      MEMORANDUM DECISION
                                                                        Aug 24 2015, 8:58 am
      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 APPELLANTS                                   ATTORNEY FOR APPELLEES
      Christopher J. McElwee                                    Steven M. Crell
      Monday Jones & Albright                                   Cohen Garelick & Glazier
      Indianapolis, Indiana                                     Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Dennis Gifford and Mary                                  August 24, 2015
      Gifford,                                                 Court of Appeals Case No.
                                                               49A05-1409-PL-427
      Appellants-Plaintiffs,
                                                               Appeal from the
              v.                                               Marion Superior Court
                                                               The Honorable David A. Shaheed,
                                                               Judge
      Jeffrey Wicks and James Ector,
                                                               Cause No. 49D01-1001-PL-1771
      Appellees-Defendants.




      Kirsch, Judge.

[1]   Dennis Gifford (“Gifford”) agreed to sell his stock in a company called Face

      Off, Inc. d/b/a Karma Records, Inc. (“Face Off”) to Jeffrey Wicks (“Wicks”)

      and James Ector (“Ector”), and to that end the parties executed a stock

      purchase agreement and various promissory notes. Disputes arose, and Gifford

      and his wife Mary Gifford (together, “the Giffords”) filed a lawsuit against

      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015    Page 1 of 16
      Wicks, Ector, and Face Off. Following entry of summary judgment in favor of

      Wicks and Ector, the Giffords now appeal and raise the following restated

      issue: whether the trial court erred when it granted summary judgment in favor

      of Wicks and Ector on the basis that the claims against them were barred by the

      applicable six-year statute of limitations.


[2]   We reverse and remand.


                                    Facts and Procedural History
[3]   On April 2, 2003, Gifford, Wicks, Ector, and Face Off entered into a stock

      purchase agreement (“the Stock Purchase Agreement”), whereby Gifford

      agreed to sell fifty shares of Face Off to Wicks and Ector for $77,300.00.1 The

      Stock Purchase Agreement provided that Wicks and Ector would each pay

      Gifford $38,650.00 payable in 240 equal monthly installments of principal and

      interest “commencing one year from the date of [the] Agreement,” i.e., April 2,

      2004. Appellants’ App. at 72. The Stock Purchase Agreement also required

      Wicks and Ector to execute an individual promissory note for the payment of

      the agreed purchase price.


[4]   In accordance with this, Wicks and Ector each executed on April 2, 2003, a

      promissory note (“the Wicks/Ector Notes”) payable to Gifford2 in the amount

      of $38,650.00. Face Off executed an Absolute Guaranty of those promissory



      1
          Gifford’s wife, Mary Gifford (“Mary”), was not a party to the Stock Purchase Agreement.
      2
          Mary was not a payee on the Wicks/Ector Notes.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015         Page 2 of 16
      notes, and it also conveyed a security interest and executed a security

      agreement to secure the payment of the Wicks/Ector Notes. The Wicks/Ector

      Notes were identical in form, and they required Wicks and Ector each to pay

      Gifford in 240 equal monthly installments of principal and interest in the

      amount of $510.15, “beginning on the date that is one month from the date of

      the execution of this Note[.]” Id. at 53-54. Thus, the first installment under the

      Wicks/Ector Notes was due May 2, 2003. The Wicks/Ector Notes each

      contained an acceleration clause, which stated:

              In the event of a default in payment of any payment when due, the
              entire unpaid balance of principal and interest shall become due and
              payable immediately without notice, at the election of the holder
              hereof.
      Id.


