MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Sep 04 2018, 8:37 am

court except for the purpose of establishing                                     CLERK
                                                                             Indiana Supreme Court
the defense of res judicata, collateral                                         Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Gregory W. Black                                         Alan M. Hux
Gregory W. Black, P.C.                                   Steven C. Shockley
Plainfield, Indiana                                      Vivek R. Hadley
                                                         Taft Stettinius & Hollister LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Alan Hall and Lisa Ann                             September 4, 2018
Hall,                                                    Court of Appeals Case No.
Appellants-Plaintiffs,                                   18A-PL-1130
                                                         Appeal from the Hendricks Circuit
        v.                                               Court
                                                         The Honorable Mark A. Smith,
West Central Conservancy                                 Special Judge
District,                                                Trial Court Cause No.
Appellee-Defendant.                                      32C01-1706-PL-69




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1130 | September 4, 2018                    Page 1 of 10
                                       Statement of the Case
[1]   David Alan Hall and Lisa Ann Hall (collectively “the Halls”) appeal the trial

      court’s order dismissing their complaint against the West Central Conservancy

      District (“the District”) alleging breach of contract and emotional distress. The

      Halls present a single issue for our review, namely, whether the trial court erred

      when it granted the District’s motion for judgment on the pleadings under

      Indiana Trial Rule 12(C). We affirm.


                                 Facts and Procedural History
[2]   The District “is a duly formed conservancy district, a special taxing district, and

      a political subdivision of the State of Indiana created under Indiana Code

      Article 14-33 to provide for collection and disposal of sewage and other liquid

      waste.” Appellants’ App. Vol. 2 at 65. In approximately 2001, the District

      “made sewage services available to owners of properties in the Lake Forest

      Subdivision [in Danville] who specifically requested services, including the

      Kecks,” who owned a residence at 6515 Lake Forest Drive. Id. at 67-68. The

      District constructed a “connection point” on the Kecks’ property located

      “where the . . . driveway meets Lake Forest Drive.” Id. at 69. The District

      “advised the Kecks . . . of the Kecks’ duty to construct and maintain lateral

      sewage lines to connect their home to the . . . Connection Point if the Kecks

      desired sewer service from [the District].” Id. However, the District did not

      inform the Kecks about a new location for the connection point after the

      District altered its plans for the construction of the sewer line. The connection

      point was moved approximately 135 feet to the west of the original location.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1130 | September 4, 2018   Page 2 of 10
[3]   In early 2010, the Halls bought the Kecks’ home. In April, the Halls

      experienced a blockage in a sewer line running to the house. Accordingly, the

      Halls immediately contacted the District about the problem, but the District

      “ignored” the Halls’ “pleas for help” and “scoffed at” them. Id. at 61. For

      several years thereafter, the Halls experienced intermittent blockages of the

      sewer line and got no help from the District despite multiple complaints, and

      the Halls were otherwise unable to resolve the problem. Finally, in May 2015,

      two employees of the District discovered the source of the Halls’ problems, and

      in May 2016,


              [the District] gratuitously installed two separate lateral lines from
              the Connection Point directly to the homes of the Halls and [their
              neighbors] in an effort to solve the problems caused by the single
              line constructed by their third-party subcontractor, which
              connected at the east end to lines running from the Halls’ and
              [the neighbor’s] homes to the Divide [in the driveway that split
              the driveway between the Halls’ residence and their neighbor’s
              residence], then ran west from the Divide to the Connection
              Point.


      Id. at 72.


[4]   On June 13, 2017, the Halls filed a complaint against the District alleging

      breach of contract and emotional distress, and they filed an amended complaint

      on October 13.1 On January 10, 2018, the District filed an answer and a motion



      1
        The Halls filed their amended complaint in response to the District’s motion to dismiss under Trial Rule
      12(B)(6) and motion for a more definite statement under Trial Rule 12(E). The amended complaint also
      alleged breach of contract and emotional distress.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1130 | September 4, 2018                Page 3 of 10
      for judgment on the pleadings under Trial Rule 12(C). In its answer and

      motion, the District alleged in relevant part that the Halls’ complaint was

      barred by the applicable statute of limitations. Following a hearing, the trial

      court granted the District’s motion and dismissed the Halls’ complaint with

      prejudice. The Halls filed a motion to correct error, which the trial court denied

      after a hearing. This appeal ensued.


