STEVENS v. COUNTRY AYRE INC (2025)

MEMORANDUM DECISION

[1] Penny Stevens appeals the trial court's entry of summary judgment in favor of Country Ayre, Inc., and Aaron Enterprises, Inc. (together, “Defendants”) and the denial of her motion to correct error. Defendants request appellate attorney fees. We affirm the court's entry of summary judgment and deny Defendants’ request for appellate attorney fees.

Facts and Procedural History

[2] In 2016, Stevens purchased a condominium unit in Haubstadt, Indiana, from Aaron Enterprises, Inc. On February 23, 2023, Stevens filed a complaint alleging “this cause of action is brought pursuant to Indiana Code (I.C.) § 32-30, et. seq.,”¹ that she “suffered a ‘tort’ as defined by I.C. § 32-30-1-3,”² and that, “due to a deficiency by defendants in the design, planning, supervision, construction, or observation of construction of an improvement to the subject property as defined in I.C. § 32-30-1-5, [she] sustained injuries and damages as a result of mold infestation of the subject premises.” Appellant's Appendix Volume II at 14-15. Defendants each raised, as an affirmative defense, that Stevens's claim was barred by the applicable statute of limitations.

[3] On January 23, 2024, Defendants filed a motion for summary judgment. In their brief in support of the motion, Defendants stated the undisputed material facts included that: Stevens discovered mold in her residence in May 2018; Allen's Home Solutions, LLC, completed an inspection in April 2019 and found mold in the crawl space; Stevens was seen by her primary care physician in April 2019, an allergist in May 2019, and an ear, nose, and throat specialist in September 2019 and mentioned her exposure to mold in her residence at each appointment; and the condominium owners’ association paid to have the mold remediated at Steven's residence in December 2019. Defendants argued the two-year statute of limitations at Ind. Code § 34-11-2-4 barred Stevens's claim. Stevens filed a response stating, “For purposes of this Objection and Response only, Stevens stipulates to and incorporates by reference Defendants’ Undisputed Material Facts as if fully restated verbatim herein.” Id. at 31. She argued that Ind. Code § 32-30-1-5(d)(3) provides the applicable statute of limitations governing her claim. On April 26, 2024, the court held a hearing.

[4] On July 10, 2024, the trial court entered an order granting Defendants’ motion for summary judgment. The court found that Stevens failed to file her complaint within two years of discovering that she was damaged by the existence of mold in her condominium and that her claim was barred by Ind. Code § 34-11-2-4. Stevens filed a motion to correct error, and the court denied the motion.

Discussion

[5] Summary judgment is appropriate where no genuine issue of material fact exists. Mangold ex rel. Mangold v. Ind. Dep't of Natural Resources, 756 N.E.2d 970, 973 (Ind. 2001). The statute of limitations defense is particularly suitable as a basis for summary judgment. Anonymous Physician v. Wininger, 998 N.E.2d 749, 751 (Ind. Ct. App. 2013). We review the court's ruling on a motion to correct error for an abuse of discretion. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh'g denied.

[6] Stevens “does not dispute that she complained of mold exposure-related symptoms which began in 2018 and knew of mold in her Residence during that same time.” Appellant's Brief at 7. Rather, she maintains that Ind. Code § 32-30-1-5(d)(3) provides the applicable statute of limitations. She states that Ind. Code § 32-30-1-5 is titled “Statute of Limitations, General Rule.” Id. at 11. She notes the phrase “[u]nless otherwise provided in this title” in Ind. Code § 32-30-15-1 and asserts that Defendants “fail to consider that I.C. § 32-30-1-5 is as ‘otherwise provided in this title.’ ” Id. at 12. She also argues that “True Statutes of Repose that limit tort claims to two (2) years are worded much differently that [sic] I.C. 32-30-1-5” and points to Ind. Code § 34-20-3-1 of the Indiana Products Liability Act (“IPLA”).³ Id. at 11-12.

[7] Defendants note there is no dispute that Stevens discovered the mold in her residence at least two years before she filed her complaint. They argue that Stevens is attempting to expand the applicable two-year statute of limitations in Ind. Code § 34-11-2-4 to ten years “by grafting onto it the statutory language contained in the Construction Statute of Repose” found at Ind. Code § 32-30-1-5. Appellees’ Brief at 14. They argue the clause “[u]nless otherwise provided” in Ind. Code § 32-30-15-1 “does not refer to, nor incorporate, the Construction Statute of Repose” and “does not transform the Construction Statute of Repose into a statute of limitations.” Id. at 19. Defendants also request appellate attorney fees.