[5]   On April 21, 2003, Face Off executed a promissory note (“the Face Off Note”)

      payable to the Giffords in the principal sum of $35,103.56. The Face Off Note

      was payable in ten annual installments of interest only, at the prime interest rate

      against the unpaid balance, commencing one year after the execution of the

      Face Off Note, i.e., April 21, 2004. The Face Off Note provided that, after the

      payment of the ten annual installments of interest, Face Off would pay the

      Giffords as follows:

              One hundred twenty (120) equal monthly installments of principal and
              interest @ 5% rate in the amount of THREE HUNDRED AND
              SEVENTY TWO and 33/100 ($372.33) DOLLARS beginning on the
              date that is ten years from the execution of this Note and payable
              thereafter on the same day of each of the [119] immediately succeeding
              calendar months.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015   Page 3 of 16
      Id. at 58. The Face Off Note allowed prepayment in full or in part at any time

      without penalty. Id.


[6]   It is undisputed that Gifford received monthly payments from Face Off’s bank

      account in the amount of $670.00 from May 2004 through at least October

      2006. However, according to Gifford, he stopped receiving payments in July

      2008, and, about a year later, on July 21 2009, the Giffords, by counsel, sent a

      letter to Wicks and Ector indicating that they had not received payment “under

      the promissory notes” and demanding payment pursuant to the acceleration

      clause of the three promissory notes. More fully, the letter to Wicks and Ector

      stated, in part:

              For reasons that are not completely clear, your performance of your
              obligations under the promissory notes stopped over a year ago and no
              payment has been received while the interest continues to accrue. By
              our calculation, your total current debt to the Giffords is
              [$176,908.98]. This number includes the principal and interest as well
              as the late fees that the promissory notes call for.
      Id. at 55 (emphasis added). The letter requested payment within thirty days

      from the date of the letter.


[7]   Because the matter was not resolved, the Giffords filed a four-count complaint

      on January 5, 2010. In Count I of the complaint, Gifford sought relief against

      Wicks and Ector; the remaining counts sought relief against Face Off.3 As part




      3
       According to the record before us, Face Off was administratively dissolved in December 2007. Appellants’
      App. at 17; see also Tr. at 35 (counsel stating Face Off “is out of business”).

      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015          Page 4 of 16
      of their affirmative defense, Wicks and Ector stated that Gifford’s claims were

      barred by the six-year statute of limitations applicable to promissory notes

      found in Indiana Code section 34-11-2-9.


[8]   On July 11, 2011, Wicks and Ector filed a motion for summary judgment,

      arguing that they were entitled to summary judgment because the six-year

      statute of limitations on Gifford’s claims for breach of the Wicks/Ector Notes

      had expired, and, therefore, the claims against them for breach of promissory

      notes was time barred under Indiana Code 34-11-2-9. Their argument was that

      Wicks and Ector never made any payments pursuant to the Wicks/Ector

      Notes, and thus default occurred in May 2003 (when the first payment was

      due). Because Gifford did not seek to enforce the acceleration clause until July

      2009, which was more than six years after default, the claim was barred by the

      applicable six-year statute of limitations. With regard to the monthly $670.00

      payments, Wick and Ector argued in their motion for summary judgment that

      the $670.00 payments were made by Face Off pursuant to the April 21, 2003

      Face Off Note, which “reflects a separate and unrelated indebtedness of Face

      Off to Gifford and Mary.” Id. at 25; see also Appellees’ Br. at 6 (“This Note was

      unrelated to the Stock Purchase Agreement and was unrelated to the notes

      signed by Wicks and Ector.”). That is, their position was that the $670.00

      payments from Face Off had nothing to do with the Wicks/Ector Notes.


[9]   In support of their motion for summary judgment, Wicks and Ector designated

      an accounts payable ledger that reflected monthly payments by Geaux



      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015   Page 5 of 16
       Enterprises (“Geaux”), the successor company to Face Off,4 in the amount of

       $670.00 from May 2004 through October 2006, payable to Gifford. Appellants’

       App. at 33-34. They also submitted affidavits by Wicks and Ector, in which

       each of them averred that he never made any payment on the Wicks/Ector

       Notes, and the $670.00 payments received by Gifford were from Face Off

       pursuant to the April 21, 2003 Face Off Note. Id. at 30-31, 59.


