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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Dec 18 2008, 10:06 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: LAWRENCE R. WHEATLEY Danville, Indiana

ATTORNEYS FOR APPELLEES: KATHERINE J. NOEL Noel Law Kokomo, Indiana

IN THE COURT OF APPEALS OF INDIANA
TIMBERLAND LUMBER CO., et al Appellant-Respondent-Cross Plaintiff, vs. MARRILL GETCHE Appellee-Petitioner-Cross Defendant. ) ) ) ) ) ) ) ) )

No. 61A05-0805-CV-285

APPEAL FROM THE PARKE CIRCUIT COURT The Honorable Sam A. Swain, Judge Cause No. 61C01-0712-SC-391

December 18, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge

Tim Boone and Timberland Home Center (collectively, Timberland, unless otherwise indicated) appeal a judgment in favor of Marrill Getche in Getches small claims action against Timberland and A & B Windows for breach of contract. Timberland presents the following consolidated, restated issue for review: Did a contract exist between Getche and Timberland? We affirm. The facts favorable to the judgment are that a May 2004 storm significantly damaged the deck of Getches home and it was determined that the deck boards would need to be replaced. Getches homeowners insurer, the Hartford Company, agreed that it would cover the cost of replacing the cedar deck. After bids were submitted for the job, A & B Windows was selected to replace the deck. Getche chose Timberland to supply the lumber for the job primarily because Getche had known Tim Boone, a Timberland salesman, for twenty years. Boone brought a sample of the wood he proposed to supply, custom clear grade, which was a higher grade lumber than was used in constructing the deck that was being replaced. Getche agreed. As for payment, Getches insurer paid Getche the covered amount of the claim, Getche then paid A & B Windows for materials and labor, and A & B Windows in turn paid Timberland for the materials. Timberland delivered the lumber to be used on the project to A & B Windows. Dave Funk of A & B Windows inspected the lumber and was concerned about several boards that were marred by a row of marks crossing them. He called Getche and asked him to inspect the boards and decide whether they were satisfactory. After inspecting the six affected
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boards, Getche determined that they were unacceptable and notified Boone of this fact. Timberland delivered replacement boards to A & B Windows and the new deck was installed. Almost immediately after installation, Getche noted that the boards used on the deck contained as many as fourteen or fifteen knots apiece

Download Timberland Lumber Co., et al v. Marrill Getche.pdf

Indiana Law