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.


ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

BRYON J. BERRY                                  BRIAN P. O’MEARA
Warsaw, Indiana                                 McGuire Woods LLP
                                                Chicago, Illinois
                                                                          FILED
                                                                       Feb 29 2012, 9:33 am


                              IN THE                                            CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court

                    COURT OF APPEALS OF INDIANA

MARK YODER and BARBARA YODER,                   )
                                                )
       Appellants-Defendants,                   )
                                                )
              vs.                               )       No. 43A05-1103-CC-128
                                                )
CAPITAL ONE BANK, (USA), N.A.,                  )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE KOSCIUSKO SUPERIOR COURT
                           The Honorable James C. Jarrette, Judge
                               Cause No. 43D02-1002-CC-39



                                    February 29, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellants-defendants Mark Yoder and Barbara Yoder (collectively, the Yoders)

appeal the trial court’s grant of summary judgment in favor of appellee-plaintiff Capital

One Bank, (USA), N.A. (Capital One). Essentially, the Yoders argue that the trial court

erred by applying Indiana’s statute of limitations because their contract with Capital One

provided that Virginia law governed the contract and, consequently, Virginia’s three-year

statute of limitations applies and has barred Capital One’s claim. Finding no error, we

affirm.

                                           FACTS

          On February 4, 2010, Capital One filed suit against the Yoders in Indiana, seeking

a judgment for $10,839 based on a credit card balance accumulated by the Yoders and

pursuant to their credit card agreement with Capital One (the Agreement). The complaint

also sought unpaid fees and finance charges of $3,045.49, attorney fees of $125, and

costs and post-judgment interest.

          On July 2, 2010, Capital One filed a motion for summary judgment that included

an affidavit establishing the balance due on the Yoders’ account. On August 24, 2010,

the Yoders filed their response, asserting that “[w]ith the application of the laws of the

Commonwealth of Virginia, a strict statute of limitations of three years upon suits

involving open account exists.”       Appellant’s App. p. 25.     The Yoders based their

assertion on the following provision of the Agreement:

          This Agreement is to be construed in accordance with and governed by the
          laws of the United States of America and by the internal laws of the
          Commonwealth of Virginia without giving effect to any choice of law rule

                                              2
       that would cause the application of the laws of any jurisdiction other than
       the laws of the United States of America or the internal laws of the
       Commonwealth of Virginia to the rights and duties of the parties.

Appellant’s App. p. 3. According to the Yoders, the three -year statute of limitations had

already passed, inasmuch as the last bill they received on their account was dated

November 6, 2006.

       On January 10, 2011, the trial court granted Capital One’s motion for summary

judgment. On February 9, 2011, the Yoders filed a motion to correct error, raising the

same statute of limitations argument that they asserted in response to Capital One’s

motion for summary judgment. The trial court denied the Yoders’ motion on February

24, 2011. The Yoders now appeal.

                            DISCUSSION AND DECISION

       The Yoders appeal the trial court’s grant of summary judgment in favor Capital

One. When reviewing a grant of summary judgment, an appellate court employs the

same standard of review as the trial court. Dreaded, Inc. v. St. Paul Guardian Ins. Co.,

904 N.E.2d 1267, 1269 (Ind. 2009). A reviewing court must consider “only those facts

that the parties designated to the trial court,” and determine whether there are no genuine

issues of material fact such that the moving party is entitled to judgment as a matter of

law. Id. at 1269-70. Additionally, we must construe all factual inferences in favor of the

nonmoving party, and all doubts as to the existence of a material issue must be resolved

against the moving party. Scribner v. Gibbs, 953 N.E.2d 475, 479 (Ind. Ct. App. 2011).



                                            3
       The essential issue on appeal is whether to apply the statute of limitations of

Virginia or Indiana to Capital One’s claims. A panel of this Court addressed this issue in

Smither v. Asset Acceptance, LLC, 919 N.E.2d 1153 (Ind. Ct. App. 2010). In Smither,

Asset Acceptance filed a complaint against Smither seeking damages in the amount of an

unpaid credit card balance and interest.          Id. at 1155.   Smither argued that New

Hampshire’s three-year statute of limitations applied to the claim because the credit card

agreement specified that it was governed by federal law and by New Hampshire law. Id.

at 1157.

       A panel of this court noted that “[i]t is well-settled . . . that contractual choice of

law provisions govern only the substantive law of any claims arising out of the contract;

the law of the forum state where the suit is filed still governs procedure.” Id. at 1157-58.

The panel emphasized that a “statute of limitation is a procedural constraint on when suit

may be filed,” and concluded that Indiana provided the appropriate statute of limitations.

Id. at 1158.

       Likewise, in this case, although the Agreement stated that it was “governed by the

laws of the United States of America and by the internal laws of the Commonwealth of

Virginia,” appellant’s app. p. 3, that provision governs only the substantive law of any

claims arising out of the contract.      Because we have determined that a statute of

limitation is a procedural constraint, the trial court did not err by applying Indiana’s

statute of limitations and granting summary judgment in favor of Capital One.



                                              4
      The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.




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