[10]   The Giffords responded to the motion for summary judgment, arguing in their

       motion that “Wicks and Ector began to pay as promised on May 2, 2003 and

       made substantially all payments until July 2008.” Id. at 64. Once Gifford

       “realized” that Wicks and Ector were not going to make any more payments,

       he hired an attorney and demanded full payment on the three promissory notes,

       i.e., the Wicks/Ector Notes and the Face Off Note. Id. In opposing the

       summary judgment, the Giffords maintained that they stopped receiving

       payment in 2008, they invoked the acceleration clause in July 2009, and their

       January 2010 complaint was well within the six-year statute of limitations. Id.

       at 66. Alternatively, they argued that there were “multiple issues of material

       fact” that precluded summary judgment in favor of Wicks and Ector, including

       whether, as claimed, Wicks and Ector had made no payments on the

       Wicks/Ector Notes. Id. at 65. In support of their opposition, the Giffords

       designated, among other things, the demand letter of July 21, 2009, sent to




       4
           In our decision, we will refer to Face Off, Geaux, or both, as is applicable.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015   Page 6 of 16
       Wicks and Ector, referencing the April 2, 2003 Wicks/Ector Notes and stating

       “your performance of your obligations under the promissory notes stopped over

       a year ago[.]” Id. at 93. They also designated an affidavit of Gifford, in which

       he stated, “I invoked the acceleration clauses of all three Promissory Notes and

       demanded payment in full on July 21, 2009.” Id. at 70. The Giffords also

       designated an exhibit that reflected their calculations of the “Outstanding

       Amounts Due” on the three promissory notes. Id. at 96. The exhibit credited

       Wicks and Ector with each having paid $5,215.25 on the principal of the

       Wick/Ector Notes, and did not credit Face Off with having made any

       payments, such that the entire principal amount of $35,103.56 of the April 21,

       2003 Face Off Note was still due and owing. Id.


[11]   Following a hearing, the trial court granted summary judgment in favor of

       Wicks and Ector as to Count I of the complaint in October 2011. The Giffords,

       asserting that the decision was a final appealable judgment, filed a motion to

       correct error on November 23, 2011. They claimed, among other things, that

       there was “a material factual dispute as to the source of the [$670.00 monthly]

       payments and the obligation which they were intended to satisfy.” Id. at 104.

       The trial court held a hearing in January 2012 and denied the motion to correct

       error that day.


[12]   Almost one year later, in January 2013, the Giffords filed a Motion to

       Reconsider Summary Judgment Order, asking the trial court to reconsider its

       summary judgment in favor of Wicks and Ector. In contrast to their position

       when seeking a Motion to Correct Error, the Giffords asserted that the order on

       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015   Page 7 of 16
       summary judgment was not a final appealable order, and was in fieri, and thus

       the trial court still retained the authority to review and modify its prior

       summary judgment order. In support of the Motion to Reconsider, they

       submitted, among other things, another affidavit by Gifford stating that the

       $670.00 per month that Face Off and/or its successor Geaux began paying him

       in May 2004 was comprised of (1) interest on the April 2, 2003 Wicks/Ector

       Notes and (2) interest on a separate $20,000 loan that Gifford had made to

       Geaux on April 28, 2004. Id. at 114. As evidence of this assertion, the Giffords

       submitted a 2007 Internal Revenue Service 1099-INT tax form, received by the

       Giffords from Geaux, reflecting that Geaux had paid Gifford $510.15 per

       month during 2007, and a portion of that payment was comprised of interest on

       the Wicks/Ector Note. The 2007 1099-INT form stated, “Total Interest Paid in

       2007 for Ector & Wicks Notes” was $3,417.27. Id. at 116. Gifford’s affidavit

       also stated that the $670.00 was paid from May 2004 through July 2008, and he

       provided copies of two $670.00 checks from Geaux to Gifford issued in June

       and July 2008. Id. at 102, 115.


