V. Ganz Builders and Development Co., Inc., and Vladimir Ganz v. Pioneer Lumber, Inc. , 2016 Ind. App. LEXIS 332 ( 2016 )

FILED
Sep 08 2016, 10:03 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
J. Thomas Vetne Terry K. Hiestand
Jones Obenchain, LLP Hiestand Law Office
South Bend, Indiana Chesterton, Indiana
IN THE
COURT OF APPEALS OF INDIANA
V. Ganz Builders and September 8, 2016
Development Co., Inc., and Court of Appeals Case No.
Vladimir Ganz, 64A03-1602-CC-432
Appellants-Defendants, Appeal from the Porter Superior
Court
v. The Honorable William E. Alexa,
Judge
Pioneer Lumber, Inc., Trial Court Cause No.
Appellee-Plaintiff 64D02-1211-CC-11607
Crone, Judge.
Case Summary
[1] V. Ganz Builders and Development Co., Inc. (“VGB”), signed an application
for a line of credit with Pioneer Lumber, Inc. (“Pioneer”), and also signed a
credit account agreement. The line of credit was secured by a personal
guaranty agreement signed by VGB’s president, Vladimir Ganz. Pioneer sued
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VGB and Ganz (collectively “Appellants”) for breach of contract and to enforce
the guaranty. Appellants filed a counter motion for summary judgment,
asserting that Pioneer’s claims were time-barred by the applicable statute of
limitations. The trial court denied the motion, finding that Appellants waived
this defense by failing to plead it in their answer to Pioneer’s complaint. After a
bench trial, the court entered judgment in Pioneer’s favor. Appellants filed a
motion to correct error, which was denied.
[2] Appellants now appeal. As preliminary matters, Pioneer contends that
Appellants failed to preserve their appellate rights and that they may not
challenge the summary judgment order. Because Appellants’ motion to correct
error was timely filed, and because the summary judgment order was not a final
judgment, we disagree. For their part, Appellants assert that the trial court
erred in finding that they waived their statute of limitations defense and in
denying their counter motion for summary judgment. Because Pioneer has not
affirmatively shown that it was prejudiced by Appellants raising the defense on
summary judgment, and because Pioneer’s claims against Appellants were
untimely filed, we reverse and remand with instructions to enter summary
judgment in Appellants’ favor.
Facts and Procedural History
[3] In 1996, VGB signed an application for a line of credit with Pioneer and also
signed a credit account agreement. The line of credit was secured by a personal
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guaranty agreement signed by Ganz. 1 VGB used the line of credit to purchase
tools and building supplies from Pioneer. Two accounts were governed by the
line of credit: the General Account and the Real Estate Account. In November
2012, Pioneer filed a complaint against Appellants, alleging that VGB had
breached the credit account agreement by failing to make timely payments on
its purchases and that Ganz had defaulted on the guaranty agreement by failing
to pay VGB’s debts. Pioneer’s complaint alleged that “[t]he last date upon
which materials were purchased by [VGB] from Pioneer … was March 27,
2006” and that Appellants owed Pioneer over $40,000 in unpaid balances plus
finance charges and attorney’s fees. Appellants’ App. at 25. In January 2013,
Appellants filed an answer and affirmative defenses to Pioneer’s complaint.
[4] In January 2014, Pioneer filed a motion for summary judgment as to both
liability and damages. In April 2014, Appellants filed a counter motion for
summary judgment, asserting for the first time that Pioneer’s claims were time-
barred by the six-year limitation on actions on accounts and contracts not in
writing under Indiana Code Section 34-11-2-7. On July 3, 2014, the trial court
issued an order granting Pioneer’s summary judgment motion as to liability
1
Black’s Law Dictionary (10th ed. 2014) defines guaranty in pertinent part as “[a] promise to answer for the
payment of some debt … in case of the failure of another who is liable in the first instance[.]” In its summary
judgment order, the trial court perceptively noted that the agreement held Ganz and VGB jointly and
severally liable on VGB’s unpaid debts, and therefore it was questionable whether “the agreement here is a
guaranty agreement, a surety agreement, or whether it is a difference without a meaning. For the purposes of
the matters presented at bar, however, it seems to be of no difference.” Appellants’ App. at 11 n.1. The trial
court referred to the agreement as a guaranty agreement for clarity’s sake and noted that neither party had
raised any issue regarding its legal character. For the same reasons, we also refer to the agreement as a
guaranty agreement.
