source: Caselaw Access Project

author: Crone, Judge.

license: Public Domain

text:
    KENWORTH OF INDIANAPOLIS, INC., Kenworth of Indianapolis, Inc. d/b/a ITC Acceptance Company, and Paccar Inc., Appellants-Defendants, v. SEVENTY-SEVEN LIMITED, Convey All, LLC, Keller Trucking, Inc., K & K Aggregate, Inc., Huber Transport, LLC, Triple H Trucking, LLC, and Custom Hauling, Inc., Appellees-Plaintiffs
    Court of Appeals Case No. 49A02-1710-PL-2502
    Court of Appeals of Indiana.
    Filed September 28, 2018
    Attorneys for Appellants: David T. Schaefer, Anthony M. Zelli, Dinsmore & Shohl LLP, Louisville, Kentucky
    Attorneys for Appellees: Scott A. Benkie, Benkie & Crawford, Indianapolis, Indiana, Rodney V. Taylor, Hilary A. Barnes, Christopher & Taylor, Indianapolis, Indiana
   Crone, Judge.

Case Summary

[1] Kenworth of Indianapolis, Inc., et al. (collectively "the Defendants"), manufactured and sold to Seventy-Seven Limited, et al. (collectively "the Plaintiffs"), a fleet of dump trucks that vibrated excessively while idling or at specific RPMs. The Defendants were unable to correct the problem within the one-year/100,000-mile basic vehicle warranty period specified in the parties' warranty agreement, and they extended the warranty period to four years/250,000 miles. More than four years after the trucks were delivered, the Plaintiffs filed a complaint against the Defendants asserting claims for breach of warranty and breach of contract. The Defendants filed a motion for summary judgment asserting that the Plaintiffs' causes of action accrued when the trucks were delivered and thus were barred by the warranty agreement's one-year time limit for commencing legal action. The trial court denied the Defendants' motion. In this interlocutory appeal, the Defendants argue that the trial court erred. We disagree and therefore affirm.

Facts and Procedural History

[2] Paccar Inc. manufactured a fleet of dump trucks that Kenworth of Indianapolis, Inc. ("the Dealership"), sold to the Plaintiffs, who took delivery of the trucks from November 2005 through January 2006. For each truck, the respective buyer signed a warranty agreement that reads in pertinent part as follows:

This is a legal contract between you, Kenworth Truck Company and the selling Kenworth dealer.
Kenworth Truck Company warrants directly to you that the Kenworth vehicle identified below, except for [certain parts and part assemblies warranted by their respective manufacturers, including engines and automatic transmissions], and except for trade accessories, will be free from defects in materials and workmanship during the time and mileage periods set forth in the Warranty Schedule and appearing under normal use and service. This warranty extends only to you, the First Purchaser and applies only to those items which were installed by the Kenworth plant at the time of manufacture as listed.
Your sole and exclusive remedy against Kenworth Truck Company and the selling Kenworth Dealer, arising from your purchase and use of this vehicle, is limited to the repair or replacement of defective materials or workmanship at US and Canadian Authorized Kenworth Class 8 Dealers to the extent of Kenworth Truck Company's obligations under the Warranty Schedule on the reverse side of this Agreement. ....
WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY
Except for the above warranty, Kenworth Truck Company and the selling Kenworth Dealer make no other warranties, express or implied, and make NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
It is agreed that Kenworth Truck Company and the selling Kenworth Dealer shall not be liable for incidental or consequential damages including, but not limited to: loss of income, damage to vehicle, attachments, trailers and cargo; towing expenses; attorney's fees and any liability you may have in respect to any other people.
TIME LIMIT ON COMMENCING LEGAL ACTION
It is agreed that you have one year from the accrual of the cause of action to commence any legal action arising from the purchase or use of the vehicle, or be barred forever.

Appellants' App. Vol. 3 at 13 (underlined emphasis replaced by bold emphasis). Pursuant to the warranty schedule, the Defendants agreed to "provide 100% parts & labor for defective material or workmanship" related to the basic vehicle (with certain exceptions) for twelve months or 100,000 miles, "whichever shall occur first." Id. at 14.

[3] Each buyer also signed a buyer's order form with a disclaimer of warranties provision that states,

The seller [i.e., the Dealership] hereby expressly disclaims all warranties, either expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose unless otherwise stated in this document. Seller neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of the item/items.
Id. at 148 (capitalization altered). The form indicates that the truck was sold "with manufacturer[']s standard new truck warranty" and that the purchaser "hereby acknowledges the purchase of this truck as is, with all faults knowingly accepted and without any warranties express or implied, other than as indicated above ...." Id. (capitalization altered).

[4] "Immediately after delivery of the first set of trucks, several of the buyers complained to [the Dealership] that the trucks vibrated excessively while idling" or at specific RPMs. Kenworth of Indianapolis, Inc. v. Seventy-Seven Ltd. , 49A02-1504-PL-249, slip op. at *1, 2016 WL 1158460 (Ind. Ct. App. Mar. 24, 2016) (" Kenworth 1 "), trans. denied . The Dealership "contacted Paccar, who then consulted with the manufacturers of the engine, transmission, and engine mounts, to resolve the vibration problem." Id. "In September 2006 the decision was made to install modified engine mounts. The new mounts initially reduced the vibration to acceptable levels, but the problem reoccurred in 2007." Id. In March 2008, Paccar agreed to extend the "basic vehicle warranty" to four years/250,000 miles. Appellees' App. Vol. 3 at 64; Appellants' App. Vol. 3 at 11. This warranty extension is documented in Paccar interoffice emails, which contain no further details regarding the extension.

[5] Also in 2008, "the Defendants installed a different engine mount that they believed would be more durable. Again, the vibration was initially reduced to acceptable levels." Kenworth 1 , slip op. at *1. By November 2008, however, the vibration problem was reoccurring in several of the trucks. At that point, Paccar agreed to provide free engine mount replacements for as long as the Plaintiffs owned the trucks. Around this time, one of the Plaintiffs, Seventy-Seven Limited, returned eight of the trucks to the Dealership and stopped making payments on them.

[6] In September 2010, the Dealership, through its financing company, ITC Acceptance Company, filed a replevin action against two of the Plaintiffs based on their default on loans obtained to purchase the trucks. On October 4, 2010, the Plaintiffs filed this action against the Defendants, asserting claims for breach of express and implied warranties, breach of contract, constructive fraud, and rescission. In March 2011, the Plaintiffs amended their complaint to add a claim of estoppel and a claim of nonconforming goods under the Uniform Commercial Code ("UCC"). An additional amended complaint was filed in 2013. In their answers to the complaints, the Defendants asserted as an affirmative defense that the Plaintiffs' claims were time-barred.

[7] The Defendants filed a motion for summary judgment arguing that the Plaintiffs' claims were barred by the warranty agreement's one-year time limit for commencing legal action and by Indiana Code Section 26-1-2-725 ("Section 2-725"), which is part of Indiana's codification of the UCC. Section 2-725 is entitled "Statute of limitations in contracts for sale" and reads in relevant part as follows:

(1) An action for breach of any contract for sale must be commenced within four (4) years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one (1) year, but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered.
....
(4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before IC 26-1 becomes effective.

The Defendants argued that the Plaintiffs' causes of action accrued at tender of delivery and that their complaint was filed long after the one-year limitation period expired.

[8] The Plaintiffs asked the trial court to deny the summary judgment motion, asserting that the Defendants had waived their timeliness argument by failing to raise it in response to a purported cross-motion for summary judgment. The trial court agreed with the Plaintiffs. On appeal, another panel of this Court determined that the Defendants had not waived their timeliness argument and reversed and remanded for further proceedings. Kenworth 1 , slip op. at *10.

[9] On remand, the Defendants filed a renewed motion for summary judgment asserting that the Plaintiffs' complaint was untimely filed. In September 2017, after a hearing, the trial court issued an order denying the motion. This interlocutory appeal ensued.

Discussion & Decision

[10] The Defendants argue that the trial court erred in denying their summary judgment motion. "The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which can be determined as a matter of law." Lamb v. Mid Indiana Serv. Co. , 19 N.E.3d 792, 793 (Ind. Ct. App. 2014). "The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law." Mint Mgmt., LLC v. City of Richmond , 69 N.E.3d 561, 564 (Ind. Ct. App. 2017). If the moving party meets its burden, "the burden then shifts to the nonmoving party whose response must set forth specific facts indicating that there is an issue of material fact." Venture Enter., Inc. v. Ardsley Distrib., Inc. , 669 N.E.2d 1029, 1032 (Ind. Ct. App. 1996). "The nonmovant may not rest upon bare allegations made in the pleadings, but must respond with affidavits or other evidence setting forth specific facts showing there is a genuine issue in dispute." Id. Any doubts as to any facts or inferences to be drawn from those facts must be resolved in favor of the nonmoving party. Mint Mgmt. , 69 N.E.3d at 564.