[13]   Wicks and Ector filed an Objection to the Motion to Reconsider, arguing, first,

       that the Giffords were estopped from taking the position that the summary

       judgment was in fieri, and susceptible to revision, because the Giffords had

       previously argued that the summary judgment was a final order at the time that

       they filed a motion to correct error, upon which they received a hearing.

       Second, Wicks and Ector asserted that the Giffords should be precluded from

       submitting additional evidence more than a year after the summary judgment


       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015   Page 8 of 16
       decision was issued, especially when that evidence was not newly discovered

       and was available at the time of the summary judgment hearing. The trial court

       denied the Giffords’ Motion to Reconsider in March 2013.


[14]   In December 2013, the Giffords filed a motion for summary judgment against

       Face Off with respect to Count IV of the complaint, asserting that Face Off had

       failed to pay as promised under the April 21, 2003 Face Off Note and claiming

       that the $670.00 payments they received from Face Off/Geaux from May 2004

       through October 2006, which totaled $20,100.00, were attributable to the

       Wicks/Ector Notes. Face Off opposed the motion, maintaining that genuine

       issues of material fact existed concerning if and to what extent Face Off was or

       remained liable to the Giffords on the Face Off Note. The trial court granted

       summary judgment in favor of the Giffords, held a damages hearing, and

       thereafter entered judgment in favor of the Giffords and against Face Off in the

       amount of $260,729.94, which included the entire $35,103.56 principal balance

       and thus did not credit Face Off with having made any payment on the Face

       Off Note.5 The trial court entered final judgment, and the Giffords now appeal.




       5
        We observe that the trial court’s grant of summary judgment in favor of Wick and Ector effectively was a
       determination that the $670.00 payments were payments from Face Off/Geaux on the April 21, 2003 Face
       Off Note, not payments on the Wicks/Ector Notes. However, the trial court’s subsequent decision on
       damages, rendering summary judgment in favor of the Giffords and against Face Off in the amount of
       $260,729.94, does not credit Face Off/Geaux with having made any payment on the April 21, 2003 Note.
       As a result, it appears that the two summary judgment orders are inconsistent with one another.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015          Page 9 of 16
                                      Discussion and Decision
[15]   When reviewing a summary judgment ruling, we apply the same standard as

       the trial court. Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, 1282 (Ind.

       2006). Summary judgment is appropriate only where “the designated

       evidentiary matter shows that there is no genuine issue as to any material fact

       and that the moving party is entitled to a judgment as a matter of law.” Ind.

       Trial Rule 56(C). We view the pleadings and designated materials in the light

       most favorable to the non-moving party. FLM, LLC. v. Cincinnati Ins. Co., 973

       N.E.2d 1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg.

       Servs. of Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied.

       Additionally, all facts and reasonable inferences from those facts are construed

       in favor of the non-moving party. Id. (citing Troxel Equip. Co. v. Limberlost

       Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans. denied). We may

       affirm a summary judgment ruling if it is sustainable on any legal theory or

       basis found in the evidentiary matter designated to the trial court. W. Am. Ins.

       Co. v. Cates, 865 N.E.2d 1016, 1020 (Ind. Ct. App. 2007), trans. denied.

       However, we carefully review a grant of summary judgment in order to ensure

       that a party was not improperly denied his or her day in court. Smither v. Asset

       Acceptance, LLC, 919 N.E.2d 1153, 1156 (Ind. Ct. App. 2010).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015   Page 10 of 16
                                          Stock Purchase Agreement

[16]   The Stock Purchase Agreement required monthly payments beginning one year

       from April 2, 2003.6 Thus, the earliest that default under the Stock Purchase

       Agreement could have occurred is April 2, 2004. Indiana Code section 34-11-2-

       9 provides, in relevant part, “An action upon promissory notes, bills of

       exchange, or other written contracts for the payment of money executed after

       August 31, 1982, must be commenced within six (6) years after the cause of

       action accrues.” Six years from the April 2, 2004 earliest-default date is April 2,

       2010, and the Giffords filed their complaint several months before that date, in

       January 2010.