[8] When interpreting a statute, we begin by reading its words in their plain and ordinary meaning, taking into account the structure of the statute as a whole. Town of Linden v. Birge, 204 N.E.3d 229, 237 (Ind. 2023). Mindful of what the statute says and does not say, we aim to avoid interpretations that depend on selective reading of individual words that lead to irrational and disharmonizing results. Id. Our goal is to give effect to the legislature's intent. Id.

[9] In her complaint, Stevens states that she brought her cause of action pursuant to Ind. Code Article 32-30 and claimed that she suffered a tort under Ind. Code § 32-30-1-3. Ind. Code § 32-30-15-1, titled “Statute of limitations established,” provides: “Unless otherwise provided in this title or another law, a cause of action concerning real property must be brought within the time specified in IC 34-11.” Ind. Code § 34-11-2-4 provides that an action for injury to person or personal property must be commenced within two years after the cause of action accrues. A cause of action accrues, and the statute of limitations begins to run, when a claimant knows or in exercise of ordinary diligence should have known of the injury. Runkle v. Runkle, 916 N.E.2d 184, 191 (Ind. Ct. App. 2009), trans. denied. The claimant bears the burden of bringing suit against the proper party within the statute of limitations. Id. at 192.

[10] As noted above, Stevens stipulated that she discovered mold in her residence in May 2018, an inspection in April 2019 found mold in the crawl space, she saw healthcare providers in 2019 during which she referred to her exposure to mold in her residence, and the mold was remediated in December 2019. Stevens did not file her complaint until February 23, 2023. We agree with the trial court that Stevens did not commence her tort action within two years after the cause of action accrued.

[11] As for Ind. Code § 32-30-1-5(d), that subsection provides:

An action to recover damages, whether based upon contract, tort, nuisance, or another legal remedy, for:

(1) a deficiency or an alleged deficiency in the design, planning, supervision, construction, or observation of construction of an improvement to real property;

(2) an injury to real or personal property arising out of a deficiency; or

(3) an injury or wrongful death of a person arising out of a deficiency;

may not be brought against a designer or possessor unless the action is commenced within the earlier of ten (10) years after the date of substantial completion of the improvement or twelve (12) years after the completion and submission of plans and specifications to the owner if the action is for a deficiency in the design of the improvement.[4]

[12] It is well settled that Ind. Code § 32-30-1-5 constitutes a statute of repose, rather than a statute of limitations, designed to protect engineers, architects, and contractors from stale claims and to eliminate open-ended liability for defects in workmanship.⁵ Powers & Sons Const. Co. Inc. v. Healthy E. Chicago, 919 N.E.2d 137, 142 n.3 (Ind. Ct. App. 2009). Where a statute of limitations requires a lawsuit to be filed within a specified period of time after a legal right has been violated, a statute of repose is designed to bar actions after a specified period of time has run from the occurrence of some event other than the injury which gave rise to the claim. Id. A statute of repose sets a maximum time limit for commencing an action without expanding the statute of limitations applicable to the action. Id. Ind. Code § 32-30-1-5(d), as a statute of repose, did not extend the statute of limitations applicable to Stevens's cause of action or render her complaint timely filed.⁶

[13] Regarding Defendants’ request for appellate attorney fees, this Court is authorized to assess damages if an appeal “is frivolous or in bad faith,” and such damages “shall be in the Court's discretion and may include attorneys’ fees.” Ind. Appellate Rule 66(E). A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious. Bessolo v. Rosario, 966 N.E.2d 725, 734 (Ind. Ct. App. 2012), trans. denied. To prevail on their request, Defendants must show that Stevens's arguments on appeal are “utterly devoid of all plausibility.” See id. While we do not disturb the trial court's order, we cannot say that an award of appellate attorney fees is appropriate.

[14] For the foregoing reasons, we affirm the trial court's entry of summary judgment and deny Defendants’ request for appellate attorney fees.

[15] Affirmed.

FOOTNOTES

1.   Ind. Code Article 32-30 governs causes of action concerning real property.

2.   Ind. Code § 32-30-1-3 provides: “As used in this chapter, ‘tort’ means an injury to person or property caused by a means other than a breach of contract.”

