ILNews

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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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