[17]   On appeal, the Giffords contend that “to the extent that Count I of the

       complaint alleges both the breach of the stock purchase agreement and of the

       Wicks and Ector promissory notes as bases for relief, summary judgment as to

       all of Count I of the complaint was error.” Appellants’ Br. at 7. Wicks and

       Ector maintain that Count I of the complaint sought relief only for breach of the

       promissory notes, not the Stock Purchase Agreement. Appellees’ Br. at 2, 5.


[18]   We recognize that the complaint was titled “Verified Complaint on Promissory

       Notes, Absolute Guaranty and Security Agreement” and, therefore, does not on




       6
        The Stock Purchase Agreement required monthly payments beginning one year from April 2, 2003, i.e.,
       April 2, 2004, whereas the Wicks/Ector Notes required monthly payment starting one month after April 2,
       2003, i.e., May 2, 2003.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015        Page 11 of 16
       its face indicate an alleged breach of the Stock Purchase Agreement. Appellants’

       App. at 12. However, the text of Count I specifically refers to the April 2, 2003

       execution of the Stock Purchase Agreement, and its terms, including the

       requirement that payment in 240 monthly installments was to commence on

       May 2, 2004. The next paragraph alleges, “That the Defendants have failed to

       make the payments as required by the instrument and are in breach of the

       same.” Id. at 13 (paragraphs 6 and 7). Thereafter, the complaint refers to the

       execution of the Wicks/Ector Notes, their terms, and the Giffords’ demand of

       payment under the Notes via the July 21, 2009 letter. It then alleges breach of

       the Wicks/Ector Notes. Id. at 13-14 (paragraphs 8-12). As Wicks and Ector

       assert, the complaint’s demand or prayer for relief seeks recovery on the

       promissory notes, but does not mention the Stock Purchase Agreement.

       However, given the language of Count I of the complaint, we find that, at a

       minimum, there exists a question of fact on the issue of whether the Giffords

       also seek relief for breach of the Stock Purchase Agreement. Therefore, we find

       that summary judgment in favor of Wicks and Ector on the entirety of Count I

       was in error.


                                      Wicks/Ector Promissory Notes

[19]   The Giffords also assert that the trial court erred when it granted summary

       judgment in favor of Wicks and Ector on the claim alleging breach of the

       Wicks/Ector Notes. The trial court granted summary judgment on the basis

       that the claim was filed beyond the applicable six-year statute of limitations

       found in Indiana Code section 34-11-2-9. Where, as here, an installment loan

       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015   Page 12 of 16
       contract or promissory note has an optional acceleration clause, by which a

       creditor may, but is not required to, declare all future installments on the loan

       immediately due and payable after a debtor’s default, the statute of limitations

       to collect the entire debt does not begin to run immediately upon the debtor’s

       default, but when the creditor exercises the optional acceleration clause.

       Smither, 919 N.E.2d at 1160 (citing Griese-Traylor Corp. v. Lemmons, 424 N.E.2d

       173, 183 (Ind. Ct. App. 1981)). However, a creditor may not wait until after the

       statute of limitations has passed before making demand for full and immediate

       payment of a debt, as this is per se an unreasonable amount of time to wait

       before invoking an optional acceleration clause. Id. at 1161-62 (summary

       judgment for debtor proper where credit card bank waited more than six years

       after debtor’s last payment before invoking acceleration clause to demand full

       and immediate payment).


