                                                                         FILED
                                                                     Apr 28 2020, 8:34 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR                                               ATTORNEYS FOR
APPELLANT/CROSS-APPELLEE                                    APPELLEE/CROSS-APPELLANT
CITY OF MARION                                              LONDON WITTE GROUP, LLC
Philip A. Whistler                                          Crystal G. Rowe
Derek R. Molter                                             Kightlinger & Gray, LLP
Eric McKeown                                                New Albany, Indiana
Ice Miller LLP                                              Thomas F. Falkenberg
Indianapolis, Indiana                                       Falkenberg & Ives, LLP
Thomas R. Hunt                                              Chicago, Illinois
City of Marion
Marion, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

City of Marion,                                             April 28, 2020
Appellant-Plaintiff/Cross-Appellee,                         Court of Appeals Case No.
                                                            19A-MI-1762
        v.                                                  Appeal from the Grant Superior
                                                            Court
London Witte Group, LLC,                                    The Honorable Warren Haas,
Chad Seybold, Estate of                                     Judge
Michael Y. An, Global                                       Trial Court Cause No.
Investment Consulting, Inc., and                            27D03-1612-MI-168
World Enterprise Group, Inc.,
Appellees-Defendants/Cross-Appellants




Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020                           Page 1 of 22
      Baker, Judge.


[1]   In 2009, the City of Marion (the City) retained London Witte Group, LLC

      (LWG), to provide financial advice regarding the financing of a construction

      project. The project went unfinished for years. In 2017, the City filed a

      complaint against LWG for negligence, breach of fiduciary duty, and

      constructive fraud/unjust enrichment. LWG moved for summary judgment,

      and the trial court granted its motion with respect to the first two counts after

      finding those claims to be time-barred. The trial court denied the motion with

      respect to the third count, finding a longer statute of limitations period applied

      to that claim. We affirm the grant of summary judgment in LWG’s favor on

      the first two counts and reverse the denial of the motion with respect to the

      third count.


                                                       Facts
[2]   A few years before 2008 or 2009, the YMCA in Marion moved into a new

      space, leaving the old YMCA building in downtown Marion vacant. In 2008

      or 2009, the City began discussions with Michael An, a developer from

      California. An proposed a redevelopment of the old YMCA building into a

      combination of hotel, restaurant, retail, and commercial spaces. He estimated

      that the project would cost around $5.5 million. The City was willing to

      provide bond financing in the amount of $2.5 million, meaning that An had to

      come up with $3 million from other sources.




      Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020        Page 2 of 22
[3]   The core of the City’s project team was Mayor Wayne Sebold, Director of

      Development Darren Reese, Bruce Donaldson of Barnes and Thornburg, and

      Bob Swintz of LWG. Reese was the point person on the project. Donaldson,

      who served as bond counsel, reported to Reese. Swintz served as financial

      advisor. The bonds would be funded from a tax-increment financing (TIF)

      district, with Swintz’s role being to determine “how much room is in the TIF

      district to do this project.” Appellant’s App. Vol. II p. 197. Essentially,

      Swintz’s primary job was to ensure that the City could pay back the bonds.


[4]   First Farmers Bank (the Bank) emerged as the prospective bond buyer. The

      Bank and the City each expected that An would provide proof that he had

      attained the additional $3 million in financing. In December 2009, shortly

      before the bond issue, Swintz told the Bank that he had spoken with Reese and

      Mayor Seybold and that the City had “the comfort they need[ed] for the

      YMCA project.” Appellant’s App. Vol. III p. 231. Reese and Donaldson were

      included on the email and Reese later said that he had no reason to dispute

      Swintz’s statement. A few days later, the Bank again questioned whether An

      had the full funding in hand in correspondence to Reese and Donaldson,

      reminding them that the Bank “need[ed] to insure that there [were] sufficient

      funds to complete the project at all times.” Id. at 234. Swintz responded to the

      Bank, explaining that “[a]s far as the City is concerned the developer had

      provided written documentation about the funding to complete the project.” Id.

      at 237. Swintz later testified that he “would not have come up with [his




      Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020        Page 3 of 22
      response] without talking to” Reese, Mayor Seybold, or Donaldson.

      Appellant’s App. Vol II. p. 239-40.


