The Indiana Court of Appeals granted a homeowner’s request for rehearing, but reaffirmed that he is not entitled to summary judgment over the installation of a pool in an allegedly incorrect location.
Thomas Ambrose contracted with Dalton Construction to build a pool at his home. The location of the pool was shown on a plot plan required by the city. But during the construction, Ambrose’s wife allegedly orally changed the location of the pool. Ambrose refused to pay since the pool was not constructed where it was planned, so Dalton sued.
Ambrose argued it did not matter whether his wife orally changed the location of the pool because the contract contained a “no oral modifications” provision. The trial court ruled in favor of Dalton Construction. The Court of Appeals affirmed in September.
On rehearing, Ambrose cited the Indiana Home Improvement Contract Act to support his assertion that this contract was required to be in writing, an argument he raised for the first time.
“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 v. Bank One, Ind., N.A., 839, N.E.2d 154, 161 (Ind. 2005)). This does not change the result, however. A violation of HICA only makes the contract unenforceable against the consumer. However, in the absence of a contract, a party may still recover under a theory of unjust enrichment. 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. Non-compliance with HICA does not preclude such equitable remedies,” Judge Margret Robb wrote in Thomas A. Ambrose II v. Dalton Construction, Inc., 29A02-1407-CC-479.