                                                                               FILED
                                                                          Sep 08 2016, 10:03 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANTS                                    ATTORNEY FOR APPELLEE
      J. Thomas Vetne                                            Terry K. Hiestand
      Jones Obenchain, LLP                                       Hiestand Law Office
      South Bend, Indiana                                        Chesterton, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      V. Ganz Builders and                                       September 8, 2016
      Development Co., Inc., and                                 Court of Appeals Case No.
      Vladimir Ganz,                                             64A03-1602-CC-432
      Appellants-Defendants,                                     Appeal from the Porter Superior
                                                                 Court
              v.                                                 The Honorable William E. Alexa,
                                                                 Judge
      Pioneer Lumber, Inc.,                                      Trial Court Cause No.
      Appellee-Plaintiff                                         64D02-1211-CC-11607




      Crone, Judge.


                                              Case Summary
[1]   V. Ganz Builders and Development Co., Inc. (“VGB”), signed an application

      for a line of credit with Pioneer Lumber, Inc. (“Pioneer”), and also signed a

      credit account agreement. The line of credit was secured by a personal

      guaranty agreement signed by VGB’s president, Vladimir Ganz. Pioneer sued


      Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016                  Page 1 of 21
      VGB and Ganz (collectively “Appellants”) for breach of contract and to enforce

      the guaranty. Appellants filed a counter motion for summary judgment,

      asserting that Pioneer’s claims were time-barred by the applicable statute of

      limitations. The trial court denied the motion, finding that Appellants waived

      this defense by failing to plead it in their answer to Pioneer’s complaint. After a

      bench trial, the court entered judgment in Pioneer’s favor. Appellants filed a

      motion to correct error, which was denied.


[2]   Appellants now appeal. As preliminary matters, Pioneer contends that

      Appellants failed to preserve their appellate rights and that they may not

      challenge the summary judgment order. Because Appellants’ motion to correct

      error was timely filed, and because the summary judgment order was not a final

      judgment, we disagree. For their part, Appellants assert that the trial court

      erred in finding that they waived their statute of limitations defense and in

      denying their counter motion for summary judgment. Because Pioneer has not

      affirmatively shown that it was prejudiced by Appellants raising the defense on

      summary judgment, and because Pioneer’s claims against Appellants were

      untimely filed, we reverse and remand with instructions to enter summary

      judgment in Appellants’ favor.


                                  Facts and Procedural History
[3]   In 1996, VGB signed an application for a line of credit with Pioneer and also

      signed a credit account agreement. The line of credit was secured by a personal




      Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016   Page 2 of 21
      guaranty agreement signed by Ganz. 1 VGB used the line of credit to purchase

      tools and building supplies from Pioneer. Two accounts were governed by the

      line of credit: the General Account and the Real Estate Account. In November

      2012, Pioneer filed a complaint against Appellants, alleging that 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. Pioneer’s complaint alleged that “[t]he last date upon

      which materials were purchased by [VGB] from Pioneer … was March 27,

      2006” and that Appellants owed Pioneer over $40,000 in unpaid balances plus

      finance charges and attorney’s fees. Appellants’ App. at 25. In January 2013,

      Appellants filed an answer and affirmative defenses to Pioneer’s complaint.


[4]   In January 2014, Pioneer filed a motion for summary judgment as to both

      liability and damages. In April 2014, Appellants filed a counter motion for

      summary judgment, asserting for the first time that Pioneer’s claims were time-

      barred by the six-year limitation on actions on accounts and contracts not in

      writing under Indiana Code Section 34-11-2-7. On July 3, 2014, the trial court

      issued an order granting Pioneer’s summary judgment motion as to liability




      1
        Black’s Law Dictionary (10th ed. 2014) defines guaranty in pertinent part as “[a] promise to answer for the
      payment of some debt … in case of the failure of another who is liable in the first instance[.]” In its summary
      judgment order, the trial court perceptively noted that the agreement held Ganz and VGB jointly and
      severally liable on VGB’s unpaid debts, and therefore it was questionable whether “the agreement here is a
      guaranty agreement, a surety agreement, or whether it is a difference without a meaning. For the purposes of
      the matters presented at bar, however, it seems to be of no difference.” Appellants’ App. at 11 n.1. The trial
      court referred to the agreement as a guaranty agreement for clarity’s sake and noted that neither party had
      raised any issue regarding its legal character. For the same reasons, we also refer to the agreement as a
      guaranty agreement.

      Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016                       Page 3 of 21
      only and denying Appellants’ counter motion for summary judgment. 2 The

      court found that Appellants waived the statute of limitations defense by failing

      to plead it in their answer. Appellants filed a motion to correct error, which the

      trial court denied. 3


[5]   A bench trial on damages was held on November 19, 2015, and the trial court

      took the matter under advisement. See Trial Tr. at 63 (“The only thing I see

      here is to look at the statute and see what it computes and says. I’ll let you

      know.”). In an order file-stamped and signed on December 2, 2015, the trial

      court entered judgment in Pioneer’s favor for over $61,000 in unpaid balances,

      finance charges, and attorney’s fees. The last line of the order reads, “ALL OF

      WHICH IS DONE on this 2nd day of December, 2015, nunc pro tunc

      November 20, 2015.” Appellants’ App. at 9 (underlining omitted). The order

      was noted in the chronological case summary (“CCS”) on December 8, 2015.

      Id. at 5.


[6]   Indiana Trial Rule 59(C) provides that a motion to correct error, “if any, shall

      be filed not later than thirty (30) days after the entry of a final judgment is noted

      in the [CCS].” Appellants filed a motion to correct error on December 31,

      2015, less than thirty days after the entry of the trial court’s order was noted in

      the CCS but more than thirty days after the order’s nunc pro tunc date. In their




      2
          The order was not noted in the chronological case summary until August 27, 2014. Appellants’ App. at 4.
      3
        Indiana Trial Rule 59 provides that a motion to correct error is to be filed “after the entry of a final
      judgment[.]” As discussed below, the summary judgment order was not a final judgment.

      Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016                            Page 4 of 21
      motion, Appellants again argued that Pioneer’s claims were time-barred and

      asked the court to grant its counter motion for summary judgment. Pioneer

      filed a statement in opposition, arguing that Appellants should have but failed

      to appeal the trial court’s denial of their counter motion for summary judgment

      and that their motion to correct error was untimely because it should have been

      filed within thirty days of the nunc pro tunc date. On February 5, 2016, the

      trial court issued an order summarily denying Appellants’ motion to correct

      error without commenting on its timeliness. The order was noted in the CCS

      on February 16, 2016. Appellants’ App. at 6. 4


[7]   Indiana Appellate Rule 9(A)(1) provides in relevant part that if a party “files a

      timely motion to correct error, a Notice of Appeal must be filed within thirty

      (30) days after the court’s ruling on such motion is noted in the [CCS.]”

      Appellants filed a notice of appeal on February 26, less than thirty days after the

      trial court’s ruling on their motion to correct error was noted in the CCS.

      Additional facts will be provided below.




      4
        Indiana Trial Rule 77(B) provides that “[n]otation of judicial events in the [CCS] shall be made
      promptly[.]” The fifty-five-day delay in notating the July 3 order, the six-day delay in notating the December
      2 order, and the eleven-day delay in notating the February 5 order are not in keeping with either the letter or
      the spirit of the rule.

      Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016                        Page 5 of 21
                                       Discussion and Decision

          Section 1 – Appellants’ motion to correct error was timely
                                    filed.
[8]   As a threshold matter, we address Pioneer’s citation-free argument that

      Appellants failed to preserve their appellate rights because they did not file their

      motion to correct error within thirty days of the December 2 order’s November

      20 nunc pro tunc date. Pursuant to Trial Rule 59(C), the event that triggered

      the thirty-day deadline was the notation of the order in the CCS, which

      occurred on December 8. Appellants filed their motion to correct error on

      December 31, well within the thirty-day deadline. Thus, Pioneer’s argument is

      without merit. 5


       Section 2 – The summary judgment order was interlocutory,
      and therefore Appellants may challenge the trial court’s ruling
           that they waived their statute of limitations defense.
[9]   Pioneer also argues that Appellants may not challenge the trial court’s ruling

      that they waived their statute of limitations defense because they failed to

      appeal the summary judgment order. We disagree. Indiana Trial Rule 56(C)

      states,




      5
        Given our resolution of this issue, we need not address Appellant’s challenge to the propriety of the nunc
      pro tunc entry. We note, however, that the purpose of such an entry is “to supply an omission in the record
      of action really had, but omitted through inadvertence or mistake.” Cotton v. State, 658 N.E.2d 898, 900 (Ind.
      1995) (citation and quotation marks omitted). There is no indication that an order was issued but not
      recorded on November 20.

      Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016                       Page 6 of 21
               A summary judgment upon less than all the issues involved in a
               claim or with respect to less than all the claims or parties shall be
               interlocutory unless the court in writing expressly determines that
               there is no just reason for delay and in writing expressly directs
               entry of judgment as to less than all the issues, claims or parties.


       The trial court entered summary judgment upon less than all the issues and did

       not expressly direct entry of judgment as to less than all the issues. Thus, the

       summary judgment order here was interlocutory. And our supreme court has

       stated that “[a] claimed error in an interlocutory order is not waived for failure

       to take an interlocutory appeal but may be raised on appeal from the final

       judgment.” Bojrab v. Bojrab, 810 N.E.2d 1008, 1015 (Ind. 2004). That is what

       Appellants have done here, and properly so.


          Section 3 – The trial court erred in finding that Appellants
                 waived their statute of limitations defense.
[10]   We now address Appellants’ argument that the trial court erred in finding that

       they waived their statute of limitations defense by failing to plead it in their

       answer. Indiana Trial Rule 8(C) states that a responsive pleading, such as an

       answer, “shall set forth affirmatively and carry the burden of proving … statute

       of limitations … and any other matter constituting an … affirmative defense.”

       In its summary judgment order, the trial court acknowledged that a statute of

       limitations defense may be raised for the first time in a summary judgment

       motion, citing Honeywell, Inc. v. Wilson, 500 N.E.2d 1251 (Ind. Ct. App. 1986),

       trans. denied (1987). In Wilson, the plaintiff was injured by a press with a faulty

       safety switch and sued Honeywell and other defendants in 1983. The

       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016   Page 7 of 21
       defendants were unaware that the ten-year products liability statute of

       limitations was an issue when they filed their answer and did not plead it as an

       affirmative defense. Only during discovery did they become aware that the

       switch had been manufactured in 1968. The defendants raised the statute of

       limitations issue in a summary judgment motion, which the trial court denied

       on the basis that “it is not permissible to raise the statute of limitations by

       summary judgment. The trial court held that the defense was waived since it

       had not been pleaded and since the answers had not been amended.” Id. at

       1252.


[11]   Our Court disagreed with this determination:


               The Indiana Supreme Court in Shideler v. Dwyer (1981), 275 Ind.
               270, 417 N.E.2d 281, clearly held that a statute of limitations
               defense may properly be raised by a motion for summary
               judgment. See also, Horvath v. Davidson (1970), 148 Ind. App. 203,
               264 N.E.2d 328. This follows from the basic policies underlying
               the modern Indiana Rules of Trial Procedure. These rules are
               designed to avoid pleading traps and, to the greatest extent
               possible, ensure that cases are tried on the issues that their facts
               present. Thus the focus is not on the technical procedure used to
               raise the issue, but on the issue’s legal merits.

