Ambrose v. Dalton Const., Inc. (IN)

Summary: Based on the terms of the contract, homeowner who took unauthorized possession of a pool built by contractor constituted his acknowledgment that the structure was complete, thus obligating him to pay amount due under the contract.

Ambrose v. Dalton Const., Inc., 44 N.E.3d 707 (Ind. Ct. App. 2015) as clarified on reh'g (Ind. Ct. App. 2016).

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Facts:  Ambrose contracted with Dalton Construction to build an in-ground swimming pool and deck at the Ambrose home. Dalton Construction's president, Kevin Bonnet, met with Ambrose and Ambrose's wife, Denise, before the parties signed the pool contract. Prior to the execution of the contract, Bonnet discussed every item in the proposal “[l]ine by line” with the Ambroses. After several discussions, the parties entered into a construction contract.

When Bonnet and his crew arrived at the Ambrose home with their equipment ready to begin excavation, Denise told Bonnet that she wanted to move the location of the pool. Bonnet and his crew restaked the pool in the new location and remarked the pool and pool deck boundaries. The Ambroses monitored the building of the pool almost every day. Between the beginning of excavation and the day work ceased on the pool over a month later, the Ambroses never informed Dalton Construction that the pool was in the wrong location. Ambrose made all payments as per the contract's payment schedule up until work on the pool ceased.

Toward the completion of the pool’s construction, Denise became irate about several aesthetic aspects of the pool. Bonnet met with Ambrose in October to attempt to resolve the issues in order to complete the project. Ambrose demanded that Dalton Construction demolish the pool and replace it. Ambrose also refused to pay the balance due on the contract until the pool was replaced. Bonnet declined to replace the pool, but offered to finish the work according to the contract. Ambrose refused that offer, and would only allow Dalton Construction onto his property to replace the pool.

Dalton Construction filed a mechanic's lien against Ambrose's property, and litigation commenced. The trial court denied Ambrose's motion for summary judgment concerning Dalton Construction’s alleged breach of the contract, and eventually entered judgment in favor of Dalton Construction. Ambrose appealed.


Holding: Affirmed.  There were two issues raised on appeal: 1) whether the trial court properly denied Ambrose summary judgment because a genuine issue of material fact existed as to whether Dalton Construction breached the contract; and 2) whether the trial court's findings and conclusions that Ambrose first breached the contract, that the contract called for a certain shaped pool, and Dalton Construction was entitled to payment upon Ambrose's unauthorized occupancy of the pool were clearly erroneous.

First, concerning whether the trial court properly denied Ambrose summary judgment, the court found that the trial court did not err. In its materials designated in opposition to summary judgment, Dalton Construction showed that the location of the pool was determined at the build site by the Ambroses. On the day that excavation of the pool was to commence, Denise asked Dalton Construction to change the location of the pool, which was done. Ambrose denied that Denise directed Dalton Construction to change the location of the pool. Therefore, a genuine issue of material fact existed regarding where the pool was to be located, precluding summary judgment. The court also found unpersuasive Ambrose's argument that the parties could not have orally modified the contract because the contract stated that modifications had to be in writing. The court stated that such contract provisions themselves could be orally modified.

Second, concerning whether the trial court’s findings were clearly erroneous, the court held that they were not. Whatever the parties intended when they entered into the written contract was modified when, as found by the trial court, Denise requested that the pool be moved on the day excavation was to begin. The court would not second-guess the trial court by reassessing the credibility of the witnesses or reweighing the evidence. Therefore, trial court's conclusion that the Ambroses chose the location of the pool was not clearly erroneous.

Additionally, the trial court found that “[b]y taking possession of the pool Ambrose acknowledged the pool was complete and released the contractor from further obligation at that point the sums under the contract became due in full.” Ambrose claimed the trial court incorrectly interpreted the contract and that its findings were clearly erroneous. The court found, however, that an examination of the contract and the facts showed that Ambrose's claim was without merit. According to the unambiguous terms of the contract, unauthorized possession of the structure by Ambrose constituted his acknowledgement that the structure was complete, triggering his obligation to pay according to the payment schedule.

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By: ATG Underwriting Department | Posted on: Wed, 10/05/2016 - 12:12pm