The Indiana Court of Appeals Reversed Summary Judgment In Favor Of Construction Supplier

Jennifer Nelson for www.theindianalawyer.com

on its breach of contract claim against a builder to which it provided a line of credit. The appellate court agreed with the defendants’ claims that the lawsuit was time-barred.

V. Ganz Builders and Development Co. Inc. signed an application for a line of credit with Michigan-City based Pioneer Lumber Inc. The company also signed a credit account agreement and VGB president Vladimir Ganz secured the line of credit with a personal guaranty agreement.

Both the line of credit and the credit account had unpaid balances as of January and February 2006. Pioneer filed its lawsuit in November 2012 alleging 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.

VGB didn’t assert that Pioneer’s claims were time-barred by the six-year statute of limitation on actions on accounts and contracts not in writing under I.C. 34-11-2-7 until it filed a counter motion on Pioneer’s motion for summary judgment as to liability and damages.

The trial court granted summary judgment as to liability in favor of Pioneer. At a bench trial on damages, the court awarded Pioneer more than $61,000 in unpaid balances, finance charges and attorney fees.

VGB filed a motion to correct error, which was denied, leading to the appeal.

The COA rejected Pioneer’s claims that the VGB’s motion to correct error wasn’t timely filed and that the appellants can’t challenge the trial court’s ruling because they didn’t timely appeal after the summary judgment ruling. Judge Terry Crone pointed out that the summary judgment order was interlocutory because the court didn’t rule on every issue.

The appeals court ruled that VGB is entitled to summary judgment on its statute of limitations defense. For purposes of I.C. 34-11-3-1, 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. Based on the six-year statutory limitations period, Pioneer had to bring its claims by January and February 2006, but did not. And Pioneer designated no contrary evidence in its response to VGB’s counter motion for summary judgment. Crone also wrote that Pioneer’s 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.

Ganz is also entitled to summary judgment on the statute of limitations defense regarding the personal guaranty claim. Even assuming that Pioneer gave Ganz several additional months to pay the debt, its claim against Ganz accrued more than six years before it filed the complaint, so it was untimely.

The case, V. Ganz Builders and Development Co., Inc., and Vladimir Ganz v. Pioneer Lumber, Inc., 64A03-1602-CC-432, is remanded for further proceedings.