Richard Hiller d/b/a Hiller & Sons v. City of Portage (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 13, 2019
• Docket: 18A-CC-3129
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 13 2019, 8:12 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Terry K. Hiestand Steven J. Scott Hiestand Law Office Hodges & Davis, P.C. Chesterton, Indiana Merrillville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Richard Hiller d/b/a Hiller & August 13, 2019 Sons, Court of Appeals Case No. Appellant-Defendant, 18A-CC-3129 Appeal from the Porter Superior v. Court The Honorable Roger V. Bradford, City of Portage, Judge Appellee-Plaintiff. Trial Court Cause No. 64D01-1605-CC-4460

Friedlander, Senior Judge.

[1] Richard Hiller d/b/a Hiller & Sons (Hiller) appeals the trial court’s order

denying his motion for judgment on the pleadings and granting the City of

Portage’s (City) motion for partial summary judgment. Concluding that

Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019 Page 1 of 7 genuine issues of material fact remain, we affirm in part and reverse and

remand in part for further proceedings.

[2] In the early 2000’s, Hiller developed the Austin Hills Subdivision in the City.

As part of developing the subdivision, Hiller agreed to provide the public

improvements for each phase, including the final surfacing of roads. By 2005,

Phases I-V were complete, and the public improvements for Phase VI, the final

phase, were complete except the final surfacing of roads. In order to secure the

completion of the public improvements for Phase VI, on October 17, 2005,

Hiller provided to the City an Irrevocable Letter of Credit in the amount of

$41,500 issued by the First State Bank of Porter (Bank). The amount of the

Letter of Credit was based on estimates Hiller provided to the City, which the

City found to be appropriate and accepted.

[3] By 2015, the final surfacing of roads for Phase VI had yet to be completed. The

City sought bids from two contractors to perform the work, one of which

completed the final surfacing and repair work at a cost of $146, 921. The City

drew on the $41,500 available pursuant to the Letter of Credit and filed suit

against Hiller in May 2016 seeking the remainder.

[4] In October 2017, Hiller filed a motion for summary judgment, arguing that the

City’s complaint was not filed within any relevant statutes of limitation. The

City filed a response, and, following a hearing, the court denied Hiller’s motion.

Hiller sought and received from the trial court certification of its order for

Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019 Page 2 of 7 interlocutory appeal; however, this Court denied his motion to accept

jurisdiction of the appeal.

[5] In September 2018, the City filed its motion for partial summary judgment as to

liability, claiming that Hiller had agreed to complete the final layering of the

road in Phase VI, that after ten years he had not completed the final layering,

and that he was liable for the cost the City incurred in having the work

completed. In response, Hiller filed a motion for judgment on the pleadings,

arguing that the City failed to state a claim upon which relief can be granted

and that the City’s claims are time-barred. The court treated Hiller’s motion as

a response to the City’s motion for summary judgment. In November,

following a hearing, the court granted the City’s partial motion for summary

judgment as to liability and denied Hiller’s motion. Hiller now appeals.

[6] Given that Hiller presented matters outside the pleadings in support of his

motion for judgment on the pleadings, we will treat his motion as one for

summary judgment, as did the trial court, and review it accordingly. See Ind.

Trial Rule 12(C). We review de novo a trial court’s ruling on summary

judgment. Morris v. Crain, 71 N.E.3d 871 (Ind. Ct. App. 2017). We apply the

same standard of review as the trial court: summary judgment is appropriate

only where the designated evidentiary matter shows there is no genuine issue as

to any material fact and that the moving party is entitled to judgment as a

matter of law. Young v. Hood’s Gardens, Inc., 24 N.E.3d 421 (Ind. 2015); see also

Ind. Trial Rule 56(C). Appellate review of a summary judgment is limited to

those materials specifically designated to the trial court, and all facts and

Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019 Page 3 of 7 reasonable inferences drawn from those facts are construed in favor of the

nonmovant. Sheehan Const. Co., Inc. v. Cont’l Cas. Co., 938 N.E.2d 685 (Ind.

2010). Summary judgment is not a summary trial, and it is inappropriate

merely because the nonmoving party appears unlikely to prevail at trial. Morris,

71 N.E.3d 871. Finally, that the parties made cross motions for summary

judgment does not alter our standard of review; rather, we consider each

motion separately to determine whether the moving party is entitled to

judgment as a matter of law. Pond v. McNellis, 845 N.E.2d 1043 (Ind. Ct. App.

2006), trans. denied.

[7] In his motion for judgment on the pleadings and in his brief to this Court, Hiller

maintains that the City’s complaint was untimely filed. “The defense of a

statute of limitation is peculiarly suitable as a basis for summary judgment.”

