Sep 11 2014, 10:14 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
RANDALL J. NYE PATRICIA P. McCRORY
O’Neill McFadden & Willett LLP MARC A. MENKVELD
Schererville, Indiana Katz & Korin, PC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LEWIS OIL, INC., )
)
Appellant-Third-Party Defendant/ )
Cross-Appellee, )
)
vs. ) No. 50A03-1311-CP-441
)
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
September 11, 2014
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
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 that 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
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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 adjoining property that once
housed a Shell gas station in Bourbon.
On November 1, 1997, Lewis Oil was voluntarily dissolved. On November 18, 1997,
Lewis Oil filed articles of corporate dissolution with the Indiana secretary of state’s office.
3
On December 18, 1997, Lewis Oil published notice of its dissolution in accordance with
Indiana Code Section 23-1-45-7, which reads in relevant part as follows:
(a) A dissolved corporation may … publish notice of its dissolution and
request that persons with claims against the corporation present them in
accordance with the notice.
(b) The notice must:
(1) be published one (1) time in a newspaper of general
circulation in the county where the dissolved corporation’s
principal office (or, if none in Indiana, its registered office) is or
was last located;
(2) describe the information that must be included in a claim and
provide a mailing address where the claim may be sent; and
(3) state that a claim against the corporation will be barred
unless a proceeding to enforce the claim is commenced within
two (2) years after the publication of the notice.
(c) If the dissolved corporation publishes a newspaper notice in accordance
with subsection (b), the claim of each of the following claimants is barred
unless the claimant commences a proceeding to enforce the claim within two
(2) years after the publication date of the newspaper notice:
(1) A claimant who did not receive written notice under section 6 of
this chapter.[1]
(2) A claimant whose claim was timely sent to the dissolved
corporation but not acted on.
(3) A claimant whose claim is contingent or based on an event
occurring after the effective date of dissolution.
1
Indiana Code Section 23-1-45-6 outlines the procedure by which a dissolved corporation may
“dispose of the known claims against it” by providing for written notice to “known claimants.” Appellees were
not known claimants of Lewis Oil when it was dissolved in November 1997.
4
Lewis Oil published the notice of dissolution in the Warsaw Times-Union, a
newspaper of general circulation in Kosciusko County, where Lewis Oil’s principal office
was last located. The notice read as follows:
NOTICE OF DISSOLUTION OF LEWIS OIL, INC.
Notice is hereby given that Lewis Oil, Inc., the “Corporation” has voluntarily
dissolved. Any person having claims against said Corporation must file the
claim within 2 years after the publication of this Notice. Any claims should be
addressed to: Lewis Oil, Inc. c/o Matt Rader, 1802 S. Peppergrass Court,
Warsaw, Indiana 46580. Any claim against the Corporation will be barred
unless a proceeding to enforce the claim is commenced with [sic] 2 years after
the publication of this notice.
Lewis Oil, Inc.
By Mildred Rader, President
Appellant’s App. at 123.
In December 1997, Appellees filed a third-party complaint against Shell Oil Company
and others, alleging that Shell owned and operated the gas station adjacent to the Mini-Mart.
In May 1999, Appellees sent a nonparty request for production of documents and subpoenas
to Lewis Oil, requesting documents or other physical evidence relating to the Shell station
and documents relating to any connection or business relationship between Shell and Lewis
Oil. In June 1999, Lewis Oil’s former counsel responded to the discovery requests by letter,
which stated in pertinent part that Lewis Oil was dissolved on November 18, 1997. Counsel
also enclosed copies of jobber contracts between Lewis Oil and Shell.
In June 2003, Appellees filed a second amended third-party complaint, which added
Lewis Oil and other third-party defendants. The complaint alleged that Lewis Oil owned and
operated USTs at the Shell station that released petroleum products and “contributed to the
contamination of the property and groundwater surrounding the Mini-Mart.” Id. at 102.
5
In August 2008, 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
their lawsuit was filed more than two years after notice of its dissolution was published.