3.   Ind. Code § 34-20-3-1(b) provides:Except as provided in section 2 of this chapter, a product liability action must be commenced:(1) within two (2) years after the cause of action accrues; or(2) within ten (10) years after the delivery of the product to the initial user or consumer.However, if the cause of action accrues at least eight (8) years but less than ten (10) years after that initial delivery, the action may be commenced at any time within two (2) years after the cause of action accrues.

4.   Also, Ind. Code § 32-30-1-6(a) provides:Notwithstanding section 5 of this chapter, if an injury to or wrongful death of a person occurs during the ninth or tenth year after substantial completion of an improvement to real property, an action in tort to recover damages for the injury or wrongful death may be brought within two (2) years after the date on which the injury occurred, irrespective of the date of death.

5.   Our courts have consistently held that Ind. Code § 32-30-1-5 constitutes a statute of repose. See Perdue v. Greater Lafayette Health Servs., Inc., 951 N.E.2d 235, 239-240 (Ind. Ct. App. 2011) (“Indiana Code Section 32-30-1-5, the statute of repose, was created to protect engineers, architects, contractors, and others involved in the design and construction of improvements to real property from stale claims and to eliminate open-ended liability for defects in workmanship.”), trans. denied; Powers & Sons Const. Co., 919 N.E.2d at 142 n.3 (“Section 32-30-1-5 is a statute of repose rather than a statute of limitation ․ Although section 32-30-1-5 applies in a general sense to Healthy East Chicago's action ․, it does not settle the question of what statute of limitation is applicable.”); J.M. Foster, Inc. v. Spriggs, 789 N.E.2d 526, 529 (Ind. Ct. App. 2003) (previous version of statute was a statute of repose), reh'g denied; Kissel v. Rosenbaum, 579 N.E.2d 1322, 1326 (Ind. Ct. App. 1991) (prior version of statute constituted a statute of repose, not a statute of limitations); Jordan v. Talaga, 532 N.E.2d 1174, 1189 (Ind. Ct. App. 1989) (prior version of statute was “known as a statute of repose. It sets a cap on the maximum time limit allowed for the commencement of an action without expanding the regular statute of limitation or reasonable time period for providing notice applicable to the underlying cause of action. The statute of repose simply provides that suit must be commenced within 10 years measured from the substantial completion of an improvement regardless of when the cause of action accrues.”), reh'g denied, trans. denied; Berns Const. Co. v. Miller, 491 N.E.2d 565, 570-571 (Ind. Ct. App. 1986) (noting many states enacted similar statutes of repose, reviewing the historical development of the statutes, and stating “the statute of repose does not serve to expand the regular statute of limitation but simply provides that the suit must be commenced within the maximum time limit measured from the substantial completion of the improvement to the real property, regardless of when the cause of action accrues”), summarily aff'd, 516 N.E.2d 1053 (Ind. 1987).

6.   As for Stevens's reference to the title of Ind. Code § 32-30-1-5, we note the statute is titled “Limitations of actions generally.” Ind. Code § 1-1-1-5(f) provides “[t]he headings of titles, articles, and chapters as they appear in the Indiana Code, as originally enacted or added by amendment, are not part of the law” and “[t]hese descriptive headings are intended for organizational purposes only and are not intended to affect the meaning, application or construction of the statute they precede.” Notwithstanding any titles, in substance Ind. Code § 32-30-15-1 establishes the statute of limitations governing an action concerning real property and Ind. Code § 32-30-1-5(d) functions as a statute of repose. Further, as Ind. Code § 32-30-1-5(d) does not contain a statute of limitations, it is not a statute to which the phrase “[u]nless otherwise provided in this title or another law” in Ind. Code § 32-30-15-1, establishing the statute of limitations, refers. Finally, to the extent Stevens asserts that the wording of Ind. Code § 34-20-3-1(b) in the IPLA differs from the wording of Ind. Code § 32-30-1-5(d), we do not observe a difference which leads us to conclude that the legislature intended for Ind. Code § 32-30-1-5(d) to be treated as a statute of limitations. Stevens's arguments that Ind. Code § 32-30-1-5(d) constitutes a statute of limitations rather than a statute of repose are unavailing.

Brown, Judge.

Altice, C.J., and Tavitas, J., concur.