[11] "We review a summary judgment ruling de novo." Pelliccia v. Anthem Ins. Cos. , 90 N.E.3d 1226, 1230 (Ind. Ct. App. 2018). A trial court's findings and conclusions offer insight into the rationale for the court's judgment and facilitate appellate review but are not binding on this Court. Henderson v. Reid Hosp. & Healthcare Servs. , 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied (2015). We are not constrained to the claims and arguments presented to the trial court, and we may affirm a summary judgment ruling on any theory supported by the designated evidence. Manley v. Sherer , 992 N.E.2d 670, 673 (Ind. 2013). The party that lost in the trial court has the burden of persuading us that the trial court erred. Estate of Hofgesang v. Hansford , 714 N.E.2d 1213, 1216 (Ind. Ct. App. 1999).

[12] The overarching question in this appeal is whether the Defendants have established as a matter of law that the Plaintiffs' complaint was untimely filed. To answer this question, we must determine whether the Defendants have established that there are no genuine issues of material fact regarding when the Plaintiffs' causes of action accrued. "The determination of when a cause of action accrues is generally a question of law." Imbody v. Fifth Third Bank , 12 N.E.3d 943, 945 (Ind. Ct. App. 2014). But when there is a factual issue concerning the date on which a cause of action accrues, the question is generally one for the finder of fact. Monsanto Co. v. Miller , 455 N.E.2d 392, 395 (Ind. Ct. App. 1983). Citing Ludwig v. Ford Motor Co. , 510 N.E.2d 691 (Ind. Ct. App. 1987), trans. denied (1988), and Section 2-725, the Defendants argue that the Plaintiffs' causes of action accrued at tender of delivery as a matter of law.

[13] In Ludwig , the plaintiff purchased five Ford trucks with General Motors ("GM") engines that were delivered in May 1979. The truck bodies were subject to a limited manufacturer's warranty for which "repair or replacement of parts [was] the only remedy." Ludwig , 510 N.E.2d at 694. The engines were subject to a separate limited warranty pursuant to which GM promised to repair "any defective or malfunctioning parts" up to twenty-four months or 200,000 miles. Id. Immediately after delivery, the trucks experienced repeated mechanical breakdowns, and eventually all five engines blew up, rendering the trucks inoperable. When the engines began failing, Ludwig was assured that the situation would be resolved. Two of the engines were repaired, but only temporarily. Further repairs to the five trucks were not made because the manufacturers claimed that the warranties had expired.

[14] In August 1983, more than four years after the trucks were delivered, Ludwig sued Ford and GM, asserting breach of express and implied warranties and other claims. Ford and GM asserted that Ludwig's breach of warranty claims were barred by Section 2-725's four-year limitation period, and the trial court granted summary judgment in their favor. In response to Ludwig's argument on appeal that the trial court erred, another panel of this Court simply quoted Section 2-725(1) and -(2) and stated, "Thus, an action for breach of warranty must be commenced within four years after tender of delivery." Id. at 696. In other words, Ludwig's breach of warranty claims accrued when tender of delivery was made, and those claims were "barred by the statute of limitations" because he "did not file his complaint within the required four year period ...." Id.

[15] The Defendants contend that " Ludwig is binding, on point, and should be followed." Appellants' Br. at 24. We disagree, for two reasons. First, this Court does not recognize horizontal stare decisis; "each panel of this Court has coequal authority on an issue[,]" and although we are respectful of other panels' decisions, we are not bound by them. In re F.S. , 53 N.E.3d 582, 596 (Ind. Ct. App. 2016) (quoting In re C.F. , 911 N.E.2d 657, 658 (Ind. Ct. App. 2009) ). "In short, we write upon a clean slate." Id.

[16] Second, and more important, we conclude that the Ludwig panel erred in treating the manufacturers' promise to repair defective parts as a warranty under the UCC and therefore erred in determining when Ludwig's claims accrued under Section 2-725. Our conclusion is based on the persuasive analysis of the Supreme Court of Illinois in Mydlach v. DaimlerChrysler Corp. , 226 Ill.2d 307, 314 Ill.Dec. 760, 875 N.E.2d 1047 (2007), which involved a similar promise to repair, as well as our reading of the parties' warranty agreement and the relevant UCC statutes. Issues of contract interpretation and statutory construction are pure questions of law, which we review de novo. Estate of Ecker v. Estate of Samson , 59 N.E.3d 282, 284 (Ind. Ct. App. 2016). We "must examine the plain language of the contract, read it in context and, whenever possible, construe it so as to render every word, phrase, and term meaningful, unambiguous, and harmonious with the whole." Layne v. Layne , 77 N.E.3d 1254, 1265 (Ind. Ct. App. 2017), trans. denied . "If contract language is unambiguous, [we] may not look to extrinsic evidence to expand, vary, or explain the instrument but must determine the parties' intent from the four corners of the instrument." Id. "[T]he primary goal in interpreting a statute is to fulfill the legislature's intent and, if that language is clear and unambiguous, we simply apply its plain and ordinary meaning, heeding both what it says and what it does not say." In re Adoption of D.M. , 82 N.E.3d 354, 360 (Ind. Ct. App. 2017). "We presume the legislature intended logical application of the language used in the statute so as to avoid unjust or absurd results." Id. "[S]tatutes concerning the same subject matter must be read together in an attempt to harmonize and give effect to each." Peoples State Bank v. Benton Twp. of Monroe Cty. , 28 N.E.3d 317, 323 (Ind. Ct. App. 2015).

[17] A detailed review of the Mydlach decision provides a well-reasoned perspective on promises to repair and their interplay with Section 2-725 and other relevant provisions of the UCC. In June 1998, Mydlach purchased a 1996 DaimlerChrysler Dodge Neon with approximately one year and 10,000 miles remaining on a three-year/36,000-mile warranty that covered "the cost of all parts and labor needed to repair any item on [her] vehicle [with certain exceptions] that's defective in material, workmanship, or factory preparation." Mydlach , 314 Ill.Dec. 760, 875 N.E.2d at 1051. Beginning in July 1998, Mydlach brought the car to two dealerships "several times for a variety of problems, including a recurring fluid leak." Id. She "claimed that the dealerships' repair attempts were unsuccessful and, as a result, she could not use the vehicle as intended." Id.

[18] In May 2001, Mydlach sued DaimlerChrysler in state court under the federal Magnuson-Moss Warranty Act ("the Act") for breach of written warranty, breach of the implied warranty of merchantability, and revocation of acceptance. DaimlerChrysler argued that Mydlach's breach of warranty claims were time-barred because they were subject to Illinois' Section 2-725's four-year limitation period, which purportedly "commenced upon 'tender of delivery' of the vehicle to its original purchaser in June 1996" pursuant to Section 2-725(2). Id., 314 Ill.Dec. 760, 875 N.E.2d at 1052. The trial court agreed and entered summary judgment for DaimlerChrylser on all three counts. The appellate court reversed as to the first and third counts, and DaimlerChrylser appealed that ruling to the supreme court.

[19] Because the Act does not contain a limitations provision for a breach of warranty action, the court sought to apply the "most closely analogous statute of limitations under state law." Id., 314 Ill.Dec. 760, 875 N.E.2d at 1055 (quoting DelCostello v. Int'l Bhd. of Teamsters , 462 U.S. 151, 158, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) ). The court looked to Article 2 of the UCC, which applies to "transactions in goods[,]" to "determine the timeliness" of Mydlach's complaint. Id., 314 Ill.Dec. 760, 875 N.E.2d at 1056. The court quoted Section 2-725(1) and -(2) and noted that Section 2-725(2)'s "future-performance exception" was not at issue because a repair or replacement provision

"has nothing to do [with the future performance of the goods]. Cosman [v. Ford Motor Co. , 285 Ill.App.3d 250, 220 Ill.Dec. 790, 674 N.E.2d 61, 68 (Ill. App. Ct. 1996), appeal denied (1997) ) ]. See also C. Reitz, Manufacturers' Warranties of Consumer Goods , 75 Wash. U. L.Q. 357, 364 n.24 (1997) ("Promises to repair or replace refer to future performance of sellers, not to future performance of goods"); L. Lawrence, Lawrence's Anderson on the Uniform Commercial Code § 2-625:129, at 332 (3d ed. 2001) (discussing difference between a warranty of future performance and a covenant to repair or replace).[ ]

Id., 314 Ill.Dec. 760, 875 N.E.2d at 1056.

[20] The court then turned its "attention to the balance of [ Section 2-725 ] and the parties' arguments relative thereto." Id. The court acknowledged that "[a]lthough courts generally consider article 2 of the UCC to be the statute most closely analogous to [the Act], the two enactments are not identical." Id., 314 Ill.Dec. 760, 875 N.E.2d at 1057. For example, the "the Act speaks of implied warranties and written warranties, the latter of which may be either full or limited. In contrast, the UCC speaks of express warranties (which may be oral or written), implied warranties, and warranty of title." Id. (citations omitted). The parties agreed that DaimlerChrysler's repair warranty was a "written warranty" under the Act but disagreed regarding whether it was an "express warranty" under the UCC; DaimlerChrysler argued that "the repair warranty [qualified] as an express warranty and that [Mydlach's] claim [was] therefore governed by the tender-of-delivery rule in [ Section 2-725(2),]" whereas Mydlach argued that it did "not qualify as an express warranty and that her claim is not subject to the tender-of-delivery rule." Id.