               The presumption is that issues can be raised as they, in good
               faith, are developed. This presumption can be rebutted by the
               party against whom the new issue is raised by an affirmative
               showing of prejudice. Selvia et ux. v. Reitmeyer et al. (1973), 156
               Ind. App. 203, 295 N.E.2d 869, reh. denied. In this context, delay
               alone does not constitute sufficient prejudice to overcome the
               presumption. Selvia, supra. Instead there must be a showing that
               the party in opposition will be deprived of, or otherwise seriously
               hindered in the pursuit of some legal right if injection of the new
       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016   Page 8 of 21
               issue is permitted. See, e.g., State Farm v. Shuman, Admx. (1977),
               175 Ind. App. 186, 370 N.E.2d 941, trans. denied.

               In the present case, the statute of limitations issue was found only
               after the discovery phase. The plaintiff received oral notice of the
               issue almost two and a half months before trial and written
               confirmation five weeks before trial. [Wilson argued before the
               trial court] that the defendants had not followed the procedure set
               out in … Trial Rule 8(C). On appeal Wilson reiterates this
               argument and now also argues delay and the lack of time to
               properly respond to the issue. Clearly this does not rise to the
               level of prejudice necessary to bar an otherwise genuine issue.


       Id.


[12]   In finding that Appellants waived their statute of limitations defense in this

       case, the trial court stated,


               The key to the Court's holding in Wilson, was that there was no
               way for the defendants to know the age of the electrical
               component within the piece of machinery - and thereby, that the
               statute of limitations was a defense available to them - until after
               at least some discovery had taken place. Not only would this
               necessarily be after defendants filed the responsive pleading, but
               also very likely beyond the time frame in which defendants are
               freely allowed to amend the responsive pleading under Ind. T.R.
               15(A). Because, in Wilson, the discovery introduced material not
               within the four corners of the complaint, the appropriate motion
               to make was one for summary judgment.

               The case at bar, however, is wholly inapposite to Wilson. [VGB]
               was certainly on notice as to the last date in which [VGB]
               charged the cost of goods purchased from Pioneer to the
               Accounts, as [VGB] was the one who made the purchases and
               had them charged to the Accounts. Thus, [VGB] knew, or

       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016   Page 9 of 21
               should have known, the dates of the last charges on each
               accounts, and thereby had knowledge of the requisite
               information to claim a statute of limitations defense at the time it
               filed its responsive pleading. It did not, however, and this Court
               holds [VGB] thereby waived the defense.

               ….

               [Ganz], as President and Incorporator of [VGB], certainly knew,
               or should have known, of the last charge or payment made to the
               Accounts at issue here at the time the responsive pleading was
               filed. Because [Ganz] did not raise the defense of statute of
               limitations, he waived it.


       Appellants’ App. at 19, 21.


[13]   Based on our reading of Wilson, we think that the trial court improperly focused

       on when Appellants should have known of the availability of the defense

       instead of whether Pioneer suffered any prejudice as a result of when the

       defense was raised. See Borne v. Nw. Allen Cnty. Sch. Corp., 532 N.E.2d 1196,

       1199 (Ind. Ct. App. 1989) (“The focus of our analysis in [Wilson] then, was not

       whether the defendant could have raised his affirmative defense earlier, but

       instead, whether the defendant’s failure to raise the affirmative defense earlier

       prejudiced the plaintiff.”), trans. denied (1990). Pioneer has made no affirmative




       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016   Page 10 of 21
       showing of prejudice here. 6 Therefore, we conclude that the trial court erred in

       finding that Appellants waived their statute of limitations defense.


             Section 4 – VGB is entitled to summary judgment on its
                          statute of limitations defense.
[14]   Having determined that Appellants’ defense remains viable, we must now

       consider whether they are entitled to summary judgment based on that defense.

       “The purpose of summary judgment is to terminate litigation about which there

       can be no factual dispute and which can be determined as a matter of law.”

       Lamb v. Mid Indiana Serv. Co., 19 N.E.3d 792, 793 (Ind. Ct. App. 2014).


                Our standard of review is identical to that of the trial court:
                whether there exists a genuine issue of material fact and whether
                the moving party is entitled to judgment as a matter of law.
                Appellate review of a summary judgment motion is limited to
                those materials designated to the trial court. In addition, all facts
                and reasonable inferences drawn from those facts are construed
                in favor of the nonmoving party.


