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Court properly preserved home habitability claim

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The Indiana Court of Appeals has found that a Clark County case can continue involving claims against a home construction company. The former homeowners allege that the company defectively built their home and that mold and water damage occurred, leading to loss of habitability.

In Arc Construction Management, LLC, and Alan Muncy v. John Zelenak and Cecilia Zelenak, No 10A01-1106-CT-247, the appellate court affirmed a Clark Superior Court’s ruling to not dismiss the case involving a newly constructed home in Floyd County.

John and Cecilia Zelenak bought the home in 2004. Four years later, they filed a complaint against ARC Construction Management that alleged the company breached the contract by not constructing the home in a structurally sound manner and building it contrary to building code. Specifically, the suit alleged the windows and doors weren’t properly installed or were defective, the lintels remain unpainted, one rafter was missing, electrical wires were left exposed, and there was water intrusion that damaged personal property inside. The Zelenaks wanted ARC to cover the losses and pay punitive damages in order to deter similar conduct in the future.

In 2010, the Zelenaks foreclosed on their home and ARC filed a motion to dismiss on grounds that they lacked standing after foreclosing on their ownership. Although the Zelenaks conceded the foreclosure barred most of their claims, they argued that they still had standing to bring a claim concerning the loss of use and enjoyment in the house during their time there due to the water intrusion. The trial court preserved that claim but granted summary judgment in ARC’s favor on the remaining issues, and the court then certified the order for interlocutory appeal.

On appeal, the three-judge panel found that ARC had adequate notice of the implied warranty breach claim because it was alleged in the amended complaint. The court found the Zelenaks have standing because they are alleging damage sustained as a result of ARC’s defective construction, and the panel determined a genuine issue exists for trial on that claim of habitability.

The court also denied a request for attorney fees from the Zelenaks, finding that ARC’s failure to include exhibits in its appendix weren’t so flagrant or significant to warrant those fees.


 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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