[21] The court then stated,

Section 2-313 of the UCC explains how express warranties are created.
"Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model." 810 ILCS 5/2-313(1) (West 2006).
The UCC makes plain that an express warranty is related to the quality or description of the goods.[ ]
In other words, an express warranty, for purposes of the UCC, obligates the seller to deliver goods that conform to the affirmation, promise, description, sample or model. If a seller delivers conforming goods, the warranty is satisfied. If the seller delivers nonconforming goods, the warranty is breached at that time. Even if the buyer is unaware that the goods, as delivered, do not conform to the seller's affirmation, promise, description, sample or model, the warranty has been breached. Under this scenario, the statutory pronouncement that "[a] breach of warranty occurs when tender of delivery is made" makes perfect sense, and the four-year limitations period commences at that time. See M. Klinger, The Concept of Warranty Duration: A Tangled Web , 89 Dick. L. Rev. 935, 939 (1985) (" Section 2-725(2) presumes that all warranties, expressed or implied, relate only to the condition of the goods at the time of sale" and "[a]s a result, the period of limitations begins to run at that time"); L. Garvin, Uncertainty and Error in the Law of Sales: The Article Two Statute of Limitations , 83 B.U. L. Rev. 345, 379 (2003) ("Article Two defines a range of express and implied warranties" which "[a]ll go to the quality of the goods at tender").
The warranty in the present case, however, is not related to the quality or description of the goods at tender. It does not warrant that the vehicle will conform to some affirmation, promise, description, sample or model. Rather, the warranty promises only that the manufacturer will repair or replace defective parts during the warranty period....
Although defendant's warranty qualifies as a "written warranty" under the Act, it is not an "express warranty" under the UCC, and is thus not the type of warranty that can be breached on "tender of delivery".[ ] Accordingly, we reject defendant's argument that the four-year limitations period for breach of the repair warranty commenced upon delivery of the Dodge Neon in 1996 .....
Our conclusion that the repair warranty is not a UCC express warranty, and thus not subject to the tender-of-delivery rule set forth in the second sentence of [ Section 2-725(2), does not render [ Section 2-725(2) ] irrelevant for purposes of determining when the limitations period began on plaintiff's claim under [the Act]. The first sentence of [ Section 2-725(2) ] remains applicable. The first sentence states: "[a] cause of action accrues when the breach occurs , regardless of the aggrieved party's lack of knowledge of the breach." (Emphasis added.) Although the UCC does not expressly state when the breach of a repair promise occurs, we may refer to the law that exists outside of the UCC. See 810 ILCS 5/1-103 (West 2006) ("Unless displaced by the particular provisions of this Act, the principles of law and equity shall supplement its provisions");[ ] L. Lawrence, Lawrence's Anderson on the Uniform Commercial Code § 2-725:99, at 301 (3d ed. 2001) (because the UCC provides no assistance as to when a nonwarranty breach of contract "occurs" for purposes of computing the limitations period, "it is necessary to resort to the general non-Code law of contracts," which "has not been displaced by the Code and therefore continues in force").
Generally, "[w]hen performance of a duty under a contract is due any non-performance is a breach." Restatement (Second) of Contracts § 235, at 211 (1979). Performance under a vehicle manufacturer's promise to repair or replace defective parts is due not at tender of delivery, but only when, and if, a covered defect arises and repairs are required. In that event, if the promised repairs are refused or unsuccessful, the repair warranty is breached and the cause of action accrues, triggering the four-year limitations period. See [line of Illinois cases]. See also Monticello v. Winnebago Industries, Inc. , 369 F.Supp.2d 1350, 1356-57 (N. D. Ga. 2005) (under Georgia law, a written warranty that provides for repair or replacement of parts is breached when the purchaser returns the product to the dealer for repair and repair is refused or unsuccessful); Poli [v. DaimlerChrysler Corp. , 349 N.J.Super. 169, 793 A.2d 104, 110-11 (2002) ] (under New Jersey law, cause of action for breach of seven-year/70,000-mile power-train warranty would not have accrued when the car was delivered, but rather when persistent problems appeared or when DaimlerChrysler was unable to repair the defect); Long Island Lighting Co. v. Imo Industries Inc. , 6 F.3d 876, 889-90 (2d Cir. 1993) (under New York law, cause of action for breach of a repair promise accrued when the generator malfunctioned and the seller refused to make the necessary repairs).[ ]
This is the approach advocated by some commentators. For example, in his discussion of the appropriate treatment of a manufacturer's express warranty to repair or replace defective parts, Professor Lawrence states:
"The sounder approach is to recognize that the failure to repair or replace is merely a breach of contract and not a breach of warranty, and therefore no cause of action arises until the seller has refused to repair or replace the goods. This is because until the seller has failed or refused to make the repairs or provide a replacement, the buyer, not being entitled to such a remedy, has no right to commence an action for damages. As a result, the action is timely if brought within four years of the seller's failure or refusal." L. Lawrence, Lawrence's Anderson on the Uniform Commercial Code § 2-725:101, at 303 (3d ed. 2001).
Accord L. Garvin, Uncertainty and Error in the Law of Sales: The Article Two Statute of Limitations , 83 B.U. L. Rev. 345, 381 (2003).
The correctness of this approach is manifest when we consider consumer claims for breach of repair warranties that run for periods longer than the three years/36,000 miles at issue here. For example, consider the case of a consumer who purchases a vehicle carrying a five-year/50,000-mile repair warranty. If the four-year limitations period commences at "tender of delivery," the limitations period for a breach of the repair promise occurring in year five will expire before the breach even occurs, thus rendering the repair warranty unenforceable during its final year. Statutes of limitations, however, are intended to prevent stale claims, not to preclude claims before they are ripe for adjudication. Even a four-year warranty could be rendered unenforceable if breach of the repair promise occurred near the end of the warranty period. In that case, the buyer would have only the briefest of periods in which to file suit.
....
We recognize, of course, that a fact question may arise as to the date on which a repair warranty was breached which, in turn, would create some uncertainty as to when the four-year limitations period should commence. Fact questions of this nature, however, frequently arise in cases where the statute of limitations has been pled in defense. Resolution of this type of uncertainty is a classic function of the trier of fact. We therefore reject defendant's argument that commencing the limitations period when the warrantor fails or refuses to repair the defect-rather than at tender of delivery-will create unacceptable uncertainty in the limitations period.
Turning to the facts of this case, the record indicates that plaintiff brought her vehicle to [the dealers] on several occasions beginning in July 1998. At that point, assuming the alleged defects were covered defects, defendant was obligated (through its authorized dealer) to make good on its repair promise. Plaintiff's lawsuit, filed in May 2001, is therefore timely.

Id., 314 Ill.Dec. 760, 875 N.E.2d at 1057-61 (citations and quotation marks omitted).

[22] In our view, the Mydlach court's determination that a promise to repair or replace is not an express warranty and that a cause of action for the breach of that contractual obligation does not accrue until the promisor refuses or fails to repair or replace is the only sensible interpretation of such an obligation with respect to Sections 2-313 and 2-725 of the UCC. The Defendants have consistently maintained that the Plaintiffs' causes of action accrued at tender of delivery and thus have failed to specifically designate any evidence or make any legal argument regarding whether and when an action for breach of the contractual promise to repair or replace accrued.

[23] One significant factual difference between Mydlach and this case is that in addition to promising to repair or replace defective materials or workmanship, the Defendants promised that the trucks would be "free from defects in materials and workmanship during the time and mileage periods set forth in the Warranty Schedule ...." Appellants' App. Vol. 3 at 13. This "affirmation of fact or promise" relating to the trucks is an express warranty pursuant to Section 2-313 that arguably was breached upon delivery, as the trucks vibrated excessively from the outset. The Defendants attempted to remedy that breach by replacing the engine mounts, which turned out to be only a temporary fix.

[24] Indiana Code Section 26-1-2-719(2) provides that "[w]here circumstances cause an exclusive or limited remedy"-such as the remedy of repair or replacement in this case-"to fail of its essential purpose, remedy may be had as provided in IC 26-1." At the very least, genuine issues of material fact exist regarding whether and when the exclusive remedy in this case failed of its essential purpose and the Plaintiffs' cause of action for breach of warranty accrued. See Perry v. Gulf Stream Coach, Inc. , 814 N.E.2d 634, 644 (Ind. Ct. App. 2004) (finding genuine issue of material fact regarding whether "exclusive remedy of repair and replacement of defective parts or components fail[ed] of its essential purpose such that [plaintiffs could] seek other remedies" under UCC, where parties disputed whether motor home's steering issues had been fixed), trans. denied (2005); see also Mississippi Chem. Corp. v. Dresser-Rand Co. , 287 F.3d 359, 366 (5th Cir. 2002) (distinguishing express warranty that product would be free of defects from promise to repair or replace product as remedy for breach of that warranty, and holding that plaintiff's warranty action "did not accrue for the purpose of Section 725, until the promise to repair or replace the [product] failed its essential purpose."); Fid. & Cas. Co. of New York v. Jasper Furniture Co. , 186 Ind. 566, 568, 117 N.E. 258, 258 (1917) ("A cause of action accrues, so that limitations begin to run, at the moment its owner has a legal right to sue on it, except where extrinsic facts, postponing the operation of the statute [of limitations], are interposed."); Jacqueline R. Kanovitz, The Seller Fiddles and the Clock Ticks: Seller's Cure and the U.C.C. Statute of Limitations , 60 NOTRE DAME L. REV. 318, 330 (1985) ("Under settled principles of limitations act interpretation, an exclusive repair remedy should suspend the running of limitations on the underlying warranty claim until 'failure of essential purpose' activates the buyer's right to seek a judicial remedy.").