       Id. (citations omitted). “Special findings are not required in summary judgment

       proceedings and are not binding on appeal. However, such findings offer this

       court valuable insight into the trial court’s rationale for its review and facilitate



       6
         Pioneer says only that it “would be unfairly prejudiced by being asked to contend with a statute of
       limitations affirmative defense that was not properly pleaded, but allowed anyway as a potential impediment
       to the collection of monies that Ganz does not deny that he owes.” Appellee’s Br. at 5. Pioneer’s argument
       ignores the fact that it slept on its rights for over half a decade and that statutes of limitation “afford a
       measure of fairness to defendants and preserve the truth-finding function of courts” by barring stale claims.
       Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 n.4 (Ind. 2012). Also, we note that only during
       discovery was it determined that VGB’s last purchase from Pioneer was actually made on February 21, 2006,
       more than a month earlier than alleged in Pioneer’s complaint.

       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016                      Page 11 of 21
       appellate review.” Warren v. Warren, 952 N.E.2d 269, 273 (Ind. Ct. App. 2011)

       (citation omitted).


[15]   Statutes of limitation “are practical and pragmatic devices to spare the courts

       from litigation of stale claims, and the citizen from being put to his defense after

       memories have faded, witnesses have died or disappeared, and evidence has

       been lost.” Russo v. S. Developers, Inc., 868 N.E.2d 46, 48 (Ind. Ct. App. 2007).

       “They are enacted upon the presumption that one having a well-founded claim

       will not delay in enforcing it.” Morgan v. Benner, 712 N.E.2d 500, 502 (Ind. Ct.

       App. 1999), trans. denied. “A statute of limitations defense is particularly

       appropriate for summary judgment determination.” Stickdorn v. Zook, 957

       N.E.2d 1014, 1021 (Ind. Ct. App. 2011). When a statute of limitations defense

       is asserted, the moving party must first make a prima facie showing that the

       action was commenced outside the statutory period. Id. That burden is

       satisfied by demonstrating “(1) the nature of the plaintiff's action, so that the

       relevant statute of limitations period may be identified; (2) the date the

       plaintiff’s cause of action accrued; and (3) the date the cause of action was

       brought, being beyond the relevant statutory period.” McMahan v. Snap On Tool

       Corp., 478 N.E.2d 116, 120 (Ind. Ct. App. 1985). “Only when the moving party

       demonstrates these matters properly does the burden shift to the opponent of

       the summary judgment motion to establish facts in avoidance of the statute of

       limitations defense.” Id.


[16]   In their counter motion for summary judgment, Appellants characterized

       Pioneer’s claims as actions on “accounts and contracts not in writing” subject

       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016   Page 12 of 21
       to the six-year limitation period of Indiana Code Section 34-11-2-7. Also, they

       asserted that the accrual date was governed by Indiana Code Section 34-11-3-1,

       which provides that “an action brought to recover a balance due upon a mutual,

       open, and current account between the parties … is considered to have accrued

       from the date of the last item proved in the account on either side.” Appellants

       designated evidence that VGB last made a charge against the General Account

       on January 26, 2006, and against the Real Estate Account on February 21,

       2006. Appellants asserted that Pioneer’s causes of action accrued on those

       dates and therefore its November 2012 complaint was brought beyond the six-

       year statutory period.


[17]   Appellants based their arguments on Smither v. Asset Acceptance, Inc., 919 N.E.2d

       1153 (Ind. Ct. App. 2010), which involved the collection of an alleged defaulted

       credit card debt. Presumably because of the account agreement between the

       issuing bank and the debtor, the parties in that case “proceed[ed] upon the

       assumption that the proper statute of limitations” was Indiana Code Section 34-

       11-2-9, which governs actions upon promissory notes and other written

       contracts for the payment of money. Id. at 1158. 7 But the Smither court noted

       that “a written credit card application and/or generic terms of agreement do not

       by themselves establish the existence of a contract; the contract creating




       7
        Indiana Code Section 34-11-2-9 also has a six-year limitation period, but the Smither court noted that an
       action under that statute would have a different accrual date. 919 N.E.2d at 1158.

