ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Timothy E. Peterson Nana Quay-Smith
D. Robert Webster James P. Strenski
Indianapolis, Indiana Indianapolis, Indiana
SUPREME COURT OF INDIANA
LINDA K. SCHUMAN & )
RACHEL STUCKEY, )
(Plaintiffs Below ), ) 49S02-9901-CV-13
) in the Supreme Court
ERNEST M. KOBETS & ) in the Court of Appeals
SUSAN G. KOBETS, )
(Defendants Below ). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven Eichholtz, Judge
Cause No. 49D05-9606-CP-776
September 15, 1999
SHEPARD, Chief Justice.
The claimants in this case filed a complaint that largely
recited tort, but wrapped the claim in contract language in hopes
of using the six-year statute of limitation applicable to contract
actions. The trial court was right to dismiss the tort claims as
tardy, but there may be some remaining viable contract claim.
Linda Schuman rented an apartment from Ernest and Susan Kobets
from 1989 to 1993 under an oral month-to-month lease. In June
1990, pigeons began roosting in a broken window casing and in the
wall of Schuman's apartment. Despite repeated requests, the Kobets
failed to make the needed repairs. In July of the same year,
Schuman began suffering from enlarged lymph nodes and other
maladies including a cough and fever.
In August 1990, Schuman was diagnosed with having
After learning from her doctor that her
discomfort likely stemmed from the roosting birds in her apartment,
Schuman sought reimbursement for her doctor bills from her
landlords. The Kobets ignored Schuman's demands for payment.
Apparently, Schuman let the matter rest without initiating
litigation. Schuman's doctor told her that her illness would pass
in a few months.
Schuman's histoplasmotic symptoms resurfaced in the early fall
of 1995. This time, Schuman was hospitalized and nearly died.
Schuman's mother, Rachel Stuckey, came from her home in Fort Wayne
to be at her daughter's bedside. After her release from the
hospital, Stuckey took her daughter back to Fort Wayne to look
after her. Schuman has since been informed that the histoplasmosis
could resurface at any time.
In June 1996, Schuman and Stuckey sued the Kobets. Schuman
alleged negligence, breach of implied warranty of habitability, and
nuisance. Stuckey claimed negligent infliction of emotional
distress. The trial court granted the defendants' motion on the
pleadings, finding Schuman's complaint barred by the two-year
statute of limitation set out in Ind. Code § 34-1-2-2(1). The
court also found that the Kobets owed no duty of care to Stuckey.
On appeal, Schuman argued that the appropriate statute of
limitation was six years. Stuckey urged the court to recognize an
exception to the modified impact rule so that she could pursue her
claim for emotional damages. The Court of Appeals found both
arguments unpersuasive and affirmed. Schuman v. Kobets, 698 N.E.2d
375, 378 (Ind. Ct. App. 1998). The Court of Appeals was correct to
affirm dismissal of the tort claims. We grant transfer largely to
examine whether Schuman may have a remaining contract claim.
In reviewing a Rule 12(C) dismissal, courts of appeal accept
as true all of the well-pleaded facts set out in the complaint.
Noblesville Redev. Comm'n v. Noblesville Assoc. Ltd., 674 N.E.2d
558, 562 (Ind. 1996). We look only to the pleadings in making this
"[T]he applicable statute of limitations is ascertained by
identifying the nature or substance of the cause of action."
Whitehouse v. Quinn, 477 N.E.2d 270, 274 (Ind. 1985). The thrust
of Schuman's claim is in tort. She seeks recovery for a personal
injury sustained as a result of the roosting pigeons. (R. at 5-
17.) Indeed, the complaint is styled as personal injury due to
breach of an oral contract. (R. at 5.) Claims for personal injury
sound in tort and are therefore governed by Ind. Code § 34-1-2-
2(1), a two-year statute of limitation that had long since tolled
when Schuman filed her complaint.
The Court of Appeals was thus
correct to affirm dismissal of Schuman's tort claims and we
summarily affirm on this point. Ind. Appellate Rule 11(B)(3).See footnote
Several of her contentions sound like a contract claim. Since
a lease is a contract, the essence of the landlord-tenant
relationship is contractual in nature. Schuman's warranty claim,
for example, stems from the oral month-to-month lease between
tenant Schuman and landlord Kobets. Thus, this claim is governed
by Ind. Code § 34-1-2-1, a six-year statute of limitation.
Schuman became aware of her ailment on August 30, 1990, and she
filed her complaint on June 4, 1996. She thus had two months to
spare in bringing her contract claim.
Of course, Schuman's recovery on her contract claim will be
defined by the law of contract. Her damages thus might be measured
by the difference between the contract price and the market price
of the apartment as delivered, for example, or by the difference
between the value of the premises without promised
them. 11 Walter H. E. Jaeger, Williston on Contracts § 1404 (3d
ed. 1968 & Supp. 1999); accord Sunman v. Clark, 120 Ind. 142, 22
N.E. 113 (1889) (general measure of damages for defective
performance), and Jordan v. Talaga, 532 N.E.2d 1174 (Ind. Ct. App.
1989) (damages for breach of warranty in contract conveying real
estate); 9 Ind. Law Encyclopedia Damages § 129 (1971 & Supp. 1998)
(damages for defective performance). These damage rules are
examples that are presumably applicable. Others may also apply,
depending on the proof at trial.
For these reasons, we summarily affirm the opinion of the
Court of Appeals as to the tort claims of Schuman and Stuckey.
We reverse with respect to the contract claim and remand for
further proceedings on that claim.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
1 According to the complaint, the diagnosing physician, Dr. Judy Monroe,
described histoplasmosis as "a fungus, which is spread by spores that are
typically carried in bird excrement, particularly pigeon droppings." (R. at
This section was recently recodified at Ind. Code § 34-11-2-4(1).
3 Affirming dismissal of Stuckey's negligence claim was also
appropriate, not for reasons having to do with the impact rule but because as
a claim for negligence it was barred by the statute of limitation.
4 This section was recently recodified at Ind. Code § 34-11-2-7(1).
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