[25] Of course, the viability of any warranty claim hinges on the duration of the warranty; in other words, a cause of action for breach of warranty must accrue during the warranty period. The Defendants insist that their extension of the original basic vehicle warranty period from one year/100,000 miles to four years/250,000 miles was merely a goodwill gesture with no legal ramifications. We disagree. It is crystal clear that the Defendants intended to make the warranty extension retroactive to the trucks' delivery dates. See Appellants' App. Vol. 3 at 11 (Paccar interoffice communication: "The trucks have an original in service date from 11/05 to 01/06. The only option in this is to, in reality; give [the Plaintiffs] a 4 year, 250,000 mile base warranty from their original DIS."). Also, "[i]t is well-settled that when a contract is modified, the original contract still exists and binds the parties as far as it can be followed, and the modifications do not affect the original contract, which still remains in force." Gerdon Auto Sales, Inc. v. John Jones Chrysler Dodge Jeep Ram , 98 N.E.3d 73, 81 (Ind. Ct. App. 2018), trans. denied . Moreover, "[a]n agreement modifying a contract within IC 26-1-2 needs no consideration to be binding." Ind. Code § 26-1-2-209(1). Accordingly, we conclude as a matter of law that the warranty period at issue is four years/250,000 miles; the question remains whether the Plaintiffs' cause of action for breach of warranty accrued during that period.

[26] In sum, genuine issues of material fact exist regarding when the foregoing causes of action accrued. Thus, the Defendants have failed to establish as a matter of law that the Plaintiffs' complaint was untimely filed. Therefore, we affirm the trial court's denial of the Defendants' summary judgment motion.

[27] Affirmed.

Robb, J., concurs.

Altice, J., dissents with opinion.

[28] I respectfully dissent. This is a breach of warranty action. Section 2-725(2) clearly provides that

[a] cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made , except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered.

(Emphasis supplied). Thus, the general rule is that in a breach of warranty action, a cause of action accrues when tender of delivery is made. In drafting this provision, the drafters of the UCC focused on the seller's interest in having a clearly defined limit on the period of its potential liability and found such interest to outweigh the buyer's interest in an extended warranty unless such an extended warranty was part of a specific bargain. Dart Industries, Inc. v. Adell Plastics, Inc. , 517 F.Supp. 9, 11 (S.D. Ind. 1980). Indeed, the drafters were fully aware of the difficulties faced by a buyer in determining conformity with a warranty at the time of delivery, but ultimately did not regard such difficulties as controlling. Id.

[29] The majority sidesteps the general rule found in Section 2-725 by finding that the promise to repair or replace is not an express warranty under the UCC and thus does not fall within the ambit of Section 2-725. According to the majority, the promise to repair or replace created a separate contractual obligation, which could not be breached until the Defendants either refused or failed to repair or replace the defective trucks.

[30] Here, I find, as did the majority, that the warranty agreement at issue contains an express warranty that the trucks would be "free from defects in materials and workmanship." Appellants' Appendix Vol. 3 at 13. Section 2-725 clearly provides that a cause of action for breach of this express warranty accrues upon delivery unless the warranty explicitly extends to future performance. In this vein, I agree with the majority insofar as it found that the repair or replace provision does not warrant the future performance of the trucks. See Op. at 1113-14 n.11.

[31] Where I part ways with the majority is that I view the repair or replace provision of the warranty agreement as a limitation of a seller's liability, not as a separate contractual undertaking. In other words, the repair or replacement provision sets forth the exclusive remedy for breach of the express warranty. Thus, in my view, the action remains an action for breach of warranty falling within the purview of Section 2-725. I would hold that because the future performance exception does not apply, the Plaintiffs' cause of action accrued upon delivery of the trucks. I also am not persuaded that the promises and efforts to repair the trucks operated to toll the limitation period.

[32] While the majority rejects the Ludwig decision, I find it to be on point and controlling of the outcome in this case. In Ludwig , the court was presented with a factual scenario similar to that before us. There, the plaintiff took delivery of trucks that immediately proved to be defective. The warranty at issue in Ludwig provided for "repair or replacement of parts" as the "only remedy" for breach of the warranty. 510 N.E.2d at 694. Further, the plaintiffs were assured that the problems would be fixed, but subsequent repair efforts proved unsuccessful. Nearly four years and three months after the final trucks were delivered, the plaintiff filed a complaint asserting breach of warranty claims. Given that the action was for breach of warranty, the Ludwig court looked directly to Section 2-725(2) and determined that the plaintiff's cause of action accrued upon delivery. Because the complaint was filed more than four years after delivery of the trucks, the Ludwig court held that the plaintiff's action was barred.

[33] Numerous other jurisdictions have similarly found that a cause of action for breach of warranty accrues upon delivery even where the warranty provides for repair or replacement as the exclusive remedy. In each case, the courts found that the repair or replacement warranty merely provided a remedy if the product became defective. See Joswick v. Chesapeake Mobile Homes, Inc., 130 Md.App. 493, 747 A.2d 214 (2000) ; Nebraska Popcorn, Inc. v. Wing, 258 Neb. 60, 602 N.W.2d 18 (1999) ; Hull v. Moore's Mobile Homes Stebra, Inc. , 214 A.D.2d 923, 625 N.Y.S.2d 710 (N.Y. App. Div. 1995) ; Boyd v. A.O. Smith Harvestore Products, Inc. , 776 P.2d 1125 (Colo. Ct. App. 1989) ; Carabello v. Crown Controls Corp., 659 F.Supp. 839 (D. Colo. 1987) ; City of Cincinnati, Ohio v. Dorr-Oliver, Inc. , 659 F.Supp. 259 (D. Conn. 1986) ; Ontario Hydro v. Zallea Systems, Inc. , 569 F.Supp. 1261 (D. Del. 1983) ; Poppenheimer v. Bluff City Motor Homes, Div. of Bluff City Buick Co. , 658 S.W.2d 106 (Tenn. Ct. App. 1983) ; Zahler v. Star Steel Supply Co. , 50 Mich.App. 386, 213 N.W.2d 269 (1973) . In short, in none of these cases did the court consider the repair or replacement provision to be a separate contractual undertaking subject to its own, separate accrual analysis outside of Section 2-725.

[34] The Ludwig decision also provides guidance as to how Indiana views promises and efforts to replace defective products with regard to tolling the limitation period set forth in Section 2-725. The Ludwig court noted:

Some jurisdictions have found that repair promises or efforts will toll the statute of limitations. E.g., Louisville Silo and Tank Co. v. Thweatt (1927), 174 Ark. 437, 295 S.W. 710 (statute tolled so long as vendor insists defect can be repaired and is attempting to do so);
Southern California Enterprises, Inc. v. D.N. and E. Walter and Co. (1947), 78 Cal.App.2d 750, 178 P.2d 785 (limitations statute applicable to breach of warranty action tolled while vendor claims defect can be cured and is attempting to do same); Gaffney v. Unit Crane and Shovel Corp. (1955), 49 Del. 381, 117 A.2d 237 (recognizing rule that statute is tolled where seller's promises rise to level of an assurance goods will be made to conform to warranty). However, other jurisdictions maintain that a seller's assurances that a chattel not in compliance with its warranty will be corrected, and his attempts to make such repairs, do not toll the statute of limitations applicable to an action for breach of warranty. Triangle Underwriters, Inc. v. Honeywell, Inc. (E.D.N.Y. 1978), 457 F.Supp. 765, 771 (argument of tolling based on repair "has been rejected by the majority of jurisdictions"), aff'd on this holding , rev'd on other grounds (2d Cir. 1979), 604 F.2d 737, 743 (attempts by seller to remedy defects giving rise to cause of action did not toll UCC's four year period of limitations). See e.g. , Hartford [Harford ]Mutual Ins. Co. v. Seibels, Bruce and Co. (D. Md. 1984), 579 F.Supp. 135, 138 (attempts to repair do not toll statute of limitations); Ontario Hydro v. Zallea Systems, Inc. (D.C. Del. 1983), 569 F.Supp. 1261 (mere attempt by seller to remedy defects giving rise to cause of action does not toll statute of limitations); Binkley Co. v. Teledyne Mid-America Corp. (E.D. Mo. 1971), 333 F.Supp. 1183, aff'd (8th Cir.1972), 460 F.2d 276 (seller's attempts to repair did not toll statute of limitations regarding express and implied warranties); Tomes v. Chrysler Corp. (1978), 60 Ill.App.3d 707, 18 Ill.Dec. 71, 377 N.E.2d 224 (efforts to repair do not toll the statute); Smith v. Ford Motor Co. (1978), 59 Ohio App.2d 41, 392 N.E.2d 1287 (mere attempt by seller to remedy defects giving rise to cause of action does not toll statute of limitations); Poppenheimer v. Bluff City Motor Homes (1983), Tenn.App., 658 S.W.2d 106 (breach of warranty occurs upon tender of delivery and seller's attempts to cure defects do not toll statute of limitations); Bishop-Babcock-Becker Co. v. Jennings (1922), Tex. Civ. App., 245 S.W. 104 (statute of limitations not interrupted by seller's assurances or attempts to remedy defects).

