ILNews

Court properly preserved home habitability claim

Back to TopCommentsE-mailPrint

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.


 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

ADVERTISEMENT