MEMORANDUM DECISION                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                            Mar 24 2016, 8:20 am

this Memorandum Decision shall not be                                  CLERK
                                                                   Indiana Supreme Court
regarded as precedent or cited before any                             Court of Appeals
                                                                        and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David T. Schaefer                                        Scott A. Benkie
Anthony M. Zelli                                         Benkie & Crawford
Dinsmore & Shohl LLP                                     Indianapolis, Indiana
Louisville, Kentucky
                                                         Rodney V. Taylor
                                                         Hilary A. Barnes
                                                         Christopher & Taylor
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenworth of Indianapolis, Inc.,                          March 24, 2016
Kenworth of Indianapolis, Inc.                           Court of Appeals Case No.
d/b/a ITC Acceptance                                     49A02-1504-PL-249
Company, and Paccar Inc.,                                Appeal from the Marion Superior
Appellants-Defendants,                                   Court
                                                         The Honorable Cynthia Ayers,
        v.                                               Judge
                                                         Trial Court Cause No.
Seventy-Seven Limited, Convey                            49D04-1010-PL-43362
All, LLC, Keller Trucking, Inc.,
K&K Aggregate, Inc., Huber
Transport, LLC, Triple H
Trucking, LLC, and Custom
Hauling, Inc.
Appellees-Plaintiff.



Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PL-249 | March 24, 2016       Page 1 of 10
      Altice, Judge.


                                                   Case Summary


[1]   Kenworth of Indianapolis, Inc. (Kenworth)1 and Paccar Inc. (Paccar)2

      (collectively, the Defendants) raised a statute of limitations defense in their third

      motion for summary judgment. During a subsequent status hearing, Seventy-

      Seven Limited, Convey All, LLC, Keller Trucking, Inc., K&K Aggregate, Inc.,

      Huber Transport, LLC, Triple H Trucking, LLC, and Custom Hauling, Inc.

      (collectively, the Plaintiffs), argued that the Defendants had waived the statute

      of limitations defense by not raising it in response to what the Plaintiffs

      characterize as their cross-motion for summary judgment found in their

      response to the Defendants’ first motion for summary judgment. The trial court

      agreed with the Plaintiffs, concluding that the Defendants had waived the

      defense. The Defendants present one issue for our review: Did the trial court

      properly conclude that the Defendants waived their limitations defense?


[2]   We reverse and remand.


                                           Facts & Procedural History




      1
          Kenworth is a local dealer of Kenworth trucks.
      2
          Paccar is the parent company of Kenworth Truck Company.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PL-249 | March 24, 2016   Page 2 of 10
[3]   This case involves a fleet of heavy-duty trucks manufactured by Paccar and sold

      by Kenworth to the Plaintiffs.3 The Plaintiffs took delivery of the trucks

      beginning in late 2005 and continuing into early 2006. For each truck, the

      respective buyer signed a limited warranty agreement, which provided, in

      pertinent part, for a one-year limitation period from the accrual of a cause of

      action to file a claim against the Defendants.4


[4]   Immediately after delivery of the first set of trucks, several of the buyers

      complained to Kenworth that the trucks vibrated excessively while idling or at

      specified RPMs. Kenworth contacted Paccar, who then consulted with the

      manufacturers of the engine, transmission, and engine mounts, to resolve the

      vibration problem. In September 2006 the decision was made to install

      modified engine mounts. The new mounts initially reduced the vibration to

      acceptable levels, but the problem reoccurred in 2007. In 2008, the Defendants

      installed a different engine mount that they believed would be more durable.

      Again, the vibration was initially reduced to acceptable levels. By the end of

      2008, the vibration problem was reoccurring in several of the trucks. At that

      point, Paccar provided the Plaintiffs with an extended warranty for a period of




      3
       Plaintiffs were among a group of thirteen trucking companies that together ordered forty-nine identically
      configured trucks from Kenworth. These companies had independently been buying Kenworth trucks for
      years, but decided to coordinate truck orders to obtain discount pricing.
      4
        The default provision under the Uniform Commercial Code is that an action for breach of any contract for
      sale must be commenced within four years after the cause of action accrues. Ind. Code § 26-1-2-725(1). This
      provision further provides: “By the original agreement the parties may reduce the period of limitation to not
      less than one (1) year, but may not extend it.” Id.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PL-249 | March 24, 2016             Page 3 of 10
      4 years or 250,000 miles, whichever came first. The warranty also included free

      engine mount replacements for as long as the Plaintiffs owned the trucks.


[5]   On October 4, 2010, the Plaintiffs filed a complaint alleging breach of express

      and implied warranties, breach of contract, and constructive fraud. The

      Plaintiffs also sought rescission of the contract. The Plaintiffs amended their

      complaint in 2011 to add claims of estoppel and a claim of a valid rejection of

      non-conforming goods under the UCC. A third amended complaint was filed

      in 2013.5 The Defendants filed an answer to the initial complaint and the

      amended complaints and in each asserted the expiration of the statute of

      limitations as an affirmative defense.