Id. at 698-99. In rejecting the plaintiff's claim that the seller's assurances and repair efforts did not toll the limitation period set forth in Section 2-725, the Ludwig court noted that the plaintiff was aware of the warranty when the trucks were delivered; that the trucks immediately suffered mechanical problems; that two engines had been repaired while still under warranty; and that repair representations had been made long before the limitations period ran. Under these circumstances, the Ludwig court stated that the owner of the trucking company could not claim that "the[ ] repairs lulled him into inaction and delayed his filing of this suit." Id. The Ludwig court therefore found that the trial court did not err in determining that Section 2-725 barred the trucking company's claim for breach of warranty.

[35] As was the case in Ludwig , the Plaintiffs here were aware of the four-year limitation period; discovered the vibration issue immediately after delivery; knew that repair efforts had failed or were short-lived; and before the expiration of the extended warranty period, were aware that there was no permanent fix. Under these circumstances, I would conclude that the cause of action accrued upon delivery of the trucks and that the Plaintiffs' complaint filed four years and nine months later is barred. This is consistent with the overall purpose of the UCC to establish a uniform statute of limitations for sales contracts eliminating jurisdictional variations and providing relief for companies doing business on a nationwide scale. It is also in line with the UCC's emphasis on the seller's need to have a clearly defined limit on the period of its potential liability over the buyer's interest in an extended warranty.

[36] I thus would hold that the Defendants are entitled to judgment as a matter of law. I would reverse the trial court and remand with instructions to grant summary judgment in favor of the Defendants.

      Defendant Paccar Inc. is the parent company of Kenworth Truck Company and manufactures/assembles trucks under the latter name. Paccar sold its trucks through its dealer, Kenworth of Indianapolis, Inc., a separate and independent legal entity. ITC Acceptance Company is the dealer's financing company.

      The Plaintiffs (Seventy-Seven Limited, Convey All, LLC, Keller Trucking, Inc., K & K Aggregate, Inc., Huber Transport, LLC, Triple H Trucking, LLC, and Custom Hauling) were among a group of thirteen trucking companies that together ordered forty-nine identically configured Kenworth trucks from Kenworth of Indianapolis. These companies had independently been buying Kenworth trucks for years, but decided to coordinate truck orders to obtain discount pricing.

      We held oral argument on June 28, 2018, at the Krannert School for Executive Management at Purdue University. We thank the students, faculty, and staff for their hospitality, and we thank counsel for their advocacy.

      Pursuant to an agreement between the parties, the replevin action was consolidated with this action and is now deemed a counterclaim.

      Only the original complaint and the March 2011 amended complaint (entitled "Second Amended Complaint") appear in the record before us.

      The Plaintiffs included a copy of the hearing transcript in their appendix in contravention 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."

      We respectfully disagree with portions of the trial court's analysis, which apparently was adopted from a proposed order submitted by the Plaintiffs. Rather than respond to the Defendants' arguments challenging that analysis, we elect to start from scratch for clarity's sake.

      Illinois' Section 2-725 is practically identical to Indiana's, so we refer to them interchangeably.

      In Indiana, Article 2 of the UCC is codified in Indiana Code Chapter 26-1-2.

      The Cosman court also stated that a repair or replacement provision "has nothing to do with the inherent quality of the goods" for purposes of Section 2-313 of the UCC, which is addressed more fully below. 220 Ill.Dec. 790, 674 N.E.2d at 68.

      See also Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc. , 524 F.3d 315, 323-24 (1st Cir. 2008) ("This type of repair promise warrants the future performance of the warrantor, not the goods. The warrantor has not guaranteed that the goods will not malfunction in the future, but rather that the warrantor will remedy any problems that arise in a particular way for a limited period of time.") (citation omitted), cert. denied ; Ontario Hydro v. Zallea Syst., Inc. , 569 F.Supp. 1261, 1266 (D. Del. 1983) ("[A] repair or replacement warranty does not warrant how the goods will perform in the future. Rather, such a warranty simply provides that if a product fails or becomes defective, the seller will replace or repair within a stated period."); Flagg Energy Dev. Corp. v. Gen'l Motors Corp. , 244 Conn. 126, 709 A.2d 1075, 1086 (1998) ("[A] promise to repair or replace, unless it contains express language to the contrary, is not a promise of future performance with response to [Section 725(2) ]."), overruled on other grounds by Ulbrich v. Groth , 310 Conn. 375, 78 A.3d 76 (2013) ; Nebraska Popcorn, Inc. v. Wing , 258 Neb. 60, 602 N.W.2d 18, 24 (1999) ("A warranty to repair or replace does not guarantee future performance. Rather, it anticipates potential defects and specifies the buyer's remedy during the stated period."); contra Krieger v. Nick Alexander Imports, Inc. , 234 Cal.App.3d 205, 285 Cal.Rptr. 717, 724 (1991) ("A promise to repair defects that occur during a future period is the very definition of express warranty of future performance ...."). We agree with the Mydlach court on this point.

      The Act defines "written warranty" as
      any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.
      15 U.S.C. § 2301(6)(B). This definition is obviously different from that of "express warranty" in Section 2-313, in that it specifically includes promises to repair.

      Contra Carpetland U.S.A. v. Payne , 536 N.E.2d 306, 308 (Ind. Ct. App. 1989) (concluding that salesman's verbal promise to replace carpet if "anything went wrong" within one year was "sufficient to create an express warranty" under Section 2-313 ). We respectfully disagree with the Carpetland court's analysis because it fails to account for the plain language of Section 2-313, i.e., a carpet cannot "conform" to a promise to replace it.

      Indiana Code Section 26-1-1-103 provides,
      Unless displaced by the particular provisions of IC 26-1, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause, shall supplement the provisions of IC 26-1.

      See also Brown v. Gen'l Motors Corp. , 14 So.3d 104, 108-13 (Ala. 2009) (concluding that promise to repair is not express warranty under UCC and that cause of action for breach accrues when manufacturer fails or refuses to repair); Grosse Pointe Law Firm, P.C. v. Jaguar Land Rover N. Am. LLC , 317 Mich.App. 395, 894 N.W.2d 700, 703-07 (2016) (same), appeal denied (2017); Jacqueline R. Kanovitz, The Seller Fiddles and the Clock Ticks: Seller's Cure and the U.C.C. Statute of Limitations , 60 Notre Dame L. Rev. 318, 329-30 (1985) (same).

      Amendments to the UCC proposed in 2003 defined a promise to repair or replace goods "upon the happening of a specific event" as a "remedial promise," U.C.C. § 2-103(n), and provided that "[f]or breach of a remedial promise, a right of action accrues when the remedial promise is not performed when performance is due." Id. § 2-725(2)(c). The official comment regarding Section 2-103(n) stated in pertinent part,
      The distinction between a remedial promise and a warranty that is made in this Article resolves a statute-of-limitations problem. Under original Section 2-725, a right of action for breach of an express warranty accrued at the time the goods were tendered unless the warranty explicitly extended to the future performance of the goods. In that case, the statute of limitations began to run at the time of the discovery of the breach. By contrast, a right of action for breach of an ordinary (non-warranty) promise accrued when the promise was breached. A number of courts held that commitments by sellers to take remedial action in the event the goods proved to be defective during a specified period of time constituted a warranty, and in these cases the courts determined that the statute of limitations began to run at the time that the goods were tendered. Other courts used strained reasoning that allowed them to apply the discovery rule even though the promise referred to the future performance of the seller and not the future performance of the goods.
      Under this Article, a promise by the seller to take remedial action is not a warranty at all and therefore the statute of limitations for a breach of a remedial promise does not begin to run at either the time the goods are tendered or at the time the breach is discovered. Section 2-725(2)(c) separately addresses the accrual of a right of action for a remedial promise.
      In Grosse Pointe , the Court of Appeals of Michigan used the phrase "remedial promise" to describe the seller's promise to repair or replace. 894 N.W.2d at 707. The proposed amendments were withdrawn in 2011, but that does not diminish the persuasiveness of Grosse Pointe (or Mydlach ) with respect to the existing wording of the UCC.

      In support of their summary judgment motion, the Defendants designated two depositions in their entirety (totaling over 400 pages), which is insufficiently specific for purposes of Indiana Trial Rule 56(C). See Filip v. Block , 879 N.E.2d 1076, 1081 (Ind. 2008) (noting that Trial Rule 56(C) compels "parties to identify the 'parts' of any document upon which they rely. The Rule thus requires sufficient specificity to identify the relevant portions of a document, and so, for example, the designation of an entire deposition is inadequate."). The Defendants' summary judgment memorandum states that the individual Plaintiffs returned or stopped using their trucks at different times, Appellees' App. Vol. 2 at 6, which suggests that extended factual development may be required to establish the accrual date for each Plaintiff. The mere fact that the Plaintiffs returned or stopped using the trucks is not dispositive of whether the Defendants breached their contractual promise to repair or replace.

      This issue is raised in paragraph 28 of the Plaintiffs' second amended complaint. Appellants' App. Vol. 2 at 87.