Appellees filed a response in opposition to Lewis Oil’s summary judgment motion asserting
that their claims were not time-barred because the notice omitted “any description of or
reference to ‘information that must be included in the claim’” pursuant to Indiana Code
Section 23-1-45-7(b)(2). Id. at 128. Appellees also filed a motion for partial summary
judgment as to whether Lewis Oil owned and operated the USTs. Lewis Oil filed a reply
brief in support of its summary judgment motion, in which it argued that the notice of
dissolution was valid pursuant to Indiana Code Section 5-3-1-2.3, which we address below,
because a reasonable person would not be misled by the omission.
After a hearing, the trial court denied both parties’ summary judgment motions.2 This
interlocutory appeal followed.
Discussion and Decision
Lewis Oil and Appellees contend that the trial court erred in denying their respective
summary judgment motions. “Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law.” City
Sav. Bank v. Eby Constr., LLC, 954 N.E.2d 459, 462 (Ind. Ct. App. 2011) (citing Ind. Trial
Rule 56(C)), trans. denied (2012). “Where, as here, the relevant facts are undisputed and the
2
Lewis Oil included the transcript of the hearing in its appellant’s appendix in violation of Indiana
Appellate Rule 50(F), which states, “Because the Transcript is transmitted to the Court on Appeal pursuant to
Rule 12(B), parties should not reproduce any portion of the Transcript in the Appendix.”
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issue presented on appeal is a pure question of law, we review the matter de novo.” Id. “The
fact that the parties have filed cross-motions for summary judgment does not alter our
standard for review, as we consider each motion separately to determine whether the moving
party is entitled to judgment as a matter of law.” Reed v. Reid, 980 N.E.2d 277, 285 (Ind.
2012). Because we find Lewis Oil’s arguments regarding its summary judgment motion both
persuasive and dispositive, we need not address Appellees’ arguments on cross-appeal
regarding the trial court’s denial of their partial summary judgment motion, which we affirm.
The parties do not dispute that Appellees’ claims against Lewis Oil would be time-
barred if the notice of dissolution fully complied with Indiana Code Section 23-1-45-7(b)(2).
Lewis Oil contends that the notice was valid pursuant to Indiana Code Section 5-3-1-2.3,
which reads in relevant part as follows:
(a) A notice published in accordance with this chapter or any other Indiana
statute is valid even though the notice contains errors or omissions, as long as:
(1) a reasonable person would not be misled by the error or omission;
and
(2) the notice is in substantial compliance with the time and publication
requirements applicable under this chapter or any other Indiana statute
under which the notice is published.
(Emphases added.)
“The first and often the last step in interpreting a statute is to examine the language of
the statute.” Town of Chandler v. Indiana-American Water Co., 892 N.E.2d 1264, 1268 (Ind.
Ct. App. 2008). “When confronted with an unambiguous statute, we do not apply any rules
of statutory construction other than to give the words and phrases of the statute their plain,
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ordinary, and usual meaning.” Id. Indiana Code Section 5-3-1-2.3 unambiguously applies to
“any other Indiana statute” governing publication of notice, and Indiana Code Section 23-1-
45-7 is one such statute.3 Thus, pursuant to Indiana Code Section 5-3-1-2.3, a notice of
dissolution published in accordance with Indiana Code Section 23-1-45-7 is valid even
though it contains errors or omissions, as long as “(1) a reasonable person would not be
misled by the error or omission; and (2) the notice is in substantial compliance with the time
and publication requirements applicable under” that statute.4
As stated above, Lewis Oil’s notice of dissolution informed potential claimants that it
had voluntarily dissolved, that any claim should be sent to a certain address in Warsaw, and
that any claim would be barred unless a proceeding to enforce the claim was commenced
within two years after the publication of the notice. The only omission is a description of
“the information that must be included in a claim” against the corporation. Ind. Code § 23-1-
45-7(b)(2). Would a reasonable person be misled by this omission? We think not.
3
Appellees contend that Indiana Code Section 5-3-1-2.3 conflicts with Indiana Code Section 23-1-45-
7 and that the latter controls because it is more specific. See, e.g., Nordman v. N. Manchester Foundry, Inc.,
810 N.E.2d 1071, 1074 (Ind. Ct. App. 2004) (“When two conflicting statutory provisions appear controlling,
the statute dealing with a subject in a specific manner controls over the statute dealing with the same subject in
general terms.”). We disagree. By its plain language, Indiana Code Section 5-3-1-2.3 is applicable to Indiana
Code Section 23-1-45-7 and thus does not conflict with it.