[5]   Meanwhile, on December 4, 2009, An, through Chad Seybold,1 provided a

      memorandum of understanding (the Memo) to Swintz. The Memo was non-

      binding and signed by Se Kwon Cho; it stated that Cho would make $3 million

      available to An to complete the project. The Memo also indicated that it was

      not a final, legally binding agreement, though both An and Cho signed it. Chad

      indicated to Swintz that the Memo was the proof requested by the City and the

      Bank that An had the $3 million in financing on hand. Years later, at the time

      of the litigation at issue herein, neither Mayor Seybold nor Reese recalled

      knowing about the Memo. The City claims that Swintz intentionally withheld

      the Memo from the Bank and the City.


[6]   Evidently, Swintz’s assurances satisfied the Bank, because the bonds were

      issued on December 16, 2009. At some point, construction began, but it was

      never completed. The City refinanced the bonds in 2011, after which An

      continued to work on the project and to look for investors.


[7]   In December 2013, four years after the bond issue, the Marion Chronicle-Tribune

      published several critical articles about the project and submitted several

      information requests. In response, the City hired KPMG to perform a forensic

      audit of the project; KMPG found no improprieties, though Chad failed to



      1
          Chad is Mayor Seybold’s brother.


      Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020       Page 4 of 22
      comply with KPMG’s document requests. The State Board of Accounts

      (SBOA) also reviewed the project and found, in the spring of 2014, that it was

      nearly completed.


[8]   In December 2015, An died. The project remained unfinished. The City filed a

      complaint against An’s estate on December 8, 2016. The City entered into a

      tolling agreement with LWG on February 13, 2017, which tolled the statute of

      limitations through September 30, 2017. On September 29, 2017, the City filed

      an amended complaint, adding Chad and LWG as defendants. The primary

      allegation from which the City’s claims against LWG stems is that LWG “not

      only failed to tell the City that An lacked the money to complete the project, it

      prevented the Bank from learning it—a fact which would have stopped, or at

      least substantially changed, the bond issue.” Appellant’s Br. p. 8. The specific

      claims remaining against LWG are for negligence, breach of fiduciary duty, and

      constructive fraud/unjust enrichment.


[9]   During the discovery process, the City allegedly first became aware of the

      Memo. Additionally, discovery has revealed that bond proceeds were used to

      provide personal benefits to Mayor Seybold, including payment of the premium

      on a life insurance policy, cash payments to Mayor Seybold’s wife, and

      contributions to Mayor Seybold’s political campaigns. Moreover, An was

      allegedly told that the City would invest in his project only if he hired the

      Mayor’s brother, Chad.




      Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020         Page 5 of 22
[10]   On May 17, 2019, LWG filed a motion for summary judgment on each of the

       three claims against it. LWG’s motion focused on the statute of limitations for

       each claim, arguing that the complaint was filed outside the limitations period.

       During the oral argument on the summary judgment motion, counsel for the

       City conceded that “in [the spring of] 2014, the City . . . certainly had some

       concerns about the misapplication of bond proceeds.” Tr. Vol. II p. 36.


[11]   On July 8, 2019, the trial court entered an order granting LWG’s motion with

       respect to the claims for negligence and breach of fiduciary duty and denying it

       with respect to the claim for constructive fraud/unjust enrichment. In pertinent

       part, the trial court found as follows:


               [The negligence and breach of fiduciary duty] Counts are based
               on the two-year statute of limitations contained in Ind.
               Code § 34-11-2-4(a). The two-year period had expired long
               before February 16, 2017 when [LWG] signed a tolling
               agreement with the City.


               [LWG’s] work for the City as it relates to this case was divided
               into two parts:


               •        The December 1, 2009 Series 2009 Bonds for a principal amount
                        of $2,500,000; and
               •        The February 15, 2011 Refinancing of the 2009 Bonds and
                        consolidation of obligations from other City projects.

               [LWG’s] work on the 2009 Bonds and its work on the 2011
               Refinancing are intertwined. At the latest the City became aware
               that bond funds may have been misappropriated in the Spring of
               2014. As a result the City’s Corporate Counsel employed a
               forensic accounting firm to investigate and the City requested an

       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020         Page 6 of 22
               investigation by the State Board of Accounts. The Court
               determines that at the latest the statute of limitations . . . began to
               run as of the Spring of 2014.


               The Court finds that the City may not rely upon the continuous
               representation nor the adverse domination nor fraudulent
               concealment . . . to extend the begin date for the two-year statute
               of limitations . . . .


