Meisenhelder v. Zipp Exp., Inc.

• Decision Date: 28 May 2003
• Docket Number: No. 49A02-0205-CV-390.,49A02-0205-CV-390.
• Citation: 788 N.E.2d 924
• Parties: Mark MEISENHELDER, Appellant-Plaintiff, v. ZIPP EXPRESS, INC., an Indiana Corporation, Celadon Trucking Services of Indiana, Inc., an Indiana Corporation, Daniel Frieden, Ernie Krebs, Richard Williamson, Jerry Clowser, and Michael E. Mills, Individually and in their capacities as officers and shareholders, and agents of Zipp Express, Inc., jointly and severally, Appellees-Defendants.
• Court: Indiana Appellate Court

788 N.E.2d 924

Mark MEISENHELDER, Appellant-Plaintiff, v. ZIPP EXPRESS, INC., an Indiana Corporation, Celadon Trucking Services of Indiana, Inc., an Indiana Corporation, Daniel Frieden, Ernie Krebs, Richard Williamson, Jerry Clowser, and Michael E. Mills, Individually and in their capacities as officers and shareholders, and agents of Zipp Express, Inc., jointly and severally, Appellees-Defendants.

No. 49A02-0205-CV-390.

Court of Appeals of Indiana.

May 28, 2003.

Jay Meisenhelder, Roberta L. Ross, Ross & Brunner, Indianapolis, IN, Attorneys for Appellant.

Robert F. Wagner, Stephanie L. Cassman, Lewis & Wagner, Indianapolis, IN, Attorneys for Appellees.

OPINION

SULLIVAN, Judge.

Appellant-Plaintiff, Mark Meisenhelder, challenges the trial court's grant of summary judgment in favor of Appellee-Defendants Zipp Express, Inc., Celadon Trucking Services of Indiana, Inc., Daniel Frieden, Ernie Krebs, Richard Williamson, Jerry Clowser, and Michael E. Mills (collectively "Zipp").

We affirm.

The facts most favorable to the non-moving party reveal that Meisenhelder was employed by Zipp on September 1, 1986, at which time he signed a written employment contract. The provision of the employment contract at issue in this appeal reads, "On September 30, 1987, provided Meisenhelder is an employee on said date, Zipp shall present a stock ownership package to Meisenhelder. Zipp reserves the right to name the percentage and restrictions at that time." Appellant's Appendix at 21. Zipp never presented Meisenhelder with a stock ownership package. After he began to work for Zipp, Meisenhelder's job performance was frequently criticized by his immediate supervisor, Richard Williamson. Meisenhelder believed that if he questioned his superiors at Zipp about the failure to present him with a stock ownership package, his job would be in danger. Nevertheless, in the autumn of 1987, Meisenhelder did broach the issue with Williamson, who told Meisenhelder to take up the issue with Zipp's president and CEO, Jerry Clowser.¹ Meisenhelder failed to do so. Some months later, after Williamson had told Meisenhelder that he was fired, Meisenhelder stopped by Clowser's office. Meisenhelder told Clowser, "[Williamson] just fired me. I'm going home. The only thing I want to know is where and what do I get for the stock—when or what." Appellant's App. at 63. As related by Meisenhelder during deposition, Clowser's response was "I'll talk to [Williamson], let him calm down. You go home, I'll get ahold of you, just if you do your job, you won't have anything to worry about." Id. Meisenhelder continued to work for Zipp but still was not presented with a stock ownership package.

Meisenhelder asked Williamson about the stock package again in 1996 or 1997 and was again told to speak with Clowser. In 1999, shortly before Zipp was sold to Celadon Trucking, Meisenhelder again asked Williamson about the stock ownership package and was yet again told to speak to Clowser. A few days later Meisenhelder spoke to Clowser, who stated that he did not remember that Meisenhelder had an employment contract. Clowser informed Meisenhelder that the officers of Zipp who owned stock had purchased their shares. When Meisenhelder noted that he was never presented with an opportunity to purchase shares, Clowser stated that Meisenhelder did not have enough money to purchase any stock.

On August 9, 2000, Meisenhelder filed suit against Zipp, alleging breach of contract, quantum meruit, promissory estoppel,² interference with contract, civil conversion, and intentional infliction of emotional distress.³ Zipp filed an answer to the complaint on October 25, 2000. On June 14, 2001, Zipp filed a motion for summary judgment. Meisenhelder filed a motion in opposition to summary judgment on July 11, 2001. On November 15, 2001, the trial court held a hearing on the matter, and on February 7, 2002, granted summary judgment in favor of Zipp. Meisenhelder filed a motion to correct error on March 11, 2002, which was deemed denied due to the trial court's failure to act thereon within forty-five days. See Ind. Trial Rule 53.3. Meisenhelder filed a notice of appeal on May 15, 2002.

