                                                                                 Feb 10 2016, 7:26 am
      OPINION ON REHEARING




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Jason R. Delk                                              Cynthia A. Marcus
      Delk McNally LLP                                           Marcus Law Firm, LLC
      Muncie, Indiana                                            Fishers, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Thomas A. Ambrose II,                                      February 10, 2016
      Appellant,                                                 Court of Appeals Case No.
                                                                 29A02-1407-CC-479
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court
      Dalton Construction, Inc.,                                 The Honorable William J. Hughes,
      Appellee                                                   Judge
                                                                 Trial Court Cause No.
                                                                 29D03-1202-CC-1996



      Robb, Judge.


[1]   In Ambrose v. Dalton Construction, Inc., 2015 WL 5320346 (Ind. Ct. App. Sept.

      14, 2015), we concluded the trial court properly denied Thomas Ambrose’s

      motion for summary judgment and properly entered final judgment in favor of

      Dalton Construction, Inc., on Dalton Construction’s complaint to foreclose a




      Court of Appeals of Indiana | Opinion on Rehearing 29A02-1407-CC-479 | February 10, 2016          Page 1 of 5
      mechanic’s lien. Ambrose filed a petition for rehearing, 1 contending, in part,

      that our decision is erroneous to the extent it was based on alleged oral

      modifications to the contract between the parties. We grant rehearing to clarify

      our opinion with regard to this issue.


[2]   To reiterate the facts briefly, Ambrose contracted with Dalton Construction to

      build a pool at his home. The location of the pool was shown on a plot plan

      that was required by the city. Dalton Construction actually built the pool in a

      different location, however, claiming Ambrose’s wife orally changed the

      location of the pool when it began work. Ambrose, for this reason and others,

      refused to pay Dalton Construction for its work, precipitating this lawsuit.

      Ambrose counterclaimed for breach of contract and filed a motion for summary

      judgment asserting Dalton Construction committed the first material breach of

      the contract by not building the pool where the plot plan showed it. The trial

      court denied summary judgment, and following a bench trial ruled in favor of

      Dalton Construction, based in part on its finding that although the pool was not

      constructed in the location depicted in the plot plan, the plot plan was not part

      of the contract, and the contract did not specify the location of the pool.


[3]   On appeal, Ambrose argued in part that whether or not Mrs. Ambrose had

      orally changed the location of the pool—an allegation she denied—was

      irrelevant because the contract contained a “no oral modifications” provision.




      1
          Dalton Construction did not file a response.


      Court of Appeals of Indiana | Opinion on Rehearing 29A02-1407-CC-479 | February 10, 2016   Page 2 of 5
      We held the denial of summary judgment was not in error because whether or

      not the plot plan was part of the contract, there was a genuine issue of material

      fact as to whether the location for the pool had been orally modified, despite the

      “no oral modifications” provision of the contract. For a similar reason, we also

      held the trial court’s judgment was not in error because the trial court settled the

      factual question in Dalton Construction’s favor. In both instances, we cited Sees

      v. Bank One, Ind., N.A., 839 N.E.2d 154, 161 (Ind. 2005), for the proposition that

      even contract provisions requiring modifications to be in writing can be orally

      modified.


[4]   On rehearing, Ambrose cites caselaw stating that if a contract is required to be

      in writing, then any modifications also have to be in writing. See Appellant’s

      Petition for Rehearing at 5 (citing Huber v. Hamilton, 33 N.E.3d 1116, 1123 (Ind.

      Ct. App. 2015), trans. denied). In turn, he cites the Indiana Home Improvement

      Contract Act (“HICA”) to support his assertion that this contract was required

      to be in writing. See id. at 6 (citing Ind. Code ch. 24-5-11). We first note that

      despite the alleged oral modification of the pool location being an issue both at

      trial and on appeal, Ambrose did not previously raise HICA to support any of

      his arguments. We also note that HICA defines a “home improvement

      contract” as “an agreement, oral or written . . . to make a home improvement

      and for which the contract price exceeds one hundred fifty dollars ($150).” Ind.

      Code § 24-5-11-4 (emphasis added). However, it also states that “[a]

      modification to a home improvement contract is not enforceable against a consumer




      Court of Appeals of Indiana | Opinion on Rehearing 29A02-1407-CC-479 | February 10, 2016   Page 3 of 5
      unless the modification is stated in a writing that is signed by the consumer.” Ind.

      Code § 24-5-11-10(d) (emphasis added).


[5]   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.2 This does

      not change the result, however. A violation of HICA only makes the contract

      unenforceable against the consumer. Cyr v. J. Yoder, Inc., 762 N.E.2d 148, 152

      (Ind. Ct. App. 2002) (setting aside a damage award in favor of contractors

      where the home improvement contract failed to comply with HICA

      requirements). However, in the absence of a contract, a party may still recover

      under a theory of unjust enrichment. Troutwine Estates Dev. Co., LLC v. Comsub

      Design & Eng’g, Inc., 854 N.E.2d 890, 897 (Ind. Ct. App. 2006), trans. denied. 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. McCorry v. G. Cowser Constr.,

      Inc., 636 N.E.2d 1273, 1281 (Ind. Ct. App. 1994), adopted 644 N.E.2d 550 (Ind.

      1994). Non-compliance with HICA does not preclude such equitable remedies.


[6]   Subject to the above clarification, we affirm our opinion in all respects.




      2
        One of the issues on appeal, which we did not explicitly address, was whether the location of the pool was
      specified in the contract. The trial court found that it was not, and if we were to agree with the trial court,
      then changing the location of the pool from that shown on the plot plan was not a modification to the
      contract at all.

      Court of Appeals of Indiana | Opinion on Rehearing 29A02-1407-CC-479 | February 10, 2016             Page 4 of 5
May, J., and Mathias, J., concur.




Court of Appeals of Indiana | Opinion on Rehearing 29A02-1407-CC-479 | February 10, 2016   Page 5 of 5