      By way of example, one court has said that "[a] manufacturer does not have an unlimited time or an unlimited number of attempts to repair an automobile; rather, the limited warranty is breached and/or fails of its essential purpose if successful repairs are not made within a reasonable time or within a reasonable number of attempts." Dewan v. Ford Motor Co. , 363 Ill.App.3d 365, 299 Ill.Dec. 719, 842 N.E.2d 756, 762 (2005), appeal denied (2006).

      According to Professor Kanovitz, a "standard new equipment warranty" like the one at issue in this case
      embodies two distinct legal obligations: (1) a warranty that the goods are free from defects in material and workmanship; and (2) a promise to repair part failures. The second promise represents an ordinary contractual commitment and not a warranty. If the goods malfunction during the promised repair period and the seller cannot correct the problem, the seller has now committed two breaches: initially a breach of warranty and later a breach of an ordinary contractual promise. Furthermore, the exclusive repair remedy has failed of its essential purpose; this remedial failure entitles the buyer, for the first time, to litigate the claim.
      60 Notre Dame L. Rev. at 329-30 (footnote omitted).

      The Plaintiffs cite no relevant authority for their proposition that the "Defendants did not incorporate the original warranty in the new modified warranty" and thus a four-year limitation period should apply to a breach of the basic vehicle warranty pursuant to Section 2-725(1). Appellees' Br. at 25. The warranty schedule includes a sixty-month/600,000-mile warranty for cab corrosion, which was still in effect when the Defendants extended the basic vehicle warranty; taken to its logical conclusion, the Plaintiffs' argument would result in different limitation periods for different warranty breaches.

      While we acknowledge the potential viability of the Plaintiffs' tolling and estoppel theories, we need not determine whether genuine issues of material fact exist regarding the applicability of those theories. We also express no opinion as to the legal effect, if any, of Paccar's and the Dealership's warranty disclaimers. The Defendants make no detailed arguments regarding when the Plaintiffs' remaining causes of action accrued and thus would not be entitled to summary judgment on them in any event.

      Indeed, the majority aptly notes that this is a "significant factual difference" between the case before us and Mydlach , the case upon which the majority relies. O p. at 1118.

      The trial court relied upon the dissent in Zahler in finding that the Defendants' promises and efforts to repair the trucks tolled the running of the statute of limitations.

      The Ludwig court found that the buyer waived the issue of equitable estoppel by failing to present it to the trial court in the first instances and that there was no evidence of fraudulent concealment so as to toll the limitations period.

      The Plaintiffs do not claim that the Defendants refused to carry out their promise to replace the engine mounts for as long as the Plaintiffs owned the trucks. From the record, it can be inferred that such refusal, if at all, occurred only after the Plaintiffs filed the instant action.

      To the extent there may be a factual dispute, such does not affect my determination that the cause of action accrued on delivery and that the four-year limitation period had expired before the Plaintiffs filed the instant action.


author: Vaidik, Chief Judge.

text:
    ELKHART FOUNDRY & MACHINE CO., INC., Appellant-Defendant, v. CITY OF ELKHART REDEVELOPMENT COMMISSION FOR the CITY OF ELKHART, Appellee-Plaintiff
    Court of Appeals Case No. 20A03-1709-CT-2136
    Court of Appeals of Indiana.
    Filed October 3, 2018
    Attorneys for Appellant: Erik S. Mroz, David A. Temple, Sean T. Devenney, Drewry Simmons Vornehm, LLP, Carmel, Indiana
    Attorneys for Appellee: Brent W. Huber, Derek R. Molter, Kaitlyn J. Marschke, Ice Miller LLP, Indianapolis, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] This case concerns the efforts of the City of Elkhart and its Redevelopment Commission ("the City") to rehabilitate a former industrial site situated along the Elkhart River in the city's downtown. The City has sued Elkhart Foundry & Machine Co. ("the Foundry"), which operated on the site until 2004. One of the statutes relied upon by the City is Indiana Code section 13-30-9-2, which took effect in 1998 and which, generally stated, provides that a person who cleans up a contaminated site can bring an "environmental legal action"

(ELA) for the recovery of cleanup costs against a person who contributed to the contamination.

[2] At issue in this appeal is the meaning of a related statute, Indiana Code section 34-11-2-11.5, which took effect in 2011 and provides that the plaintiff in an ELA can seek to recover "[t]he costs incurred not more than ten (10) years before the date the action is brought, even if the person or any other person also incurred costs more than ten (10) years before the date the action is brought." The City contends that this is a statute of limitation requiring that an ELA be filed within ten years of the incurrence of the cost(s) sought to be recovered and that its ELA was timely under this provision. The Foundry, on the other hand, argues that Section 34-11-2-11.5 is merely a cap on the damages recoverable in an ELA. According to the Foundry, an ELA is subject to the six-year limitation period established by Indiana Code section 34-11-2-7(3) for "[a]ctions for injuries to property other than personal property," and the City's ELA is untimely under this provision. The trial court, in an excellent, 23-page order, agreed with the City that Section 34-11-2-11.5 is a statute of limitation and that its ELA was timely filed. We affirm the trial court in this and all other respects.

Facts and Procedural History

[3] The site at issue is located at 318 S. Elkhart Avenue in Elkhart. Beginning in the early 1900s, the Foundry operated an iron foundry on the site. The Foundry went out of business in 2004. In 2007, the Foundry voluntarily dissolved as an Indiana corporation, and a subsidiary of one of the Foundry's creditors took ownership of the site through a court-appointed receiver. The same year, the City began looking into purchasing the site and learned that it was contaminated. (The record reflects some uncertainty as to when various city agencies learned about the contamination, but for purposes of this appeal the parties proceed as though the City learned in 2007.) In 2010, the City purchased the site for $1,000,000 and began remediation work.

[4] In February 2016, the City filed suit against the Foundry. The City alleged that the Foundry caused the contamination and asserted: (1) an ELA under Indiana Code section 13-30-9-2 ; (2) claims under Indiana Code chapter 13-25-4, which the parties refer to as "mini-CERCLA" because of its relationship to the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601 - 9675 ; and (3) a nuisance claim. The Foundry filed a motion for summary judgment on all the City's claims. After a hearing, the trial court granted the Foundry's motion as to the City's mini-CERCLA and nuisance claims but denied it as to the ELA.

[5] The Foundry now appeals the denial of its motion as to the ELA, and the City cross-appeals the grant of the motion on its other claims.

Discussion and Decision

[6] We review motions for summary judgment de novo. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014).

I. ELA

[7] The Foundry contends that the trial court should have granted it summary judgment on the City's ELA. The filing of an ELA is allowed by Indiana Code section 13-30-9-2, which provides:

A person may, regardless of whether the person caused or contributed to the release of a hazardous substance or petroleum into the surface or subsurface soil or groundwater that poses a risk to human health and the environment, bring an environmental legal action against a person that caused or contributed to the release to recover reasonable costs of a removal or remedial action involving the hazardous substances or petroleum.

Our Supreme Court has explained that the "overall purpose" of the legislation that authorized ELAs (Public Law 59-1997) was the rescue and redevelopment of "brownfields"-inactive or underused parcels of industrial or commercial real estate that are, or are perceived to be, contaminated. Cooper Indus., LLC v. City of South Bend , 899 N.E.2d 1274, 1281 (Ind. 2009). The Court added:

[T]he legislature enacted the ELA statute to shift the financial burden of environmental remediation to the parties responsible for creating contaminations. In effect, this scheme creates an incentive for potential buyers of contaminated land who might be deterred by the substantial costs to clean up the land, thus preventing not only the cleanup but also redevelopment and economic renewal.

Id. at 1284.

[8] In seeking summary judgment on the City's ELA, the Foundry argued that such an action is subject to the six-year limitation period established by Indiana Code section 34-11-2-7(3) for "[a]ctions for injuries to property other than personal property," that this six-year period began to run when the City learned of the contamination in 2007, and that the period therefore expired in 2013, making the City's 2016 action untimely. The trial court rejected that argument, concluding instead that a different provision, Indiana Code section 34-11-2-11.5, is the statute of limitation for an ELA and that the City's ELA was timely under this statute. We agree.

[9] A bit of history is in order. Our Supreme Court addressed a claim that an ELA was time-barred in Cooper Industries , which was decided in 2009, before Section 34-11-2-11.5 took effect. The parties did not agree on the applicable limitation period. Cooper Industries argued, as the Foundry does here, that it was the six-year period under Section 34-11-2-7(3). The City of South Bend asserted that it was the general "catch-all" limitation period of ten years established by Indiana Code section 34-11-1-2. The Court said it would "adopt six years as the applicable time period" for purposes of its discussion but made clear that there was no need to resolve the issue definitively "[b]ecause we find South Bend's ELA claim would survive under either proposed time period[.]" Id. at 1286, 1286 n.9. As such, the statute of limitation applicable to an ELA remained an open question.

[10] Two years after Cooper Industries , the legislature created Indiana Code section 34-11-2-11.5. See P.L. 154-2011, § 4. Subsection (b) of the statute provides that the plaintiff in an ELA brought on or after May 10, 2011, may seek to recover "(1) The costs incurred not more than ten (10) years before the date the action is brought, even if the person or any other person also incurred costs more than ten (10) years before the date the action is brought" and "(2) The costs incurred on or after the date the action is brought." Ind. Code § 34-11-2-11.5(b). In this case, the trial court ruled that this is a statute of limitation that gives a person ten years from the incurrence of cleanup costs to file an ELA. In other words, the court concluded that Section 34-11-2-11.5 was the legislature's answer to the question left open by our Supreme Court in Cooper Industries .

