                                                                                 FILED
                                                                            Jan 17 2020, 10:01 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Jeffrey O. Meunier                                         Christopher D. Wyant
      Carmel, Indiana                                            Wyant Law Office, LLC
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Shannon Gehlhausen f/k/a                                   January 17, 2020
      Shannon Logan, and Brandon                                 Court of Appeals Case No.
      Gehlhausen,                                                19A-CT-842
      Appellants-Plaintiffs,                                     Appeal from the Hamilton
                                                                 Superior Court
              v.                                                 The Honorable Richard Campbell,
                                                                 Judge
      Indiana Foundation Service,                                Trial Court Cause No.
      Inc.,                                                      29D04-1603-CT-2114
      Appellee-Defendant.



      Shepard, Senior Judge.


[1]   In purchasing their new home, Shannon and Brandon Gehlhausen acquired a

      warranty the sellers had earlier received from Indiana Foundation Service, Inc.,

      a firm the sellers had engaged to evaluate and repair a bowing basement wall

      that permitted leakage.




      Court of Appeals of Indiana | Opinion 19A-CT-842 | January 17, 2020                            Page 1 of 7
[2]   After living in the home for a year and experiencing ongoing leakage, the

      Gehlhausens sued three parties: the sellers, a home inspection firm, and

      Indiana Foundation. Only the last of these defendants is still in the litigation.


[3]   After three years of discovery and preliminary proceedings, the trial court

      granted Indiana Foundation summary judgment. The motion for summary

      judgment relied on evidence that the wall had not bowed since the repair, which

      was the promise made in the warranty. The homeowners said in depositions

      that they had no knowledge about whether the wall had bowed since Indiana

      Foundation’s repair.


[4]   We conclude that this meant there was no genuine issue of fact and that the

      trial court was correct to grant judgment to Indiana Foundation.


                                               Case History
[5]   In 2014, Daniel and Megan Murphy discovered water infiltration in their

      house’s basement and hired Indiana Foundation Service to investigate. IFS

      discovered that the basement’s east wall was bowing inward. It recommended

      installing a wall anchor system to stabilize the wall and also initially

      recommended a waterproofing system to address infiltration. During a second

      visit to the house, an IFS representative indicated the waterproofing system

      would not be needed, stating that the wall anchor system should also prevent

      water infiltration. As a result, the Murphys approved the wall anchor system

      but not the waterproofing system.



      Court of Appeals of Indiana | Opinion 19A-CT-842 | January 17, 2020        Page 2 of 7
[6]    IFS installed the wall anchor system on the east wall in September 2014 and

       issued a warranty against further movement by that wall. The warranty was

       transferable with the property, and we discuss its terms in more detail below.


[7]    In January 2015, the Murphys put their home up for sale. The Gehlhausens

       wanted to buy the house, and the parties negotiated a purchase agreement.

       During the sale process, the Gehlhausens hired Indy Pro Inspection Service,

       Inc. to inspect the house and prepare a report.


[8]    On March 13, 2015, the Murphys and the Gehlhausens closed on the sale. The

       Murphys disclosed the wall anchor system and the warranty to the

       Gehlhausens. After the Gehlhausens moved in, water infiltrated the basement

       during rains, flowing from the east wall to the opposite end of the basement.


[9]    On March 10, 2016, the Gehlhausens sued the Murphys, IFS, and Indy Pro.

       They alleged that the Murphys defrauded them, that IFS breached its warranty,

       and that Indy Pro was negligent. Indy Pro filed a motion to dismiss, which the

       trial court granted with prejudice. The Gehlhausens later filed a stipulation of

       dismissal for their claim against the Murphys.


[10]   Meanwhile, IFS filed a motion for summary judgment, and the Gehlhausens

       responded. On February 15, 2019, the trial court granted IFS’s motion after a

       hearing. This appeal followed.




       Court of Appeals of Indiana | Opinion 19A-CT-842 | January 17, 2020      Page 3 of 7
                                                    Analysis
[11]   Orders for summary judgment are reviewed de novo, and we apply a similar

       standard of review as the trial court. AM Gen. LLC v. Armour, 46 N.E.3d 436

       (Ind. 2015). The movant must show “there is no genuine issue as to any

       material fact” and an entitlement to judgment as a matter of law. Ind. Trial

       Rule 56(C). Upon this showing, the nonmoving party then has the burden to

       demonstrate that there is a genuine issue of material fact. AM Gen., 46 N.E.3d

       436. “An issue of material fact ‘is genuine if a trier of fact is required to resolve

       the parties’ differing accounts of the truth.’” Hughley v. State, 15 N.E.3d 1000,

       1004 (Ind. 2014) (quoting Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)).