[6]   On June 3, 2013, the Defendants jointly filed a motion for summary judgment

      with regard to the Plaintiffs’ claims for breach of warranty, incidental and

      consequential damages, and rescission of the contract based upon revocation of

      acceptance. On August 20, 2013, the Plaintiffs filed “Plaintiffs’ Response in

      Opposition to Defendants’ (Paccar, Inc. and Kenworth of Indianapolis, Inc.)

      Joint Motion for Summary Judgment.” Appellants’ Appendix at 117. The trial

      court held a summary judgment hearing on August 28, 2013. The Defendants

      presented their arguments and then in their response, the Plaintiffs stated that

      they were “asking for summary judgment on those points . . . as a cross

      motion.” Transcript of August 28, 2013 Hearing at 33. The Defendants




      5
          This pleading is not included in the record on appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PL-249 | March 24, 2016   Page 4 of 10
      responded, asserting that the Plaintiffs had not filed a motion for summary

      judgment and at the very least, they were entitled to notice and an opportunity

      to be heard if indeed the Plaintiffs were moving for summary judgment. To

      show that they had filed a cross-motion, the Plaintiffs pointed to the last

      sentence of their response brief, which states, “Plaintiffs respectfully submit that

      Plaintiffs’ Cross-Motion for Summary Judgment as to the Breach of Contract,

      Breach of Warranty, and Constructive Fraud be granted.” Id. at 163. On

      October 24, 2013, the trial court entered an order denying the Defendants’

      motion for summary judgment and the Plaintiffs’ cross-motion for summary

      judgment. The Defendants requested that the trial court certify this order for

      interlocutory appeal, which request the trial court denied.


[7]   The Defendants filed a third motion for summary judgment 6 on August 18,

      2014. In this motion, the Defendants asserted a statute of limitations defense.

      During a status conference on August 26, 2014, the Plaintiffs argued that the

      Defendants had waived their limitations defense by not raising it in response to

      their cross-motion for summary judgment, which they claimed was included in

      their response to the Defendants’ first motion for summary judgment. On

      September 18, 2014, both sides filed briefs in support of their respective

      positions regarding the issue of waiver of the limitations defense. On

      September 25, 2014, the trial court issued an order denying, in part, the



      6
        According to an entry in the chronological case summary, the Defendants filed a second motion for
      summary judgment with respect to a claim of actual fraud on January 22, 2014. A second CCS entry
      indicates that this motion was granted after a hearing.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PL-249 | March 24, 2016           Page 5 of 10
      Defendants’ third motion for summary judgment, finding that the Defendants

      had waived their limitations defense.7 The Defendants filed a motion to correct

      error, which the trial court denied after a hearing. Upon the Defendants’

      request, the trial court certified the partial summary judgment order for

      interlocutory appeal. This court accepted jurisdiction.


                                            Discussion & Decision


[8]   The narrow issue before us is whether the trial court properly determined that

      the Defendants had waived their statute of limitations defense. The Defendants

      assert that no waiver can occur unless the Plaintiffs actually filed a motion for

      summary judgment, thereby putting them on notice and affording them an

      opportunity to respond. The Plaintiffs assert that they filed a cross-motion for

      summary judgment by requesting such in the last sentence of their response to

      the Defendants’ first motion for summary judgment. The trial court sided with

      the Plaintiffs and expressly denied the Plaintiffs’ cross-motion for summary

      judgment.


[9]   Our Supreme Court has recently addressed an issue similar to that presented

      here. In a petition for rehearing in WellPoint, Inc. v. Nat’l Union Fire Ins. Co. of

      Pittsburgh, PA, 38 N.E.3d 981, 983-84 (Ind. 2015), our Supreme Court was

      presented with the scenario where the defendant sought summary judgment and




      7
       On October 31, 2014, the trial court held another hearing to consider the remaining arguments raised in the
      Defendants’ third motion for summary judgment.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PL-249 | March 24, 2016            Page 6 of 10
       raised some but not all of its affirmative defenses. The Court noted the

       defendant’s success on many of its claims would have established its non-

       liability as to one or more counts of the complaint. Id. at 984. The denial of the

       defendant’s summary judgment motion, however, would not have disposed of

       the entire issue of liability. Id. The Court held that in this instance the general

       waiver rule was inapplicable. Id. The Court’s explanation is thus:


               For waiver of a contention to occur, it must be “placed in issue
               by the movant.” When, as here, the defendant moves for
               summary judgment and the plaintiff is the non-moving party, the
               defendant has no duty to raise all of its affirmative defenses
               unless another moving party “has first addressed and presented
               evidence on that element.” In the absence of a duty to raise one
               or more affirmative defenses, a defendant’s failure to do so
               cannot constitute waiver. This principle is also consistent with
               the unequivocal limitation in Trial Rule 56(B) precluding courts
               from granting summary judgment for a non-moving party except
               as to issues raised by the motion.