                                                          ***


               The Court denies the relief requested in the SJ Motion as to [the
               constructive fraud/unjust enrichment claim. That claim] is based
               on the six-year statute of limitations contained in I.C. § 34-11-2-
               7(4) and did not begin to run until [LWG’s] work on the 2011
               Refinancing was completed.


       Appealed Order p. 1-2. The trial court deemed the grant of summary judgment

       on the first two counts to be a final and appealable judgment; it later certified

       the denial of summary judgment on the third count for interlocutory appeal.

       The City now appeals and LWG cross-appeals.


                                      Discussion and Decision
[12]   The City argues that the trial court erred in granting summary judgment in

       LWG’s favor on the negligence and breach of fiduciary duty claims. LWG

       cross-appeals, arguing that the trial court erred in denying summary judgment

       on the claim for constructive fraud/unjust enrichment.


[13]   Our standard of review on summary judgment is well established:


       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020            Page 7 of 22
               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[14]   All the arguments on appeal and cross-appeal turn on statutes of limitations.

       Statutes of limitations 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. v. Pioneer Lumber, Inc., 59 N.E.3d 1025,

       1032 (Ind. Ct. App. 2016) (internal quotation omitted). A statute of limitations

       defense is particularly well suited for determination by summary judgment. Id.


                                                    I. Appeal
[15]   It is undisputed that a two-year statute of limitations governs the City’s claims

       against LWG for negligence and breach of fiduciary duty. Ind. Code § 34-11-2-

       4. Because the City entered into a Tolling Agreement with LWG on February

       13, 2017, and filed its complaint against LWG within the tolling period, LWG

       is required to show that the statute of limitations for these claims began to run

       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020        Page 8 of 22
       before February 13, 2015, to be entitled to summary judgment. In other words,

       as the movant, LWG had the burden of establishing as a matter of law that

       (1) before February 13, 2015, (2) the City knew or should have known that it

       had been damaged (3) as a result of misconduct.


[16]   The City argues that there are four reasons that the claims did not begin to run

       before February 13, 2015: the discovery rule does not apply; the continuous

       representation doctrine tolled the limitations period; LWG’s fraudulent

       concealment should prevent the limitations period from barring the claims; and

       the adverse domination doctrine prevented the limitations period from

       accruing.


                                           A. Discovery Rule
[17]   Under the discovery rule, the statute of limitations does not begin to run until

       the plaintiff actually knows, or in the exercise of ordinary diligence could have

       discovered, that it has sustained an injury from tortious conduct. Wehling v.

       Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind. 1992). The discovery rule “does

       not mandate that plaintiffs know with precision the legal injury that has been

       suffered, but merely anticipates that a plaintiff be possessed of sufficient

       information to cause him to inquire further in order to determine whether a

       legal wrong has occurred.” Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683,

       689 (Ind. Ct. App. 2006).


[18]   Here, the City’s claims focus on An’s lack of financing at the time the bonds

       were issued. Because the bonds would not cover the full cost of the project, the

       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020         Page 9 of 22
       City and the Bank required that An would have sufficient financing on hand to

       cover the rest. According to the City, LWG “not only failed to tell the City that

       An lacked the money to complete the project, it prevented the Bank from

       learning it[.]” Appellant’s Br. p. 8. In other words, the actual injury occurred

       (if at all) at the time of the bond issue—in December 2009.2


[19]   By pointing to the date of the alleged wrongdoing, LWG met its prima facie

       burden as movant to show that the lawsuit was filed outside the two-year

       statute of limitations. The burden then shifted to the City. See McDaniel v.

       Erdel, 91 N.E.3d 617, 624 (Ind. Ct. App. 2017) (“Because the evidence shows

       that the action was commenced more than two years after the date of the

       alleged [wrongdoing], the burden shifts to the [non-movant] to establish an

       issue of fact material to a theory that avoids the defense.”), trans. denied. But

       here, the City submitted no evidence—not even a self-serving affidavit—to show

       when or how the City was possessed of sufficient information to cause it to

       inquire further. The City claimed that it had “designated evidence supporting

       an inference that its claims did not accrue until sometime after December 31,

       2015,” but we are unable to discern what that evidence might be. Appellant’s

       App. Vol. VII p. 59.


[20]   The trial court zeroed in on the lack of evidence supporting the City’s position

       regarding when it discovered the wrongdoing. At the summary judgment



       2
        Although the City originally alleged additional injuries stemming from the 2011 refinancing, it has since
       abandoned that position.

