      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                               FILED
      court except for the purpose of establishing                       Jun 03 2020, 8:13 am

      the defense of res judicata, collateral                                 CLERK
      estoppel, or the law of the case.                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Patrick A. Schuster                                      Laura S. Reed
      Crown Point, Indiana                                     Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Crystal Foods Corporation,                               June 3, 2020
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               19A-PL-2773
              v.                                               Appeal from the Lake Superior
                                                               Court
      B & K Equipment Company,                                 The Honorable Kristina Kantar,
      Appellee-Defendant.                                      Judge
                                                               Trial Court Cause No.
                                                               45D04-1506-PL-47



      Tavitas, Judge.


                                             Case Summary
[1]   Crystal Foods Corporation (“Crystal”) appeals the trial court’s grant of

      summary judgment to B&K Equipment Company (“B&K”). We affirm in part,

      reverse in part, and remand.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020                Page 1 of 16
                                                     Issues
[2]   Crystal raises two issues, which we consolidate and restate as whether the trial

      court properly granted summary judgment to B&K for breach of warranty. On

      cross-appeal, B&K also argues that the trial court erred by denying its motion

      for summary judgment regarding its statute of limitation defense.


                                                     Facts
[3]   Crystal operated a gas station in Merrillville on property owned by Nuch

      Corporation (“Nuch”). In March 2007, Crystal entered into a contract with

      B&K to remove and replace an underground storage tank located at Crystal’s

      gas station. B&K provided Crystal with a four-page “Proposal,” which Crystal

      signed (“Contract”). Appellant’s App. Vol. II p. 29. The first three pages of the

      Contract itemized and detailed the work B&K was to perform for Crystal. The

      Contract required B&K to “furnish material and labor to complete a tank

      replacement project” that included, in part: “[e]xcavat[ion], remov[al],

      clean[ing] and dispos[al] of the existing steel underground storage tanks”;

      “[f]urnish[ing] and install[ation of] a Xerxes, 22,000 gallon single wall fiberglass

      underground storage tank”; “[f]ill[ing] the excavation with compacted stone

      backfill”; and replac[ing] the concrete curb and “excavated pavement under the

      existing canopy with 6 [inch] thick fibermesh reinforced concrete.” Id. Each of

      these three pages was signed by both B&K and Crystal. At the bottom of each

      of the three pages, the following language was included: “SEE TERMS AND

      CONDITIONS TO THIS PROPOSAL.” Id. The third page of the Contract



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 2 of 16
      included “TERMS”, which detailed payment provisions and Crystal’s failure to

      comply with the terms of the Contract.


[4]   The fourth page of the Contract was titled “TERMS AND CONDITIONS”

      and was not signed by the parties. The page included the following boilerplate

      language:


              TITLE AND OWNERSHIP: Unless otherwise directed by
              customer, if this contract includes installation, it is a construction
              contract which is an agreement between this Contractor/Seller
              and the Purchaser/Owner to alter, improve, repair, replace, or
              erect real property. It is expressly agreed that title to and
              ownership of the fixtures included in this construction contract
              pass to the Purchaser/Owner upon permanent and complete
              installation of the fixtures to real estate. . . .


              If this contract does not include installation or if it is a contract
              with a valid tax-exempt organization or if a valid resale certificate
              has been issued, it is a sale of tangible personal property and it is
              expressly agreed that title and ownership of the fixtures pass
              upon delivery, prior to installation. . . .


                                                    *****


              If for any reason this contract is not paid in full within 90 days of
              completion of installation, it is agreed that in addition to
              collecting all balances due, the contractor shall have the right to
              remove the installed fixtures without written permission from or
              prior notice to the Purchaser/Owner and thereafter the fixtures
              shall become the personal property of Contractor and Contractor
              shall not be responsible for any damage to purchaser/owners
              property cause by such removal. . . .



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 3 of 16
              GRANT OF SECURITY INTEREST: For sales of tangible
              personal property, Purchaser hereby grants and Seller retains a
              purchase money security interest in said product/equipment,
              including proceeds there from, for the purpose of securing
              Purchaser’s obligation to make payment in full, until payment is
              received in full in cash or collected funds, at which time the
              security interest shall cease. . . . .


