United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL
PATRICK HANLON, UNITED STATES DISTRICT JUDGE
David Gardner and Diane Herron filed this lawsuit after a
home they were having built was not completed. They have
moved for partial summary judgment against the builder, Paul
Bisker Contracting, Inc., dkt. , which has not appeared
in this case. For the reasons below, that motion is
Rule 56(a), the Court views and recites the evidence
“in the light most favorable to the non-moving party
and draw[s] all reasonable inferences in that party's
favor.” Zerante v. DeLuca, 555 F.3d 582, 584
(7th Cir. 2009) (citation omitted). Paul Bisker Contracting,
Inc. has not responded to Mr. Gardner and Ms. Herron's
motion for partial summary judgment, so the Court treats Mr.
Gardner and Ms. Herron's supported factual assertions as
uncontested. See S.D. Ind. L.R. 56-1(b), (f);
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).
25 years in the Cleveland, Ohio area, Mr. Gardner and Ms.
Herron retired and decided to move back to Ms. Herron's
hometown of Richmond, Indiana. Dkt. 65-1 at 22 (Herron Dep.
at 83). In March 2016, Mr. Gardner and Ms. Herron chose Paul
Bisker Contracting, Inc. to build their retirement home. Dkt.
65-1 at 22 (Herron Dep. at 83); dkt. 65-3. Defendants Paul
Bisker and Paul Bisker Contracting, Inc. ran into financial
troubles and stopped nearly all work on the house. Dkt. 65-7
at 11-12 (Paul Bisker Dep. at 38-41); dkt. 65-10 at 1 (Paula
Bisker Dep. at 16). In early 2017, Mr. Bisker told Mr.
Gardner and Ms. Herron that he would not be able to continue
construction. Dkt. 65-6 at 5 (Paul Bisker Dep. at 15-16).
Gardner and Ms. Herron sued Kyle Tom II, Mr. Bisker, and Paul
Bisker Contracting, Inc., asserting claims for: (1) breach of
contract, (2) common law conversion, (3) criminal conversion,
(4) criminal deception, (5) money had and received, and (6)
negligence. Dkt. 1. Mr. Gardner and Ms. Herron moved for
partial summary judgment against Paul Bisker Contracting,
Inc. on the breach of contract claim.
judgment should be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party must inform the court
“of the basis for its motion” and specify
evidence demonstrating “the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party meets this
burden, the nonmoving party must “go beyond the
pleadings” and identify “specific facts showing
that there is a genuine issue for trial.” Id.
ruling on a motion for summary judgment, the Court views the
evidence “in the light most favorable to the non-moving
party and draw[s] all reasonable inferences in that
party's favor.” Zerante, 555 F.3d at 584
law governs Mr. Gardner and Ms. Herron's breach of
contract claim. SeeWallace v. McGlothan,
606 F.3d 410, 418 (7th Cir. 2010). “The essential
elements of a breach of contract action are the existence of
a contract, the defendant's breach thereof, and
damages.” Berke ...