Julie Sutton, Appellant-Plaintiff v. II LLC BEI LLC (2026)

MEMORANDUM DECISION

Case Summary

[1] Julie Sutton appeals the trial court's grant of summary judgment for River North II, LLC, Dale Dillon Construction Group, Inc. d/b/a Dillon Construction Group and BEI Construction, LLC, arguing that the court erred in concluding that her personal-injury claims are barred by the statute of limitations. We affirm.

Facts and Procedural History

[2] In September 2017, Sutton moved into Apartment 261 at The Quarry, a complex in Indianapolis owned by River North II, LLC. Throughout the next year, Sutton experienced a variety of symptoms including weight loss, fatigue, abdominal pain, nausea, diarrhea, headaches, light-headedness, and brain fog. Due to the severity of her symptoms, she went to the emergency room twice and sometimes had to miss work. In June 2018, Sutton began seeing Dr. Erica Leazenby, a functional-medicine practitioner, who initially diagnosed her with abnormal weight loss and irritable bowel syndrome.

[3] By late 2018, Sutton was also suffering from sinus and breathing issues. She saw an allergist in December and reported that her sinus symptoms had increased after she moved from a cubicle to an office at work and that she “believe[d] that she may be more exopsed [sic] to mold or another allergen” in her new office. Dillon's App. Vol. 3 p. 10. The allergist “suspect[ed] mold” and recommended allergy testing. Id. at 58. Sutton's test results showed “significant reactivity” to mold, among other environmental allergens. Id. at 6. In January 2019, Sutton told her boss about her mold allergy and that she suspected there was mold in the office. The State Department of Health subsequently tested Sutton's “environment at the ․ office building” for mold, but “[t]he indoor fungal and bacteria counts were lower than the outdoor sample.” Dillon's App. Vol. 2 p. 35. Sutton stopped working in the office building that February, but her symptoms continued. In March 2019, due to the effect of her illness on her ability to work, Sutton submitted a claim for disability benefits through her employer, which was granted. Sutton was later granted federal disability benefits, and the Social Security Administration found that she'd been disabled since February 23, 2019.

[4] On May 15, 2019, Sutton sent River North an email with the subject line, “Mold 261.” Dillon's App. Vol. 3 p. 115. The email stated, “I did a better inspection of my bedroom today and I did find fuzzy mold in the bottom corners of the windows. The walls look okay. Let me know next steps.” Id. A few days later, Sutton informed Dr. Leazenby that “[t]hings have worsened,” and Dr. Leazenby recommended additional testing with a focus on nutrient levels and mold toxicity. BEI's App. Vol. 2 p. 81. On May 31, Sutton submitted a work-order request stating that a window in her living room was leaking and leaving a “brown stain each time after a rain.” Dillon's App. Vol. 3 p. 117. In early June, a “window expert” visited Sutton's apartment with a maintenance worker from The Quarry. Dillon's App. Vol. 2 p. 16. The window expert “saw separation at the top” of Sutton's living-room window and other “evidence[ ] of leakage.” Id. Sutton confirmed this in an email to River North on June 24, 2019, in which she stated that “the window guys were onsite a couple weeks ago” and “saw some spots of leakage in [her] living room window that needed checked.” Dillon's App. Vol. 3 p. 127.

[5] In late October of 2019, Sutton submitted a urine sample to Dr. Leazenby for mycotoxin testing, which confirmed mold toxicity. Around the same time, on October 26, Sutton noticed a “water stain” below one of her windows after it rained, so she arranged to have her apartment tested for mold. Dillon's App. Vol. 2 p. 38; see also BEI's App. Vol. 2 pp. 67-69. On November 3, Sutton messaged Dr. Leazenby and said the test results were forthcoming, but “[p]reliminarily they found what looks like mold in [her] HVAC unit, and the drywall was wet (a week after the initial visible water damage on 10/26 ․ ).” BEI's App. Vol. 2 p. 67.¹

[6] On June 28, 2021, Sutton filed a complaint against River North alleging negligence and breach of the warranty of habitability. In its answer, River North named as non-parties Dale Dillon Construction Group, Inc., the general contractor that built The Quarry, and BEI Construction, LLC, a subcontractor of Dillon. On November 19, 2021, Sutton amended her complaint to add Dillon and BEI as defendants, claiming that they negligently performed work for River North.²

[7] Sutton gave a deposition in October 2024. She testified that it was first “confirmed that there was actual mold in her apartment ․ around October 26th or 27th” of 2019, when she discovered the “water stain” after it had rained. Dillon's App. Vol. 2 p. 38. Sutton also noted that “[i]t was right around that timeframe” when she received her mycotoxin test results from Dr. Leazenby. Id.