              PAYMENT AND COLLECTION TERMS: It is expressly
              understood and agreed that payment in full shall be due upon
              completion of installation or delivery unless prior arrangements
              have been made and agreed to. . . .


              WARRANTIES: All equipment/Product(s) and components
              carry a manufacturer’s warranty, which is passed onto the
              purchaser according to the manufacturer’s policy. No other
              warranties are either expressed or implied, including the
              warranty of merchantability and fitness for a particular purpose.


      Id. at 32.


[5]   In 2008, the concrete in the area where B&K performed work settled and

      cracked. An engineering study concluded that the “3-inch size rock [used by

      B&K] was not a suitable backfill material.” Id. at 36. The study concluded that

      the “settlement of old concrete pavement around the backfill area and

      movement in the gasoline island No. 7 & 8 is caused by the improper

      backfilling of the former [underground storage tank] area.” Id. at 37. Crystal

      estimated its resulting damages at more than $312,000.00.


[6]   In June 2015, Crystal and Nuch filed a complaint against B&K and alleged

      breach of contract and negligence. Crystal’s complaint alleged, in part, that:

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 4 of 16
      B&K “owed a duty to [Crystal] to perform its work in a good and workmanlike

      manner”; B&K was contracted to excavate, remove, and replace an

      underground storage tank on the property; and there was “a deficiency in the

      design, planning, supervision, construction, or observation of construction on

      the improvement to the Property by B&K constituting a breach by B&K of the

      Contract.” Appellant’s App. Vol. II p. 14.


[7]   B&K filed a motion for summary judgment and claimed: (1) Crystal’s claim

      was barred because it was subject to a six-year statute of limitation for damage

      to real property pursuant to Indiana Code Section 34-11-2-7; (2) Crystal’s

      claims were barred by the written disclaimer of implied warranties in the

      Contract; and (3) Nuch was not a party to the Contract. Crystal filed a

      response to B&K’s motion for summary judgment. Crystal argued that: (1) the

      action was not barred by the statute of limitation because the ten-year statute of

      limitation for a written contract action pursuant to Indiana Code Section 34-11-

      2-11 applied; and (2) B&K’s two-paragraph warranty argument was “devoid of

      substantive law and facts to support the argument.” Id. at 42.


[8]   After a hearing, the trial court granted summary judgment to B&K. 1 The trial

      court noted that Crystal did not dispute that Nuch was not a party to the

      Contract and did not dispute B&K’s motion for summary judgment regarding

      the negligence claim. The trial court concluded that B&K’s statute of limitation




      1
          We were not provided with the transcript of this hearing.


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 5 of 16
argument failed because the ten-year statute of limitation for a breach of written

contract applied. The trial court, however, agreed with B&K’s warranty

argument and found:


        Cited in the briefs before the Court is the case of Peltz Construction
        Company v. Dunham, 436 N.E.2d 892 (Ind. [Ct.] App. 1982). In
        Peltz, [t]he Court was asked to consider whether waterproofing
        work on a basement constituted “goods” under UCC, and
        whether a warranty existed, and if so, was breached, causing
        damages. Id. at 893. The UCC as adopted by Indiana, conveys
        additional rights and protections to a purchaser and “Indiana
        recognizes implied warranties of fitness for a particular purpose
        and implied warranties of merchantability,” under the act.
        Hyundai Motor Am., Inc. v. Goodin, 822 N.E.2d 947, 951-52 (Ind.
        2005) (citing Ind. Code §§ 26-1-2-314, 315 (2003)). The “implied
        warranty of merchantability is imposed by operation of law for
        the protection of the buyer and must be liberally construed in
        favor of the buyer.” Frantz v. Cantrell, 711 N.E.2d [856, 859 (Ind.
        Ct. App. 1999)].


        The Court, however in Peltz rejected the existence of a UCC
        claim or protection, stating such waterproofing work on a
        basement did not constitute “goods” as contemplated by the act.
        Id. The Court additionally stated that “in Indiana, a contract
        action which alleges a breach of warranty requires proof of four
        factors: 1) the existence of a warranty; 2) the breach of that
        warranty; 3) causation and 4) resulting damage.” Id. at 894. The
        Court further held that where a warranty provides that work will
        be done in a workmanlike manner and with good materials, a
        plaintiff need not prove the reason for failure, but only that it did
        fail. Id. at 895 n.3.