                                     Discussion and Decision
[5]   Indiana Trial Rule 12(C) provides that, “[a]fter the pleadings are closed but

      within such time as not to delay the trial, any party may move for judgment on

      the pleadings.” Like a Trial Rule 12(B)(6) motion to dismiss, a Trial Rule

      12(C) motion attacks the legal sufficiency of the pleadings. McCall v. State of

      Ind. Dep’t of Nat. Res. Div. of Forestry, 821 N.E.2d 924, 926 (Ind. Ct. App. 2005),

      trans. denied. Our review of a trial court’s ruling on a Trial Rule 12(C) motion is

      de novo, and a motion for judgment on the pleadings will not be granted unless

      it is clear from the face of the complaint that under no circumstances could

      relief be granted. Id. When a complaint shows on its face that it has been filed

      after the running of the applicable statute of limitations, judgment on the

      pleadings under Trial Rule 12(C) is appropriate. Richards-Wilcox, Inc. v.

      Cummins, 700 N.E.2d 496, 498 (Ind. Ct. App. 1998). The question of when a

      cause of action accrues is generally one of law for the courts to determine.

      Meisenhelder v. Zipp Exp., Inc., 788 N.E.2d 924, 927 (Ind. Ct. App. 2003).




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1130 | September 4, 2018   Page 4 of 10
[6]   The Halls concede that the six-year statute of limitations applicable to a breach

      of contract claim based on a contract “not in writing” applies here. See Ind.

      Code § 34-11-2-7(1) (2018). And they acknowledge that the statute of

      limitations began to run in April 2010. But they contend that the statute of

      limitations was tolled in this instance under the doctrines of fraudulent

      concealment and continuing wrong. In particular, the Halls assert that the trial

      court “must accept that [the] Halls tried to cure [the problem], were misled,

      were ignorant, were damaged, could not reasonably be expected to have

      fathomed [the District]’s breach[ or the District]’s cloak of fraud & chicanery”

      until May 2016 and that the District “has been in breach . . . since about March

      2002, continuously[.]” Appellants’ Br. at 29, 31. Thus, they allege that their

      complaint was not time-barred.2 We address each contention in turn.


                                          Fraudulent Concealment

[7]   “‘Fraudulent concealment is an equitable doctrine that 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.’” Snyder v. Town of Yorktown, 20 N.E.3d

      545, 551 (Ind. Ct. App. 2014) (emphasis added) (quoting Johnson v. Hoosier

      Enters. III, Inc., 815 N.E.2d 542, 549 (Ind. Ct. App. 2004)), trans. denied.




      2
        The Halls limit their argument on appeal to the doctrines of fraudulent concealment and continuing wrong.
      To the extent they may have attempted to assert that their complaint was timely under the discovery rule,
      they do not make cogent argument on that issue, and it is waived.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1130 | September 4, 2018              Page 5 of 10
      Pursuant to the doctrine, a defendant is estopped from asserting the statute of

      limitations as a defense if the defendant, by deception or violation of a duty, has

      concealed material facts from the plaintiff and thereby prevented discovery of a

      wrong. Id. “However, ‘[w]hen 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 defendant.’” Id. (quoting Doe v. United Methodist Church, 673

      N.E.2d 839, 844 (Ind. Ct. App. 1996), trans. denied). Indeed, a plaintiff must

      exercise due diligence in commencing her action after the equitable grounds

      cease to operate as a valid basis for causing delay. Id.


[8]   Here, in their complaint, the Halls allege in relevant part, and we must take as

      true, that:


              •        In approximately 2002, the District made a “clandestine
                       change” to the location of the connection point for the
                       sewer line. Appellants’ App. Vol. 2 at 56.


              •        The District “neglected to correct its mistaken change until
                       2016.” Id.


              •        The District “did not reveal the change to the Hall[s] until
                       2015.” Id.


              •        The District “would not cooperate with [the] Kecks or
                       Halls . . . in either understanding or making operational
                       the collection system for which [the District] was, is, [sic]
                       responsible.” Id. at 57.



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1130 | September 4, 2018   Page 6 of 10
               •        “Since 2010, [the District] rebuffed [the] Halls in the effort
                        of [the] Halls to gain [the District]’s cooperation to do its
                        duty in making such system operational.” Id.


[9]    But the Halls do not direct us to anything in the pleadings alleging that the

       District did anything that prevented the Halls from discovering a potential cause

       of action against the District. See Snyder, 20 N.E.3d at 551. Rather, the

       pleadings allege merely that the District withheld information and rebuffed the

       Halls’ requests to the District to fix the problem. And on appeal, the Halls do

       not explain how, other than the allegedly prohibitive costs of discovering the

       problem on their own, the District’s alleged fraud prevented them from

       obtaining the knowledge necessary to pursue a claim within the limitations

       period.


[10]   Further, in the context of the discovery rule, this court has held that


               [t]he 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. The
               statute of limitations begins to run from this point and not when
               advice of counsel is sought or a full[-]blown theory of recovery
               developed.


       Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind. Ct. App. 2006)

       (citation omitted, emphasis added). The same reasoning applies here, where, in

       order to succeed on their fraudulent concealment claim, the Halls had to show



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1130 | September 4, 2018   Page 7 of 10
       that they exercised ordinary diligence to discover a cause of action against the

       District.


