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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA Hoosier foundation services company that secured a ruling against new homeowners in a warranty dispute stemming from issues with leaking basement wall prevailed Friday in the Hamilton County homeowners’ appeal.
One year after moving into their newly purchased home, Shannon and Brandon Gehlhausen sued Indiana Foundation Service, Inc., a firm the sellers had engaged to evaluate and repair a bowing basement wall in the house causing water to leak inside. The Gehlhausens acquired a warranty the sellers had earlier received from Indiana Foundation for the bowing wall.
But after three years of discovery and preliminary proceedings, the Hamilton Superior Court granted Indiana Foundation summary judgment. The trial court made its decision based on evidence that the wall had not bowed since the repair, which was a promise made in the warranty.
In affirming the trial court, the Indiana Court of Appeals concluded that designated evidence established a prima facie case that there was no dispute of material fact as to whether Indiana Foundation breached the warranty. The appellate court further noted that the Gehlhausens’ designated report from engineer Daniel Johnson said nothing about whether the wall shifted into the basement before or after Indiana Foundation installed its wall anchor system.
“Without evidence as to whether the wall anchor system failed, the Gehlhausens have failed to present a different account of events that would require a resolution by a trier of fact,” Senior Judge Randall Shepard wrote for the appellate court. “As Chief Justice Rush observed for a unanimous court in (Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014)), even a ‘perfunctory and self-serving affidavit’ by a non-movant may defeat summary judgment if it specifically controverts the facts offered by the moving party. The affidavit by the Gehlhausens’ engineer did not do so.”
The trial court’s ruling in Shannon Gehlhausen, et al. v. Indiana Foundation Service, Inc., 19A-CT-00842, was therefore affirmed.
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