      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                      FILED
      this Memorandum Decision shall not be                                  Aug 13 2019, 8:12 am
      regarded as precedent or cited before any                                   CLERK
      court except for the purpose of establishing                            Indiana Supreme Court
                                                                                 Court of Appeals
      the defense of res judicata, collateral                                      and Tax Court


      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Terry K. Hiestand                                        Steven J. Scott
      Hiestand Law Office                                      Hodges & Davis, P.C.
      Chesterton, Indiana                                      Merrillville, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Richard Hiller d/b/a Hiller &                            August 13, 2019
      Sons,                                                    Court of Appeals Case No.
      Appellant-Defendant,                                     18A-CC-3129
                                                               Appeal from the Porter Superior
              v.                                               Court
                                                               The Honorable Roger V. Bradford,
      City of Portage,                                         Judge
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               64D01-1605-CC-4460



      Friedlander, Senior Judge.


[1]   Richard Hiller d/b/a Hiller & Sons (Hiller) appeals the trial court’s order

      denying his motion for judgment on the pleadings and granting the City of

      Portage’s (City) motion for partial summary judgment. Concluding that



      Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019                 Page 1 of 7
      genuine issues of material fact remain, we affirm in part and reverse and

      remand in part for further proceedings.


[2]   In the early 2000’s, Hiller developed the Austin Hills Subdivision in the City.

      As part of developing the subdivision, Hiller agreed to provide the public

      improvements for each phase, including the final surfacing of roads. By 2005,

      Phases I-V were complete, and the public improvements for Phase VI, the final

      phase, were complete except the final surfacing of roads. In order to secure the

      completion of the public improvements for Phase VI, on October 17, 2005,

      Hiller provided to the City an Irrevocable Letter of Credit in the amount of

      $41,500 issued by the First State Bank of Porter (Bank). The amount of the

      Letter of Credit was based on estimates Hiller provided to the City, which the

      City found to be appropriate and accepted.


[3]   By 2015, the final surfacing of roads for Phase VI had yet to be completed. The

      City sought bids from two contractors to perform the work, one of which

      completed the final surfacing and repair work at a cost of $146, 921. The City

      drew on the $41,500 available pursuant to the Letter of Credit and filed suit

      against Hiller in May 2016 seeking the remainder.


[4]   In October 2017, Hiller filed a motion for summary judgment, arguing that the

      City’s complaint was not filed within any relevant statutes of limitation. The

      City filed a response, and, following a hearing, the court denied Hiller’s motion.

      Hiller sought and received from the trial court certification of its order for




      Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019   Page 2 of 7
      interlocutory appeal; however, this Court denied his motion to accept

      jurisdiction of the appeal.


[5]   In September 2018, the City filed its motion for partial summary judgment as to

      liability, claiming that Hiller had agreed to complete the final layering of the

      road in Phase VI, that after ten years he had not completed the final layering,

      and that he was liable for the cost the City incurred in having the work

      completed. In response, Hiller filed a motion for judgment on the pleadings,

      arguing that the City failed to state a claim upon which relief can be granted

      and that the City’s claims are time-barred. The court treated Hiller’s motion as

      a response to the City’s motion for summary judgment. In November,

      following a hearing, the court granted the City’s partial motion for summary

      judgment as to liability and denied Hiller’s motion. Hiller now appeals.


[6]   Given that Hiller presented matters outside the pleadings in support of his

      motion for judgment on the pleadings, we will treat his motion as one for

      summary judgment, as did the trial court, and review it accordingly. See Ind.

      Trial Rule 12(C). We review de novo a trial court’s ruling on summary

      judgment. Morris v. Crain, 71 N.E.3d 871 (Ind. Ct. App. 2017). We apply the

      same standard of review as the trial court: summary judgment is appropriate

      only where the designated evidentiary matter shows there is no genuine issue as

      to any material fact and that the moving party is entitled to judgment as a

      matter of law. Young v. Hood’s Gardens, Inc., 24 N.E.3d 421 (Ind. 2015); see also

      Ind. Trial Rule 56(C). Appellate review of a summary judgment is limited to

      those materials specifically designated to the trial court, and all facts and

      Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019   Page 3 of 7
      reasonable inferences drawn from those facts are construed in favor of the

      nonmovant. Sheehan Const. Co., Inc. v. Cont’l Cas. Co., 938 N.E.2d 685 (Ind.

      2010). Summary judgment is not a summary trial, and it is inappropriate

      merely because the nonmoving party appears unlikely to prevail at trial. Morris,

      71 N.E.3d 871. Finally, that the parties made cross motions for summary

      judgment does not alter our standard of review; rather, we consider each

      motion separately to determine whether the moving party is entitled to

      judgment as a matter of law. Pond v. McNellis, 845 N.E.2d 1043 (Ind. Ct. App.

      2006), trans. denied.


[7]   In his motion for judgment on the pleadings and in his brief to this Court, Hiller

      maintains that the City’s complaint was untimely filed. “The defense of a

      statute of limitation is peculiarly suitable as a basis for summary judgment.”