[11] In its appeal, the Foundry does not dispute that Section 34-11-2-11.5 applies to the City's ELA, given that the City filed suit after the statute went into effect. Rather, the Foundry asserts that the statute is merely a limit on the damages recoverable in an ELA, not a statute of limitation, and that the applicable limitation period is six years pursuant to Section 34-11-2-7(3), the general statute of limitation for injury to real property. The Foundry relies heavily on this Court's 2016 decision in Schuchman/Samberg Investments, Inc. v. Hoosier Penn Oil Co. , 58 N.E.3d 241 (Ind. Ct. App. 2016), trans. denied . There, the panel held that a plaintiff's ELA "seeking recovery of costs incurred to remediate its own property ... is subject to the six-year statute of limitation set forth in I.C. § 34-11-2-7." Id. at 250. On its way to that holding, the panel noted its belief that Section 34-11-2-11.5 is not a statute of limitation. Specifically, the panel suggested that the statute "says nothing of the time frame within which an ELA claim must be brought or the events that trigger the running of that period. Instead, it imposes a limitation on the types of damages recoverable in an ELA claim in the form of a ten-year look-back period." Id. at 246 n.5.

[12] The problem with the Foundry's reliance on the footnote in Schuchman/Samberg Investments is that, as the panel in that case acknowledged, Section 34-11-2-11.5 was "inapplicable" to the ELA at issue because the lawsuit was filed in 2009, two years before the enactment of the statute. Id. As such, the footnote was dicta and therefore nonprecedential. See Henley v. State , 881 N.E.2d 639, 648 (Ind. 2008). But even if the panel's analysis constitutes "persuasive authority," as the Foundry contends, our analysis of the statute differs.

[13] By stating that an ELA plaintiff can recover only "costs incurred not more than ten (10) years before the date the action is brought," I.C. § 34-11-2-11.5(b), the statute plainly says something about "the time frame within which an ELA claim must be brought" and "the events that trigger the running of that period," see Schuchman/Samberg Invs. , 58 N.E.3d at 246 n.5. Specifically, the statute means that if a person wants to recover a particular cleanup cost, they must bring an ELA within ten years of incurring the cost. Stated differently, as soon as a person incurs a cleanup cost, the ten-year period starts to run with respect to that cost. Therefore, while it is true that Section 34-11-2-11.5 does not include typical "statute of limitation" language stating when an action "must be brought" (see , e.g., Ind. Code § 34-11-2-1 ) or "must be commenced" (see , e.g., Ind. Code § 34-11-2-5 ), it has the same effect.

[14] If the language of Section 34-11-2-11.5 left any doubt about whether the legislature intended to create a statute of limitation for ELAs, it was resolved by the legislature's decision to house the provision in Chapter 2 of Article 34-11 of the Indiana Code. When the legislature created Article 34-11 in 1998, it gave it the heading "Limitation of Actions." See P.L. 1-1998, § 6. In turn, it gave Chapter 34-11-2 the heading "Specific Statutes of Limitation," and it filled the chapter with statutes of limitation. Id. We are aware that these headings "are not part of the law and may be altered by the lawful compilers," Ind. Code § 1-1-1-5(f), but we are also aware that the legislature often omits headings altogether, so its inclusion of headings here is worth noting. In any event, even if we disregard the headings the legislature gave to Article 34-11 and Chapter 34-11-2, the fact that Section 34-11-2-11.5 was placed in Chapter 34-11-2, alongside numerous statutes of limitation, tells us that the legislature intended Section 34-11-2-11.5 to be read as a statute of limitation.

[15] The Foundry argues that if Section 34-11-2-11.5 is treated as a statute of limitation, "[a] plaintiff could get a new ten-year limitations period, stretching indefini tely into time, just by spending another dollar on alleged response costs." Appellant's Reply Br. p. 20. This is true, but it is also consistent with the language of the statute. Specifically, subsection (b)(1) contemplates not only the incurrence of cleanup costs during the ten years immediately preceding the filing of the ELA but also the possibility that the plaintiff "incurred costs more than ten (10) years before the date the action is brought." Ind. Code § 34-11-2-11.5(b)(1). In other words, the legislature did not intend for the ten-year limitation period to start running, once and for all, when the plaintiff incurs its "first" cleanup cost. Rather, a new ten-year period starts to run with the incurrence of each additional cleanup cost. Of course, if the plaintiff waits more than ten years from the incurrence of certain cleanup costs to file its ELA, those costs will not be recoverable. By creating this ten-year cutoff, the legislature gave plaintiffs a significant incentive to (1) expedite cleanups and (2) file suit within ten years of the incurrence of the first cost. This scheme is also consistent with the purpose of allowing ELAs in the first place: to encourage cleanup (which leads to redevelopment and economic renewal) by shifting the financial burden to the parties responsible for creating contamination. Cooper Indus. , 899 N.E.2d at 1284. The longer a contaminated site sits vacant, the more important it becomes to allow a suit for the recovery of cleanup costs.

[16] As for the Foundry's contention that Section 34-11-2-11.5 is better read as a damages cap and that ELA plaintiffs should be required, pursuant to Section 34-11-2-7(3), to file suit within six years of learning about contamination, we make two observations. First, an ELA is an action for the recovery of cleanup costs, not an action for damage to real property. See Ind. Code § 13-30-9-2. As such, it would be counterintuitive for the limitation period to start running when the plaintiff merely learns of the contamination, as opposed to when the plaintiff actually incurs a cleanup cost. For those plaintiffs who do not incur any cleanup costs until more than six years after learning of contamination (since transfers of contaminated land can take many years), an ELA would not be an option at all. In short, a cause of action for the recovery of cleanup costs does not accrue until a cleanup cost has been incurred. Second, if we were to agree with the Foundry, a plaintiff would recover ten years' worth of cleanup costs (as contemplated by Section 34-11-2-11.5 ) only in certain limited circumstances. The Foundry offers the hypothetical of a plaintiff who learns of contamination and begins incurring cleanup costs but does not learn until four or more years later that a particular defendant contributed to the contamination. The Foundry does not give us any reason to believe that the legislature had this scenario in mind when it enacted Section 34-11-2-11.5.

[17] For these reasons, we conclude that the trial court correctly concluded that Section 34-11-2-11.5 is the ELA statute of limitation and correctly denied the Foundry's motion for summary judgment as to the City's ELA.

II. Mini-CERCLA

[18] The City cross-appeals the trial court's grant of summary judgment to the Foundry on the City's mini-CERCLA claims. Congress enacted CERCLA, 42 U.S.C. §§ 9601 - 9675, in 1980 "in response to the serious environmental and health risks posed by industrial pollution." Burlington N. and Santa Fe Ry. Co. v. United States , 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009). "The Act was designed to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination." Id. (citations omitted). Following the enactment of CERCLA, many states passed "mini-CERCLA" statutes of their own. William W. Buzbee, Brownfields, Environmental Federalism, and Institutional Determinism , 21 Wm. & Mary Envtl. L. & Pol'y Rev. 1, 10 (1997). "State mini-CERCLA statutes usually share with the federal CERCLA law a broad liability scheme, empowering state officials to ensure that contaminated sites are remediated." Id.

[19] Indiana's mini-CERCLA, found at Indiana Code chapter 13-25-4, authorizes a variety of actions by the Indiana Department of Environmental Management (IDEM) and its representatives, including its commissioner, but not by other entities or individuals. The two sections relied upon by the City- Indiana Code sections 13-25-4-10(a) and 13-25-4-9(a)(1) -are no exceptions. Section 13-25-4-10(a) provides that "[t]he commissioner may proceed in the appropriate court to recover costs and damages for which a responsible person is liable to the state under [various CERCLA and mini-CERCLA provisions]." Likewise, Section 13-25-4-9(a)(1) provides that "[t]he commissioner may proceed in court, by appropriate action, to ... compel a responsible person to undertake a removal or remedial action with respect to a release or threatened release of a hazardous substance from a facility or site in Indiana[.]"

[20] The City acknowledges that these two statutes, like the rest of Indiana's mini-CERCLA, contemplate action by IDEM, but it asserts that Indiana Code section 13-30-1-1 (the "private-attorney-general statute") permits it to "stand[ ] in the shoes of IDEM." Appellee/Cross-Appellant's Br. p. 23. The private-attorney-general statute provides:

Under this chapter:
(1) the attorney general;
(2) a state, city, town, county, or local agency or officer vested with the authority to seek judicial relief;
(3) a citizen of Indiana; or
(4) a corporation, a limited liability company, a partnership, or an association maintaining an office in Indiana;
may bring an action for declaratory and equitable relief in the name of the state of Indiana against an individual, a partnership, a copartnership, a firm, a company, a corporation, a limited liability company, an association, a joint stock company, a trust, an estate, a state agency or an officer of the state, a city, a town, a county, a local governmental unit, an agency, or an official of a city, a town, a county, a local governmental unit, or an agency, or any other legal entity or their legal representative, agent, or assigns for the protection of the environment of Indiana from significant pollution, impairment, or destruction.

