ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JACOB S. FROST ANGELA R. SMITH
Thorne, Grodnik, Ransel, Duncan, Pfaff, Brotherson & Killoren, LLP
Byron & Hostetler, LLP Elkhart, Indiana
IN THE COURT OF APPEALS OF INDIANA
MICHAEL TROYER, ) ) Appellant-Defendant; ) Third-Party Plaintiff, ) ) vs. ) No. 20A03-9911-CV-415 ) COWLES PRODUCTS COMPANY, INC., ) ) Appellee-Plaintiff, ) ) MARK III INDUSTRIES, ) ) Appellee-Third-Party Defendant. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable George W. Biddlecome, Judge
Cause No. 20D03-9303-CP-00030
July 25, 2000
OPINION ON REHEARING - FOR PUBLICATION
Building Sys., Inc. v. Rochester Metal Prod., Inc., 168 Ind. App. 12, 340
N.E.2d 791, 794 (1976) (quoting 1 C.J.S. Account at 574-75) (emphasis added).
In this case, then, we have not just an account, but an account
arising from the sale of goods by Troyer to Mark III. Thus,
Indiana Code chapter 26-1-2, applicable to transactions in goods, is also implicated by
the facts of this case. Ind. Code § 26-1-2-102. Indiana Code
section 26-1-2-725 states that [a]n action for breach of any contract for sale
must be commenced within four (4) years after the cause of action has
The apparent conflict between these two statutes of limitations has been resolved by the legislatures enactment of Indiana Code section 26-1-10-102, which states that [t]o the extent that . . . IC 34-11-2 prescribe[s] statutes of limitations inconsistent with IC 26-1-2-725, IC 26-1-2-725 prevails. Therefore, the UCCs four-year statute of limitations is both applicable and takes precedence in this case, and Troyers third-party complaint, filed more than four years after the last delivery of goods to Mark III, was time-barred.
It is important to note that the legislature did not repeal section 34-11-2-7, but merely stated that where there is an inconsistency, section 26-1-2-725 prevails. This indicates to us that the six-year statute of limitations is still applicable to actions on accounts dealing with, for example, services or labor; in other words, any accounts not otherwise covered by the UCC. It may have been easier and certainly would have been more clear to have amended section 34-11-2-7 to specifically limit its applicability; however, we are persuaded that the effect is the same: the four-year statute of limitations is applicable to Troyers claim on account arising from goods sold and delivered to Mark III but not yet paid for.
We have carefully considered the error alleged by Mark III in light of our original decision and agree that we erroneously applied the longer statute of limitations. We therefore reverse our previous decision, and hold that the trial court properly granted Mark IIIs motion to dismiss Troyers third-party complaint as time barred. The judgment of the trial court with respect to the third-party action between Troyer and Mark III is affirmed. In all other respects, we reaffirm our previous decision.
BROOK, J., and NAJAM, J., concur.