      Del Vecchio v. Conseco, Inc., 788 N.E.2d 446, 449 (Ind. Ct. App. 2003), trans.

      denied. As per Indiana’s discovery rule, a cause of action accrues, and the

      statute of limitation begins to run, when a claimant knows or in the exercise of

      ordinary diligence should have known of the injury. Barrow v. City of

      Jeffersonville, 973 N.E.2d 1199 (Ind. Ct. App. 2012), trans. denied. For an action

      to accrue, it is not necessary that the full extent of the damage be known or

      even ascertainable but only that some ascertainable damage has occurred. Id.

      “The exercise of reasonable diligence means simply that an injured party must

      act with some promptness where the acts and circumstances of an injury would

      put a person of common knowledge and experience on notice that some right of

      his has been invaded or that some claim against another party might exist.” Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019   Page 4 of 7
       at 1206. The discovery rule applies to both tort and contract claims. Del

       Vecchio, 788 N.E.2d 446.


[8]    As we discuss below, the City’s claim appears to be based on an oral contract.

       The statute of limitation for an oral contract is six years. Ind. Code § 34-11-2-

       7(1) (1998). Hiller points to October 2005 as the date any cause of action may

       have accrued. This claim rests on the issuance date of the Letter of Credit,

       which states it was established to guarantee completion of the public

       improvements to Phase VI of the Austin Hills Subdivision should there be any

       “performance deficiency.” Appellant’s App. Vol. 2, p. 29. There is also some

       evidence that Sandy McDaniel, project manager for the City, had some type of

       communication with Hiller in 2009 concerning a possible timeframe in which

       the final layering would be complete. On the other hand, the City claims it was

       not aware of its injury, and thus a cause of action did not accrue, until the time

       the final layer of asphalt was applied to the Phase VI roads in 2015.


[9]    We cannot say when, as a matter of law, the limitation period began to run

       because the evidence is in conflict. When there is a factual issue concerning the

       date on which a cause of action accrues, the question is generally one for the

       finder of fact. Custom Radio Corp. v. Actuaries & Benefit Consultants, Inc., 998

       N.E.2d 263 (Ind. Ct. App. 2013). Therefore, summary judgment premised on

       the expiration of the statute of limitation would have been inappropriate.


[10]   We turn now to the City’s motion for summary judgment. The City refers only

       to an “agreement,” but the gist of its claim against Hiller sounds in contract. In


       Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019   Page 5 of 7
       order to recover for a breach of contract, a plaintiff must prove (1) a contract

       existed, (2) the defendant breached the contract, and (3) the plaintiff suffered

       damage as a result of the defendant’s breach. Alexander v. Linkmeyer Dev. II,

       LLC, 119 N.E.3d 603 (Ind. Ct. App. 2019).


[11]   No written contract was designated by the City, and, at most, the

       uncontradicted designated evidence demonstrates some type of oral agreement

       between Hiller and the City. In his 2016 deposition, Hiller testified that work

       on Phase VI began in approximately 2005 and that his construction company

       was responsible for certain public improvements that he identified as sewer

       lines, water lines, street base, curbs, and two layers of asphalt. He further

       testified that he had agreed to complete all of these public improvements for

       Phase VI, including the final layer of asphalt for the roads.


[12]   As to a breach of any such agreement, there is a genuine dispute. The City’s

       designated evidence merely shows that by 2015 Hiller had not yet completed

       the final layering of roads in Phase VI. In the designated portion of her

       deposition, McDaniel testified that in 2015 the City was having some individual

       paving projects done, and the mayor asked for bids for the final layering of

       Phase VI. The City obtained two bids for the job and hired the contractor that

       submitted the lowest bid. However, McDaniel also testified that she was

       unaware of any notifications to Hiller after 2009 with regard to the final

       layering of Phase VI. In the designated portion of his deposition, Hiller testified

       that he typically waited until 90% of the lots in the phase had homes built on

       them before he completed the final layering.

       Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019   Page 6 of 7
[13]   The City has not produced any evidence demonstrating the terms of any

       agreement it had with Hiller. Consequently, there is no evidence outlining the

       parties’ obligations or duties under the agreement, such as a time period within

       which Hiller was to have completed the final layering. Without some evidence

       of the terms of the parties’ agreement, there can be no showing of a violation of

       such terms. The designated evidence clearly establishes a question of fact on

       the issue of whether Hiller breached any agreement by not completing the final

       layering by 2015. Accordingly, we cannot say the City was entitled to

       judgment as a matter of law.


[14]   For the reasons stated, we conclude that genuine issues of fact remain which

       preclude entry of judgment as a matter of law. Accordingly, we affirm the trial

       court’s denial of Hiller’s motion for judgment on the pleadings and reverse and

       remand for further proceedings on the trial court’s grant of the City’s motion for

       partial summary judgment.


[15]   Judgment affirmed in part and reversed and remanded in part.


       Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CC-3129 | August 13, 2019   Page 7 of 7
