Court of Appeals of Indiana | Memorandum Decision 18A

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### 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.

A TTORNEY FOR A PPELLANT John E. Kolas Kolas Law Firm, LLC Indianapolis, Indiana A TTORNEY FOR A PPELLEE Jeffrey A. Boggess Jeffrey A. Boggess, P.C. Greencastle, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

S&C Financial Group, LLC , Appellant

- Plaintiff ,

v.


### Darren Gaston , Appellee

- Defendant May 8, 2019 Court of Appeals Ca se No. 18A

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- 1787 Appeal from the Putnam Superior Court The Honorable Charles D. Bridges, Judge Trial Court Cause No. 67D01

- 1803

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- 11

Vaidik , Chief Judge
. 

# Case Summary

[1] S&C Financial Group, LLC, entered into an oral agreement with Darren Gaston to sell him a house

. When S&C filed an eviction action against GastonCourt of Appeals of Indiana | Memorandum Decision 18A

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in Putnam County small

- claims court, the parties entered into a settlement agreement , and S&C dismissed the case

. S&C later sued Gaston for possession of th e real estate in Putnam S uperior C ourt . The trial court found that Gaston,
not S&C , was the rightful owner and ordered S&C to give Gaston a deed to the property and pay $ 1,275 of his attorney’s fees

. S&C now appeals. We affirm as to all issues except the trial court’s award of attorney’s fees to Gaston.



# Facts and Procedural History

[2] S&C is an Indianapolis company that acquires tax

- sale prop erties , fixes them, and then rents or sells th em . Tr. p. 6. Scott Wynkoop is the owner of S&C.
Gaston worked as a subcontractor for S&C. S&C purchased a “rehab” house on Apple Street in Greencastle at a tax sale in October 2014

. Id. at 6, 31.
T hereaf ter, S&C and Gaston entered into an oral agreement whereby S&C would sell the Apple Street property to Gaston for $13,000. In October 2015, Gaston paid S&C $2,000 toward the purchase price and moved in and began making extensive repairs to the house, incl uding adding electrical and plumbing. Gaston made additional payments toward the purchase price in the form of S&C deducting varying amounts from his paychecks. See Ex. E (deductions in August and September 2016).

[3] On June 19, 2017, Wynkoop texted Gaston that his last payment was April 17 for $250, which “leaves a balance of $2305.” Ex. B. Wynkoop added that “[w]hen it’s paid off, I will hand you a deed that you can go on record at county. It was never supposed to take this long to pay it off. I hadn’t evenCourt of Appeals of Indiana | Memorandum Decision 18A

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charged any interest.” Id. On Ju ne 26, Gaston paid S&C $305, leaving a balance of $2,000

. Tr. p. 43.

[4] In July , Gaston developed an infection in his brain, was hospitalized, and underwent brain surgery

. He could not work for a year and thus S&C was no longer able to deduct money from his paychecks.

[5] About a month after Gaston’s brain surgery , S&C filed a Notice of Claim for Eviction against Gaston in Putnam County small

- claims court. See 67D01

- 1708

- SC

- 388. S&C alleged as follows: “No lease in place. Verbal agreement. Tenant is no longer making payments.” Appellant’s App. Vol. II p. 13. An eviction hearing was set for September 21. When Wynkoop and Gaston appeared at court for the he aring, they reached an oral agreement off the record to settle the case , under which Gaston would pay S&C $3,855 and S&C would give Gaston a deed to the Apple Street property. The court reporter was present during the parties’ negotiations and told them t hat if they reached an agreement, a dismissal would have to be filed

. Wynkoop then signed an order

of

- dismissal form indicating that the “ parties have r eached an agreement

. ” The judge signed the order that same day. S ee Order of Dismissal, 67D01

- 1708

- SC

388 (Sept

. 21, 2017).

