*1 been admitted in other Indiana of test had supreme
cases. Our court found a sufficient reliability of the test re-
foundation for the Here, McGrew,
sults. as in the trial court type
noted that the results of this of test e.g., have been admitted other eases. See (Ind. State,
Houston v. State,
1990); Bellamy v. 259 Ind.
N.E.2d 401 We find no abuse of trial
court’s discretion. brief, reply In his Burkett directs us to State, 1112 (Ind.Ct.App.
Carter v.
1997), granted, wherein this court provide that the State failed to a suffi
found reliability urinaly
cient foundation equipment. supreme
sis test our granted petition the State’s to transfer Carter, therefore, decisiоn does precedent. Ind.Appellate
not constitute Rule
11(B); State, Peterson v. (Ind.Ct.App.1998).
1292-98
Affirmed.
RUCKER, J., concurs.
GARRARD, J., concurs in result. WELLS, Appellant-Plaintiff,
James H.
The STONE CITY BANK and Paul M.
Patton, Individually Repre Capacity, Appellees-Defen sentative
dants.
No. 47A05-9608-CV-324. Appeals
Court of Indiana.
Feb. *2 Strodtman, E. E. Lawrence
Lawrence Associates, Cumberland, for Strodtman & appellant. Hoeller, Cox,
Mary Dina M. Lewis & Wells’ claims the Bank were barred J. Indianapolis, appellee. Wagner, two-year limitations injury claims.1 Its motion was
OPINION granted, subsequent motion to and Wells’ correct error was denied. BARTEAU, Judge. *3 appeals the court’s trial James H. STANDARD OF REVIEW pleadings in grant judgment of a on the favor judgment Wells contends the on the City Bank Paul Patton of The Stone and M. ings in favor of the Bank was error because (the Bank). issues, Wells raises four complaint was one for breach of contract
we consolidate and restate as: governed by and and those actions are allegation that a bank 1. Whether an of limitations.2 wrongfully dishonored checks written on judgment pleadings pursuant A on the to account states a claim an account-holder’s 12(C) proper only Indiana Trial Rule when of the bank’s contractual obli- breach genuine there are no issues of material fact account-holder, gation toward the when the pleadings and when facts shown the alleges damages the account-holder in the clearly moving party judgment. entitle the opportunities form of lost business and Wagle Henry, reputation resulting alleged Ct.App.1997). A judgment breach? motion for on the pleadings granted only should be when it is 2. Whether a bank’s non-moving clear from the cheеks on an ac- drawn account-holder’s upon presentment any way count will be honored cannot in succeed under the can a claim of constructive fraud facts and therein. Noblesville wrongfully after some checks are dishon- Redevelopment Comm’n v. Noblesville As ored? Partnership, socs. Ltd. (Ind.1996). grant In reviewing the of a T.R.
We reverse and rеmand. 12(C) motion, accept we as true the well- pleaded plead FACTS material facts in the ings, and our review is confined to informa 19,1991, February Bank On the lent Wells pleadings. tion included the $15,000.00. opened a business cheek- ing day, account the same and the loan mon- BREACH OF CONTRACT ey deposited was be the 20, 1991, February account. Between and The trial cоurt determined that Wells’ 4, 1991, March Wells wrote three checks on “substantively action was one $9,534.20. totaling the The' Bank injuries alleges damages in that he for a loss honor did not the cheeks. and business loss Thus, of business income.” R. at 104.3 the later, years About three Wells sued the reasoned, subject the claim was to a dishonor, alleging wrongful Bank two-year limitation, beсause some those faith, contract, good breach of damages typically more arise from the com sought and fraud. He 17.5 million dollars in However, damages mission of a tort. punitive damages, lost income as well as costs, alleges premised attorney on a breach of fees. The Bank moved judgment pleadings, asserting theory for a arise out of his provides apparently 1. Code Indiana section 34-1-2-2 3.The trial court concluded "injuries person actions for or character gravamen compensa- [and] Wells’ suit to obtain personal property” must be com- tion for and credibili- years menced two after cause ac- within thus, ty; essentially it is a tort action. tion hаs accrued. .we note that Wells also claimed in the opportunity successfully form of con- provides Indiana Code section 34-1-2-1 clude a business .transaction in which he was actions "on ing” and contracts not accounts in writ- engaged, resulting and the lost income there- and "for relief frauds" be from. years commenced within six after cause of action has accrued. relationship with the Bank. For