V. Ganz Builders and Development Co., Inc., and Vladimir Ganz, Appellants-Defendants,
Pioneer Lumber, Inc., Appellee-Plaintiff
from the Porter Superior Court The Honorable William E.
Alexa, Judge Trial Court Cause No. 64D02-1211-CC-11607
ATTORNEY FOR APPELLANTS J. Thomas Vetne Jones Obenchain, LLP
South Bend, Indiana
ATTORNEY FOR APPELLEE Terry K. Hiestand Hiestand Law Office
V. Ganz Builders and Development Co., Inc. ("VGB"),
signed an application for a line of credit with Pioneer
Lumber, Inc. ("Pioneer"), and also signed a credit
account agreement. The line of credit was secured by a
personal guaranty agreement signed by VGB's president,
Vladimir Ganz. Pioneer sued VGB and Ganz (collectively
"Appellants") for breach of contract and to enforce
the guaranty. Appellants filed a counter motion for summary
judgment, asserting that Pioneer's claims were
time-barred by the applicable statute of limitations. The
trial court denied the motion, finding that Appellants waived
this defense by failing to plead it in their answer to
Pioneer's complaint. After a bench trial, the court
entered judgment in Pioneer's favor. Appellants filed a
motion to correct error, which was denied.
Appellants now appeal. As preliminary matters, Pioneer
contends that Appellants failed to preserve their appellate
rights and that they may not challenge the summary judgment
order. Because Appellants' motion to correct error was
timely filed, and because the summary judgment order was not
a final judgment, we disagree. For their part, Appellants
assert that the trial court erred in finding that they waived
their statute of limitations defense and in denying their
counter motion for summary judgment. Because Pioneer has not
affirmatively shown that it was prejudiced by Appellants
raising the defense on summary judgment, and because
Pioneer's claims against Appellants were untimely filed,
we reverse and remand with instructions to enter summary
judgment in Appellants' favor.
and Procedural History
In 1996, VGB signed an application for a line of credit with
Pioneer and also signed a credit account agreement. The line
of credit was secured by a personal guaranty agreement signed
by Ganz. VGB used the line of credit
to purchase tools and building supplies from Pioneer. Two
accounts were governed by the line of credit: the General
Account and the Real Estate Account. In November 2012,
Pioneer filed a complaint against Appellants, alleging that
VGB had breached the credit account agreement by failing to
make timely payments on its purchases and that Ganz had
defaulted on the guaranty agreement by failing to pay
VGB's debts. Pioneer's complaint alleged that
"[t]he last date upon which materials were purchased by
[VGB] from Pioneer … was March 27, 2006" and that
Appellants owed Pioneer over $40, 000 in unpaid balances plus
finance charges and attorney's fees. Appellants' App.
at 25. In January 2013, Appellants filed an answer and
affirmative defenses to Pioneer's complaint.
In January 2014, Pioneer filed a motion for summary judgment
as to both liability and damages. In April 2014, Appellants
filed a counter motion for summary judgment, asserting for
the first time that Pioneer's claims were time-barred by
the six-year limitation on actions on accounts and contracts
not in writing under Indiana Code Section 34-11-2-7. On July
3, 2014, the trial court issued an order granting
Pioneer's summary judgment motion as to liability only
and denying Appellants' counter motion for summary
judgment. The court found that
Appellants waived the statute of limitations defense by
failing to plead it in their answer. Appellants filed a
motion to correct error, which the trial court
A bench trial on damages was held on November 19, 2015, and
the trial court took the matter under advisement.
See Trial Tr. at 63 ("The only thing I see here
is to look at the statute and see what it computes and says.
I'll let you know."). In an order file-stamped and
signed on December 2, 2015, the trial court entered judgment
in Pioneer's favor for over $61, 000 in unpaid balances,
finance charges, and attorney's fees. The last line of
the order reads, "ALL OF WHICH IS DONE on this 2nd day
of December, 2015, nunc pro tunc November 20, 2015."
Appellants' App. at 9 (underlining omitted). The order
was noted in the chronological case summary ("CCS")
on December 8, 2015. Id. at 5.