       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016                     Page 13 of 21
       indebtedness is formed only when the customer accepts the bank’s offer of

       credit by using the card.” Id. The court further noted that


               credit card accounts are unlike promissory notes or installment[]
               loans, such as mortgages, student loans, and car loans. In those
               types of written debt obligations, the total amount of
               indebtedness and a defined schedule of repayment, including
               precise dates for payment and the amount of each payment until
               the debt is fully repaid, typically are included in the loan
               document from the outset. With a credit card, although a credit
               limit may be established, the precise amount of debt that a
               consumer may undertake is unknown at the outset and
               fluctuates, depending on how the card is used. Instead, the
               creditor sends monthly statements to the debtor indicating the
               amount of that month’s required minimum payment, which may
               vary depending upon how much the card has been used, whether
               the creditor has imposed fees of different kinds, whether the
               interest rate for the card is variable, and how previous payments
               have been made. Long-standing Indiana law also holds, “‘The
               mere existence of any written document associated with a cause
               of action does not enable a claimant to avoid [the] statute of
               limitations for unwritten contracts [and actions on account]. The
               written document must in fact be the basis for the claim being
               pressed.’” [McMahan, 478 N.E.2d at 123] (quoting In re Widau,
               177 Ind. App. 215, 222, 378 N.E.2d 936, 940 (1978)); see also
               Falmouth & Lewisville Turnpike Co. v. Shawhan, 107 Ind. 47, 48, 5
               N.E. 408, 409 (1886) (holding that statute of limitations
               governing unwritten contract applies where contract is partially
               in writing and partially based on parol evidence).


       Id. at 1159 (footnote omitted).


[18]   The Smither court then noted that credit card accounts “would appear to closely

       resemble the common law definition of an ‘open account’”:


       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016   Page 14 of 21
                 An “open account” is an account with a balance
                 which has not been ascertained and is kept open in
                 anticipation of future transactions. An open
                 account results where the parties intend that the
                 individual transactions in the account be considered
                 as a connected series, rather than as independent of
                 each other, subject to a shifting balance as
                 additional debits and credits are made, until one of
                 the parties wishes to settle and close the account,
                 and where there is but one single and indivisible
                 liability arising from such series of related and
                 reciprocal debits and credits. This single liability is
                 fixed at the time of settlement, or following the last
                 entry in the account, and such liability must be
                 mutually agreed upon between the parties, or
                 impliedly imposed upon them by law. Thus, an open
                 account is similar to a line of credit.

                 Observation: Openness of an account, for purposes
                 of an action on an open account, is indicated when
                 further dealings between the parties are
                 contemplated and when some term or terms of the
                 contract are left open and undetermined.

                 The continuity of an account is broken where there
                 has been a change in the relationship between the
                 parties, or where the account has been allowed to
                 become dormant.


        1 Am. Jur. 2d Accounts & Accounting § 4 (2005) (emphasis added)
        (footnotes omitted). This definition encompasses credit card
        agreements: the precise amount of indebtedness that a customer
        may incur is unknown and fluctuating and the account is kept
        open in anticipation of future transactions, unless one of the
        parties decides to close it. See also Nelson v. Board of Comm’rs of
        Posey County, 105 Ind. 287, 288, 4 N.E. 703, 704 (1886) (“The

Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016   Page 15 of 21
                primary idea of ‘account’ is some matter of debit and credit, or of
                a demand in the nature of debit and credit between parties,
                arising out of contract, or of a fiduciary relation, or some duty
                imposed by law.”).


       Id. at 1159-60 (emphasis in Smither). 8 The court determined that it would treat

       Smither’s credit card debt as an open account debt for statute of limitations

       purposes. Id. at 1160.


[19]   In the summary judgment order in this case, the trial court agreed with

       Appellants that Indiana Code Section 34-11-2-7 is the statute of limitations that

       applies to Pioneer’s claim against VGB for failing to pay the charges on its

       accounts. In light of Smither, we agree with both Appellants and the trial court.