       WellPoint, Inc., 38 N.E.3d at 984 (citations omitted).


[10]   As in WellPoint, here, the Defendants moved for summary judgment and the

       Plaintiffs were the non-moving party. With their motion the Defendants

       defined the scope of the issues to be addressed and were under no obligation to

       raise all of their affirmative defenses, including their limitations defense. The

       trial court was likewise limited to addressing only those issues presented by the

       Defendants as the moving party. See id.; T.R. 56(B). The Defendants did not

       raise the statute of limitations defense in their motion. In the absence of a



       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PL-249 | March 24, 2016   Page 7 of 10
       motion for summary judgment filed by the Plaintiffs as to the issue of liability,

       the Defendants were under no obligation to present their limitations defense.


[11]   We now address whether the Defendants’ duty to present their limitations

       defense was triggered by the Plaintiffs’ response to the Defendants’ first

       summary judgment motion. As our Supreme Court has before acknowledged,

       there is a line of cases “holding that a party is required to assert affirmative

       defenses in response to a motion for summary judgment that would dispose of

       the case or a motion for partial summary judgment that would establish

       liability.” Reiswerg v. Statom, 926 N.E.2d 26, 31 (Ind. 2010). The Defendants

       do not dispute this rule of law, but rather argue that the Plaintiffs never filed a

       motion for summary judgment so as to trigger the Defendants’ duty to raise

       their limitations defense.


[12]   In arguing that their response constituted a cross-motion for summary

       judgment, the Plaintiffs direct us to the opening paragraph, which provides that

       the pleading is their response to Defendants’ “Joint Motion for Summary

       Judgment Motion for Summary Judgment.” Appellants’ Appendix at 117. In

       their brief on appeal, the Plaintiffs misrepresent this sentence as containing the

       word “and” between the references to a motion for summary judgment and

       assert that such is a clear reference to their filing of a cross-motion for summary

       judgment. See Appellees’ Brief at 12. The word “and” does not appear in the

       actual document. It therefore cannot be read as urged by Plaintiffs as a clear

       request for summary judgment in their favor.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PL-249 | March 24, 2016   Page 8 of 10
[13]   The Plaintiffs also point to the last sentence of their response in which they

       explicitly request that the court grant their “Cross-Motion for Summary

       Judgment.” Appellants’ Appendix at 163. Indiana Trial Rule 56(C) requires the

       party seeking summary judgment to serve the motion and any supporting

       affidavits in accordance with Ind. Trial Rule 5. The adverse party then has

       thirty days after service to serve a response and any opposing affidavits. Id.

       “When a party moves for summary judgment on the issue of liability, the non-

       movant is thereby placed on notice that all arguments and evidence opposing a

       finding of liability must be presented to properly resolve that issue.” Reiswerg,

       926 N.E.2d at 32 (quoting Pantry, Inc. v. Stop-N-Go Foods, Inc., 796 F.Supp.

       1164, 1167 (S.D. Ind. 1992)).


[14]   Hiding a request that the trial court grant a cross-motion for summary judgment

       in the last sentence of a response brief is not a proper motion for summary

       judgment and does not adequately put a party on notice. For this same reason,

       we disagree with any contention that the Plaintiffs’ reference to their purported

       cross-motion for summary judgment during the hearing on Defendants’ first

       motion for summary judgment was sufficient to trigger the Defendants’ duty to

       raise their limitations defense. We agree with the Defendants that the Plaintiffs

       did not file a cross-motion for summary judgment.


[15]   To be sure, the Plaintiffs response was just that—a response. The Plaintiffs’

       references throughout their response that they were entitled to summary

       judgment or that certain claims should be resolved in their favor “[a]s a matter

       of law” are likewise responses to the claims raised in Defendants’ summary

       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PL-249 | March 24, 2016   Page 9 of 10
       judgment motion. See, e.g., Appellants’ Appendix at 159, 162. Such responses are

       not evidence that the Plaintiffs’ were seeking summary judgment outside the

       scope of claims raised by the Defendants. Absent a proper motion for summary

       judgment seeking to establish liability, the Defendants’ duty to present their

       limitations defense was not triggered.


[16]   As noted above, in defining the scope of the issues, the Defendants did not raise

       the statute of limitations defense. That issue was therefore not before the court.

       Thus, the trial court’s determination that the Defendants waived their

       limitations defense was erroneous. We therefore reverse the trial court’s grant

       of partial summary judgment in favor of the Plaintiffs on the issue of waiver of

       the Defendants limitations defense.


[17]   Judgment reversed and remanded.


[18]   Robb, J., concur in result without opinion.


[19]   Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PL-249 | March 24, 2016   Page 10 of 10
