MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Jan 10 2019, 6:27 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEE
Mark E. GiaQuinta                                        MC EQUIPMENT, INC.,
Sarah L. Schreiber                                       D/B/A W.A. JONES & SON
Haller & Colvin, P.C.                                    Robert B. Sutherland
Fort Wayne, Indiana                                      Richfield, Ohio
                                                         ATTORNEY FOR APPELLEE FIRST
                                                         VEHICLE SERVICES, INC.
                                                         Joseph B. Moore III
                                                         Patton & Ryan LLC
                                                         Chicago, Illinois



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lafayette Jordan and                                     January 10, 2019
Mecca Abdullah-Jordan,                                   Court of Appeals Case No.
Appellants-Plaintiffs,                                   18A-CT-922
                                                         Appeal from the Allen Superior
        v.                                               Court
                                                         The Honorable Nancy Eshcoff
First Vehicle Services, Inc., and                        Boyer, Judge
MC Equipment, Inc.,                                      Trial Court Cause No.
d/b/a W.A. Jones & Son,                                  02D01-1511-CT-476
Appellees-Defendants




Court of Appeals of Indiana | Memorandum Decision 18A-CT-922 | January 10, 2019                 Page 1 of 7
      Baker, Judge.


[1]   Lafayette Jordan and Mecca Abdullah-Jordan1 appeal the trial court’s order

      granting summary judgment in favor of MC Equipment, Inc., d/b/a W.A.

      Jones & Son (“W.A. Jones”), on the Jordans’ complaint. The trial court found

      as a matter of law that the ten-year statute of repose protects W.A. Jones from

      liability. Finding that there is a genuine issue of material fact rendering

      summary judgment improper, we reverse and remand for further proceedings.


                                                       Facts
[2]   Jordan is an employee of the City of Fort Wayne (the City). On October 26,

      2015, he was performing work associated with leaf pickup. Among other

      things, Jordan was required to ascend and descend a ladder attached to the City

      truck on which he was working. At some point, while Jordan was climbing the

      ladder, it detached from the truck, causing Jordan to fall to the ground. He

      sustained serious injuries, including lacerations, a torn ligament, an orbital

      fracture, and detached retinas requiring surgery. Jordan continues to

      experience back and shoulder pain, frequent headaches, and facial numbness.


[3]   The timeline of the City’s ordering of and work on the truck is in dispute. At

      some point in 2004, the City sought bids for work on seven or eight vehicles,

      including the truck that was involved in Jordan’s accident. On December 7,




      1
       Neither the parties’ briefs nor the record on appeal reveal the relationship between Jordan and Abdullah-
      Jordan. Abdullah-Jordan does not have direct involvement with the incident relating to the appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-922 | January 10, 2019                   Page 2 of 7
      2004, W.A. Jones won the bid to perform the work. Among other things, W.A.

      Jones was hired to mount the dump body, the hydraulic system, the underbody

      plow, and the front plow hitch. The work performed by W.A. Jones likely

      occurred in July 2005. After this work was finished, W.A. Jones returned the

      truck to the City in late July or early August 2005.


[4]   The Jordans contend that this original work did not include installation of leaf

      equipment, including the ladder that detached years later. City Fleet

      Management Director Larry Campbell attested that leaf season occurs at a

      different time of year than when the work was performed on the truck and that

      when the City procures a new truck, a leaf ladder is mounted on the truck at a

      later time, closer to leaf season. Indeed, Campbell noted that the City would

      not want its trucks made leaf ready before leaf season because during the

      summer months, including August, September, and early October, the trucks

      are normally used for chip and seal or haul, or are not used at all. Appellant’s

      App. Vol. II p. 106-08.


[5]   Therefore, possibly at some point in October 2005, the City returned the truck

      to W.A. Jones for installation of the leaf equipment, including the ladder. The

      invoice for the installation of the leaf equipment is originally dated August 11,

      2005, but it was faxed on October 26, 2005, and paid on October 27, 2005. The

      work order references the installation of leaf equipment and has a “date in” of

      October 26, 2005, and a “date out” of October 27, 2005. The work order was

      created when the invoice was received—on October 26, 2005. Campbell

      attested that the work order is consistent with the leaf equipment being installed

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-922 | January 10, 2019   Page 3 of 7
      on October 26, 2005. Id. at 112. He explained that the August 2005 invoice

      could have been issued before the work was completed and then re-issued later

      when the work was actually completed.


[6]   On November 13, 2015, the Jordans filed a complaint against W.A. Jones and

      First Vehicle Services, Inc. (FVS). W.A. Jones filed a motion for summary

      judgment on November 30, 2016, arguing that the statute of repose had run

      before Jordan sustained his injuries. Following briefing and argument, on

      December 21, 2017, the trial court granted summary judgment in favor of W.A.

      Jones. In pertinent part, the trial court found that the truck was delivered, with

      leaf equipment installed, to the City on August 11, 2005, meaning that the ten-

      year statute of repose prevents the Jordans from recovering against W.A. Jones.