determined that the suit We should have reason, governed his action is brought we believe been in contract: period of an oral by the limitations for breach plaintiff seeks to avoid the effect liquidation ground clause on the that it application no has to a tort action. How- of two of limi Where either statutes ever, plaintiff no claim makes that a claim, any may apply to a doubt tations duty was owed to it of that outside created applying should be resolved favor contract, and no breach of Northern Indiana Pub. longer limitation. alleged other than a failure to render Co., v. Fattore Const. Serv. Co. Although contracted for service. an action (Ind.Ct.App.1985), overruled on oth brought in tort sometimes be Miller, Inc. v. grounds, er Berns Const. negligent (Ind.1987). duty, breach of a contractual still And see *4 the nature of § owed and the conse- 51 Limitation Actions 63 Am.Jur.2d of (1970); quences § 54 Actions 39 of its breach must be C.J.S. Limitation determined of by reference to the contract which creatеd duty. that legal wrong A’tort is commit “[a] Markets, 58, quoting Id. at Better Food Inc. upon person property independent ted or Co., 179, v. American Dist. Tel. 40 Cal.2d 253 Dictionary contract.” Black’s Law 1489 (1953) 10, (citations omitted). P.2d 15-16 (6th ed.1990) (emphasis supplied). But the Similarly, appear allege Wells does not to relationship depositor between a and a bank any duty that wаs to him owed outside Teeling is contractual in nature. v. Indiana duty arising Bank, (Ind.Ct. that out of his contractual rela- 855, National 436 N.E.2d 858 Bank, tionship appears particu A in with the and he to App.1982). lar, deposit is a contract of no breach of that other than the funds between depositor a and a institution. Kros perform financial Bank’s failure to the eоntracted-for Kroslack, lack v. 1025 n. 1 completely service. His action should not be (Ind.1987). ground essentially it barred on the that a tort claim. damages The source of the Wells wrongful dishonoring claims is the Bank’s It be that some or all checks; notify to its failure Wells damages not in seeks are recoverable Wells timely being manner cheeks were exаmple, this breach of contract action. For dishonored; wrongful and its acceleration of damages reputation we have held loss of a note Wells executed with the bank. None libel, slander, in available actions for of that can be conduct characterized as inde- process, prosecution, abuse of pendent relationship of the contractual which third contract interference. Greives v. arose when Wells and defendants entered Greenwood, (Ind.Ct.App. 338 banking relationship. 1990). remedy is available reason Generally, there is no contractual relation in those actions is loss of is a ship between a tortfeasor and a victim. But. So, wrongs. foreseeable result of those Id. here, parties’ relationship trial, might at a court determine that dam inseparable wrongs alleges. suffered, any ages for loss of example, wrongful For no creditor bank can repu are not recoverable because the loss of ly accelerate a note unless it has a contractu tation was not a foreseeable result of the In al with the debtor. Orkin of its with Wells. Bank’s breach Walters, Exterminating Inc. v. 466 possibility particular But that a (Ind.Ct.App.1984),'we N.E.2d decided ‘ particu injury is not a foreseeable result of court it the trial erred when allowed Walters completely not lar breach contract should to sue Orkin tort for which arose proving litigant foreclose a from the breach negligence treating from Walters’ Orkin’s recovering those which he can brought a tort action instead home. Walters consequence a foreseeable (cid:127)show be of an action on the contract because the supreme court noted in Law breach. As our exculpatory an clause lim contract contained Pokraka, yers N.E.2d iting liability only. Corp. Title Ins. Orkin’s retreatment (Ind.1992), “recovery knowledge ignorance on of with or reckless of its theories 4) falsity; complaining party of an oral contract would fraud or that the relied personal injury 5) always involve either or dam- representation; repre So, decided, applica- age property.” it an proximately complaining sentation caused the two-year period Strunk, limitation tion party’s injury. Rice v. property to Pokraka’s (Ind.1996). 