[8] River North, Dillon, and BEI moved for summary judgment, arguing that Sutton's claims were barred by the two-year statute of limitations. In opposition, Sutton argued that she wasn't put on notice of the mold in her apartment until October 26 or 27, 2019. She also claimed that, under Indiana's discovery rule, she couldn't have known or discovered that Dillon and BEI were potentially liable until River North named them as non-parties in its answer.

[9] After holding a hearing on the motions, the trial court granted summary judgment for River North, Dillon, and BEI, concluding that Sutton's claims were time-barred. Sutton moved to correct error, which the trial court denied.

[10] Sutton now appeals.

Discussion and Decision

[11] Sutton contends that the trial court erred in granting summary judgment for River North, Dillon, and BEI. We review a motion for summary judgment de novo, applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). That is, “The judgment sought shall be rendered forthwith if the designated evidentiary matter 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). All facts and reasonable inferences therefrom must be construed in the light most favorable to the nonmovant. Anonymous Physician v. Wininger, 998 N.E.2d 749, 751 (Ind. Ct. App. 2013).

[12] The statute-of-limitations defense is particularly suitable as a basis for summary judgment. Id. “When the moving party asserts the statute of limitations as an affirmative defense and establishes that the action was commenced beyond the statutory period, the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense.” Id. The parties agree that the applicable statute of limitations is two years. See Ind. Code § 34-11-2-4(a).

I. The trial court did not err in granting summary judgment for River North

[13] Sutton first argues that the trial court erred in finding that her claims against River North were time-barred, asserting that she filed them within two years of discovering her injury. Under Indiana's discovery rule, “the cause of action of a tort claim 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.” Groce v. Am. Fam. Mut. Ins. Co., 5 N.E.3d 1154, 1156 (Ind. 2014), reh'g denied. “For an action to accrue, it is not necessary that the full extent of the damage be known or even ascertainable, but only that some ascertainable damage has occurred.” Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1280 (Ind. 2009). In other words, plaintiffs need not “know with precision the legal injury that has been suffered”; rather, the discovery rule “merely anticipates that a plaintiff be possessed of sufficient information to cause him to inquire further in order to determine whether a legal wrong has occurred.” Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind. Ct. App. 2006).

[14] In 2018, the year after she moved into The Quarry, Sutton began experiencing a variety of symptoms including weight loss, fatigue, abdominal pain, nausea, diarrhea, headaches, light-headedness, brain fog, and sinus issues. That December, Sutton saw an allergist because she “believe[d] that she may be more exopsed [sic] to mold or another allergen” after moving to a new office at work. The allergist “suspect[ed] mold,” and indeed, Sutton's allergy test revealed that she is allergic to mold. In January 2019, Sutton's office was tested for mold, but the indoor counts were lower than those outdoors. Sutton stopped working in the office that February, but her symptoms continued, and she was granted disability benefits through her employer. She was also granted federal disability benefits, and the Social Security Administration found that she'd been disabled since February 23, 2019. On May 15, 2019, Sutton emailed River North that she found “fuzzy mold” on her bedroom windows. A few days later, Dr. Leazenby recommended additional testing with a focus on nutrient levels and mold toxicity because Sutton's symptoms had worsened. On May 31, Sutton submitted a work-order request stating that a window in her living room was leaking and leaving a “brown stain” each time it rained. Then, in early June, a “window expert ․ saw separation at the top” of Sutton's living-room window and other evidence of leakage, and Sutton relayed this to River North in an email on June 24, 2019.

[15] Any one of these events arguably could have put Sutton on notice that she'd suffered injury due to mold exposure. But even viewing the facts in the light most favorable to Sutton, she certainly knew (or should have known) of her mold-related injury by May 15, 2019, when she emailed River North that there was “fuzzy mold” on her bedroom windows—several months after she learned that she wasn't being exposed to mold in her office. At the very least, the events on and before June 24, 2019, taken together, provided Sutton with sufficient information to cause her to inquire further to determine whether a legal wrong had occurred. But Sutton filed her complaint against River North on June 28, 2021, more than two years later.

[16] Notably, Sutton doesn't address any of these events in her brief. Instead, based on her deposition testimony that “it was confirmed that there was actual mold in her apartment ․ around October 26th or 27th” of 2019, and that her testing with Dr. Leazenby revealed mold exposure around the same time, she contends that she “was placed (for the first time) on notice of the mold in her apartment” on October 26 or 27, 2019. Appellant's Br. p. 10. But as just explained, Sutton was placed on notice months before then because she saw mold in her apartment in May 2019. When Sutton was formally diagnosed with mold toxicity or when testing confirmed the presence of mold in her apartment doesn't dictate when the statute of limitations began to run because, as noted above, the discovery rule doesn't require a plaintiff to know with precision the legal injury that has been suffered.