Del Vecchio v. Conseco, Inc., 788 N.E.2d 446, 449 (Ind. Ct. App. 2003), trans.

denied. As per Indiana’s discovery rule, a cause of action accrues, and the

statute of limitation begins to run, when a claimant knows or in the exercise of

ordinary diligence should have known of the injury. Barrow v. City of

Jeffersonville, 973 N.E.2d 1199 (Ind. Ct. App. 2012), trans. denied. For an action

to accrue, it is not necessary that the full extent of the damage be known or

even ascertainable but only that some ascertainable damage has occurred. Id.

“The exercise of reasonable diligence means simply that an injured party must

act with some promptness where the acts and circumstances of an injury would

put a person of common knowledge and experience on notice that some right of

his has been invaded or that some claim against another party might exist.” Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019 Page 4 of 7 at 1206. The discovery rule applies to both tort and contract claims. Del

Vecchio, 788 N.E.2d 446.

[8] As we discuss below, the City’s claim appears to be based on an oral contract.

The statute of limitation for an oral contract is six years. Ind. Code § 34-11-2-

7(1) (1998). Hiller points to October 2005 as the date any cause of action may

have accrued. This claim rests on the issuance date of the Letter of Credit,

which states it was established to guarantee completion of the public

improvements to Phase VI of the Austin Hills Subdivision should there be any

“performance deficiency.” Appellant’s App. Vol. 2, p. 29. There is also some

evidence that Sandy McDaniel, project manager for the City, had some type of

communication with Hiller in 2009 concerning a possible timeframe in which

the final layering would be complete. On the other hand, the City claims it was

not aware of its injury, and thus a cause of action did not accrue, until the time

the final layer of asphalt was applied to the Phase VI roads in 2015.

[9] We cannot say when, as a matter of law, the limitation period began to run

because the evidence is in conflict. 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. Custom Radio Corp. v. Actuaries & Benefit Consultants, Inc., 998

N.E.2d 263 (Ind. Ct. App. 2013). Therefore, summary judgment premised on

the expiration of the statute of limitation would have been inappropriate.

[10] We turn now to the City’s motion for summary judgment. The City refers only

to an “agreement,” but the gist of its claim against Hiller sounds in contract. In

Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019 Page 5 of 7 order to recover for a breach of contract, a plaintiff must prove (1) a contract

existed, (2) the defendant breached the contract, and (3) the plaintiff suffered

damage as a result of the defendant’s breach. Alexander v. Linkmeyer Dev. II,

LLC, 119 N.E.3d 603 (Ind. Ct. App. 2019).

[11] No written contract was designated by the City, and, at most, the

uncontradicted designated evidence demonstrates some type of oral agreement

between Hiller and the City. In his 2016 deposition, Hiller testified that work

on Phase VI began in approximately 2005 and that his construction company

was responsible for certain public improvements that he identified as sewer

lines, water lines, street base, curbs, and two layers of asphalt. He further

testified that he had agreed to complete all of these public improvements for

Phase VI, including the final layer of asphalt for the roads.

[12] As to a breach of any such agreement, there is a genuine dispute. The City’s

designated evidence merely shows that by 2015 Hiller had not yet completed

the final layering of roads in Phase VI. In the designated portion of her

deposition, McDaniel testified that in 2015 the City was having some individual

paving projects done, and the mayor asked for bids for the final layering of

Phase VI. The City obtained two bids for the job and hired the contractor that

submitted the lowest bid. However, McDaniel also testified that she was

unaware of any notifications to Hiller after 2009 with regard to the final

layering of Phase VI. In the designated portion of his deposition, Hiller testified

that he typically waited until 90% of the lots in the phase had homes built on

them before he completed the final layering.

Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019 Page 6 of 7 [13] The City has not produced any evidence demonstrating the terms of any

agreement it had with Hiller. Consequently, there is no evidence outlining the

parties’ obligations or duties under the agreement, such as a time period within

which Hiller was to have completed the final layering. Without some evidence

of the terms of the parties’ agreement, there can be no showing of a violation of

such terms. The designated evidence clearly establishes a question of fact on

the issue of whether Hiller breached any agreement by not completing the final

layering by 2015. Accordingly, we cannot say the City was entitled to

judgment as a matter of law.

[14] For the reasons stated, we conclude that genuine issues of fact remain which

preclude entry of judgment as a matter of law. Accordingly, we affirm the trial

court’s denial of Hiller’s motion for judgment on the pleadings and reverse and

remand for further proceedings on the trial court’s grant of the City’s motion for

partial summary judgment.

[15] Judgment affirmed in part and reversed and remanded in part.

Bailey, J., and Pyle, J., concur.

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