LEWIS OIL, INC., Appellant-Third-Party Defendant/Cross-Appellee,
BOURBON MINI-MART, INC. and ROBERT E. WANAMACHER, Appellees-Third-Party Plaintiffs/Cross-Appellants
APPEAL FROM THE MARSHALL CIRCUIT COURT. The Honorable Douglas C. Morton, Special Judge. Cause Nos. 50C01-9106-CP-107 and 50C01-9106-CP-107a.
ATTORNEY FOR APPELLANT: RANDALL J. NYE, O'Neill McFadden & Willett LLP, Schererville, Indiana.
ATTORNEYS FOR APPELLEES: PATRICIA P. McCRORY, MARC A. MENKVELD, Katz & Korin, PC, Indianapolis, Indiana.
CRONE, Judge. NAJAM, J., and BAILEY, J., concur.
Robert E. Wanamacher owned Bourbon Mini-Mart, Inc. (" Mini-Mart" ), in Bourbon, Indiana. In 1991, the Indiana Department of Environmental Management (" IDEM" ) filed a complaint against Wanamacher and Mini-Mart (collectively " Appellees" ) seeking reimbursement for the cleanup of contaminants from the Mini-Mart property and an adjoining property tat once housed a gas station.
Lewis Oil, Inc., was voluntarily dissolved in 1997. In accordance with Indiana Code Section 23-1-45-7, Lewis Oil published a notice of dissolution stating that any claim against it would be barred unless a proceeding to enforce the claim was commenced within two years after publication of the notice. Omitted from the notice was a description of " the information that must be included in a claim" as required by paragraph (b)(2) of the statute.
In 2003, Appellees filed a third-party complaint against Lewis Oil, alleging that it owned and operated underground storage tanks (" USTs" ) at the adjoining gas station that released petroleum products that contributed to the contamination. Lewis Oil filed a motion for summary judgment asserting that Appellees' claims were time-barred pursuant to Indiana Code Section 23-1-45-7 because the lawsuit was filed more than two years after the notice of dissolution was published. In response, Appellees argued that their claims were not time-barred because the notice did not contain a description of " the information that must be included in a claim." Appellees also filed a motion for partial summary judgment as to whether Lewis Oil owned and operated the USTs. In a summary judgment reply brief, Lewis Oil argued that the notice was valid pursuant to Indiana Code Section 5-3-1-2.3, which applies to notices published pursuant to statute, because a reasonable person would not be misled by the omission. The trial court denied both parties' summary judgment motions.
In this interlocutory appeal, Lewis Oil contends that the trial court erred in denying its summary judgment motion because a reasonable person would not be misled by the omission in its notice of dissolution. We agree. The requirement that a notice of dissolution describe " the information that must be included in a claim" is clearly
intended for the benefit and protection of the dissolved corporation, and the claimant would have firsthand knowledge of the claim. Therefore, we conclude that Lewis Oil's notice of dissolution was valid and that Appellees' claims are time-barred because their lawsuit was filed more than two years after the notice was published. Accordingly, we reverse and remand with instructions to enter summary judgment in favor of Lewis Oil. And because we find Lewis Oil's argument dispositive, we do not address Appellees' arguments on cross-appeal regarding the trial court's denial of their partial summary judgment motion, which we affirm.
Facts and Procedural History
The relevant facts are undisputed. In June 1991, IDEM filed a complaint against Appellees, seeking reimbursement for the cleanup of contaminated soil and groundwater from the Mini-Mart property, owned by Wanamacher, and an ...