MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Aug 24 2016, 8:35 am

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


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Stephen W. Voelker                                       Justin E. Endres
Voelker Law Office                                       New Albany, Indiana
Jeffersonville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jack Gable and Janet Gable,                              August 24, 2016
Appellants-Plaintiffs,                                   Court of Appeals Case No.
                                                         22A04-1511-PL-2071
        v.                                               Appeal from the Floyd Circuit
                                                         Court
Schuler Company, Inc.,                                   The Honorable Vicki L.
Appellee-Defendant                                       Carmichael, Special Judge
                                                         Trial Court Cause No.
                                                         22C01-1504-PL-523



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A04-1511-PL-2071 | August 24, 2016      Page 1 of 7
                                          Case Summary
[1]   Jack Gable and Janet Gable (“the Gables”) filed a complaint alleging that they

      suffered damages when retaining walls built by Schuler Company, Inc.

      (“Schuler”) failed. The trial court granted Schuler’s motion to dismiss the

      complaint and motion for attorney’s fees and costs. The Gables appeal. We

      reverse and remand.



                                                    Issue
[2]   The Gables present four issues for our review, which we consolidate and restate

      as the following dispositive issue: whether the trial court erred in dismissing the

      Gables’ complaint for failure to state a claim, where the facts alleged in the

      complaint give rise to a claim for breach of contract.



                            Facts and Procedural History
[3]   In 2002, the Gables contracted with Schuler for the construction and purchase

      of a home in Floyd County. On April 14, 2015, the Gables filed a complaint

      alleging that retaining walls Schuler built concurrently with the home were

      defective and caused damages. In full, the allegations in the complaint were as

      follows:


                       COMPLAINT FOR BREACH OF REPAIRS TO
                               WARRANTY WORK




      Court of Appeals of Indiana | Memorandum Decision 22A04-1511-PL-2071 | August 24, 2016   Page 2 of 7
        Plaintiffs, Jack Gable and Janice Gable (collectively Gable),
        allege:


        1. Gable contracted with the defendant’s predecessor in interest,
           The Schuler Company, Inc. (Schuler), for the construction of
           a house. Exhibit A.


        2. Concurrently with the construction, Schuler erected large
           retaining walls which effectively boxed in the rear yard.


        3. Schuler, in lieu of any implied warranty, provided Gable with
           a RWC limited warranty. Exhibit B.


        4. The RWC warranty did not provide coverage for retaining
           walls.


        5. Several times over the years Gable would call Schuler and
           Schuler would repair the walls.


        6. In 2013, Monty Trent, as an agent of Schuler, repaired the
           wall and stated in sum and substance that the walls were fixed
           and would not fail again.


        7. The walls were defectively constructed and have failed.


        WHEREFORE, the Plaintiffs, Jack Gable and Janice Gable,
        request a judgment against Schuler Homes, Inc., for enough
        money to compensate them for their losses, interest and costs.


(App. 5-6.) The Gables attached to the complaint the construction agreement, a

signed notice of waiver of implied warranties, and a signed acknowledgment of

receipt of a sample limited warranty.

Court of Appeals of Indiana | Memorandum Decision 22A04-1511-PL-2071 | August 24, 2016   Page 3 of 7
[4]   On June 9, 2015, Schuler filed a motion to dismiss under Indiana Trial Rule

      12(B)(6), arguing that the Gables’ breach of warranty claim was barred based

      on the allegations in the complaint and, in the alternative, the statute of

      limitations. Schuler also requested attorney’s fees and costs under Indiana

      Code § 34-52-1-1.


[5]   The trial court held a hearing on the motion, and on November 5, 2015 granted

      the motion to dismiss and awarded Schuler attorney’s fees and costs. The

      Gables now appeal.



                                 Discussion and Decision
                                             Motion to Dismiss

[6]   The Gables contend that their complaint was improperly dismissed under

      Indiana Trial Rule 12(B)(6). Under our rules of trial procedure, a complaint

      must contain a “short and plain statement of the claim showing that the pleader

      is entitled to relief[.]” Ind. Trial Rule 8(A). “A motion to dismiss under Rule

      12(B)(6) tests the legal sufficiency of a complaint: that is, whether the

      allegations in the complaint establish any set of circumstances under which a

      plaintiff would be entitled to relief.” Trail v. Boys & Girls Clubs of Nw. Ind., 845

      N.E.2d 130, 134 (Ind. 2006). We review de novo the trial court’s grant or denial

      of a Trial Rule 12(B)(6) motion to dismiss. Snyder v. Town of Yorktown, 20

      N.E.3d 545, 550 (Ind. Ct. App. 2014), trans. denied. When reviewing the trial

      court’s decision, we accept as true the facts alleged in the complaint. Id. We

      consider the pleadings in the light most favorable to the plaintiff and draw every

      Court of Appeals of Indiana | Memorandum Decision 22A04-1511-PL-2071 | August 24, 2016   Page 4 of 7
      reasonable inference in favor of the non-moving party. Id. We will affirm a

      dismissal under Trial Rule 12(B)(6) only if the facts alleged in the complaint are

      incapable of supporting relief under any set of circumstances. Id.