        The heart of the dispute in the case above centers around
        Defendant’s denial of the existence of any warranty. The court

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 6 of 16
           must consider the language of the agreement and here the
           Proposal between the parties called for [B&K to] “[f]ill the
           excavation with compacted stone backfill,” without further
           qualifications or limitation, and as to the evidence of a warranty
           itself, the “terms and conditions” state:


                    WARRANTIES: All equipment/Product(s) and
                    components carry a manufacturer’s warranty; which is
                    passed on to the purchaser according to the manufacturer’s
                    policy. No other warranties are either expressed or
                    implied, including the warranty of merchantability and
                    fitness for a particular purpose.


           In contracts, “modification of warranties and limitations of
           remedy” are not per se unconscionable and any attempt to
           exclude or modify an implied warranty of merchantability must
           “mention merchantability” and any “limitation of the implied
           warranty of fitness must be in writing.” Hahn v. Ford Motor Co.,
           434 NE.2d 943, 948, 952 (Ind. Ct. App. 1982). In Indiana,
           “unconscionability is a question of law” for a court and “the
           party raising the issue bears the burden of proof.” Martin Rispens
           & Sons v. Hall Farms, 621 N.E.2d 1078, 1086 (Ind. Ct. App.
           1993).[ 2] In the present case, the Proposal between the parties
           specifically disclaimed any warranty and did so using the
           appropriate language for that purpose. Such exclusion is not
           unconscionable and consequently Plaintiff’s claims under
           contract are barred.


Appellant’s App. Vol. II pp. 10-12.




2
    Abrogated by Hyundai Motor Am., Inc. v. Goodin, 822 N.E.2d 947, 951-52 (Ind. 2005).


Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020              Page 7 of 16
[9]    Crystal filed a motion to correct error and argued: (1) B&K’s warranty

       argument was “woefully lacking” and B&K failed to meet its summary

       judgment burden; (2) the Uniform Commercial Code (“UCC”) does not apply

       to this contract and “whether warranties under the UCC can be disclaimed is

       immaterial in this case”; and (3) Crystal’s claim was for breach of contract, not

       breach of warranty. Id. at 51-52. B&K filed a response and argued: (1) B&K

       adequately argued in its motion for summary judgment that Crystal disclaimed

       any implied warranties; and (2) Crystal waived any argument that the implied

       warranty of workmanlike performance was different than other implied

       warranties. The trial court denied Crystal’s motion to correct error. Crystal

       now appeals.


                                                    Analysis
[10]   Summary judgment is appropriate only when the moving party shows there are

       no genuine issues of material fact for trial and the moving party is entitled to

       judgment as a matter of law. Erie Indem. Co. for Subscribers at Erie Ins. Exch. v.

       Estate of Harris by Harris, 99 N.E.3d 625, 629 (Ind. 2018), reh’g denied; see also

       Ind. Trial Rule 56(C). Once that showing is made, the burden shifts to the

       nonmoving party to designate appropriate evidence to demonstrate the actual

       existence of a genuine issue of material fact. Schoettmer v. Wright, 992 N.E.2d

       702, 705-06 (Ind. 2013). When ruling on the motion, the trial court construes

       all evidence and resolves all doubts in favor of the non-moving party. Id. at

       706. We review the trial court’s ruling on a motion for summary judgment de

       novo, and we take “care to ensure that no party is denied his day in

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 8 of 16
       court.” Id. “We limit our review to the materials designated at the trial

       level.” Gunderson v. State, Indiana Dep’t of Nat. Res., 90 N.E.3d 1171, 1175 (Ind.

       2018), cert. denied, 139 S. Ct. 1167 (2019).


                                               I. Breach of Contract

[11]   Crystal argues that the trial court erred by granting B&K’s motion for summary

       judgment regarding its breach of contract claim. 3 Crystal argues that the trial

       court erred by failing to recognize B&K’s duty to perform its work in a

       workmanlike manner and that the trial court erred by finding the contract

       disclaimed B&K’s duty to perform its work in a workmanlike manner. 4 Crystal

       argues that its claim is a breach of contract claim, not a breach of warranty

       claim. B&K argues that Crystal’s breach of contract claim fails due to the

       warranty disclaimer in the Contract.