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only and denying Appellants’ counter motion for summary judgment. 2 The
court found that Appellants waived the statute of limitations defense by failing
to plead it in their answer. Appellants filed a motion to correct error, which the
trial court denied. 3
[5] A bench trial on damages was held on November 19, 2015, and the trial court
took the matter under advisement. See Trial Tr. at 63 (“The only thing I see
here is to look at the statute and see what it computes and says. I’ll let you
know.”). In an order file-stamped and signed on December 2, 2015, the trial
court entered judgment in Pioneer’s favor for over $61,000 in unpaid balances,
finance charges, and attorney’s fees. The last line of the order reads, “ALL OF
WHICH IS DONE on this 2nd day of December, 2015, nunc pro tunc
November 20, 2015.” Appellants’ App. at 9 (underlining omitted). The order
was noted in the chronological case summary (“CCS”) on December 8, 2015.
Id. at 5.
[6] Indiana Trial Rule 59(C) provides that a motion to correct error, “if any, shall
be filed not later than thirty (30) days after the entry of a final judgment is noted
in the [CCS].” Appellants filed a motion to correct error on December 31,
2015, less than thirty days after the entry of the trial court’s order was noted in
the CCS but more than thirty days after the order’s nunc pro tunc date. In their
2
The order was not noted in the chronological case summary until August 27, 2014. Appellants’ App. at 4.
3
Indiana Trial Rule 59 provides that a motion to correct error is to be filed “after the entry of a final
judgment[.]” As discussed below, the summary judgment order was not a final judgment.
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motion, Appellants again argued that Pioneer’s claims were time-barred and
asked the court to grant its counter motion for summary judgment. Pioneer
filed a statement in opposition, arguing that Appellants should have but failed
to appeal the trial court’s denial of their counter motion for summary judgment
and that their motion to correct error was untimely because it should have been
filed within thirty days of the nunc pro tunc date. On February 5, 2016, the
trial court issued an order summarily denying Appellants’ motion to correct
error without commenting on its timeliness. The order was noted in the CCS
on February 16, 2016. Appellants’ App. at 6. 4
[7] Indiana Appellate Rule 9(A)(1) provides in relevant part that if a party “files a
timely motion to correct error, a Notice of Appeal must be filed within thirty
(30) days after the court’s ruling on such motion is noted in the [CCS.]”
Appellants filed a notice of appeal on February 26, less than thirty days after the
trial court’s ruling on their motion to correct error was noted in the CCS.
Additional facts will be provided below.
4
Indiana Trial Rule 77(B) provides that “[n]otation of judicial events in the [CCS] shall be made
promptly[.]” The fifty-five-day delay in notating the July 3 order, the six-day delay in notating the December
2 order, and the eleven-day delay in notating the February 5 order are not in keeping with either the letter or
the spirit of the rule.
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Discussion and Decision
Section 1 – Appellants’ motion to correct error was timely
filed.
[8] As a threshold matter, we address Pioneer’s citation-free argument that
Appellants failed to preserve their appellate rights because they did not file their
motion to correct error within thirty days of the December 2 order’s November
20 nunc pro tunc date. Pursuant to Trial Rule 59(C), the event that triggered
the thirty-day deadline was the notation of the order in the CCS, which
occurred on December 8. Appellants filed their motion to correct error on
December 31, well within the thirty-day deadline. Thus, Pioneer’s argument is
without merit. 5
Section 2 – The summary judgment order was interlocutory,
and therefore Appellants may challenge the trial court’s ruling
that they waived their statute of limitations defense.
[9] Pioneer also argues that Appellants may not challenge the trial court’s ruling
that they waived their statute of limitations defense because they failed to
appeal the summary judgment order. We disagree. Indiana Trial Rule 56(C)
states,
5
Given our resolution of this issue, we need not address Appellant’s challenge to the propriety of the nunc
pro tunc entry. We note, however, that the purpose of such an entry is “to supply an omission in the record
of action really had, but omitted through inadvertence or mistake.” Cotton v. State, 658 N.E.2d 898, 900 (Ind.
1995) (citation and quotation marks omitted). There is no indication that an order was issued but not
recorded on November 20.
