Notice Pleading

ARC Construction Management, LLC v. Zelenak (Ind. Ct. App. Feb. 27, 2012)

- Originally published February 17, 2012

This case demonstrates the difficulties Indiana’s notice pleading rule sometimes causes parties seeking summary judgment. In ARC Construction, the defendant construction company sought summary judgment on the plaintiff’s claims stemming from arguably defective construction work on the plaintiff’s home. The plaintiff’s complaint stated claims for fraud, breach of warranty, negligence, and deceptive sales. The construction company sought summary judgment. After the summary judgment hearing, the homeowners filed a brief asking the court to grant summary judgment on all issues except the loss of use and breach of implied warranty of habitability. Although the homeowner’s complaint did not explicitly make these claims, the Court concluded that the factual allegations were sufficient to put the construction company on notice. The Court also concluded that the homeowners had the standing to pursue these claims despite the fact that a bank had foreclosed the homeowners’ mortgage on the home.

This case demonstrates that a party moving for summary judgment often has the burden of anticipating claims the plaintiff has not explicitly identified. This rule can lead to strategic conundrums. On the one hand, a defendant does not want to raise arguments a plaintiff would never have made. On the other, moving for summary judgment on only claims specifically made can lead to the situation in ARC Construction, where the plaintiff files a post-hearing brief essentially identifying new claims supported by already-pled facts.

One way to help avoid this problem may be to issue discovery specifically asking a plaintiff what claims or theories are at issue, i.e., “are you making a claim for loss of use?” or “please identify all theories under which you seek relief.” These interrogatories may lead to a “discovery is just beginning” response, but could help narrow the issues for summary judgment.

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