[17] Contrary to Sutton's argument, by pointing to the October 2019 developments, she hasn't “created a genuine issue of material fact for a jury's consideration,” id.; she has merely ignored the evidence that refutes her version of events. Because Sutton failed to establish an issue of material fact to overcome River North's statute-of-limitations defense, the trial court did not err in granting summary judgment for River North.

II. The trial court did not err in granting summary judgment for Dillon and BEI

[18] Sutton also argues that the discovery rule precludes summary judgment for Dillon and BEI because she had no way of knowing that they might be liable for her injury until River North named them as non-parties in its answer to her initial complaint. But “the onus of bringing suit against the proper party within the statute of limitation is upon the claimant.” Brown v. Vanderburgh Cnty. Sheriff's Dep't, 85 N.E.3d 866, 869 (Ind. Ct. App. 2017) (quotation omitted). As BEI points out, although Sutton claims she had “no way of knowing” Dillon or BEI might be liable, there is no evidence that she made any attempt to identify other responsible parties before filing her complaint or “that she was unable to do so due to impossibility.” BEI's Br. p. 12. And although Sutton asserts that she “immediately” amended her complaint after River North named Dillon and BEI as non-parties, Appellant's Br. p. 6, River North filed its answer on August 30, 2021, but Sutton didn't move for leave to file her amended complaint until October 28, 2021, nearly two months later. See Appellant's App. Vol. 2 pp. 7-8.

[19] Further, Sutton's argument misapplies the discovery rule. Our court rejected a materially identical argument in Rieth-Riley Construction Co. v. Gibson, 923 N.E.2d 472 (Ind. Ct. App. 2010). There, Gibson was in a car accident and timely sued the other driver. More than two years after the accident, Gibson learned that the driver had been employed by Rieth-Riley at the time of the accident and added Rieth-Riley as a defendant. Gibson argued that, under the discovery rule, his cause of action against Rieth-Riley didn't accrue until he discovered the other driver's employment there. We noted that accepting this argument would mean “tolling the statute of limitation in personal injury cases until a plaintiff discovers every defendant who might be legally liable for his or her injury,” which is inconsistent with the purpose of the discovery rule. Id. at 476. We explained:

The discovery rule is not intended to toll the limitation period until optimal litigation conditions can be established. Rather, as we stated previously, the purpose of the discovery rule is to limit the injustice that would arise by requiring a plaintiff to bring his or her claim within the limitation period during which, even with due diligence, he or she could not be aware a cause of action exists. Therefore, we decline to extend the discovery rule to apply to cases like this one where the indeterminate fact is not the existence of an injury, but rather the identity of a tortfeasor.

Id. at 476-77.

[20] Sutton doesn't acknowledge our holding in Rieth-Riley but relies on Habig v. Bruning, 613 N.E.2d 61 (Ind. Ct. App. 1993), trans. denied. There, we reversed the grant of summary judgment for the defendant, Bruning, on statute-of-limitations grounds, holding that there was a “sufficient ․ factual dispute regarding when the Habigs, in the exercise of due diligence, could have discovered the damage to their real property allegedly caused by Bruning.” Id. at 65. Sutton claims that the facts here “are directly on point with Habig.” Appellant's Br. p. 12. But the issue there was when the plaintiffs’ injury became discoverable, not the identity of the tortfeasor or a later attempt to add additional defendants. By Sutton's own argument, the indeterminate fact at the time she filed her initial complaint was not the existence of an injury but the identities of Dillon and BEI as possible tortfeasors. As explained in Rieth-Riley, the discovery rule doesn't extend Sutton's statute-of-limitations deadline as to Dillon and BEI simply because she learned of their potential liability sometime after she discovered her injury. See Richards-Wilcox, Inc. v. Cummins, 700 N.E.2d 496, 498 (Ind. Ct. App. 1998) (“That [the plaintiffs] did not determine until over two years later the actual identity of the party causing the injury did not suspend the running of the statute of limitations.”).

[21] Because Sutton did not file her amended complaint until after the statute of limitations had expired, the trial court did not err in granting summary judgment for Dillon and BEI.³

[22] Affirmed.

FOOTNOTES

1.   Sutton doesn't mention this test in her Appellant's Brief, and there is no evidence of the test results in the record. Additionally, the record doesn't indicate what happened, if anything, between Sutton's June 2019 email to River North about the window leak and the October 2019 events.

2.   River North also named MJJ Construction, LLC, RL Construction, LLC, and APG Construction, LLC, as non-parties, and Sutton added them as defendants. But these parties did not participate at the trial-court level and therefore are not parties to this appeal.

3.   Sutton also claims, without further argument, that “[Indiana Trial Rule] 15(C) affords [her] the ability to relate back her Amended Complaint to the date of filing her initial Complaint.” Appellant's Br. p. 7. But as explained above, Sutton's initial complaint was untimely, so relation back wouldn't save her claims against Dillon and BEI.

Vaidik, Judge.

Bailey, J., and Scheele, J., concur.