Court of Appeals of Indiana | Memorandum Decision 15A01-1709-PL-2061 | April 16, 2018 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Jennifer A. Joas

Madison, Indiana

ATTORNEY FOR APPELLEE

Leanna Weissmann

Lawrenceburg, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Timothy Probst,

Appellant-Plaintiff/CounterclaimDefendant,

v.

Jason Probst,

Appellee-Defendant/Counterclaimant.

April 16, 2018

Court of Appeals Case No.

15A01-1709-PL-2061

Appeal from the Dearborn 

Superior Court

The Honorable Jonathan N. 

Cleary, Judge

Trial Court Cause No.

15D01-1412-PL-76

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 15A01-1709-PL-2061 | April 16, 2018 Page 2 of 7

Case Summary

[1] Timothy Probst (“Tim”) initiated litigation against his brother, Jason Probst 

(“Jason”), alleging breach of an oral agreement to convey farm land to him as a 

co-owner. Tim sought the equitable remedy of specific performance and, in the 

alternative, sought compensation under a theory of unjust enrichment. 

Following a bench trial, the trial court ruled against Tim on these claims. Tim 

now appeals, presenting three issues, which we consolidate and restate as a 

single issue: whether the trial court erred in denying Tim’s requests for relief.

1

[2] We affirm.

Facts and Procedural History

[3] This litigation involves farm land in Aurora that previously belonged to the 

brothers’ deceased uncle, Gary Probst (“Gary”). During 2007 proceedings 

concerning Gary’s estate, interested parties reached a settlement agreement 

whereby Jason would receive the land in exchange for paying several 

obligations. Around this time, Jason and Tim agreed to farm the land together 

for a profit, and the brothers took steps to secure a $180,000 loan that would 

cover Jason’s new obligations; Tim pledged collateral, and the brothers

executed a bank note as general partners. Thereafter, Jason received the land 

 

1

In addition to ruling against Tim on the merits, the trial court articulated an additional basis for its 

decision—namely, that Tim was judicially estopped from asserting an interest in the land. The parties direct 

argument to the issue of judicial estoppel, however, we need not address this additional basis.
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by Personal Representative’s Deed, and the brothers began farming together. 

At some point, Tim bought a mobile home and moved onto the land. He also 

began storing equipment on the land for his own ongoing excavating business.

[4] The brothers continued farming together until a disagreement in 2014, which 

led to Tim filing the instant lawsuit on December 17, 2014. Tim alleged that 

there was an oral agreement to co-own the land under which Jason was 

obligated to add Tim’s name to the deed “at a later date.” App. Vol. II at 7. 

According to Tim, Jason had breached the oral agreement by refusing to 

convey the land to him as a co-owner. Tim requested the equitable remedy of 

specific performance. In the alternative, he sought compensation, alleging that 

Jason had been unjustly enriched by Tim’s payments toward the loan “plus 

other expenses and time in maintaining the farm.” Id. at 8. Jason then 

counterclaimed, seeking (1) an accounting for the partnership and (2) an order 

ejecting Tim from the land.

[5] The trial court eventually conducted a bench trial, after which it ruled against 

Tim on his claims, and denied Jason’s request for an accounting. The trial 

court also entered an ejectment order, which was stayed pending this appeal.

Discussion and Decision

[6] Neither party requested special findings and conclusions under Trial Rule 

52(A), and the trial court did not designate any portion of its order as special 

findings and conclusions. Rather, the court enumerated paragraphs in which it 
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largely provided a recitation of the evidence presented at the hearing, observing 

that various witnesses “testified” to certain facts. Yet, statements of this kind 

do not constitute findings of fact, and we treat such evidentiary recitations as 

mere surplusage. See Perez v. U.S. Steel Corp., 426 N.E.2d 29, 33 (Ind. 1981); 

Garriott v. Peters, 878 N.E.2d 431, 438 (Ind. Ct. App. 2007), trans. denied.

[7] In the absence of special findings, we apply a general judgment standard of 

review. Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind. 1997). Under this 

standard, we presume that the court correctly followed the law, and we do not 

reweigh the evidence or reassess the credibility of witnesses. Id. We will affirm 

if the judgment is “sustainable upon any theory consistent with the evidence.” 