[6] As soon as he left the courthouse in Putnam County , Gaston went to the bank to get a $3 , 855 cashier’s check . He then drove to S&C’s office in Indianapolis , gave the check to an employee , and got a “paid in full” receipt. Ex. A. Wynkoop arrived at S&C’s office right after G aston left and was told by theCourt of Appeals of Indiana | Memorandum Decision 18A

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employee that Gaston had made the payment but that he was still planning on pursuing a mechanic’s lien that he had recorded on an unrela ted property

. Wynkoop immediately texted Gaston as follows: “ C ome back and pick up your check. I am not going to accept the payment until everything is settled

. . . . I’m not going to have you threaten a lawsuit against me.” Ex. B. Gaston texted back “Ur paid,” to which Wynk oo p responded : “I am not going to deposit the check and I am not going to prepare the deed until that is resolved. I’m not going to be threatened.” Id. S&C then returned the cashier’s check to Gaston via certified mail.

[7] In January 2018, S&C filed a new Notice of Claim for Eviction against Gaston
i n Putnam County small

- claims court

. See 67D01

- 1801

- SC

- 1 . S&C alleged as follows: “No lease in place. Verbal agreement. Occupant has made no payments since June 2017.” Appell ant’s App. Vol. II p. 14. Gaston filed a motion to dismiss alleg ing that he was not leasing the Apple Street property but rather purchasing it on contract and that the “matter should be filed on the civil plenary docket.” Id. at 16. The next day, the sm all

- claims court dismissed the

case. S&C filed a motion to reconsider , which the court denied

.

[8] I n March , S&C filed a Complaint for Possession of Real Estate and for Damages against Gaston in Putnam Superior Court. See 67D01

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- 11. In the comp laint, S&C acknowledge d that Wynkoop and Gaston had reached an agreement at the courthouse whereby Gaston would pay S&C $3,855 and
S&C would give him a deed to the Apple Street property. Appellant’s App. Vol. II p. 32. However, S&C claim ed that the agreement also required GastonCourt of Appeals of Indiana | Memorandum Decision 18A

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to release the m echanic’s l ien on the unrelated property, which he did not do and therefore breached the agreement

. Accordingly, S&C asked for immediate possession of the real estate and damages. At S&C’s request, t he court set a hearing for possession only

.

[9] Wynkoop, the court reporter, and Gaston testified at the hearing. First , Wynkoop testified that the oral agreement he made with Gaston for the sale of the Apple Street property “ was that if he paid me $13,000 in 12 mon ths, then I would convey the property to him.” Tr. p. 18. Wynkoop also testified that the agreement he made with Gaston at the courthouse to settle the case was that if
Gaston paid $ 3 , 855 to S&C and released the mechanic’s lien on the unrelated property , then S&C would give him a deed to the Apple Street property. Id. at 15. W hen Wynkoop was asked on cross examination if he and Gaston had discussed the mechanic’s lien during their negotiations at the courthouse, Wynkoop responded, “I can’t say for sur e if it was.” Id.

[10] Next, t he court reporte r testified that the parties reached an agree ment that
Gaston had to pay $3 , 855 to S&C and that S&C dismissed the case that same day . She also testified that the parties did not discuss the mechanic’s lien during the ir negotiations. Id. at 26

- 27.

[11] Finally, Gaston testified that the oral agreement he made with Wynkoop for the sale of the Apple Street property was that he had to pay S&C $13,000 and that there was no hard

- and

- fast deadline for when the $13,000 had to be paid

. Gaston also testified that the settlement agreement he reached with WynkoopCourt of Appeals of Indiana | Memorandum Decision 18A

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at the courthouse was that he had to pay $3,855 in order to get a deed to the Apple Street property. Gaston said the mechanic’s lien was not part of the ir
agreem ent because that was “a separate issue.” Id. at 35.

[12] Thereafter, the trial court issued an order f inding that the parties entered into a settlement agreement in September 2017 , that Gaston fulfilled his duties pursuant to the settlement agreemen t when he presented the cashier’s check for $3,855, and that S&C breached the settlement agreement when it refused to accept the payment. T he court therefore ordered Gaston to “pay the $3,855 agreed upon by the parties” and “retain possession of the property” and ordered S&C to “execute a quit claim deed to the property within ten (10) days of receiving Gaston’s payment.” Appellant’s App. Vol. II p. 55. The c ourt also ordered S&C to pay $1,275 of Gaston’s attorney ’s fees.

