Richard Hiller d/b/a Hiller & Sons v. City of Portage (mem. dec.) ( 2019 )

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
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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
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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
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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.
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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
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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.
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[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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