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A summary judgment upon less than all the issues involved in a
claim or with respect to less than all the claims or parties shall be
interlocutory unless the court in writing expressly determines that
there is no just reason for delay and in writing expressly directs
entry of judgment as to less than all the issues, claims or parties.
The trial court entered summary judgment upon less than all the issues and did
not expressly direct entry of judgment as to less than all the issues. Thus, the
summary judgment order here was interlocutory. And our supreme court has
stated that “[a] claimed error in an interlocutory order is not waived for failure
to take an interlocutory appeal but may be raised on appeal from the final
judgment.” Bojrab v. Bojrab, 810 N.E.2d 1008, 1015 (Ind. 2004). That is what
Appellants have done here, and properly so.
Section 3 – The trial court erred in finding that Appellants
waived their statute of limitations defense.
[10] We now address Appellants’ argument that the trial court erred in finding that
they waived their statute of limitations defense by failing to plead it in their
answer. Indiana Trial Rule 8(C) states that a responsive pleading, such as an
answer, “shall set forth affirmatively and carry the burden of proving … statute
of limitations … and any other matter constituting an … affirmative defense.”
In its summary judgment order, the trial court acknowledged that a statute of
limitations defense may be raised for the first time in a summary judgment
motion, citing Honeywell, Inc. v. Wilson, 500 N.E.2d 1251 (Ind. Ct. App. 1986),
trans. denied (1987). In Wilson, the plaintiff was injured by a press with a faulty
safety switch and sued Honeywell and other defendants in 1983. The
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defendants were unaware that the ten-year products liability statute of
limitations was an issue when they filed their answer and did not plead it as an
affirmative defense. Only during discovery did they become aware that the
switch had been manufactured in 1968. The defendants raised the statute of
limitations issue in a summary judgment motion, which the trial court denied
on the basis that “it is not permissible to raise the statute of limitations by
summary judgment. The trial court held that the defense was waived since it
had not been pleaded and since the answers had not been amended.” Id. at
1252.
[11] Our Court disagreed with this determination:
The Indiana Supreme Court in Shideler v. Dwyer (1981), 275 Ind.
270, 417 N.E.2d 281, clearly held that a statute of limitations
defense may properly be raised by a motion for summary
judgment. See also, Horvath v. Davidson (1970), 148 Ind. App. 203,
264 N.E.2d 328. This follows from the basic policies underlying
the modern Indiana Rules of Trial Procedure. These rules are
designed to avoid pleading traps and, to the greatest extent
possible, ensure that cases are tried on the issues that their facts
present. Thus the focus is not on the technical procedure used to
raise the issue, but on the issue’s legal merits.
The presumption is that issues can be raised as they, in good
faith, are developed. This presumption can be rebutted by the
party against whom the new issue is raised by an affirmative
showing of prejudice. Selvia et ux. v. Reitmeyer et al. (1973), 156
Ind. App. 203, 295 N.E.2d 869, reh. denied. In this context, delay
alone does not constitute sufficient prejudice to overcome the
presumption. Selvia, supra. Instead there must be a showing that
the party in opposition will be deprived of, or otherwise seriously
hindered in the pursuit of some legal right if injection of the new
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issue is permitted. See, e.g., State Farm v. Shuman, Admx. (1977),
175 Ind. App. 186, 370 N.E.2d 941, trans. denied.
In the present case, the statute of limitations issue was found only
after the discovery phase. The plaintiff received oral notice of the
issue almost two and a half months before trial and written
confirmation five weeks before trial. [Wilson argued before the
trial court] that the defendants had not followed the procedure set
out in … Trial Rule 8(C). On appeal Wilson reiterates this
argument and now also argues delay and the lack of time to
properly respond to the issue. Clearly this does not rise to the
level of prejudice necessary to bar an otherwise genuine issue.
Id.[12] In finding that Appellants waived their statute of limitations defense in this
case, the trial court stated,
The key to the Court's holding in Wilson, was that there was no
way for the defendants to know the age of the electrical
component within the piece of machinery - and thereby, that the
statute of limitations was a defense available to them - until after
at least some discovery had taken place. Not only would this
necessarily be after defendants filed the responsive pleading, but
also very likely beyond the time frame in which defendants are
freely allowed to amend the responsive pleading under Ind. T.R.
15(A). Because, in Wilson, the discovery introduced material not
within the four corners of the complaint, the appropriate motion
to make was one for summary judgment.