[12]   “To prevail on a claim for breach of contract, the plaintiff must prove the

       existence of a contract, the defendant’s breach of that contract, and damages

       resulting from the breach.” Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937




       3
        Crystal makes no argument regarding Nuch or the negligence claim. Accordingly, we address only
       Crystal’s breach of contract claim.
       4
         B&K argues that Crystal waived this argument by failing to raise it in its response to B&K’s motion for
       summary judgment. B&K had the burden of demonstrating that it was entitled to summary judgment. B&K
       very briefly argued that implied warranties were disclaimed by the Contract’s terms and conditions. Crystal
       responded that B&K’s one-sentence argument related to the issue was waived and distinguished the cases
       cited by B&K. We were not provided with the transcript of the summary judgment hearing. In its motion to
       correct error, Crystal argued that this was a breach of contract claim, not a breach of warranty claim, and that
       the implied duty to perform work in a workmanlike manner was not disclaimed. We conclude that Crystal
       adequately argued to the trial court that the implied duty to perform work in a workmanlike manner was not
       disclaimed and that Crystal did not waive the issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020                       Page 9 of 16
       (Ind. 2012). According to Crystal, its breach of contract claim is based on the

       implied duty of B&K to perform the work skillfully, carefully, and in a

       workmanlike manner. Our courts have held that[,] “[i]n a contract for work,

       there is an implied duty to do the work skillfully, carefully, and in a

       workmanlike manner.” INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566,

       576 (Ind. Ct. App. 2003), trans. denied. The failure to do so may be a breach of

       contract. Id.


[13]   These arguments require that we interpret the parties’ Contract. The

       interpretation of a contract “is particularly well-suited for de novo appellate

       review, because it generally presents questions purely of law.” WellPoint, Inc. v.

       Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 29 N.E.3d 716, 721 (Ind. 2015), opinion

       modified on reh’g, 38 N.E.3d 981 (Ind. 2015). Our goal in contract interpretation

       is “to determine the intent of the parties at the time that they made the

       agreement.” Care Grp. Heart Hosp., LLC v. Sawyer, 93 N.E.3d 745, 752 (Ind.

       2018). “We start with the contract language to determine whether it is

       ambiguous.” Id. “If the language is unambiguous, we give it its plain and

       ordinary meaning in view of the whole contract, without substitution or

       addition.” Id. This court must examine the plain language of the contract, read

       it in context and, whenever possible, construe it so as to render every word,

       phrase, and term meaningful, unambiguous, and harmonious with the whole.

       City of Plymouth v. Michael Kinder & Sons, Inc., 137 N.E.3d 312, 315 (Ind. Ct.

       App. 2019).


[14]   The warranty at issue here provided:

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 10 of 16
               WARRANTIES: All equipment/Product(s) and components
               carry a manufacturer’s warranty, which is passed onto the
               purchaser according to the manufacturer’s policy. No other
               warranties are either expressed or implied, including the
               warranty of merchantability and fitness for a particular purpose.


       Appellant’s App. Vol. II p. 32. This provision was included at the end of the

       “TERMS AND CONDITIONS” page of the Contract. In interpreting this

       provision, we begin by noting that the parties’ Contract involved both the

       supply of services (excavation, removal of the old underground storage tanks,

       installation of the new tanks, construction of the new concrete pavement, etc.)

       and the provision of goods (the underground storage tanks and accessories).

       Accordingly, the Contract included language applicable to the sale of goods and

       language applicable to the provision of services. 5


[15]   The first sentence of the warranty discusses manufacturer’s warranties and is

       clearly applicable to the sale of goods, such as the underground storage tanks.




