Wednesday, February 10, 2016
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decision(s))
For publication opinions today (2):
In Thomas A. Ambrose II v. Dalton Construction, Inc., a 5-page opinion on rehearing, Judge Robb writes:
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 mechanic’s lien. Ambrose filed a petition for rehearing, 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. * * *In Health and Hospital Corporation of Marion County v. Dennis Foreman , a 6-page opinion, Judge May writes:
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. * * *
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. * * *
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. 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.
Subject to the above clarification, we affirm our opinion in all respects.
Health and Hospital Corporation of Marion County (HHC) appeals an interlocutory order granting Dennis Foreman a change of judge. * * *NFP civil decisions today (5):
Because the provisions of Ind. Code § 16-22-8-31(e) and Ind. Code § 34-35-3-3 required Foreman to file an affidavit concerning why he wanted a change of judge, and Foreman did not do so, the trial court erred when it granted Foreman’s request for change of judge. We accordingly reverse and remand for proceedings consistent with this opinion.
NFP criminal decisions today (2):
Posted by Marcia Oddi on February 10, 2016 11:01 AM
Posted to Ind. App.Ct. Decisions