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Company filed suit within applicable limitations

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A construction company's attempt to cast itself in the same class of professionals as attorneys or architects was rejected by the Indiana Court of Appeals today. The appellate court upheld on interlocutory appeal the denial of the company's motion for summary judgment in a breach of contract complaint.

In Powers & Sons Construction Co. Inc. v. Healthy East Chicago, No. 45A05-0904-CV-204, Powers & Sons filed a motion for summary judgment alleging Healthy East Chicago filed its complaint against the construction company for breach of contract outside of the applicable statute of limitations.

Healthy East Chicago hired Powers & Sons in late 1997 to serve as the construction manager for the building of a new health service facility. After construction was completed in December 1998, Healthy East Chicago discovered cracks in the floors, walls, and ceilings. The construction company claimed the cracks were normal because of movement and settling. In February 2007, Healthy East Chicago sued the company.

The dispute in this case is over which statute of limitations applies - Powers & Sons claimed a 2-year statute of limitations on injury to personal property applies; Healthy East Chicago argued the 10-year statute of limitations on contracts applies.

Even in the "broad and natural sense" of the term, Healthy East Chicago's building isn't personal property, wrote Judge Margret Robb. The building would typically be considered part of the real estate, so the appellate court rejected Powers & Sons argument that the 2-year statute of limitations applied.

Healthy East Chicago argued the substance of its action is in contract; Powers & Sons argued the action is in tort, citing Whitehouse v. Quinn, 477 N.E.2d 270, 272 (Ind. 1985). The construction company also attempted to claim it was in the same class as professionals that may be held liable in tort if they fail to exercise reasonable care in fulfilling their contractual duties, and that Healthy East Chicago's complaint is professional negligence.

"We have never held the responsibility of a general contractor to be akin to that of an attorney or a doctor, however," wrote Judge Robb. "The relationship between the parties and Powers & Sons's duties and responsibilities as general contractor arose from the contract rather than from a standard of care imposed by law."

Healthy East Chicago's complaint sought recovery of damages sustained as a result of Powers & Sons' failure to perform according to the contract, therefore, its complaint is governed by the 10-year statute of limitations applicable to written contracts, the appellate court ruled.

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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