co. et al., 644 F.2d 667, 668-69 (7th Cir. 1981) (The sale of tomato seeds is a sale of goods under Indiana’s version of the Uniform Commercial Code and the four-year statute of limitations applies). McCall ordered black walnut tree seedlings from the Defendants in November of 1993 and 1994. In her complaint, McCall states that she planted the seedlings the “following spring.” Consequently, her cause of action accrued sometime during the spring of 1995. However, her complaint was not filed until November 21, 2003, and was therefore filed approximately four years after the four-year statute of limitations expired. Accordingly, we conclude that the trial court did not err when it dismissed McCall’s complaint. * * * Affirmed.
DARDEN, J., and FRIEDLANDER, J., concur.


Candy S. Gaw, et al. v. Sterling United Federal Credit Union (2/8/05 IndCtApp) [Attorney Fees]
Mathias, Judge
Sterling United Federal Credit Union (“Sterling”) appeals from the denial of its petition for attorney’s fees in Warrick Superior Court Number Two. Sterling raises the following issues: [1] Whether the trial court abused its discretion when it joined Sterling to a dissolution proceeding, and then upon dismissing Sterling, when it failed to find the joinder wrongful; and, [2] Whether the trial court abused its discretion when it denied Sterling’s petition for attorney’s fees.

We conclude that the trial court abused its discretion when it joined Sterling to the dissolution proceeding. However, because the trial court dismissed Sterling from the proceeding, this issue is now moot. In addition, we conclude that the trial court did not abuse its discretion when it denied Sterling’s petition for attorney’s fees. Therefore, we affirm. * * *
DARDEN, J., and FRIEDLANDER, J., concur.

Elkhart Bedding/Carol Darr v. Department of Local Government Finance (2/7/05 IndTaxCt - NFP) [Property Assessment]
FISHER, J.
Elkhart Bedding/Carol Darr (Elkhart) appeals the State Board of Tax Commissioners’ (State Board) final determinations valuing its real property for the 1999 tax year. The sole issue for the Court to decide is whether Elkhart’s improvements are entitled to obsolescence depreciation adjustments. * * *

Because Elkhart failed to link the factors causing obsolescence with an actual loss in its properties’ value, it failed to make a prima facie case quantifying the amount of obsolescence to which it was entitled. Affirmed


Arlington Professional Builiding v. Department of Local Government Finance (2/7/05 IndTaxCt - NFP) [Property Assessment]
FISHER, J.
Arlington Professional Building (Arlington) appeals the State Board of Tax Commissioners’ (State Board) final determination valuing its real property for the 1999 tax year. The sole issue for the Court to decide is whether Arlington’s improvement is entitled to an obsolescence depreciation adjustment. * * * Affirmed.

Posted by Marcia Oddi on February 8, 2005 04:19 PM
Posted to Ind. App.Ct. Decisions