Id. Moreover, because it was Tim’s burden to prove entitlement to relief, he 

now appeals from a negative judgment. See Burnell v. State, 56 N.E.3d 1146, 

1149-50 (Ind. 2016). “On appeal from a negative judgment, this Court will 

reverse the trial court only if the judgment is contrary to law. A judgment is 

contrary to law if the evidence leads to but one conclusion and the trial court 

reached an opposite conclusion.” Id. (citation omitted).

Specific Performance

[8] “We review a trial court’s decision to grant or deny specific performance for an 

abuse of discretion—that is, for whether the decision is ‘clearly against the logic 

and effect of the facts and circumstances before the court or if the court has 

misinterpreted the law.’” Fulp v. Gilliland, 998 N.E.2d 204, 210 (Ind. 2013) 

(citation omitted) (quoting State v. Willits, 773 N.E.2d 808, 811 (Ind. 2002)).
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[9] Specific performance is an equitable remedy that is available when monetary 

damages do not adequately redress the breach of an agreement. Duckwall v. 

Rees, 119 Ind. App. 474, 477-78, 86 N.E.2d 460, 461-62 (1949). Yet, the Statute 

of Frauds generally prohibits the enforcement of oral agreements involving the 

sale of land. See Ind. Code § 32-21-1-1(b). Tim concedes that to obtain specific 

performance, he must overcome the Statute of Frauds; he focuses on whether 

Jason’s alleged oral promise is enforceable under the doctrine of promissory 

estoppel. This equitable doctrine provides an exception to the Statute of 

Frauds, and requires that the plaintiff demonstrate—among other things—that 

the defendant made a promise that induced reasonable reliance. See Spring Hill 

Developers, Inc. v. Arthur, 879 N.E.2d 1095, 1100 (Ind. Ct. App. 2008).

[10] Here, however, the evidence favorable to the judgment indicates that Jason 

never promised co-ownership. Tr. at 187 (“He was never supposed to be on the 

deed. I mean, that’s a fact. There’s no doubt. There was nothing promised to 

him by me.”). Thus, because there was conflicting evidence concerning the 

existence of a promise from Jason, we cannot say that the trial court’s decision 

to deny specific performance was contrary to law.

Unjust Enrichment

[11] Where there is no contract between the parties, a plaintiff may nevertheless seek

compensation by claiming unjust enrichment—a theory of recovery also known 

as quantum meruit or quasi-contract. Zoeller v. E. Chi. Second Century, Inc., 904 

N.E.2d 213, 220-21 (Ind. 2009). To recover, “the plaintiff must show that (1) 
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he rendered a measurable benefit to the defendant at the defendant’s express or 

implied request; (2) he expected payment from the defendant; and (3) allowing 

the defendant to retain the benefit without restitution would be unjust.” Neibert 

v. Perdomo, 54 N.E.3d 1046, 1051 (Ind. Ct. App. 2016).

[12] Tim argues that the trial court should have awarded him compensation for 

improvements to the land and payments toward the loan obligation. Yet, Tim 

was positioned to benefit from this informal arrangement. Indeed, there is 

evidence indicating that Tim aspired to grow the farming operation and 

eventually reap profits from the land. By physically and financially helping to 

improve the land for farming, Tim furthered his partnership interest—and he 

bore the risk of making these contributions without the protection of a longterm farm lease. Furthermore, by making loan contributions, Tim hedged

against Jason losing the farm and thereby Tim’s base of operations. This base

provided Tim with land on which he could live, run his excavating business, 

and graze his cattle for several years—all without paying rent. Finally, to the 

extent Tim sought compensation for digging ponds and installing a water

trough, the evidence indicates that Tim took these actions against Jason’s 

wishes.

[13] In light of evidence indicating that Jason was not unjustly enriched, we cannot 

say that the trial court’s decision was contrary to law.
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Conclusion

[14] The court did not err in declining to grant the relief sought by Tim.

[15] Affirmed.

Crone, J., and Brown, J., concur.