[7]   In its motion to dismiss, Schuler argued that the Gables could not recover under

      a breach of warranty theory because, by the complaint’s own allegations, no

      express, implied, or statutory warranty associated with the written home

      construction contract applies to the retaining walls. However, the Gables’

      complaint does not rise or fall on the new home construction warranties.


[8]   The Gables’ complaint is inartfully drafted, but at minimum the allegations

      therein give rise to a breach of contract claim. The essential elements of a

      breach of contract claim are the existence of a contract, the defendant’s breach

      of the contract, and damages. Murat Temple Ass’n, Inc. v. Live Nation Worldwide,

      Inc., 953 N.E.2d 1125, 1128-29 (Ind. Ct. App. 2011), trans. denied. In a contract

      for work or services, failure to perform the work in a workmanlike manner may

      constitute a breach of contract. Mullis v. Brennan, 716 N.E.2d 58, 64 (Ind. Ct.

      App. 1999).


[9]   According to the complaint, Schuler contracted with the Gables to build a

      home. At the same time, Schuler built retaining walls in the Gables’ backyard.

      The complaint does not provide any details about a separate agreement to build

      the walls, but we may reasonably infer that Schuler did not gratuitously

      construct them. The Gables’ acknowledgment that no warranties apply to their

      claim does not amount to a waiver of a cause of action. The paragraphs in the


      Court of Appeals of Indiana | Memorandum Decision 22A04-1511-PL-2071 | August 24, 2016   Page 5 of 7
       complaint pertaining to warranties instead appear to be allegations made

       preemptively to clarify what the Gables were not alleging, and they permit us to

       infer that a general contract claim separate from the home construction contract

       was being made. Reading the complaint in the light most favorable to the

       Gables and drawing every reasonable inference in their favor, the complaint

       fairly alleges the existence of an agreement between Schuler and the Gables to

       build retaining walls on the Gables’ property. The Gables also alleged that the

       walls Schuler built were defectively-constructed and that they suffered damages

       when the walls failed. The complaint therefore contains the essential elements

       of a breach of contract claim: a contract, a breach thereof, and damages flowing

       from the breach.


[10]   Schuler next argues that even if a separate agreement existed to build the walls,

       the Gables cannot sustain a breach of contract action because the statute of

       limitations on written contract actions is ten years, I.C. § 34-11-2-11, and six

       years for actions on contracts not in writing. I.C. § 34-11-2-7. The parties

       executed the home construction agreement on June 12, 2002, and the Gables

       filed their complaint on April 14, 2015, outside either limitation period.


[11]   However, the complaint does not specify when the retaining walls were built

       (other than “concurrently” with the home) or when the walls failed. (App. 5.)

       The Gables also alleged that Schuler or its agent repaired the walls several times

       over the years, most recently in 2013. But again, it is unknown when these

       repairs were made. Absent further factual development, we cannot determine

       when the cause of action accrued or whether there is any basis for tolling the

       Court of Appeals of Indiana | Memorandum Decision 22A04-1511-PL-2071 | August 24, 2016   Page 6 of 7
       limitations period. Accordingly, the statute of limitations does not bar the

       Gables’ claim at this juncture.


[12]   Because the allegations in the Gables’ complaint at minimum give rise to a

       breach of contract claim, the trial court erred in granting Schuler’s motion to

       dismiss under Indiana Trial Rule 12(B)(6).1


[13]   Reversed and remanded.


       Bradford, J., and Altice, J., concur.




       1
         The trial court also awarded Schuler attorney’s fees under Indiana Code § 34-52-1-1(b), which provides that
       a court may award attorney’s fees as part of the cost to a prevailing party if the court finds that either party
       brought or continued to litigate claims or defenses that were frivolous, unreasonable, or groundless, or
       otherwise litigated in bad faith. A threshold requirement of the statute is that attorney fees may only be
       recovered by a “prevailing party.” D.S.I. v. Nature Corp., 742 N.E.2d 15, 22 (Ind. Ct. App. 2000), trans. denied.
       Because we reverse the trial court’s order granting Schuler’s motion to dismiss, we necessarily vacate the
       court’s award of attorney’s fees under Indiana Code § 34-52-1-1(b).

       Court of Appeals of Indiana | Memorandum Decision 22A04-1511-PL-2071 | August 24, 2016               Page 7 of 7