1280, 1289 claim, of an arose from fraud or breach representations Any might have contract, improper. would be Even oral opened made when his account to the harm Pokraka suffered could be though the effect that the Bank would honor checks that personal property, as characterized be drawn on account in the would two-year applying noted representations “past future were period tantamount limitations “would be fact”; rather, existing representa- were judicially rеpealing these statutes regarding repre- tions future conduct. Such limitations” for fraud and breach of an oral sentations cannot a fraud action. See, e.g., Indianapolis Anderson v. Indiana Applying two-year period limitations Pool, AAMCO Dealers Adver. Title, be, Lawyers it here would as was (Ind.Ct.App.1997), trans. denied judicially repealing the tantamount tо (misrepresentations concerning future bene- of limitations actions for breach of an oral advertising agreement fits an under could *5 that contract. The trial court’s decision has action). not a fraud effect, day in and it denies Wells his court for However, representation a re claim, just his breach of contract because сan, garding future conduct situa some alleg- consequential some of the he tions, See, give rise to a constructive fraud. might appropriately sought more in a es be e.g., Farrington Allsop, tort action. (Ind.Ct.App.1996) (summary judgment 109 approach We believe the better is to allow on statute of limitations debtor based was go of contract сlaim to Wells’ breach forward improper promises when debtor broke to re and to allow the trial court to determine the loan). pay allegations a While do not Wells’ relationship nature of Wells’ with fraud, they a state cause of action for actual Bank, to decide whether the Bank do a constructive fraud. The any breaсhed of the duties which from arose seeking statute of limitations for actions re relationship, and to whether the decide constructive, applies lief frauds as alleges a Wells were foreseeable re- actual, well as frauds. Ballard v. Drake’s reason, sult of the Bank’s breach. For that Estate, 143, 152, Ind.App. we reverse dismissal Wells’ contraсt reason, judgment For that a on count, and remand. pleadings improp on the fraud count was er, and we remand to the trial court for its
FRAUD
ques
of the
consideration
constructive fraud
complaint alleg-
count of
second
tion.
accepted
es that when the Bank
his certified
check, opened
checking
a commercial
account
by op
Constructive fraud arises
him,
cheeks,
and issued counter
it was
eration
law when there is a course of
fraudulently misrepresenting
a material
which,
law,
by
conduct
if sanctioned
would
is,
fact —that
the Bank would honor
advantage,
secure an unconscionable
irre
presented
checks drawn on that account and
speсtive of the actual
intent
defraud.
payment.
Cogdell,
Mullen v.
Ct.App.1994). The elements of constructive
may
An action for actual fraud
not
1) duty existing by
fraud are:
a
virtue of the
representations
alleg
be based on the
2)
fraud,
relationship
parties;
repre
between the
es. To sustain an action for actual
a
1)
sentations or omissions made in violation of
party
prove
five elements:
that there
3)
duty;
by
reliance
the com
misrepresentation
past
a
thereon
was material
2)
4)
fact;
representation
plaining party;
complaining
to the
existing
that the
3)
5)
false;
thereof;
proximate
party
was made
as a
result
and
deposited
into his
and
advantage
the funds
gaining of an
expense
complaining
charged
deposit
at the
into his
be
his decision to
funds
party.
Id.
alleges damage
account. Wells
income,
reliance, in
form of
from his
in
the law
In constructive
opportunity,
lost business
and
relationship
par
fers fraud
reputation.
Finally,
alleges
which surround
ties and the circumstances
actions,
through
gained
its
an ad-
necessary
that there
It
not
to show
them.
expense by creating a sham
vantage at Wells’
Farrington,
intent
was actual
defraud.
generated
transaction which
interest income
of a fidu
N.E.2d at 109. The existence
for the Bank but no benefit to Wells.
ciary relationship
not the
basis for a
example, in
fraud. For
claim of constructive
say
We cannot
it.is clear from the
Mullen, we noted that a constructive fraud
any way
that Wells could not
relationship be
also arise where the
succeed under
the facts and
seller,
buyer
parties is that of
tween the
reason,
judgment
therein. For that
a
on the
buyer-seller
one
because
pleadings in
Bank on
favor
party may possess knowledge
possessed
fraud count was error.
posi
may thereby enjoy a
the other and
superiority
tion of
over the other. The rela
CONCLUSION
a
tionship is therefore one which invokes
improperly granted
The trial court
duty
dealing.
good
faith and fair
judgment
for a
Bank’s motion
relation
We decline
hold that the
ings
alleges
because
flow
ship
checking
a bank
a
acсount
between
from the Bank’s
breach of its con-
always necessarily
fiduciary
holder is
one.