The case at bar, however, is wholly inapposite to Wilson. [VGB]
was certainly on notice as to the last date in which [VGB]
charged the cost of goods purchased from Pioneer to the
Accounts, as [VGB] was the one who made the purchases and
had them charged to the Accounts. Thus, [VGB] knew, or
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should have known, the dates of the last charges on each
accounts, and thereby had knowledge of the requisite
information to claim a statute of limitations defense at the time it
filed its responsive pleading. It did not, however, and this Court
holds [VGB] thereby waived the defense.
….
[Ganz], as President and Incorporator of [VGB], certainly knew,
or should have known, of the last charge or payment made to the
Accounts at issue here at the time the responsive pleading was
filed. Because [Ganz] did not raise the defense of statute of
limitations, he waived it.
Appellants’ App. at 19, 21.
[13] Based on our reading of Wilson, we think that the trial court improperly focused
on when Appellants should have known of the availability of the defense
instead of whether Pioneer suffered any prejudice as a result of when the
defense was raised. See Borne v. Nw. Allen Cnty. Sch. Corp., 532 N.E.2d 1196,
1199 (Ind. Ct. App. 1989) (“The focus of our analysis in [Wilson] then, was not
whether the defendant could have raised his affirmative defense earlier, but
instead, whether the defendant’s failure to raise the affirmative defense earlier
prejudiced the plaintiff.”), trans. denied (1990). Pioneer has made no affirmative
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showing of prejudice here. 6 Therefore, we conclude that the trial court erred in
finding that Appellants waived their statute of limitations defense.
Section 4 – VGB is entitled to summary judgment on its
statute of limitations defense.
[14] Having determined that Appellants’ defense remains viable, we must now
consider whether they are entitled to summary judgment based on that defense.
“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).
Our standard of review is identical to that of the trial court:
whether there exists a genuine issue of material fact and whether
the moving party is entitled to judgment as a matter of law.
Appellate review of a summary judgment motion is limited to
those materials designated to the trial court. In addition, all facts
and reasonable inferences drawn from those facts are construed
in favor of the nonmoving party.
Id. (citations omitted). “Special findings are not required in summary judgment
proceedings and are not binding on appeal. However, such findings offer this
court valuable insight into the trial court’s rationale for its review and facilitate
6
Pioneer says only that it “would be unfairly prejudiced by being asked to contend with a statute of
limitations affirmative defense that was not properly pleaded, but allowed anyway as a potential impediment
to the collection of monies that Ganz does not deny that he owes.” Appellee’s Br. at 5. Pioneer’s argument
ignores the fact that it slept on its rights for over half a decade and that statutes of limitation “afford a
measure of fairness to defendants and preserve the truth-finding function of courts” by barring stale claims.
Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 n.4 (Ind. 2012). Also, we note that only during
discovery was it determined that VGB’s last purchase from Pioneer was actually made on February 21, 2006,
more than a month earlier than alleged in Pioneer’s complaint.
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appellate review.” Warren v. Warren, 952 N.E.2d 269, 273 (Ind. Ct. App. 2011)
(citation omitted).
[15] Statutes of limitation “are practical and pragmatic devices to spare the courts
from litigation of stale claims, and the citizen from being put to his defense after
memories have faded, witnesses have died or disappeared, and evidence has
been lost.” Russo v. S. Developers, Inc., 868 N.E.2d 46, 48 (Ind. Ct. App. 2007).
“They are enacted upon the presumption that one having a well-founded claim
will not delay in enforcing it.” Morgan v. Benner, 712 N.E.2d 500, 502 (Ind. Ct.