       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020                              Page 10 of 22
       argument, the trial court pushed the City to answer when it had “discovered”

       the claims against LWG. Tr. Vol. II p. 36. Counsel responded that “in 2014,

       the City . . . certainly had some concerns about the misapplication of bond

       proceeds.” Id.


[21]   Generally, we prefer not to rely solely on a concession made by an attorney

       during oral argument. And here, while we take that into consideration, it need

       not be the sole focus of our analysis. We find five key undisputed facts to be

       dispositive. See Perryman, 846 N.E.2d at 689 (holding that the law “does not

       require a smoking gun in order for the statute of limitations to commence”).


[22]   First, the YMCA project remained unfinished more than four years after the

       2009 bond issue. By 2013, the local newspaper began printing a series of

       articles criticizing the project and questioning its status. The fact that the

       project was still unfinished years later and was attracting negative public

       attention should have given the City reason to investigate whether An did, in

       fact, have sufficient financing to complete the project.


[23]   Second, the unfinished project and negative public attention did, in fact, give

       the City reason to investigate. Specifically, the City retained KPMG to perform

       a “forensic audit specific to the YMCA project, to determine if the

       disbursements had been made . . . properly and if all the funds were accounted




       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020         Page 11 of 22
       for.” Appellant’s App. Vol. III p. 218.3 The City also allowed representatives

       from the SBOA to tour and evaluate the unfinished building. The actual

       commencement of an investigation clearly shows that the City had reason to

       investigate.


[24]   Third, KPMG’s investigation revealed that the Bank’s trustee “had not

       obtained” the “documentation for the various distributions related to the

       YMCA project.” Id. at 217. Additionally, in the course of KPMG’s audit,

       Chad failed to comply with the firm’s documentation requests. The trial court

       recognized the significance of this fact:


                And . . . you have your forensic accounting from—because you
                have—and there’s smoke. You’re concerned. You, you want to
                do some investigation and the forensic accounting group comes
                back and says, “He[4] won’t give us the information.” Isn’t that
                more smoke? I mean, wouldn’t you be on notice at that point?


       Tr. Vol. II p. 60.


[25]   Fourth, as of May 2013—nearly four and one-half years after the bond issue—

       An was actively seeking additional investments for the completion of the




       3
         The City argues that generally, the duty of an auditor does not extend to discovering fraud. That is beside
       the point in this case, however, as KPMG was hired to conduct a forensic audit.
       4
        “He” referred to the mayor’s brother, Chad, who was the project manager and did not comply with
       KPMG’s document requests.

       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020                               Page 12 of 22
       project. An’s continued fundraising triggered a duty to inquire further as to

       whether his initial financing was falsified.


[26]   Fifth, by 2014, An had not spent even close to $5.5 million on the project. The

       estimates in the record vary from $2 million to over $3 million. The bonds were

       issued on the understanding that An had another $3 million in hand. The fact

       that, four years later, he had not spent close to the total amount, and the project

       remained unfinished, should have caused the City to question the validity of the

       financing information accompanying the original 2009 bond issue.


[27]   All this evidence together clearly shows that, long before February 2015, the

       City had sufficient information to cause it to inquire further to determine

       whether a legal wrong had occurred. The City’s arguments to the contrary do

       not change this conclusion.


[28]   The City first contends that it did not suffer an injury until An died in

       December 2015. This position, however, is inconsistent with the City’s claims,

       which are premised on an allegation that the City was injured at the time of the

       original 2009 bond issue because it was allegedly completed based on false

       financing information.


[29]   Next, the City argues that the statute of limitations did not begin to accrue

       because it did not uncover any wrongdoing by LWG. It relies both on Mayor

       Seybold’s statements that he believed that LWG had done a great job and

       expected that the project would be a success and the fact that the KPMG audit

       did not uncover actual wrongdoing. This argument is unavailing for two

       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020          Page 13 of 22
       reasons. First, we apply an objective, rather than a subjective, standard to the

       discovery rule, asking when the plaintiff knew or should have known to inquire

       further. Second, the City’s argument would mean that meritless claims could

       never be time-barred, because the lack of merit would prevent the inexistent

       wrongdoing from being discovered. The statute of limitations begins to accrue

       when the plaintiff has enough information to begin the inquiry process, not

       when, in the course of that process, actual wrongdoing is discovered.