       5
         The Sales chapter of the Indiana Uniform Commercial Code (“UCC”), Ind. Code Chapter 26-1-2, “applies
       to transactions in goods,” unless the context otherwise requires. Ind. Code § 26-1-2-102. Our Supreme Court
       has noted that “[m]any modern commercial transactions cannot be classified as transactions purely for goods
       or for services, but are ‘mixed,’ involving both goods and services.” Insul-Mark Midwest, Inc. v. Modern
       Materials, Inc., 612 N.E.2d 550, 553-54 (Ind. 1993). In Insul-Mark, our Supreme Court held that, where the
       transaction is mixed, “courts look to the agreement between the parties to determine their understanding
       about the predominant purpose of the contract.” Id. at 554. This analysis is typically required to determine
       whether the UCC is applicable to a transaction. See id. at 556 (“Based upon the facts of this case as well as
       the well-reasoned conclusions of other courts, we hold as a matter of law that the thrust of the coating
       agreement between Kor-It and Modern Materials was predominantly for the performance of services. The
       U.C.C. does not apply to the transaction, and the parties’ dispute is therefore governed by our common
       law.”). Although the Contract contains many terms applicable to the sale of goods, neither party argues that
       the UCC warranty provisions are applicable here. Accordingly, we do not address the predominant purpose
       of the Contract.



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020                   Page 11 of 16
       The second sentence of the warranty is the sentence at issue here. The last

       portion of the second sentence specifically disclaims the warranty of

       merchantability and fitness for a particular purpose. The warranty of

       merchantability and the warranty of fitness for a particular purpose are UCC

       concepts. See Ind. Code § 26-1-2-315(1) (“Where the seller at the time of

       contracting has reason to know any particular purpose for which the goods are

       required and that the buyer is relying on the seller’s skill or judgment to select

       or furnish suitable goods, there is, unless excluded or modified under IC 26-1-2-

       316, an implied warranty that the goods shall be fit for such purpose.”); Ind.

       Code § 26-1-2-314 (“Unless excluded or modified (IC 26-1-2-316), a warranty

       that the goods shall be merchantable is implied in a contract for their sale if the

       seller is a merchant with respect to goods of that kind.”). Under the UCC, “to

       exclude or modify the implied warranty of merchantability or any part of it the

       language must mention merchantability and in case of a writing must be

       conspicuous, and to exclude or modify any implied warranty of fitness the

       exclusion must be by a writing and conspicuous.” Ind. Code § 26-1-2-316. The

       second sentence of the warranty was clearly meant to disclaim the UCC

       implied warranties of fitness and merchantability pursuant to Indiana Code

       Section 26-1-2-316.


[16]   B&K relies on the first portion of the second sentence— “[n]o other warranties

       are either expressed or implied”—for the proposition that all warranties

       associated with the Contract were disclaimed. This short phrase, however, is

       contained in a paragraph that pertains only to UCC concepts. In fact, most of


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 12 of 16
       the “TERMS AND CONDITIONS” pages discusses B&K’s provision of

       goods. Reading the Contract as a whole, we conclude that the warranty

       paragraph was unambiguously meant to address UCC concerns, not to disclaim

       all possible warranties of any kind.


[17]   Accordingly, we conclude that B&K did not disclaim the implied duty of B&K

       to perform the work skillfully, carefully, and in a workmanlike manner. The

       designated evidence demonstrated genuine issues regarding whether B&K

       properly compacted the stone, resulting in cracked and settled concrete. As

       such, the trial court erred by granting B&K’s motion for summary judgment on

       Crystal’s breach of contract claim.


                                          II. Statute of Limitation

[18]   On cross-appeal, B&K argues that the trial court erred by denying its motion for

       summary judgment regarding its statute of limitation argument. “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.’” V. Ganz Builders & Dev. Co., Inc. v. Pioneer Lumber, Inc., 59 N.E.3d

       1025, 1032 (Ind. Ct. App. 2016) (quoting Russo v. S. Developers, Inc., 868 N.E.2d

       46, 48 (Ind. Ct. App. 2007)), trans. denied. “‘[I]t is the nature or substance of the

       cause of action, rather than the form of the action, which determines the

       applicability of the statute of limitations.’” Barrow v. City of Jeffersonville, 973

       N.E.2d 1199, 1205 (Ind. Ct. App. 2012) (quoting Shideler v. Dwyer, 275 Ind.