Summary Judgment

Summary judgment is appropriate only where no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Settles v. Leslie, 701 N.E.2d 849, 852 (Ind.Ct.App.1998). Genuine issues of material fact exist where facts concerning an issue which would dispose of the litigation are in dispute. Settles, 701 N.E.2d at 852. The moving party has the initial burden of demonstrating, prima facie, the absence of genuine issues of material fact. Id. If the moving party does so, the burden then falls upon the non-moving party to identify a factual dispute which would preclude summary judgment. Id. Upon appeal of a grant of summary judgment, we apply the same standard as the trial court, resolving any factual disputes or conflicting inferences in favor of the non-moving party. Id. We consider only those portions of the record specifically designated to the trial court. Id. Upon appeal, the non-moving party bears the burden of persuasion and must specifically point to the disputed material facts and the designated evidence pertaining thereto. Id. We will liberally construe the designated evidence in favor of the non-movant, so that he is not improperly denied his day in court. Id. Nevertheless, we will not become an advocate for a party, and the trial court's entry of summary judgment will be affirmed if it may be sustained upon any theory or basis found in the evidentiary material designated to the trial court. Id.

I Statute of Limitations for Breach of Contract Claim

Meisenhelder first argues that the trial court erred in concluding that the statute of limitations began to run in 1987 and expired in 1997, thereby barring his cause of action. Indiana Code § 34-11-2-11 (Burns Code Ed. Supp.2002) states:

"An action upon contracts in writing other than those for the payment of money, and including all mortgages other than chattel mortgages, deeds of trust, judgments of courts of record, and for the recovery of the possession of real estate, must be commenced within ten (10) years after the cause of action accrues. However, an action upon contracts in writing other than those for the payment of money entered into before September 1, 1982, not including chattel mortgages, deeds of trust, judgments of courts of record, or for the recovery of the possession of real estate, must be commenced within twenty (20) years after the cause of action accrues."

Here, the employment contract was entered into on September 1, 1986. Thus, any action on the contract must have been commenced within ten years after the cause of action accrued. Neither party disputes this; instead, the parties disagree upon the question of when the current cause of action accrued. The question of when a cause of action accrues is generally one of law for the courts to determine. Malachowski v. Bank One, 590 N.E.2d 559, 564 (Ind.1992).

Meisenhelder contends, "In breach of contract actions ... the statute of limitations does not necessarily begin to run at the time the contract is breached. Instead, Indiana follows the discovery rule, which provides that `[a] cause of action accrues, and the statute of limitations begins to run, when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another.'" Appellant's Brief at 7 (emphasis in original) (quoting Doe v. United Methodist Church, 673 N.E.2d 839, 842 (Ind.Ct.App.1996), trans. denied). Meisenhelder also cites C & E Corp. v. Ramco Industries, Inc., 717 N.E.2d 642, 644 (Ind. Ct.App.1999), for the proposition that a cause of action accrues when a wrongfully inflicted injury causes damage. Meisenhelder concludes that the statute of limitations did not begin to run on the date on which the breach occurred, but instead began to run when he became aware of the fact that the breach had occurred. Indeed, Meisenhelder readily admits that the breach occurred in September 1987, but argues that, under the specific facts of this case, he was unaware that the breach had occurred because he had yet to suffer any injury as a result of the breach.

As noted by Zipp, the cases cited by Meisenhelder involve tort claims, not claims of breach of contract. See Doe, 673 N.E.2d at 841

(involving claim of personal injury); C & E Corp.,

717 N.E.2d at 643 (involving claim of tortious interference with contract). Zipp cites Penn. Co. v. Good, 56 Ind.App. 562, 564, 103 N.E. 672, 673 (1913), trans. denied, wherein the court held that a cause of action for breach of contract accrues at the time the breach occurs, and the statute of limitations begins to run from that date. See also 51 Am.Jur.2d, Limitation of Actions § 160 (2000) (the statute of limitations begins to run in actions on contracts from the time the right of action accrues, i.e., the time the agreement is breached, rather than the time that actual damages are sustained as a consequence of the breach); Kemper v. Warren Petroleum Corp., Inc., 451 N.E.2d 1115 (Ind.Ct.App.1983) (trial court properly determined that plaintiff's cause of action based upon oral employment contract arose no later than the date when plaintiff attained the age of sixty-five and did not receive his pension as he alleged was promised to him, i.e., the date of breach), trans. denied. The question before us is whether the discovery rule is applicable to a cause of action for breach of contract. If it is, Meisenhelder argues that there is a genuine issue of material fact as to when he knew or with the exercise of due diligence could have discovered that the contract had been breached; if it is not applicable, Meisenhelder's claim is time-barred by the statute of limitations.

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