       The designated evidence indicates that VGB’s accounts with Pioneer had

       fluctuating balances resulting from a connected series of transactions and were

       kept open in anticipation of future purchases.


[20]   But, as the trial court observed, “[t]his does not end the discussion, … because

       this statute only specifies how long the prospective plaintiff has to file the claim

       from the time the claim accrues.” Appellants’ App. at 18. “The determination

       of when a cause of action accrues is generally a question of law. However,

       when application of a statute of limitation rests on questions of fact, it is




       8
         See also BLACK’S LAW DICTIONARY (10th ed. 2014) (defining open account as “[a]n account that is left open
       for ongoing debit and credit entries by two parties and that has a fluctuating balance until either party finds it
       convenient to settle and close, at which time there is a single liability.”).

       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016                         Page 16 of 21
       generally an issue for a jury to decide.” Stickdorn, 957 N.E.2d at 1020-21

       (citation omitted).


[21]   For purposes of Indiana Code Section 34-11-3-1, Appellants argued on

       summary judgment that “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. Appellants’ App. at 18. Again, we

       agree with Appellants. See Smither, 919 N.E.2d at 1160 (noting that “last

       activity on an open account” may include “the charging of an item or the

       making of a payment on the account”). Appellants designated evidence that

       the last charge or payment was made on January 26, 2006, for the General

       Account and on February 21, 2006, for the Real Estate Account. Based on the

       six-year statutory limitation period, Appellants argued that “the latest Pioneer

       could file a claim for breach of contract on the Credit Agreement was January

       26, 2012, for the General Account and February 21, 2012, for the Real Estate

       Account,” and therefore Pioneer’s claim against VGB was untimely filed in

       November 2012. Appellants’ App. at 18. As far as we are aware, Pioneer

       designated no contrary evidence in its response to Appellants’ counter motion

       for summary judgment, 9 and its 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.




       9
        Appellants did not include a copy of Pioneer’s response in their appendix, and Pioneer did not submit an
       appendix.

       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016                   Page 17 of 21
       See Kishpaugh v. Odegard, 17 N.E.3d 363, 373 n.3 (Ind. Ct. App. 2014) (finding

       unsupported arguments waived).


[22]   Appellants made a prima facie showing that Pioneer’s action against VGB was

       commenced outside the statutory period, and Pioneer failed to establish any

       facts in avoidance. Therefore, we reverse and remand with instructions to grant

       Appellants’ counter motion for summary judgment as to VGB.


            Section 5 – Ganz is entitled to summary judgment on his
                         statute of limitations defense.
[23]   Finally, we consider whether Ganz is entitled to summary judgment based on

       his statute of limitations defense against Pioneer’s personal guaranty claim. In

       its summary judgment order, the trial court made the following findings:

               As to the statute of limitations defense as applied to [Pioneer’s
               claim against Ganz], both Mr. Ganz and Pioneer seem to be
               skipping one key point in [Appellants’] argument. It appears as
               though they fail to understand that the Guaranty Agreement is
               not the same as the Credit Agreement and thus it might not enjoy
               the same term for statute of limitations purposes.…

               A guaranty agreement is a contract wholly separate from an
               underlying contract in which the guarantor is guaranteeing. In
               the Guaranty Agreement at issue here, for the consideration of
               Pioneer extending credit to [VGB], Mr. Ganz, individually, gave
               the consideration of being jointly and severally liable with [VGB]
               for the charges that [VGB] makes, but for which [VGB] does not
               pay. At first glance, then, the Guaranty Agreement[] appears to
               be a basic written contract, rather than a contract for the payment
               of money. If so, then the statute of limitations on the Guaranty
               Agreement according to I.C. § 34-11-2-11, would be ten years –

       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016   Page 18 of 21
         not six.[ 10]

         However, the Court in Smither, 919 N.E.2d [1153], pointed out
         the “[l]ong standing Indiana law [that] holds, ‘The mere
         existence of any written document associated with a cause of
         action does not enable a claimant to avoid [the] statute of
         limitations for unwritten contracts [and actions on account.] The
         written document must in fact be the basis for the claim being
         pressed.’” Smither, 919 N.E.2d[] at 1159, quoting [McMahan, 478
         N.E.2d at 123] (internal quotation omitted).