       270, 276, 417 N.E.2d 281, 285 (1981)), trans. denied. The determination of the
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 13 of 16
       applicable statute of limitation is a matter of statutory construction that is

       “purely a question of law.” Januchowski v. N. Indiana Commuter Transp. Dist.,

       905 N.E.2d 1041, 1045 (Ind. Ct. App. 2009), trans. denied.


[19]   On appeal, B&K argues that Crystal’s cause of action accrued on June 3, 2008,

       when Crystal received the report regarding the cause of the damaged concrete.

       Crystal filed its complaint on June 26, 2015, more than seven years later. B&K

       argues that the six-year statute of limitation for damage to real property applies.

       See Ind. Code 34-11-2-7 (“The following actions must be commenced within six

       (6) years after the cause of action accrues: . . . (3) Actions for injuries to

       property other than personal property . . . .”). Crystal, however, argues that the

       ten-year statute of limitation for breach of a written contract applies. See Ind.

       Code 34-11-2-11 (“An action upon contracts in writing . . . must be commenced

       within ten (10) years after the cause of action accrues.”). The trial court found

       that the ten-year statute of limitation applied and that Crystal’s claim was not

       barred by the statute of limitation.


[20]   In support of its argument, B&K relies primarily on Habig v. Bruning, 613

       N.E.2d 61 (Ind. Ct. App. 1993), trans. denied. In Habig, homeowners filed a

       complaint against contractors for breach of contract, breach of warranty of

       habitability, and breach of warranty of workmanship after the addition to their

       house began leaking. There is no indication in the opinion that a written

       contract between the contractors and the homeowners existed. The arguments

       presented to the Court centered on when the statute of limitation began to run.

       With no analysis or discussion regarding the proper statute of limitation, our

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 14 of 16
       Court noted that the statute of limitation “for damage to real property caused

       by breach of contract and warranty” was applicable. Habig, 613 N.E.2d at 64.


[21]   The trial court and Crystal rely upon Powers & Sons Constr. Co. v. Healthy East

       Chicago, 919 N.E.2d 137 (Ind. Ct. App. 2009). There, a building owner entered

       into a written contract with a construction manager for the construction of a

       health service facility. The building owner filed a complaint against a

       construction manager for breach of contract after its building developed cracks

       in the floors, walls, and ceilings. The construction manager argued that a two-

       year statute of limitation for injury to personal property pursuant to Indiana

       Code Section 34-11-2-11 or the six-year statute of limitation under Indiana

       Code Section 34-11-2-7 was applicable. The building owner argued that the

       ten-year statute of limitation for breach of a written contract was applicable.


[22]   We agreed with the building owner and held that the ten-year statute of

       limitation for breach of a written contract was applicable because “[t]he

       relationship between the parties and [the construction manager’s] duties and

       responsibilities as general contractor arose from the contract rather than from a

       standard of care imposed by law.” Powers & Sons, 919 N.E.2d at 143. The

       building owner’s complaint sought “to recover damages sustained as a result of

       [the construction manager’s] failure to perform according to the contract; that

       is, to hire and supervise subcontractors and construct a building conforming to

       the plans and specifications suitable for [the building owner’s] needs.” Id. at

       143-44. Accordingly, we held that the complaint was governed by the ten-year

       statute of limitation applicable to written contracts.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 15 of 16
[23]   We do not find Habig persuasive here. Crystal entered into a written contract

       with B&K for the removal and replacement of an underground storage tank.

       The contract included filling the excavation with compacted stone backfill and

       replacing the removed pavement with six-inch thick reinforced concrete. When

       the concrete settled due to the improper backfill, Crystal filed a complaint

       against B&K for breach of contract. The nature and substance of this action

       pertains to B&K’s obligations under the written contract. Under these

       circumstances, as in Powers & Sons, we conclude that the ten-year statute of

       limitation for a breach of written contract action applies.


                                                 Conclusion
[24]   The trial court properly denied B&K’s motion for summary judgment regarding

       its statute of limitation defense. The trial court, however, erred by granting

       B&K’s motion for summary judgment regarding Crystal’s breach of contract

       claim. We affirm in part, reverse in part, and remand.


[25]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2773 | June 3, 2020   Page 16 of 16
