Powers & Sons Cons. v. Healthy East Chicago
| Decision Date | 30 December 2009 |
| Docket Number | No. 45A05-0904-CV-204.,45A05-0904-CV-204. |
| Citation | 919 N.E.2d 137 |
| Court | Indiana Appellate Court |
| Parties | POWERS & SONS CONSTRUCTION COMPANY, INC., Appellant-Defendant, v. HEALTHY EAST CHICAGO, Appellee-Plaintiff. |
Janet G. Horvath, Robert M. Edwards, Jr., Jones Obenchain, LLP, South Bend, IN, Attorneys for Appellant.
Christina J. Miller, William J. Emerson, Jr., Lucas, Holcomb & Medrea, LLP, Merrillville, IN, Attorneys for Appellee.
Powers & Sons Construction Company, Inc. ("Powers & Sons") filed a motion for summary judgment alleging Healthy East Chicago, Inc. ("Healthy East Chicago") filed its complaint outside the applicable statute of limitation. The trial court denied Powers & Sons's motion for summary judgment. Powers & Sons appeals, raising one issue for our review, which we restate as whether the trial court properly denied summary judgment. Concluding the complaint is governed by the ten-year statute of limitation applicable to written contracts and Healthy East Chicago's complaint was filed within that time, we affirm
Healthy East Chicago hired Powers & Sons pursuant to a contract dated December 1, 1997, to serve as the construction manager for the construction of a health service facility in East Chicago, Indiana. The contract contained the following provisions:
1.1 RELATIONSHIP OF PARTIES
The Construction Manager accepts the relationship of trust and confidence established with the Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the Owner....
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... The Construction Manager shall consult with the Owner and Architect regarding site and use improvements, and the selection of materials, building systems and equipment....
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2.1.6 SUBCONTRACTORS AND SUPPLIERS
The Construction Manager shall ... furnish to the Owner and Architect for their information a list of possible subcontractors ....
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2.3.2.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Construction Manager shall obtain bids from Subcontractors ... from the list previously reviewed and, after analyzing such bids, shall deliver such bids to the Owner and Architect. The Owner shall then determine, with the advice of the Construction Manager and subject to the reasonable objection of the Architect, which bids will be accepted.... The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection.
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The Construction Manager shall not be required to provide professional services which constitute the practice of architecture or engineering....
Appellee's Appendix at 11-13. Carras-Szany and Associates, Inc. ("Carras-Szany") provided architectural and engineering services for the facility. Powers & Sons subcontracted the excavation and preparation of the site to Fred Eggers & Sons, Inc., and the concrete work to Walker Construction Company.
At some time after construction was completed in December 1998, Healthy East Chicago noticed cracks in the floors, walls, and ceilings of the building. Healthy East Chicago contacted Powers & Sons and Carras-Szany about the defects and steps were taken to discover the cause. Powers & Sons responded to Healthy East Chicago's concerns by letter dated March 20, 2000, indicating "continuing concrete slab movement should be considered normal and ... continuing minor drywall cracking at exterior walls was the result of normal exterior wall settling." Appendix of Appellant Powers & Sons at 42. Carras-Szany responded to Healthy East Chicago's concerns by letter dated August 14, 2001, recommending "core samples of the concrete slab and subgrade be taken and analyzed." Id. A letter dated December 11, 2002, from Carras-Szany to Healthy East Chicago detailed the results of a meeting at the site between representatives of Carras-Szany and Powers & Sons, as well as a structural engineer. Additional inspections of the building were made in 2004, 2005, and 2006.