App. 1999), trans. denied. “A statute of limitations defense is particularly
appropriate for summary judgment determination.” Stickdorn v. Zook, 957
N.E.2d 1014, 1021 (Ind. Ct. App. 2011). When a statute of limitations defense
is asserted, the moving party must first make a prima facie showing that the
action was commenced outside the statutory period. Id. That burden is
satisfied by demonstrating “(1) the nature of the plaintiff's action, so that the
relevant statute of limitations period may be identified; (2) the date the
plaintiff’s cause of action accrued; and (3) the date the cause of action was
brought, being beyond the relevant statutory period.” McMahan v. Snap On Tool
Corp., 478 N.E.2d 116, 120 (Ind. Ct. App. 1985). “Only when the moving party
demonstrates these matters properly does the burden shift to the opponent of
the summary judgment motion to establish facts in avoidance of the statute of
limitations defense.” Id.[16] In their counter motion for summary judgment, Appellants characterized
Pioneer’s claims as actions on “accounts and contracts not in writing” subject
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to the six-year limitation period of Indiana Code Section 34-11-2-7. Also, they
asserted that the accrual date was governed by Indiana Code Section 34-11-3-1,
which provides that “an action brought to recover a balance due upon a mutual,
open, and current account between the parties … is considered to have accrued
from the date of the last item proved in the account on either side.” Appellants
designated evidence that VGB last made a charge against the General Account
on January 26, 2006, and against the Real Estate Account on February 21,
2006. Appellants asserted that Pioneer’s causes of action accrued on those
dates and therefore its November 2012 complaint was brought beyond the six-
year statutory period.
[17] Appellants based their arguments on Smither v. Asset Acceptance, Inc., 919 N.E.2d
1153 (Ind. Ct. App. 2010), which involved the collection of an alleged defaulted
credit card debt. Presumably because of the account agreement between the
issuing bank and the debtor, the parties in that case “proceed[ed] upon the
assumption that the proper statute of limitations” was Indiana Code Section 34-
11-2-9, which governs actions upon promissory notes and other written
contracts for the payment of money. Id. at 1158. 7 But the Smither court noted
that “a written credit card application and/or generic terms of agreement do not
by themselves establish the existence of a contract; the contract creating
7
Indiana Code Section 34-11-2-9 also has a six-year limitation period, but the Smither court noted that an
action under that statute would have a different accrual date. 919 N.E.2d at 1158.
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indebtedness is formed only when the customer accepts the bank’s offer of
credit by using the card.” Id. The court further noted that
credit card accounts are unlike promissory notes or installment[]
loans, such as mortgages, student loans, and car loans. In those
types of written debt obligations, the total amount of
indebtedness and a defined schedule of repayment, including
precise dates for payment and the amount of each payment until
the debt is fully repaid, typically are included in the loan
document from the outset. With a credit card, although a credit
limit may be established, the precise amount of debt that a
consumer may undertake is unknown at the outset and
fluctuates, depending on how the card is used. Instead, the
creditor sends monthly statements to the debtor indicating the
amount of that month’s required minimum payment, which may
vary depending upon how much the card has been used, whether
the creditor has imposed fees of different kinds, whether the
interest rate for the card is variable, and how previous payments
have been made. Long-standing Indiana law also holds, “‘The
mere existence of any written document associated with a cause
of action does not enable a claimant to avoid [the] statute of
limitations for unwritten contracts [and actions on account]. The
written document must in fact be the basis for the claim being
pressed.’” [McMahan, 478 N.E.2d at 123] (quoting In re Widau,
177 Ind. App. 215, 222, 378 N.E.2d 936, 940 (1978)); see also
Falmouth & Lewisville Turnpike Co. v. Shawhan, 107 Ind. 47, 48, 5
N.E. 408, 409 (1886) (holding that statute of limitations
governing unwritten contract applies where contract is partially
in writing and partially based on parol evidence).
Id. at 1159 (footnote omitted).
[18] The Smither court then noted that credit card accounts “would appear to closely
resemble the common law definition of an ‘open account’”:
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An “open account” is an account with a balance
which has not been ascertained and is kept open in
anticipation of future transactions. An open
account results where the parties intend that the
individual transactions in the account be considered
as a connected series, rather than as independent of
each other, subject to a shifting balance as
additional debits and credits are made, until one of
the parties wishes to settle and close the account,
and where there is but one single and indivisible
liability arising from such series of related and
reciprocal debits and credits. This single liability is
fixed at the time of settlement, or following the last
entry in the account, and such liability must be
mutually agreed upon between the parties, or
impliedly imposed upon them by law. Thus, an open
account is similar to a line of credit.
Observation: Openness of an account, for purposes
of an action on an open account, is indicated when
further dealings between the parties are
contemplated and when some term or terms of the
contract are left open and undetermined.
The continuity of an account is broken where there
has been a change in the relationship between the
parties, or where the account has been allowed to
become dormant.