      The Jordans now bring this interlocutory appeal.2


                                     Discussion and Decision
[7]   The Jordans argue that the trial court erroneously granted summary judgment

      in favor of W.A. Jones. Our standard of review on summary judgment is well

      settled:


               The party moving for summary judgment has the burden of
               making a prima facie showing that there is no genuine issue of
               material fact and that the moving party is entitled to judgment as
               a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).



      2
        There is a related, but separate, appeal pending under Cause Number 18A-CT-2585. In that case, FVS is
      the appellant and the other parties, including the Jordans and W.A. Jones, are the appellees. Briefing has not
      yet been completed in that cause, which this Court will consider at a later date.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-922 | January 10, 2019                    Page 4 of 7
              Once these two requirements are met by the moving party, the
              burden then shifts to the non-moving party to show the existence
              of a genuine issue by setting forth specifically designated
              facts. Id. Any doubt as to any facts or inferences to be drawn
              therefrom must be resolved in favor of the non-moving
              party. Id. Summary judgment should be granted only if the
              evidence sanctioned by Indiana Trial Rule 56(C) shows there is
              no genuine issue of material fact and that the moving party
              deserves judgment as a matter of law. Freidline v. Shelby Ins.
              Co., 774 N.E.2d 37, 39 (Ind. 2002).


      Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).


[8]   The Jordans maintain that the date on which the installation of the leaf

      equipment occurred is a genuine issue of material fact rendering this case

      unsuitable for summary judgment. If the leaf equipment was installed and

      delivered before October 26, 2005, then the statute of repose protects W.A.

      Jones from liability, but if it was installed and delivered on or after that date,

      then W.A. Jones is not protected. Ind. Code § 34-20-3-1 (providing that a

      product liability action based on negligence or strict liability must be

      commenced within ten years after the delivery of the product to the initial user

      or consumer).


[9]   The trial court found that the leaf equipment was installed on August 11, 2005.

      In broad strokes, the evidence supporting this conclusion is as follows:


          • The invoice for the installation of the leaf equipment is dated August 11,
            2005.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-922 | January 10, 2019   Page 5 of 7
    • W.A. Jones does not normally install the leaf season equipment for City
      trucks, meaning that the installation was not in the ordinary course of
      business, undercutting some of the assertions below.
    • Denny McIntyre, W.A. Jones’s sales manager, attested that W.A. Jones
      returned the trucks to the City on August 11, 2005, and performed no
      more work on City trucks that year.
    • Jack Garrison, a manager of FVS, attested that the “date in” is when a
      work order is electronically generated, which can occur for a number of
      reasons, including receipt of a written work request, receipt of an invoice
      from an outside vendor, or when the vehicle is sublet. “Date out”
      illustrates the date the work order is closed. He believes that the work
      order at issue was created to document the receipt of an invoice from
      W.A. Jones rather than the date of work performed.

And in other broad strokes, the evidence supporting a conclusion that the

installation of the leaf equipment occurred on October 26 or 27, 2005, is as

follows:


    • The invoice, while dated August 11, 2005, was faxed on October 26 and
      paid on October 27, 2005.
    • The work order has a “date in” of October 26 and a “date out” of
      October 27.
    • Robert Kennedy, the Chairman of the City’s Board of Public Works,
      attested that in the ordinary course of business, leaf season equipment is
      installed onto the City’s trucks in October of each year, that it would be
      contrary to the ordinary course of business for leaf season equipment to
      be installed before October, and that he does not recall leaf season
      equipment ever being installed onto a City truck before October.
    • Campbell attested that the work order is consistent with the leaf
      equipment being installed on October 26, the invoice being faxed on the
      same day, and the payment being approved on October 27, 2005.
    • Garrison attested that leaf ladders are not attached to the City’s trucks
      unless the vehicles are being used for leaf collection, and that often the
      installation does not occur until one to two weeks after leaf season


Court of Appeals of Indiana | Memorandum Decision 18A-CT-922 | January 10, 2019   Page 6 of 7
               begins. He stated that the fact that the invoice was dated August 11,
               2005, “doesn’t mean anything.” Appellants’ App. Vol. II p. 131.

[10]   Our Supreme Court has quite explicitly cautioned that “[a]s long as competent

       evidence has been designated in response to a summary judgment motion, . . .

       ‘weighing [the evidence]—no matter how decisively the scales may seem to

       tip—[is] a matter for trial, not summary judgment.’” Stafford v. Szymanowski, 31

       N.E.3d 959, 963 (quoting Hughley v. State, 15 N.E.3d 1000, 1005-06 (Ind.

       2014)). Here, there is competent evidence supporting both parties’ arguments

       regarding the date of installation of the leaf equipment, and to reach a decision

       at this stage requires weighing the evidence. Therefore, we can only find that

       there is a genuine issue of material fact rendering summary judgment in favor of

       W.A. Jones improper.3


[11]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       May, J., and Tavitas, J., concur.




       3
        W.A. Jones accurately notes that the trial court struck a portion of Campbell’s affidavit. We need not, and
       do not, rely on the material that was struck to find that there remains evidence supporting the Jordans’
       argument about the date of installation of the leaf equipment.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-922 | January 10, 2019                   Page 7 of 7