Wells,
tract
because the relation-
with
relationship in
we do believe the
ship
and the Bank invoked a
between Wells
good
dealing
faith and fair
vokes
serve as the
toward Wells which could
buyer-
at
the same extent as does a
least
action for constructive fraud.
basis for an
*6
inherently in
relationship.
seller
A bank is
The trial court’s decision
reversed and
superior
checking
position
to its
account
proceedings.
for further
cause is remanded
holders, who, in
their busi
order to conduct
ness,
protect
depend
on the bank to
SHARPNACK, C.J., concurs.
account holder’s funds and to honor cheсks
RUCKER, J.,
opinion.
dissents with
account when
on the account holder’s
properly presented
payment.
The
RUCKER, Judge, dissenting.
relationship, like the
bank and account holder
majority
I concur in the result the
reaches
relationship,
buyer and seller
is sufficient to
Otherwise,
respect
I
on the issue of fraud.
fraud,
support an inference of
and Wells’
finely
fully
Nо matter how
the line
dissent.
allege
thus
the first element of
drawn,
day
at the
count one of
end
fraud.
constructive
negligence.
In
complaint
Wells’
sounds
alleging
of a
In addition to
the existence
determining
applicability of the statutes
gives
rise to a
limitation,
we look to the substance of the
part of the Bank which could
an
action
than the form which
cause of
rather
action for constructive
Wells also
Klineman,
Wolf,
pleaded.
Rose &
it was
satisfy the re-
made
which would
1206,
v.
Am. Lab.
656 N.E.2d
P.C. North
maining
of constructive fraud. The
elements
denied¡
(Ind.Ct.App.1995),
In
alleged representation that it would
Bank’s
Midwest, Inc. v. Modern Materi
-sul-Mark
subsequent
cheeks and the
honor Wells’
als, Inc.,
(Ind.Ct.App.
594 N.E.2d
would be
wrongful dishonor of Wells’ checks
1992), adopted
part,
ficiently damaged credibility [such] operate capacity to continue to
that his destroyed.” R. at 8. business] [Wells’ and Shannette Freddie EDWARDS Bank alleges that “the complaint further Kirkwood, Appellants- of its decision to notify Mr. Wells failed to Plaintiffs, timely manner checks dishonor said v. to a disin communicating instead its decision Insync Upline, Dale SISLER impugning Mr. terested third further Inc., Appellees-Defendants. reputation.” R. personal and business comрlaint that as a result at 7. The asserts No. 45A03-9701-CV-3. actions, in suffered the Bank’s Appeals Indiana. Court of plus million come in the amount $17.5 of Wells’ interest. The substance Feb. compen claim is to obtain of contract sustained
sation credibility. reputation and
and business damages as a result properly credibility are recov
reputation and than in an in a tort action rather
erable See, e.g.,
action for breach of Greenwood,
Greives repu (damages for
(Ind.Ct.App.1990) loss libel, in actions for
tation are available
slander, process, prosecu abuse interferenсe; party contract
tion and third remedy intentional torts afford this
these foreseeable); Indiana the result is
because Indus., v. Terre Haute Michigan Elec. Co.
&
Inc., (Ind.Ct.App.1987), *7 (Ind.1988) (in denied, authority ex action “[n]o profits future are proposition
ists industry”); for loss of face
recoverable Bernardi, Claise
Ct.App.1980) (damages injury to credit ordinarily recoverable in libel, slander, pros
tort actions
ecution, process rather than and abuse of action).
breach of contract alleged harm
In this case the nature of the business Wells’s credibility, sub- and thus the cause of action is for
stance of his
injuries. personal injury must be A claim for years within two after its accru-
commenced § not initiate
al. I.C. 34-1-2-2. Wells did until three against action Bank ac-
years his claim after