1 Am. Jur. 2d Accounts & Accounting § 4 (2005) (emphasis added)
(footnotes omitted). This definition encompasses credit card
agreements: the precise amount of indebtedness that a customer
may incur is unknown and fluctuating and the account is kept
open in anticipation of future transactions, unless one of the
parties decides to close it. See also Nelson v. Board of Comm’rs of
Posey County, 105 Ind. 287, 288, 4 N.E. 703, 704 (1886) (“The
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primary idea of ‘account’ is some matter of debit and credit, or of
a demand in the nature of debit and credit between parties,
arising out of contract, or of a fiduciary relation, or some duty
imposed by law.”).
Id. at 1159-60 (emphasis in Smither). 8 The court determined that it would treat
Smither’s credit card debt as an open account debt for statute of limitations
purposes. Id. at 1160.
[19] In the summary judgment order in this case, the trial court agreed with
Appellants that Indiana Code Section 34-11-2-7 is the statute of limitations that
applies to Pioneer’s claim against VGB for failing to pay the charges on its
accounts. In light of Smither, we agree with both Appellants and the trial court.
The designated evidence indicates that VGB’s accounts with Pioneer had
fluctuating balances resulting from a connected series of transactions and were
kept open in anticipation of future purchases.
[20] But, as the trial court observed, “[t]his does not end the discussion, … because
this statute only specifies how long the prospective plaintiff has to file the claim
from the time the claim accrues.” Appellants’ App. at 18. “The determination
of when a cause of action accrues is generally a question of law. However,
when application of a statute of limitation rests on questions of fact, it is
8
See also BLACK’S LAW DICTIONARY (10th ed. 2014) (defining open account as “[a]n account that is left open
for ongoing debit and credit entries by two parties and that has a fluctuating balance until either party finds it
convenient to settle and close, at which time there is a single liability.”).
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generally an issue for a jury to decide.” Stickdorn, 957 N.E.2d at 1020-21(citation omitted).
[21] For purposes of Indiana Code Section 34-11-3-1, Appellants argued on
summary judgment that “the phrase ‘date of the last item proved in the account
on either side’ … means the last charge to, or the last payment made on, the
Accounts” governed by the line of credit. Appellants’ App. at 18. Again, we
agree with Appellants. See Smither, 919 N.E.2d at 1160 (noting that “last
activity on an open account” may include “the charging of an item or the
making of a payment on the account”). Appellants designated evidence that
the last charge or payment was made on January 26, 2006, for the General
Account and on February 21, 2006, for the Real Estate Account. Based on the
six-year statutory limitation period, Appellants argued that “the latest Pioneer
could file a claim for breach of contract on the Credit Agreement was January
26, 2012, for the General Account and February 21, 2012, for the Real Estate
Account,” and therefore Pioneer’s claim against VGB was untimely filed in
November 2012. Appellants’ App. at 18. As far as we are aware, Pioneer
designated no contrary evidence in its response to Appellants’ counter motion
for summary judgment, 9 and its assertion on appeal that the statute of
limitations was tolled by Ganz’s oral promise in December 2007 to satisfy the
debt in full is unsupported by any citation to authority and therefore waived.
9
Appellants did not include a copy of Pioneer’s response in their appendix, and Pioneer did not submit an
appendix.
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See Kishpaugh v. Odegard, 17 N.E.3d 363, 373 n.3 (Ind. Ct. App. 2014) (finding
unsupported arguments waived).
[22] Appellants made a prima facie showing that Pioneer’s action against VGB was
commenced outside the statutory period, and Pioneer failed to establish any
facts in avoidance. Therefore, we reverse and remand with instructions to grant
Appellants’ counter motion for summary judgment as to VGB.
Section 5 – Ganz is entitled to summary judgment on his
statute of limitations defense.
