Friday, April 22, 2016
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decision(s))
For publication opinions today (2):
In Kennedy Tank & Mfg. Co., Inc., and Hemlock Semiconductor Corp., and Hemlock Semiconductor, LLC v. Emmert Industrial Corporation, d/b/a Emmert International, a 16-page opinion, 2-1 opinion, Judge May writes:
Kennedy Tank and Manufacturing Company appeals the denial of its motion to dismiss a lawsuit Emmert International brought against Kennedy. The Indiana statute of limitation on which the trial court appears to have relied[1} is preempted by a federal statute establishing a shorter limitations period. As Emmert did not bring its lawsuit within that period, Kennedy’s motion should have been granted, and we must therefore reverse. * * *In Byron Tinker and Travis Kelley v. State of Indiana , a 12-page opinion, Judge May writes:
Emmert encountered a number of unforeseeable problems [in moving the equipment] that caused delays and additional expenses of almost $700,000.
Kennedy would not pay Emmert the additional amounts. Between June and August of 2013 the parties discussed submitting the dispute to arbitration, and on January 22, 2015, Emmert sued Kennedy for breach of contract, or in the alternative, unjust enrichment. On February 13, 2015, Kennedy moved to dismiss on the ground Emmert did not bring the action within the eighteen-month limitations period set forth in 49 U.S.C. § 14705(a), which Kennedy asserts preempts Indiana’s ten-year limitation period. The trial court denied the motion to dismiss. It determined the ten-year Indiana limitations period applied. * * *
The trial court in the case before us found no conflict preemption because “there is no reason why a shipper would not be able to comply with both statutes, at the same time, by bringing a claim prior to the 18 month deadline in the ICCTA.” (Appellant’s App. at 10.) It cited to no legal authority to support the premise that there is no “conflict” if a party can comply with both statutes simply by bringing an action within the shorter limitations period, and in light of the Arctic Express reasoning, we decline to so hold. The Indiana statute of limitations is preempted by the federal statute.
Conclusion. As Emmert did not bring its action against Kennedy within the applicable limitations period, Kennedy’s motion to dismiss should have been granted. We must therefore reverse.
Najam, J., concurs.
Riley, J., concurs in part, and dissents in part, with separate opinion. [which begins, at p. 12] I concur with the majority’s determination that 49 U.S.C. § 14705(a) preempts the statute of limitations set forth in Indiana Code section 34-11-2-11; therefore, Emmert failed to bring its action against Kennedy in a timely manner. However, I must dissent with respect to the majority’s resolution of Emmert’s estoppel claim.
On appeal, Emmert insists that even if the eighteen-month federal statute of limitations applies—as this court holds that it does, its claim should not have been dismissed because Kennedy should be estopped from asserting the statute of limitations as an affirmative defense. As detailed by the majority in Footnote 2, Emmert’s argument on this issue is devoid of any cogent reasoning or appropriate citations. Ind. Appellate Rule 46(A)(8)(a). Nonetheless, notwithstanding that Emmert has technically waived its argument, I find that this issue should be determined on its merits. * * *
Because the trial court ruled in Emmert’s favor—i.e., it denied Kennedy’s motion to dismiss on its finding that 49 U.S.C. § 14705 does not preempt the relevant Indiana statute of limitations—the trial court did not address Emmert’s estoppel claim in its Order. As there is nearly $700,000 at stake in this case, I would remand with instructions for the trial court to conduct further proceedings and make a factual determination as to whether Kennedy should be equitably estopped from asserting a statute of limitations defense.
 The trial court’s judgment refers to a “10 year (120 months [sic]) Indiana statute of limitations,” (Appellant’s App. at 8), but never explicitly says which statute that is. The parties appear to agree that the applicable statute is Ind. Code § 34-11-2-11 (an action on certain contracts in writing must be commenced within ten years after the cause of action accrues).
 Emmert also asserts dismissal was precluded by fact questions concerning whether Kennedy was estopped from asserting Emmert’s action was untimely. Emmert says it raised in the trial court that “if federal law were to apply, factual issues exist as to whether Kennedy is estopped under federal law from asserting untimeliness in filing the action.” (Br. of Appellee at 24.) The trial court did not address estoppel in its judgment. [ILB-the footnote continues at length, see pp. 2-3]
 In its reply brief, Kennedy contends that 49 U.S.C. § 14705(a) is a statute of repose rather than a statute of limitations, and “[t]he Seventh Circuit has held that, where federal statutes of limitations can be equitably estopped, statutes of repose cannot.” F.D.I.C., 12 F.Supp.3d at 1119.
On July 19, 2012, the State charged Byron Tinker with one Class D felony and three Class A misdemeanors. On February 19, 2015, Tinker filed a motion to dismiss because he had not been brought to trial within the one year required by Criminal Rule 4(C). The trial court denied Tinker’s motion, but certified that decision for interlocutory appeal. On appeal, Tinker argues the trial court erroneously assigned periods of time to him that should have counted against the State for Rule 4(C) calculations. We reverse and order the charges against Tinker dismissed with prejudice. * * *NFP civil decisions today (1):
Tinker had an obligation to object only if, during the 365 day period, the court scheduled a new trial outside the 365 day period. * * *
There was no occasion on which, during the one-year period, the court attempted to reset trial outside the one-year period. Therefore, the trial court erred when it found Tinker had a duty to object.
 Travis C. Kelley’s interlocutory appeal of the Clark Circuit Court’s denial of his Criminal Rule 4(C) motion to dismiss was consolidated with Tinker’s case for purposes of appeal. We dismissed Kelley’s appeal because the charges against Kelley were resolved by a plea agreement.
NFP criminal decisions today (3):
Posted by Marcia Oddi on April 22, 2016 11:25 AM
Posted to Ind. App.Ct. Decisions