[30]   Finally, the City argues that LWG has not met its burden as the movant

       because it has not established that before February 2015, the City was aware

       that its damages were attributable to LWG. Initially, we note again that the

       City’s alleged damages stem from the 2009 bond issue. And in the context of

       that process, the City viewed LWG as a fiduciary that was responsible for

       disclosing information about An’s financial status. Consequently, the City was

       on notice to investigate claims against LWG once it was on notice that the

       bonds may have been issued based on incorrect financing information.


[31]   Moreover, this Court has found claims to be time-barred where the victim was

       aware of an injury but unaware of the identity of the tortfeasor until after the

       limitations period had ended. See Dotson v. Stryker Corp., 108 N.E.3d 376, 384 &

       n.10 (Ind. Ct. App. 2018) (statute of limitations began to run when plaintiff

       “knew that [defendants] were in her operating room, though she did not know

       who they were”); Rieth-Riley Constr. Co. v. Gibson, 923 N.E.2d 472, 476-77 (Ind.

       Ct. App. 2010) (declining to “extend the discovery rule to apply to cases like

       this one where the indeterminate fact is not the existence of an injury, but rather

       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020       Page 14 of 22
       the identity of a tortfeasor”); Richards-Wilcox, Inc. v. Cummins, 700 N.E.2d 496,

       498 (Ind. Ct. App. 1998) (holding that the fact that the plaintiff “did not

       determine until over two years later the actual identity of the party causing the

       injury did not suspend the running of the statute of limitations”).

       Consequently, while the record shows that the City should have been aware of

       its potential claims against LWG before February 2015, even if that were not

       the case, the limitations period would not have been tolled.


[32]   In sum, the undisputed evidence in the record shows that the City had enough

       information long before February 2015 to have caused it to inquire further

       regarding possible wrongdoing. And, in fact, it did inquire further by instituting

       investigations from KPMG and the State Board of Accounts. Therefore, we

       find that the discovery rule bars these two claims against LWG.


                                B. Continuous Representation
[33]   Next, the City argues that the continuous representation doctrine prevents its

       claims from being time-barred. This doctrine tolls the statute of limitations

       when a professional advisor, such as an attorney,5 commits an error during the

       course of a professional engagement. Biomet, Inc. v. Barnes & Thornburg, 791

       N.E.2d 760, 765 (Ind. Ct. App. 2003). Under those circumstances, the statute

       does not begin to run until the professional relationship relating to the matter at




       5
        This Court has expressly refused to extend this doctrine to financial advisors. Landmark Legacy, LP v.
       Runkle, 81 N.E.3d 1107, 1118-19 (Ind. Ct. App. 2017).

       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020                              Page 15 of 22
       issue has been terminated. Id. The purpose of the doctrine is to allow

       professionals to try to mitigate the effects of their errors, potentially avoiding

       litigation altogether. A collateral benefit is that the professional relationship is

       preserved while the professional attempts to mitigate the effects of its error. Id.

       at 765-66.


[34]   The City neglects to address the fact that this doctrine applies only if the

       defendant continued to represent the plaintiff in the “specific matter” in which

       the alleged misconduct occurred. Bambi’s Roofing, Inc. v. Moriarty, 859 N.E.2d

       347, 358 (Ind. Ct. App. 2006). We agree with LWG that the specific matter in

       which the alleged misconduct occurred was not the YMCA project as a whole;

       it was the original bond issue, which was concluded in 2009. Specifically,

       Mayor Seybold and Swintz agreed that LWG’s role was to determine “how

       much room is in the TIF district to do this project” and ensure that the City

       could “pay back the bonds.” Appellant’s App. Vol. II p. 197, 227. That is a

       specific role in connection with a particular bond issue rather than the role of a

       project developer. Every witness who addressed the issue understood that

       LWG’s responsibilities concluded when the bond issue closed. Id. at 202-03

       (Mayor Seybold); id. at 224 (Swintz); Appellant’s App. Vol. III p. 95

       (Donaldson). No witness disputed this or suggested any ambiguity. Moreover,

       LWG was paid out of the bond proceeds, meaning that its compensation

       structure also confirms that the 2009 bond issue was a discrete engagement.

       Under these circumstances, we find that the continuous representation doctrine

       does not apply to toll the statute of limitations period.


       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020         Page 16 of 22
                                  C. Fraudulent Concealment
[35]   Next, the City argues that LWG fraudulently concealed its alleged misconduct.