[20]   In seeking summary judgment, Wicks and Ector maintained that they never

       made any payment on the Wicks/Ector Notes, which required payment to

       begin in May 2003, and thus their default occurred in May 2003. Therefore,

       they argued, the July 2009 attempt to accelerate was more than six years after

       the default, which was an unreasonable delay, and pursuant to Smither, was

       barred by the statute of limitations. The trial court agreed. On appeal, Gifford

       argues that the trial court erred in granting summary judgment because he was

       receiving payment through July 2008, and, after determining that he was not

       going to receive further payment, his attorney sent a letter in July 2009 invoking

       the acceleration clause of the three promissory notes, and the 2010 complaint


       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015   Page 13 of 16
       was well within the six-year time frame. He also argues that, at a minimum,

       genuine issues of material fact remain that preclude summary judgment in favor

       of Wicks and Ector on the Wicks/Ector Notes.


[21]   Wicks and Ector urge that summary judgment was proper because (1) their

       affidavits, in which each swore that he did not make any payments under the

       April 2, 2003 Wicks/Ector Notes, established that they defaulted in May 2003,

       when their first payment was due, and (2) Gifford did not designate any

       evidence that identified or created any genuine issues of material fact regarding

       their nonpayment on their Notes. We disagree. While the Wicks and Ector

       affidavits stated that they personally did not make payment on their Notes, this

       does not establish that no payment was made on the Wicks/Ector Notes or that

       the default occurred in May 2003. Furthermore, the Giffords, in opposition to

       summary judgment, designated the July 2009 letter to Wicks and Ector stating

       that “performance of your obligations under the promissory notes stopped over

       a year ago,” suggesting that the Giffords had been receiving payment on the

       Wicks/Ector Notes – from someone, in some fashion – through July 2008.

       Appellants’ App. at 93. The Giffords also designated an accounting of

       “Outstanding Amounts Due” under the three promissory notes as of July 2011,

       and that exhibit credited Wicks and Ector with each having paid $5,215.25, but

       it did not credit Face Off with having made any payments under its April 21,

       2003 Note. Id. at 96.


[22]   Wicks and Ector seem to suggest that, given that the payments received by

       Gifford were not in the amount of $510.15, as provided in the Wicks/Ector

       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015   Page 14 of 16
Notes, we should therefore infer that the $670.00 payments were made on the

Face Off Note. However, the $670.00 monthly payments were not consistent

with the terms of the Face Off Note, which required annual payments of

interest only for the first ten years following the execution of the Note, not

monthly payments. We also observe that although the Face Off Note was

payable to the Giffords, the accounts payable ledger, designated by Wicks and

Ector, reflects that the $670.00 payments were made to Dennis Gifford, who

was payee on the Wicks/Ector Notes. Thus, the $670.00 monthly payments

were not entirely consistent with the terms of either the April 2, 2003

Wicks/Ector Notes (which required payment to begin one month after

execution, on May 2, 2003) or the April 21, 2003 Face Off Note (which

required payment to begin one year later, on April 21, 2004). Construing the

inferences in favor of the non-moving party, as we must do, we find that

genuine issues of material fact exist regarding payment on the Wicks/Ector

Notes, thus precluding summary judgment, including: whether Face

Off/Geaux was making monthly payments on behalf of Wicks and Ector, and,

if so, in what amount(s); what portion of the payment, if any, was applicable to

which Note(s); and for what period of time payments were made, and to whom.

Consequently, summary judgment in favor of Wicks and Ector on their

promissory notes was in error.7




7
 Because our decision was based upon the materials that were originally designated to the trial court at the
summary judgment stage, we do not reach Wicks and Ector’s arguments that the Giffords should have been


Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015           Page 15 of 16
[23]   Reversed and remanded.


       Vaidik, C.J., and Bradford, J., concur.




       precluded under estoppel principles from seeking subsequent reconsideration of the summary judgment order
       or that the Giffords should not have been permitted to submit additional designated evidence that was
       available, but not submitted, at the original summary judgment stage of litigation.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-427 | August 24, 2015       Page 16 of 16