On February 15, 2007, Healthy East Chicago filed a complaint against Powers & Sons alleging breach of contract.1 Specifically, Healthy East Chicago alleged Powers & Sons knew or should have known the proposed building site contained toxic and organic materials and a high water table, it failed to have the toxic and organic materials removed, failed to properly supervise the installation of the concrete slab underlying the building, and failed to warn Healthy East Chicago of the presence of the toxic and organic materials and/or improper installation of the concrete slab could damage the floors, walls, and ceilings of the building. On July 21, 2008, Powers & Sons filed a motion for summary judgment, contending Healthy East Chicago's complaint was governed by a two-year statute of limitation, and further contending there was no genuine issue of material fact that Healthy East Chicago knew of the damage more than two years prior to February 15, 2007. Powers & Sons subsequently filed a motion to strike Healthy East Chicago's response and designation of evidence as untimely. Following a hearing,2 the trial court entered an order granting Powers & Sons's motion to strike and denying Powers & Sons's motion for summary judgment because "there exist genuine issues as to material fact which would preclude the Court from granting summary judgment." Appendix of Powers & Sons at 18. Powers & Sons then sought and was granted permission to pursue an interlocutory appeal in this court.
Summary judgment is appropriate only when the designated evidence "shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). "A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue." Scott v. Bodor, Inc., 571 N.E.2d 313, 318 (Ind.Ct. App.1991).
We review the grant or denial of a motion for summary judgment de novo. Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 531 (Ind.2006). We examine only those materials properly designated by the parties to the trial court. Trietsch v. Circle Design Group, Inc., 868 N.E.2d 812, 817 (Ind.Ct.App.2007). We construe all facts and reasonable inferences drawn from them in favor of the non-moving party, Am. Home Assurance Co. v. Allen, 814 N.E.2d 662, 666 (Ind.Ct.App.2004), trans. dismissed, and resolve all doubts as to the existence of a material issue against the moving party, Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996). The movant has the initial burden of proving the absence of a genuine issue of material fact as to an outcome determinative issue and only then must the nonmovant come forward with evidence demonstrating the existence of genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994).
The party appealing the trial court's summary judgment decision has the burden of persuading us the decision was erroneous. Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind.2001). We are not bound by the trial court's findings and conclusions in support of its summary judgment decision, although "they aid our review by providing the reasons for the trial court's decision." GDC Envtl. Servs. Inc. v. Ransbottom Landfill, 740 N.E.2d 1254, 1257 (Ind.Ct. App.2000).
"The defense of a statute of limitation is peculiarly suitable as a basis for summary judgment." Morgan v. Benner, 712 N.E.2d 500, 502 (Ind.Ct.App.1999), trans. denied. When the movant asserts the statute of limitations as an affirmative defense and makes a prima facie showing the action was commenced outside of the statutory period, the nonmovant has the burden of establishing an issue of fact material to a theory that avoids the affirmative defense. Ling v. Webb, 834 N.E.2d 1137, 1140 (Ind.Ct.App.2005).
This case turns upon resolution of which statute of limitation applies to Healthy East Chicago's cause of action. Powers & Sons contends the two-year statute of limitation found in Indiana Code section 34-11-2-4 applies and there is no genuine issue of material fact that Healthy East Chicago's cause of action accrued more than two years prior to the filing of its complaint. Indiana Code section 34-11-2-4(2) provides "[a]n action for ... injury to personal property ... must be commenced within two (2) years after the cause of action accrues." Healthy East Chicago contends the ten-year statute of limitation found in Indiana Code section 34-11-2-11 applies; in the alternative, Healthy East Chicago contends the six-year statute of limitation found in Indiana Code section 34-11-2-7 applies. In either case, Healthy East Chicago contends its complaint was timely. Indiana Code section 34-11-2-11 states: "[a]n action upon contracts in writing other than those for the payment of money ... must be commenced within ten (10) years after the cause of action accrues." Indiana Code section 34-11-2-7(3) provides, in pertinent part: "[a]ctions for injuries to property other than personal property" "must be commenced within six (6) years after the cause of action accrues...."3
As Powers & Sons correctly points out, "[t]he substance of a cause of action, rather than its form, determines the applicability of the statute of limitation." Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1284 (Ind. 2009). Powers & Sons characterizes...
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