Ind. Code § 13-30-1-1. As far as we can tell, no Indiana court has ever been asked to decide whether a plaintiff can use the private-attorney-general statute to bring a claim under any part of mini-CERCLA. We do not reach that broad issue either-we hold only that the specific claims brought by the City in this case cannot proceed.

[21] Regarding the claim under Section 13-25-4-10(a), there are two problems. First, a suit "to recover costs and damages," which is what Section 13-25-4-10(a) permits, certainly does not sound like "an action for declaratory and equitable relief," which is all that the private-attorney-general statute allows. The City contends that such a conclusion "ignores what declaratory or injunctive relief means and looks like in the environmental context" and that "declaratory judgment actions in the environmental context commonly seek a declaration as to who is liable for cleanup costs and in what amount." Appellee/Cross-Appellant's Br. pp. 25-26. Even if we were to accept that premise, there is a second problem: Section 13-25-4-10(a) authorizes only an action for the recovery of "costs and damages for which a responsible person is liable to the state [.]" (Emphasis added). Furthermore, any "[c]osts, damages, and punitive damages awarded" under this section are to be deposited in the State's hazardous-substances-response trust fund. Ind. Code § 13-25-4-10(d). In this case, the City seeks recovery of cleanup costs that it has incurred; it does not claim that the Foundry is somehow "liable to the state." And the City has made clear that if it were to win a judgment under this statute, it would not deposit its award into the State trust fund. See Appellee/Cross-Appellant's Br. pp. 24-25. As such, the City cannot bring a claim under Section 13-25-4-10(a).

[22] As for Section 13-25-4-9(a)(1) -the statute that allows a suit to "compel a responsible person to undertake a removal or remedial action with respect to a release or threatened release of a hazardous substance from a facility or site in Indiana"-we need not decide whether a suit under this provision could ever be brought by a "private attorney general." Even if we assume that such a claim would, as a general matter, be permissible, the City's claim in this case must fail.

[23] Before a "public officer or agency" can bring an action under the private-attorney-general statute, it "must give notice in writing" to the Department of Natural Resources, IDEM, and the Attorney General of Indiana, Ind. Code § 13-30-1-2, and give them and any other interested agencies the first opportunity to take action on the matter at issue, Ind. Code § 13-30-1-3. In other words, the private-attorney-general statute allows a plaintiff to step into the shoes of the State when the State, for whatever reason, does not act. Here, the City sent a notice pursuant to Indiana Code section 13-30-1-2. However, the notice did not state that the City planned to bring an action to compel a cleanup or that any sort of cleanup was even necessary. Rather, the notice stated that the City had "completed" the necessary remediation activities, "at considerable cost." Appellant's App. Vol. IV p. 60. IDEM's Deputy Chief of Staff and General Counsel apparently responded to the notice but, according to an affidavit provided by one of the City's attorneys, stated only that "IDEM had no objection to the Commission's pursuit of a cost recovery action ." Id. at 58 (emphasis added). The City does not direct us to anything in the record indicating that it notified the State that it intended to bring suit to compel a further cleanup. As such, the State has not been given the statutorily mandated opportunity to take the action the City proposes to take. Because the notice requirement has not been satisfied with regard to an action to compel cleanup, the City cannot maintain it. This is true even if the action would otherwise be permissible under the private-attorney-general statute, an issue we need not decide.

III. Nuisance

[24] Finally, we address the City's nuisance claim. The legislature has defined "nuisance" as "[w]hatever is: (1) injurious to health; (2) indecent; (3) offensive to the senses; or (4) an obstruction to the free use of property; so as essentially to interfere with the comfortable enjoyment of life or property[.]" Ind. Code § 32-30-6-6. Under Indiana Code section 32-30-6-7, any person whose property is injuriously affected or whose personal enjoyment is lessened by a nuisance can bring "[a]n action to abate or enjoin [the] nuisance[.]"

[25] The Foundry contends that it is entitled to summary judgment on this claim for three reasons. First, the Foundry argues that the claim is barred by the six-year limitation period applicable to "[a]ctions for injuries to property other than personal property," Ind. Code § 34-11-2-7(3), because the City did not bring the claim until almost nine years after learning of the contamination. Second, the Foundry asserts that our decision in KB Home Indiana Inc. v. Rockville TBD Corp. , 928 N.E.2d 297 (Ind. Ct. App. 2010), precludes the City's claim. There, we held that, because Indiana's nuisance statutes contemplate "[a]n action to abate or enjoin a nuisance," Ind. Code § 32-30-6-7, the existence of contamination cannot be the basis for a nuisance action where the activity that caused the contamination is no longer occurring, since there is no nuisance "that could be abated or enjoined." KB Home , 928 N.E.2d at 307. Third, the Foundry relies on the holding in Lilly Industries, Inc. v. Health-Chem Corp. that "a buyer of property may not sue a prior owner for nuisance based on activities undertaken on the same property and alleged to have harmed the same property." 974 F.Supp. 702, 708 (S.D. Ind. 1997).

[26] We need not address the KB Home rationale or the Lilly Industries rationale. Even if those cases were wrongly decided (as the City contends) or are distinguishable from this case, we agree with the Foundry that the City's nuisance claim was untimely under Indiana Code section 34-11-2-7(3).

[27] The City does not dispute that its claim is subject to the six-year limitation period established by Section 34-11-2-7(3). Nor does it dispute that it filed suit twelve years after the Foundry's alleged contamination-causing activities ended and nearly nine years after it learned of the contamination. Instead, the City contends that the persisting contamination at the site constitutes a "continuing nuisance." Appellee/Cross-Appellant's Br. p. 27. The City argues that, "[b]ecause this nuisance was of a continuing nature, the statute of limitations began anew each day that the nuisance went unabated." Id. at 29.

[28] The City asserts that its argument is supported by our decision in Stickdorn v. Zook , 957 N.E.2d 1014 (Ind. Ct. App. 2011). We disagree. The defendants in Stickdorn operated a dairy from October 2003 until April 2005 (when they sold the dairy). In November 2009, six years and one month after operations began, the defendants' neighbors filed a nuisance lawsuit against them, focusing on the defendants' manure-management practices. The defendants argued that the claim was barred by the statute of limitation, but we held it was not. We began by describing a "continuing nuisance" as follows:

The distinction between an injury caused by a nuisance that is "permanent" or "original," and one that is considered temporary, transient, continuing, or recurring, is critical to determining when the statute of limitations period for a nuisance action begins to run. An intermittent, non-abated nuisance is a new and separate injury that gives rise to a new cause of action. Successive actions may be maintained so long as the nuisance is permitted to continue, in which damages may be recovered for all injury occasioned prior to the commencement of the action and within the statute of limitations, not extending back of a former recovery. When the nuisance is a continuing abatable one, an action that is prosecuted to a finality will not bar another action to recover for harm sustained in succeeding years, when it is made to appear that the nuisance has not been abated and its continuance has resulted in further injury.

Id. at 1022. In allowing the plaintiffs' nuisance claim to proceed, we explained:

[T]he nuisance odors and contaminated streams from the [defendants'] repeated manure spills, improper spreading of the waste on their fields, and the refusal to put a cover on their manure pit amount to an intermittent, abatable nuisance. Each time that the odors and polluted streams affected the [plaintiffs'] property, the statute of limitations began anew. In short, we can glean from the designated evidence that the [plaintiffs'] damages were recurring and continuing and thus, the manure pit became a temporary, continuing nuisance through its use, and not a permanent one from its mere existence.

Id. at 1023. Put simply, because the complained-of activity by the defendants-"repeated manure spills, improper spreading of the waste on their fields, and the refusal to put a cover on their manure pit"-continued past October 2003 and into April 2005, the nuisance lawsuit filed in November 2009 was not barred by the six-year limitation period.

[29] Stickdorn does not support the City's "continuing nuisance" argument. Our holding in that case was not based on a finding that the odors and contamination caused by the defendants persisted after they stopped operating the dairy. In fact, there is no indication in the opinion that the defendants' activity caused long-lasting odors and contamination. Instead, we based our holding on the fact that the activity itself was ongoing less than six years before the plaintiffs filed suit. Id. at 1022 ("The [plaintiffs] assert that their injuries were the result of the [defendants'] repeated, wrongful conduct through April 2005."). Here, on the other hand, it is undisputed that the activity that allegedly caused the contamination ceased more than six years before the City filed suit. Therefore, the mere persistence of contamination at the site does not amount to a "continuing nuisance" under Stickdorn , and the trial court did not err by granting summary judgment in favor of the Foundry on the City's nuisance claim.

[30] Affirmed.

Pyle, J., and Barnes, Sr. J., concur.

      Our holding in this regard should be of little consequence to the City, since we have already held that it can proceed with its ELA against the Foundry. In fact, it seems to us that a holding that plaintiffs can use the private-attorney-general statute to sue for the recovery of cleanup costs under mini-CERCLA would render the ELA statute largely superfluous. We do our best to avoid holdings that would leave statutory language meaningless. Pabey v. Pastrick , 816 N.E.2d 1138, 1148 (Ind. 2004), reh'g denied .