         Employing this principle, this Court finds that, despite the
         Guaranty Agreement itself being in writing, it is still an unwritten
         contract, because parol evidence is required to prove a claim
         brought to enforce the Agreement.[ 11] As explained in Smither,
         “the precise amount of debt that a consumer may undertake is
         unknown at the outset and fluctuates, depending on how the card
         is used.” Id. The same goes for the Guaranty Agreement, as the
         promise found in the Guaranty Agreement is for Mr. Ganz to
         pay the amounts rightfully owed to Pioneer, as charged by
         Corporation, under the Credit Agreement. Thus, the Guaranty
         Agreement is considered an unwritten contract, and subject to



10
  See Ind. Code § 34-11-2-11 (“An action upon contracts in writing other than those for the payment of
money, and including all mortgages other than chattel mortgages, deeds of trust, judgments of courts of
record, and for the recovery of the possession of real estate, must be commenced within ten (10) years after
the cause of action accrues.”). Pioneer argues that this statute of limitations applies to its claims against
Appellants. As far as we can tell, this is the first time that Pioneer has raised this issue. “Issues not raised
before the trial court on summary judgment cannot be argued for the first time on appeal and are waived.”
Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004).
11
   See Smither, 919 N.E.2d at 1159 (citing Shawhan, 107 Ind. at 48, 5 N.E. at 409); see also Hoffman v.
Hollingsworth, 10 Ind. App. 353, 356, 37 N.E. 960, 961 (1894) (“When it is necessary to resort to oral
evidence to establish a contract, although a part of the contract be in writing, the entire contract is regarded as
a verbal one. An action upon a contract partially in writing and partially in parol is barred by the six-years’
statute of limitations.”) (citing, inter alia, Shawhan); Movement for Opportunity & Equal. v. Gen’l Motors Corp.,
622 F.2d 1235, 1242 n.7 (7th Cir. 1980) (“Where proof problems on contracts are minimal, in written,
integrated contracts, Indiana provides a 20-year [now 10-year] statute of limitations. On general contract
actions which must rely on parol evidence, people’s memories and extraneous documents, however, Indiana
applies a considerably shorter six-year period.”) (citation to superseded statute omitted).

Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016                         Page 19 of 21
               the same six-year statute of limitations as found in I.C. § 34-11-2-
               7(1).


       Appellants’ App. at 19-21 (some alterations in Smither) (citation to exhibits

       omitted).


[24]   We agree with the trial court’s analysis. As far as the date of accrual is

       concerned, Appellants argued that the claim against Ganz accrued at the same

       time as the claim against VGB. Pioneer argued that the claim “should accrue

       from the time that [it] was put on notice that [VGB] would not be paying its

       debt in the normal course[.]” Id. at 21. Assuming for argument’s sake that

       Pioneer is correct, VGB’s credit account agreement states that payment for all

       materials and services “is due by the 10th of the month following purchase and

       becomes delinquent on the 25th of the month following purchase.” Id. at 30.

       Thus, at the latest, the General Account became delinquent on February 25,

       2006, and the Real Estate Account became delinquent on March 25, 2006. The

       record contains no designated evidence regarding the normal course of the

       parties’ business dealings, but even assuming that Pioneer typically gave VGB

       several additional months to pay its debt, Pioneer’s claim against Ganz accrued

       more than six years before it filed its complaint. Thus, Pioneer’s claim against

       Ganz was untimely filed. Accordingly, we reverse and remand with

       instructions to grant Appellants’ counter motion for summary judgment as to

       Ganz.




       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016   Page 20 of 21
[25]   Reversed and remanded.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 64A03-1602-CC-432 | September 8, 2016   Page 21 of 21