Indiana Trial Rule 59(C) provides that a motion to correct
error, "if any, shall be filed not later than thirty
(30) days after the entry of a final judgment is noted in the
[CCS]." Appellants filed a motion to correct error on
December 31, 2015, less than thirty days after the entry of
the trial court's order was noted in the CCS but more
than thirty days after the order's nunc pro tunc date. In
their motion, Appellants again argued that Pioneer's
claims were time-barred and asked the court to grant its
counter motion for summary judgment. Pioneer filed a
statement in opposition, arguing that Appellants should have
but failed to appeal the trial court's denial of their
counter motion for summary judgment and that their motion to
correct error was untimely because it should have been filed
within thirty days of the nunc pro tunc date. On February 5,
2016, the trial court issued an order summarily denying
Appellants' motion to correct error without commenting on
its timeliness. The order was noted in the CCS on February
16, 2016. Appellants' App. at 6.
Indiana Appellate Rule 9(A)(1) provides in relevant part that
if a party "files a timely motion to correct error, a
Notice of Appeal must be filed within thirty (30) days after
the court's ruling on such motion is noted in the
[CCS.]" Appellants filed a notice of appeal on February
26, less than thirty days after the trial court's ruling
on their motion to correct error was noted in the CCS.
Additional facts will be provided below.
1 - Appellants' motion to correct error was timely filed.
As a threshold matter, we address Pioneer's citation-free
argument that Appellants failed to preserve their appellate
rights because they did not file their motion to correct
error within thirty days of the December 2 order's
November 20 nunc pro tunc date. Pursuant to Trial Rule 59(C),
the event that triggered the thirty-day deadline was the
notation of the order in the CCS, which occurred on December
8. Appellants filed their motion to correct error on December
31, well within the thirty-day deadline. Thus, Pioneer's
argument is without merit.
2 - The summary judgment order was interlocutory, and
therefore Appellants may challenge the trial court's
ruling that they waived their statute of limitations defense.
Pioneer also argues that Appellants may not challenge the
trial court's ruling that they waived their statute of
limitations defense because they failed to appeal the summary
judgment order. We disagree. Indiana Trial Rule 56(C) states,
A summary judgment upon less than all the issues involved in
a claim or with respect to less than all the claims or
parties shall be interlocutory unless the court in writing
expressly determines that there is no just reason for delay
and in writing expressly directs entry of judgment as to less
than all the issues, claims or parties.
trial court entered summary judgment upon less than all the
issues and did not expressly direct entry of judgment as to
less than all the issues. Thus, the summary judgment order
here was interlocutory. And our supreme court has stated that
"[a] claimed error in an interlocutory order is not
waived for failure to take an interlocutory appeal but may be
raised on appeal from the final judgment." Bojrab v.
Bojrab, 810 N.E.2d 1008, 1015 (Ind. 2004). That is what
Appellants have done here, and properly so.
3 - The trial court erred in finding that Appellants waived
their statute of limitations defense.
We now address Appellants' argument that the trial court
erred in finding that they waived their statute of
limitations defense by failing to plead it in their answer.
Indiana Trial Rule 8(C) states that a responsive pleading,
such as an answer, "shall set forth affirmatively and
carry the burden of proving … statute of limitations
… and any other matter constituting an …
affirmative defense." In its summary judgment order, the
trial court acknowledged that a statute of limitations
defense may be raised for the first time in a summary
judgment motion, citing Honeywell, Inc. v. Wilson,
500 N.E.2d 1251 (Ind.Ct.App. 1986), trans. denied
(1987). In Wilson, the plaintiff was injured by a
press with a faulty safety switch and sued Honeywell and
other defendants in 1983. The defendants were unaware that
the ten-year products liability statute of limitations was an
issue when they filed their answer and did not plead it as an
affirmative defense. Only during discovery did they become
aware that the switch had been manufactured in 1968. The
defendants raised the statute of limitations issue in a
summary judgment motion, which the trial court denied on the
basis that "it is not permissible to raise the statute
of limitations by summary judgment. The trial court held that
the defense was waived since it had not been pleaded and
since the answers had not been amended." Id. at
Our Court disagreed ...