Thomas A. Ambrose II v. Dalton Construction, Inc. , 2016 Ind. App. LEXIS 35 ( 2016 )

Feb 10 2016, 7:26 am
OPINION ON REHEARING
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jason R. Delk Cynthia A. Marcus
Delk McNally LLP Marcus Law Firm, LLC
Muncie, Indiana Fishers, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas A. Ambrose II, February 10, 2016
Appellant, Court of Appeals Case No.
29A02-1407-CC-479
v. Appeal from the Hamilton
Superior Court
Dalton Construction, Inc., The Honorable William J. Hughes,
Appellee Judge
Trial Court Cause No.
29D03-1202-CC-1996
Robb, Judge.
[1] In Ambrose v. Dalton Construction, Inc., 2015 WL 5320346 (Ind. Ct. App. Sept.
14, 2015), we concluded the trial court properly denied Thomas Ambrose’s
motion for summary judgment and properly entered final judgment in favor of
Dalton Construction, Inc., on Dalton Construction’s complaint to foreclose a
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mechanic’s lien. Ambrose filed a petition for rehearing, 1 contending, in part,
that our decision is erroneous to the extent it was based on alleged oral
modifications to the contract between the parties. We grant rehearing to clarify
our opinion with regard to this issue.
[2] To reiterate the facts briefly, Ambrose contracted with Dalton Construction to
build a pool at his home. The location of the pool was shown on a plot plan
that was required by the city. Dalton Construction actually built the pool in a
different location, however, claiming Ambrose’s wife orally changed the
location of the pool when it began work. Ambrose, for this reason and others,
refused to pay Dalton Construction for its work, precipitating this lawsuit.
Ambrose counterclaimed for breach of contract and filed a motion for summary
judgment asserting Dalton Construction committed the first material breach of
the contract by not building the pool where the plot plan showed it. The trial
court denied summary judgment, and following a bench trial ruled in favor of
Dalton Construction, based in part on its finding that although the pool was not
constructed in the location depicted in the plot plan, the plot plan was not part
of the contract, and the contract did not specify the location of the pool.
[3] On appeal, Ambrose argued in part that whether or not Mrs. Ambrose had
orally changed the location of the pool—an allegation she denied—was
irrelevant because the contract contained a “no oral modifications” provision.
1
Dalton Construction did not file a response.
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We held the denial of summary judgment was not in error because whether or
not the plot plan was part of the contract, there was a genuine issue of material
fact as to whether the location for the pool had been orally modified, despite the
“no oral modifications” provision of the contract. For a similar reason, we also
held the trial court’s judgment was not in error because the trial court settled the
factual question in Dalton Construction’s favor. In both instances, we cited Sees
v. Bank One, Ind., N.A., 839 N.E.2d 154, 161 (Ind. 2005), for the proposition that
even contract provisions requiring modifications to be in writing can be orally
modified.
[4] On rehearing, Ambrose cites caselaw stating that if a contract is required to be
in writing, then any modifications also have to be in writing. See Appellant’s
Petition for Rehearing at 5 (citing Huber v. Hamilton, 33 N.E.3d 1116, 1123 (Ind.
Ct. App. 2015), trans. denied). In turn, he cites the Indiana Home Improvement
Contract Act (“HICA”) to support his assertion that this contract was required
to be in writing. See id. at 6 (citing Ind. Code ch. 24-5-11). We first note that
despite the alleged oral modification of the pool location being an issue both at
trial and on appeal, Ambrose did not previously raise HICA to support any of
his arguments. We also note that HICA defines a “home improvement
contract” as “an agreement, oral or written . . . to make a home improvement
and for which the contract price exceeds one hundred fifty dollars ($150).” Ind.
Code § 24-5-11-4 (emphasis added). However, it also states that “[a]
modification to a home improvement contract is not enforceable against a consumer
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unless the modification is stated in a writing that is signed by the consumer.” Ind.
Code § 24-5-11-10(d) (emphasis added).
[5] To the extent our decision could be interpreted otherwise, we hereby clarify that
there is a statutory requirement that modifications to a home improvement
contract must be in writing, notwithstanding the language in Sees.2 This does
not change the result, however. A violation of HICA only makes the contract
unenforceable against the consumer. Cyr v. J. Yoder, Inc., 762 N.E.2d 148, 152
(Ind. Ct. App. 2002) (setting aside a damage award in favor of contractors
where the home improvement contract failed to comply with HICA
requirements). However, in the absence of a contract, a party may still recover
under a theory of unjust enrichment. Troutwine Estates Dev. Co., LLC v. Comsub
Design & Eng’g, Inc., 854 N.E.2d 890, 897 (Ind. Ct. App. 2006), trans. denied. A
mechanic’s lien, which was the basis for Dalton Construction’s complaint here,
is a statutory lien meant to prevent unjust enrichment of property owners who
enjoy material improvements to their property. McCorry v. G. Cowser Constr.,
Inc., 636 N.E.2d 1273, 1281 (Ind. Ct. App. 1994), adopted 644 N.E.2d 550 (Ind.
1994). Non-compliance with HICA does not preclude such equitable remedies.
[6] Subject to the above clarification, we affirm our opinion in all respects.
2
One of the issues on appeal, which we did not explicitly address, was whether the location of the pool was
specified in the contract. The trial court found that it was not, and if we were to agree with the trial court,
then changing the location of the pool from that shown on the plot plan was not a modification to the
contract at all.
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May, J., and Mathias, J., concur.
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