[23] Finally, we consider whether Ganz is entitled to summary judgment based on
his statute of limitations defense against Pioneer’s personal guaranty claim. In
its summary judgment order, the trial court made the following findings:
As to the statute of limitations defense as applied to [Pioneer’s
claim against Ganz], both Mr. Ganz and Pioneer seem to be
skipping one key point in [Appellants’] argument. It appears as
though they fail to understand that the Guaranty Agreement is
not the same as the Credit Agreement and thus it might not enjoy
the same term for statute of limitations purposes.…
A guaranty agreement is a contract wholly separate from an
underlying contract in which the guarantor is guaranteeing. In
the Guaranty Agreement at issue here, for the consideration of
Pioneer extending credit to [VGB], Mr. Ganz, individually, gave
the consideration of being jointly and severally liable with [VGB]
for the charges that [VGB] makes, but for which [VGB] does not
pay. At first glance, then, the Guaranty Agreement[] appears to
be a basic written contract, rather than a contract for the payment
of money. If so, then the statute of limitations on the Guaranty
Agreement according to I.C. § 34-11-2-11, would be ten years –
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not six.[ 10]
However, the Court in Smither, 919 N.E.2d [1153], pointed out
the “[l]ong standing Indiana law [that] holds, ‘The mere
existence of any written document associated with a cause of
action does not enable a claimant to avoid [the] statute of
limitations for unwritten contracts [and actions on account.] The
written document must in fact be the basis for the claim being
pressed.’” Smither, 919 N.E.2d[] at 1159, quoting [McMahan, 478
N.E.2d at 123] (internal quotation omitted).
Employing this principle, this Court finds that, despite the
Guaranty Agreement itself being in writing, it is still an unwritten
contract, because parol evidence is required to prove a claim
brought to enforce the Agreement.[ 11] As explained in Smither,
“the precise amount of debt that a consumer may undertake is
unknown at the outset and fluctuates, depending on how the card
is used.” Id. The same goes for the Guaranty Agreement, as the
promise found in the Guaranty Agreement is for Mr. Ganz to
pay the amounts rightfully owed to Pioneer, as charged by
Corporation, under the Credit Agreement. Thus, the Guaranty
Agreement is considered an unwritten contract, and subject to
10
See Ind. Code § 34-11-2-11 (“An action upon contracts in writing other than those for the payment of
money, and including all mortgages other than chattel mortgages, deeds of trust, judgments of courts of
record, and for the recovery of the possession of real estate, must be commenced within ten (10) years after
the cause of action accrues.”). Pioneer argues that this statute of limitations applies to its claims against
Appellants. As far as we can tell, this is the first time that Pioneer has raised this issue. “Issues not raised
before the trial court on summary judgment cannot be argued for the first time on appeal and are waived.”
Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004).
11
See Smither, 919 N.E.2d at 1159 (citing Shawhan, 107 Ind. at 48, 5 N.E. at 409); see also Hoffman v.
Hollingsworth, 10 Ind. App. 353, 356, 37 N.E. 960, 961 (1894) (“When it is necessary to resort to oral
evidence to establish a contract, although a part of the contract be in writing, the entire contract is regarded as
a verbal one. An action upon a contract partially in writing and partially in parol is barred by the six-years’
statute of limitations.”) (citing, inter alia, Shawhan); Movement for Opportunity & Equal. v. Gen’l Motors Corp.,
622 F.2d 1235, 1242 n.7 (7th Cir. 1980) (“Where proof problems on contracts are minimal, in written,
integrated contracts, Indiana provides a 20-year [now 10-year] statute of limitations. On general contract
actions which must rely on parol evidence, people’s memories and extraneous documents, however, Indiana
applies a considerably shorter six-year period.”) (citation to superseded statute omitted).
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the same six-year statute of limitations as found in I.C. § 34-11-2-
7(1).
Appellants’ App. at 19-21 (some alterations in Smither) (citation to exhibits
omitted).
[24] We agree with the trial court’s analysis. As far as the date of accrual is
concerned, Appellants argued that the claim against Ganz accrued at the same
time as the claim against VGB. Pioneer argued that the claim “should accrue
from the time that [it] was put on notice that [VGB] would not be paying its
debt in the normal course[.]” Id. at 21. Assuming for argument’s sake that
Pioneer is correct, VGB’s credit account agreement states that payment for all
materials and services “is due by the 10th of the month following purchase and
becomes delinquent on the 25th of the month following purchase.” Id. at 30.
Thus, at the latest, the General Account became delinquent on February 25,
2006, and the Real Estate Account became delinquent on March 25, 2006. The
record contains no designated evidence regarding the normal course of the
parties’ business dealings, but even assuming that Pioneer typically gave VGB
several additional months to pay its debt, Pioneer’s claim against Ganz accrued
more than six years before it filed its complaint. Thus, Pioneer’s claim against
Ganz was untimely filed. Accordingly, we reverse and remand with
instructions to grant Appellants’ counter motion for summary judgment as to
Ganz.
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[25] Reversed and remanded.
Kirsch, J., and May, J., concur.
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