       Specifically, the City argues that LWG fraudulently concealed the Memo and,

       as a result, the statute of limitations period should be tolled.


[36]   The fraudulent concealment doctrine “operates to estop a defendant from

       asserting the statute of limitations as a bar to a claim whenever the defendant,

       by his own actions, prevents the plaintiff from obtaining the knowledge

       necessary to pursue a claim.” Doe v. Shults-Lewis Child & Family Servs., 718

       N.E.2d 738, 744 (Ind. 1999). And where the parties are in a fiduciary

       relationship, the concealment need not be active, and a mere failure to disclose

       information for which there is a duty to disclose gives rise to fraudulent

       concealment. Farmers Elevator Co. of Oakland, Inc. v. Hamilton, 926 N.E.2d 68,

       79-80 (Ind. Ct. App. 2010).


[37]   However, when “the plaintiff obtains information that would lead to the

       discovery of the cause of action through ordinary diligence, the statute of

       limitations begins to run, regardless of any fraudulent concealment perpetrated

       by the defendant.” Snyder v. Town of Yorktown, 20 N.E.3d 545, 551 (Ind. Ct.

       App. 2014) (internal quotation omitted). Here, as noted above, the City knew

       or should have known well before February 2015—even without the Memo—

       that it needed to inquire further as to possible damages caused by a tortfeasor.

       Therefore, even with the alleged fraudulent concealment, the City was on




       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020      Page 17 of 22
       notice of the situation in 2014 at the very latest. Under these circumstances, the

       doctrine of fraudulent concealment does not toll the limitations period.


                                     D. Adverse Domination
[38]   Finally, the City argues that the adverse domination doctrine tolled the statute

       of limitations until at least the end of Mayor Seybold’s administration on

       December 31, 2015. This doctrine is based on the principle that a corporate

       entity “can only ‘discover’ an injury to itself, and act to redress that injury, to

       the extent that those individuals who control it know of the injury and are

       willing to act on that knowledge.” Resolution Trust Corp. v. O’Bear, Overholser,

       Smith & Huffer, 840 F. Supp. 1270, 1284 (N.D. Ind. 1993). In other words,

       where an entity is dominated “by those whose own malfeasance might be

       revealed in the course of litigating a complaint, it follows the entity has not

       ‘discovered’ the injury to its interests in any meaningful way.” Id. This

       doctrine has never been applied in Indiana by an Indiana appellate court.


[39]   In invoking this doctrine, the City argues that Mayor Seybold controlled the

       City, that he committed malfeasance, and that the City could not have

       discovered its injuries in any meaningful way. The City notes the following

       evidence in the record:


           • On May 25, 2011, Mayor Seybold signed an application for a $1 million
             life insurance policy, naming himself as the insured, his wife and children
             as beneficiaries, and An as the payor. An used bond proceeds to pay at
             least one premium on that life insurance policy.
           • An’s companies used bond proceeds to make campaign contributions to
             Mayor Seybold and cash payments to the mayor’s wife.

       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020         Page 18 of 22
             • An hosted a political fundraiser for Mayor Seybold in California in 2011.
             • Mayor Seybold had a conflict of interest because An employed the
               mayor’s brother, Chad, as the manager on the YMCA project. Indeed, it
               appears that the mayor conditioned the provision of bond funds to An on
               An’s agreement to hire Chad.
             • Chad did not comply with KPMG’s document requests during the
               forensic audit and the mayor did not ask him to.
             • Mayor Seybold may have been unwilling to pursue legal action against
               LWG because the company was a significant financial contributor to the
               mayor’s campaigns and Swintz was a close political advisor.

       The City argues that this evidence creates a genuine issue of material fact “as to

       whether Mayor Seybold could have been expected to redress the City’s interests

       by filing suit over the project during his administration.” Appellant’s Br. p. 56-

       57.


[40]   The primary problem with the City’s argument is that it does not, and cannot,

       show that Mayor Seybold “dominated” the City. Several individuals could

       have discovered and pursued claims against LWG, including the two different

       Directors of Development, the City Attorney, and at least one member of the

       City Council. Nothing in the record shows that Mayor Seybold could have

       prevented these individuals from redressing the City’s interests. It is the head of

       the City’s law department, rather than the mayor, who commences proceedings

       needed to protect the City’s interests. Ind. Code § 36-4-9-12. It is simply not

       credible, based either on this record or common knowledge of the way

       municipalities operate, to conclude that Mayor Seybold dominated the City in

       any form or fashion. Consequently, this argument is unavailing.



