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Tucker v. Tom Raper, Inc.

Court of Appeals of Indiana

August 3, 2017

Ardis W. Tucker, Sr. and Sandra D. Tucker, Appellants-Plaintiffs,
v.
Tom Raper, Inc. and Clarke Power Services, Inc., Appellees-Defendants.

         Appeal 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

          Robb, Judge.

          Case 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.

         Facts 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.

         [¶3] 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.

         [¶4] 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 transmission.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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 ...


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