       We construe reasonable inferences in favor of the nonmoving party. Id.


[12]   “‘Any action based on breach of warranty requires evidence showing not only

       the existence of the warranty but that the warranty was broken and that the

       breach of warranty was the proximate cause of the loss sustained.’” Frantz v.

       Cantrell, 711 N.E.2d 856, 860 (Ind. Ct. App. 1999) (quoting Richards v. Goerg

       Boat and Motors, Inc., 179 Ind. App. 102, 109, 284 N.E.2d 1084, 1090 (Ind. Ct.

       App. 1979), overruled in part on other grounds by Hyundai Motor Am., Inc. v.

       Goodin, 822 N.E.2d 947 (Ind. 2005)).


[13]   Indiana Foundation does not dispute that its warranty transferred from the

       Murphys to the Gehlhausens with the sale of the house. The Gehlhausens

       acknowledge that the warranty is limited to protecting against “further inward




       Court of Appeals of Indiana | Opinion 19A-CT-842 | January 17, 2020          Page 4 of 7
       movement of the east wall of the basement.” Appellants’ Br. p. 9. More

       specifically, the warranty provides in relevant part:


               Contractor hereby warrants that the wall anchors will stop
               further inward movement of the wall(s) repaired for twenty-five
               (25) years from the date of installation, or else Contractor will
               provide the labor and materials, at no cost to Customer, to
               correct the problem with the wall anchors. Walls that are not
               anchored entirely from corner to corner, by Contractor, are not
               warranted. Anchors are warranted only to stabilize the affected
               wall(s) and not straighten them [sic]. If Customer desires further
               outward movement in the wall(s) repaired, Customer may
               tighten the installed anchors as recommended by the
               manufacturer, but assumes all liability for damages due to over-
               tightening of the anchors.


       Appellants’ App. Vol. 2, p. 117. Notably, the warranty does not address water

       infiltration.


[14]   In support of its motion for summary judgment, IFS designated portions of the

       Gehlhausens’ deposition testimony conceding that they had no personal

       knowledge that IFS’s wall anchors were substandard or defective. Id. at 44, 68.

       In addition, Brandon Gehlhausen agreed he “did not know of any witnesses”

       who would say that IFS’s work was substandard or defective, and Shannon

       Gehlhausen was not aware of any evidence that would suggest the anchoring

       system was defectively installed or failing. Id. at 44, 68. This evidence

       established a prima facie case that there was no dispute of material fact as to

       whether IFS breached the warranty.




       Court of Appeals of Indiana | Opinion 19A-CT-842 | January 17, 2020          Page 5 of 7
[15]   As a result, the Gehlhausens bore the burden of identifying a dispute of material

       fact as to whether the anchor system failed to stabilize the basement wall. They

       designated an affidavit and a report from Daniel Johnson, an engineer. He

       stated, in relevant part:


               4.       In my opinion the east wall of the basement has shifted
                        into the basement and the wall is not serviceable.


               5.       In my opinion the wall needs to be replaced or repaired
                        and the owners are facing significant costs to remedy the
                        defective condition of the wall.


       Id. at 123.


[16]   To be sure, Johnson concludes that IFS’s work was not adequate to fix

       structural issues in the basement, and he proposes additional solutions in his

       report. But our focus is on the terms of the warranty, and Johnson says nothing

       about whether the wall shifted into the basement before or after IFS 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. As Chief Justice Rush observed for

       a unanimous court in Hughley, 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. 15 N.E.3d at 1004 (defendant’s affidavit

       sufficient to establish dispute of fact; defendant directly, if summarily, disputed

       State’s claim that his money and car were involved in drug dealing). The

       affidavit by the Gehlhausens’ engineer did not do so.

       Court of Appeals of Indiana | Opinion 19A-CT-842 | January 17, 2020          Page 6 of 7
[17]   For the reasons stated above, we affirm the judgment of the trial court.


[18]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-842 | January 17, 2020        Page 7 of 7
