Ardis W. Tucker, Sr. and Sandra D. Tucker, Appellants-Plaintiffs,
Tom Raper, Inc. and Clarke Power Services, Inc., Appellees-Defendants.
from the Wayne Circuit Court The Honorable David A. Kolger,
Judge Trial Court Cause No. 89C01-1606-CC-310
Attorney for Appellants H. Curtis Johnson Brown, DePrez &
Johnson, P.A. Shelbyville
Attorneys for Appellee Tom Raper, Inc. John R. Maley Todd A.
Dixon Barnes & Thornburg LLP
Attorney for Appellee Clarke Power Services, inc. Anthony J.
Hornbach Thompson Hine LLP
Summary and Issue
[¶1] Ardis and Sandra Tucker (the
"Tuckers") filed a complaint alleging breach of
contract against Tom Raper, Inc. and Clarke Power Services,
Inc. for failure to repair their damaged recreational vehicle
("RV"). The Tuckers' complaint alleged they
were third-party beneficiaries of two separate contracts: one
between their RV's insurer, American Family Insurance,
and Raper; and one between American Family or Raper and
Clarke. Thereafter, Raper and Clarke filed motions to dismiss
alleging, among other things, that because the Tuckers
asserted they were third-party beneficiaries, their status as
such must be founded on a written contract; and because they
failed to attach a written contract to their complaint as
required by Indiana Rule of Trial Procedure 9.2(A), dismissal
of their complaint was required. The trial court agreed and
dismissed the Tuckers' complaint following their failure
to remedy the alleged defect. The Tuckers now appeal, raising
three issues for our review, one of which we find
dispositive: whether the trial court erred in dismissing
their complaint for failing to comply with Indiana Rule of
Trial Procedure 9.2(A). Concluding the trial court erred in
dismissing the Tuckers' complaint, we reverse and remand
for further proceedings.
and Procedural History
[¶2] The Tuckers complaint for damages
alleges the following facts. The Tuckers owned an RV which
they insured through American Family. On August 26, 2012,
their RV was struck by lightning and damaged. The Tuckers
reported the damage to American Family.
In March of 2013, American Family contacted Raper to discuss
repairs to the RV and arrangements were made to have the RV
delivered to Raper's facility. After inspecting the
damage, Raper submitted a repair estimate to American Family,
which accepted the offer.
In the fall of 2013, because the RV also sustained
transmission damage, Raper delivered the RV to Clarke. Clarke
also submitted a repair estimate to American Family. American
Family also accepted Clarke's offer to repair the
In early 2014, the RV was damaged in a vehicle collision
while under Clarke's care and control. Raper agreed to
repair this damage and attempted to do so once Clarke
returned the RV. Shortly thereafter, Raper advised American
Family and the Tuckers that the repairs to the RV were
complete. However, when the Tuckers attempted to drive the
RV, they found electrical issues still persisted and returned
the RV to Raper's facility. Raper later advised the
Tuckers the batteries of the RV had been hooked up backwards,
causing further damage to the electrical system, which Raper
agreed to fix. In July of 2015, Raper had yet to repair the
electrical issues with the RV causing American Family to
declare the RV a total loss due to the damage it sustained.
On June 10, 2016, the Tuckers filed their complaint against
Raper and Clarke. The Tuckers alleged they were third-party
beneficiaries of a contract between American Family and
Raper, and that Raper breached the contract by failing to
repair the RV. The Tuckers also alleged gross negligence
against Raper. As to Clarke, the Tuckers alleged they were
third-party beneficiaries of a contract between American
Family and Clarke, and that Clarke breached that contract.
On July 8, 2016, Clarke filed its motion to dismiss and the
trial court set the matter for hearing on September 13, 2016.
On August 8, 2016, Raper filed its motion to dismiss. In
their motions to dismiss, both Raper and Clarke asserted the
Tuckers' alleged status as third-party beneficiaries must
be founded on a written contract. And because the Tuckers
failed to attach a written contract with ...