4
Appellees highlight the following language from United States v. SCA Services of Indiana, Inc., 837
F. Supp. 946 (N.D. Ind. 1993): “A corporation is simply not ‘dead and buried’ until it has fully complied with
the applicable state dissolution laws and remains amenable to suit by its creditors.” Id. at 953. Because the
dissolved corporation in that case did not publish a notice of dissolution pursuant to Indiana Code Section 23-
1-45-7, and because the district court did not consider Indiana Code Section 5-3-1-2.3, we agree with Lewis
Oil that SCA Services is inapposite and in any event would not be binding on us. See Kentner v. Ind. Pub.
Employers’ Plan, Inc., 852 N.E.2d 565, 573 n.9 (Ind. Ct. App. 2006) (noting that federal decisions interpreting
Indiana law are not binding on Indiana state courts), trans. denied (2007). The same may be said for United
States v. ARG Corp., No. 3:10-CV-311, 2011 WL 338818 (N.D. Ind. Jan. 31, 2011), which Appellees also
cite.
8
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, which could deny a claim on the basis that it does not include the information
described in the notice. See Ind. Code § 23-1-45-7(a) (“A dissolved corporation may …
publish notice of its dissolution and request that persons with claims against the corporation
present them in accordance with the notice.”) (emphasis added).5 Indiana Code Section 23-
1-45-7(b)(2) allows a dissolved corporation to establish the parameters for claims made
against it, much as the notice provisions of the Indiana Tort Claims Act allow the State to
“prescribe for itself the terms and conditions upon which it consents to be sued.”
Januchowski v. N. Ind. Commuter Transp. Dist., 905 N.E.2d 1041, 1047 n.4 (Ind. Ct. App.
2009), trans. denied.6 Omitting a description of “the information that must be included in a
claim” could actually benefit potential claimants, because the corporation might be precluded
from denying a claim solely on the basis that it lacked sufficient information. Regardless, a
5
Lewis Oil states,
It is difficult to believe that a claimant would have any real difficulty in preparing a basic
statement of their claim. [Nothing] more is required. Indiana is a notice pleading state. To
state a claim for relief, it is only necessary to provide a short and plain statement of the claim
showing the pleader is entitled to relief. Ind. Trial Rule 8(A).
Appellant’s Br. at 15. We are unpersuaded by Lewis Oil’s reliance on Indiana Trial Rule 8(A), which lists the
requirements for stating a claim for relief in a civil action. A claim against a corporation need not be made via
a civil action. Indeed, a civil action could be a “proceeding to enforce [a] claim” for purposes of Indiana Code
Section 23-1-45-7(b)(3).
6
See, e.g., Ind. Code § 34-13-3-10 (“The notice … must describe in a short and plain statement the
facts on which the claim is based. The statement must include the circumstances which brought about the loss,
the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the
amount of the damages sought, and the residence of the person making the claim at the time of the loss and at
the time of filing the notice.”).
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reasonable person/claimant would not be misled by the omission because he or she would
have firsthand knowledge of the claim.
The question then becomes whether Lewis Oil’s notice was “in substantial compliance
with the time and publication requirements applicable under” Indiana Code Section 23-1-45-
7. The “time” requirement is not at issue, and the notice was published in a newspaper of
general circulation in Kosciusko County, where Lewis Oil’s principal office was last located,
in full compliance with the requirements of Indiana Code Section 23-1-45-7.7 Based on the
foregoing, we conclude that Lewis Oil’s notice of dissolution was valid pursuant to Indiana
Code Section 5-3-1-2.3. And because the notice was valid, Appellees’ claims against Lewis
Oil are time-barred pursuant to Indiana Code Section 23-1-45-7 because their lawsuit was
filed more than two years after the notice was published. Therefore, we reverse and remand
with instructions to enter summary judgment in favor of Lewis Oil.
Affirmed in part, reversed in part, and remanded.
NAJAM, J., and BAILEY, J., concur.
7
Appellees emphasize that “Mini-Mart is located in Marshall County.” Appellees’ Br. at 15 n.6.
This is irrelevant for purposes of Indiana Code Section 23-1-45-7, as notice must be published only in the
county where the dissolved corporation’s principal office is or was last located.
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