       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020       Page 19 of 22
[41]   In sum, the discovery rule applies because long before February 2015, the City

       had sufficient information that it knew or should have known that it needed to

       conduct further inquiry to determine if it had been damaged as a result of

       tortious conduct. And none of the exceptions to the discovery rule, including

       the doctrines of continuous representation, fraudulent concealment, and

       adverse domination, toll the limitations period in this case. Therefore, the trial

       court did not err by granting summary judgment in favor of LWG on the City’s

       two claims that have a two-year statute of limitations.


                                             II. Cross-Appeal
[42]   The trial court found that the City’s claim for constructive fraud/unjust

       enrichment is governed by a six-year statute of limitations, meaning that the

       claim was not time-barred and survived summary judgment. LWG argues that

       this conclusion was erroneous.


[43]   We ascertain the applicable statute of limitations “by identifying the nature or

       substance of the cause of action and not of the form of the pleadings.”

       Whitehouse v. Quinn, 477 N.E.2d 270, 273 (Ind. 1985). Generally, fraud claims

       are governed by a six-year statute of limitations. I.C. § 34-11-2-7. But a two-

       year statute of limitations may apply to constructive fraud claims if the

       substance of the claims warrants it. For example, in one case, the plaintiff filed

       a legal malpractice claim against his former attorney. Keystone Distrib. Park v.

       Kennerk, Dumas, Burke, Backs, Long & Salin, 461 N.E.2d 749 (Ind. Ct. App.

       1984). The plaintiff also alleged constructive fraud, but after inspecting the


       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020        Page 20 of 22
       substance of the claims, this Court found that the alleged constructive fraud was

       “merely one example of the asserted attorney malpractice . . . .” Id. at 752.

       This Court had disallowed the attorney malpractice claim as being barred by

       the two-year statute of limitations and was compelled to do the same to the

       constructive fraud count because it was “of the same ilk.” Id. This Court has

       reached similar conclusions in at least two other cases. See Myers v. Maxson, 51

       N.E.3d 1267, 1277 n.10 (Ind. Ct. App. 2016) (applying a two-year limitations

       period to all claims because the allegations of constructive fraud were

       “substantively part of his legal malpractice claim”); Small v. Centocor, Inc., 731

       N.E.2d 22, 29 (Ind. Ct. App. 2000) (applying a two-year limitations period to

       all claims, including fraud and constructive fraud, because “at the root of all the

       claims” was the medical care given to the plaintiff’s father).


[44]   In this case, the constructive fraud/unjust enrichment count is comprised of just

       six paragraphs. One incorporates the prior allegations and three more deal with

       damages. As the basis of the claim, the City alleges that LWG breached

       fiduciary duties, “amounting to constructive fraud,” and those breaches

       included, among other things, failing to disclose material facts to the City—as

       set forth in the preceding paragraphs on the other claims. Appellant’s App.

       Vol. III p. 41-42. The City has never explained how a trial on the constructive

       fraud claim would differ at all from a trial on the other two counts. If the City

       were permitted to extend the statute of limitations merely by asserting a claim

       for constructive fraud, it would make “all actions for” breach of fiduciary duty




       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020        Page 21 of 22
       “governed by the longer statute of limitations merely by reason of the fact that

       some” constructive fraud “could be alleged.” Whitehouse, 477 N.E.2d at 274.


[45]   The City rests its argument on the fact that constructive fraud has legal elements

       that are different from the elements of breach of fiduciary duty or negligence.

       Obviously, that is and has always been the case, but this Court has found

       repeatedly that, depending on the nature of the facts and allegations, a

       constructive fraud claim may be so substantively similar to the other claims at

       issue that it is nonetheless governed by the shorter limitations period.


[46]   Consequently, we agree with LWG that the two-year statute of limitations

       should govern the constructive fraud/unjust enrichment claim in this case. And

       for all the reasons already expressed herein, this claim is time-barred.

       Accordingly, we reverse the trial court’s denial of LWG’s summary judgment

       motion on the constructive fraud claim and remand with instructions to enter

       summary judgment in LWG’s favor.


[47]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions to enter summary judgment in LWG’s favor on the

       City’s claim for constructive fraud/unjust enrichment.


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-MI-1762 | April 28, 2020         Page 22 of 22