[11]   Contrary to the Halls’ assertion that they had no reason to suspect a cause of

       action prior to May 2015, when the District discovered the source of the

       problem, their complaint shows that in 2010 they were on notice that “some

       claim against another party might exist.” Id. In particular, in their complaint

       the Halls allege that they “first encountered blockage in April [20]10” and asked

       the District to fix it. Appellants’ App. Vol. 2 at 61. And the Halls further allege

       that, “[s]ince 2010,” the District “rebuffed [the] Halls in [their] effort . . . to gain

       [the District’s] cooperation to do its duty in making [the sewer] operational.” Id.

       at 57 (emphasis added). Thus, in April 2010, the Halls had been injured and

       believed that the District was responsible to fix the problem. See Snyder, 20

       N.E.3d at 551 (holding statute of limitations began to run at the latest on the

       date plaintiff wrote a letter to the defendants alleging she had suffered losses

       that could be attributed to their actions). Taking the Halls’ allegations in their

       complaint as true, they have not shown that the fraudulent concealment

       doctrine operates to toll the six-year statute of limitations.


                                              Continuing Wrong

[12]   “‘The doctrine of continuing wrong applies where an entire course of conduct

       combines to produce an injury.’” Snyder, 20 N.E.3d at 552 (quoting Gradus-

       Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. Ct. App. 2012)). When the doctrine is

       applicable, the limitations period begins to run at the end of the continuing

       wrongful act. Id. In order for the doctrine to apply, the plaintiff must
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1130 | September 4, 2018   Page 8 of 10
       demonstrate that the alleged injury-producing conduct was of a continuous

       nature. Id. “However, ‘the doctrine of continuing wrong will not prevent the

       statute of limitations from beginning to run when the plaintiff learns of facts

       which should lead to the discovery of his cause of action even if his relationship

       with the tortfeasor continues beyond that point.’” Id. (quoting Fox v. Rice, 936

       N.E.2d 316, 322 (Ind. Ct. App. 2010), trans. denied).


[13]   Here, the Halls allege in their complaint that the District’s breach was

       “continuous,” but they do not allege facts sufficient to show that the District’s

       injury-producing conduct was of a continuous nature for purposes of the

       continuing wrong doctrine. While their complaint does not describe the nature

       of the alleged breach of contract with any specificity,3 at the hearing on the

       Halls’ motion to correct error, their counsel described the breach as the

       District’s failure to “hook[] up” the “sewage system” in 2002. Tr. at 8. That

       the Halls continued to suffer damages allegedly stemming from that breach

       does not make the breach “continuous” for purposes of the doctrine. See, e.g.,

       Meisenhelder, 788 N.E.2d at 931-32 (holding breach occurred in 1987 and

       defendant’s subsequent refusals to honor the parties’ contract did not constitute

       a continuous breach); see also Smith v. Beasley, 504 N.E.2d 1028 (Ind. Ct. App.

       1987) (holding no continuing wrong where the alleged wrong was the failure to

       give plaintiff a one-time increase in salary, despite the arguably continuing




       3
         The Halls allege that the District “has performed its contract recklessly and in blatant disregard of its
       duties, in a negligent manner.” Appellants’ App. Vol. 2 at 62.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1130 | September 4, 2018                    Page 9 of 10
       impact upon plaintiff). Further, in April 2010, the Halls “learn[ed] of facts

       which should [have led] to the discovery of [a] cause of action” against the

       District. Snyder, 20 N.E.3d at 552. Taking the Halls’ allegations in their

       complaint as true, they have not shown that the continuing wrong doctrine

       applies here.


                                                       Conclusion

[14]   In response to the District’s motion for judgment on the pleadings, the Halls

       could have presented “matters outside the pleadings” to convert the motion to a

       summary judgment motion. T.R. 12(C). The Halls concede that the statute of

       limitations began to run in April 2010 and have relied on the pleadings, which

       do not support their claims that the six-year statute of limitations was tolled by

       the doctrines of fraudulent concealment and continuing wrong. Thus, their

       June 2017 complaint was not timely filed.4 We cannot say that the trial court

       erred when it concluded that it is clear from the face of the Halls’ complaint that

       under no circumstances could relief be granted.5 McCall, 821 N.E.2d at 926.


[15]   Affirmed.


       Crone, J., and Pyle, J., concur.




       4
        In their reply brief, the Halls state in relevant part as follows: “Halls admit statute has run, no denying.”
       Reply Br. at 9.
       5
         Because we hold that the Halls’ breach of contract claim is time-barred, we need not reach their contention
       that “Indiana law ought to permit emotional damage claims when[,] as here[,] emotional damage is the result
       of breach[ of contract].” Appellants’ Br. at 38.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1130 | September 4, 2018                  Page 10 of 10