[13] S&C now appeals.



# Discussio n and Decision

[14] S&C appeals the trial court’s orde r on several grounds. In ruling in favor of Gaston, the trial court made several findings. Pursuant to Indiana Trial Rule 52(A), the reviewing court will not set aside the findings or judgment unless clear ly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Steele

- Giri v. Steele , 51 N.E.3d 119, 123 (Ind. 2016 ).Court of Appeals of Indiana | Memorandum Decision 18A

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[15] First , S&C contends that the trial court “erred in issuing an order on all matters, as the scheduled hearing was limited to the issue of possession only, with any subsequent hearing to be scheduled at the request of a party.” Appellant’s Br. p. 13. Specifically, S&C argues th at the court should have held a “ bifurcated proceeding.” Id. at 23. That is, if the court found that S&C was not entitled to immediate possession after the first hearing, then “the proper course of conduct would have been for the Court to c on d u c t a he aring on remaining issues , including the possibility of S&C obtaining possession , at a later date.” Id. at 24. However, any potential “remaining issues” were necessarily resolved when the trial court determined that Gaston was entitled to possession and ownership of the Apple Street property. As indicated below, the court enforced the parties’ settlement agreement, which provided for Gaston to receive a deed to the Apple
Street property upon the payment of $3,855 to S&C. The trial court did not err in d isposing of the entire case after the first hearing.

[16] Second , S&C contends that the trial court erred in concluding that the parties entered into a n enforceable settlement agreement in September 2017 because “[t]he facts . . . do not support a meeting of the minds

. ” Id. at 20. A settlement is an agreement to terminate or forestall all or part of a lawsuit. Harding v. State , 603 N.E.2d 176, 179 (Ind. Ct. App. 1992) , trans. denied ; see also Vance v. Lozano , 981 N.E.2d 554, 558 (Ind. Ct. App. 2012) (“ A ‘c ompromise’ or ‘settlement’ is a contract between two or more people to amicably settle or adjust their differences on such terms as they can agree.” (citing 15B Am. Jur. 2d Compromise & Settlement § 1 (2011))

. Indiana strongly favors settlementCourt of Appeals of Indiana | Memorandum Decision 18A

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agreements. Georgos v. Jackson , 790 N.E.2d 448, 453 (Ind. 2003) , reh’g denied

. Settlement agreements are governed by the same principles of contract law as other agre e ments and require an offer, acceptance, cons ideratio n, and meeting of the minds

. Jonas v. State Farm Life Ins. Co. , 52 N.E.3d 861, 868 (Ind. Ct. App. 2016) , trans. denied . Generally, a settlement agreement is not required to be in writing. 1 Id. The breach of a settlement agreement by one of the parties is actionable , and a trial court has the power to order specific performance

. Harding , 603 N.E.2d at 179.

[17] Here, it is undisputed that the parties reached an oral agreement at the courthouse to settle the case and that S&C dismissed the case that same day

. That is, the parties agreed that Gaston would pay S&C $3,855 and S&C would give Gaston a deed to the Apple Street property

. However, the parties dispute whether the agreement contained an additional term

. Wynkoop testified that the agree ment also required Gaston to release the mechanic’s lien on the unrelated property. Tr. p. 15; see also Appellant’s App. Vol. II p. 32 ( S&C’s complaint conceding that “an agreement had been made to resolve issues for the payment of $3,855.00” but “only wi th the understanding [Gaston] would also release a Mechanic’s Lien” ). Gaston and the court reporter , however, testified that the mechanic’s lien was not part of the parties’ agreement. T he

1 S&C notes that when a contra ct is required by law to be in writing, it can only be modified by a written instrument. See Huber v. Hamilton , 33 N.E.3d 1116 (Ind. Ct. App. 2015 ) , reh’g denied

. Here, however, the parties did not modify the ir original oral agreement regarding the sale of the Apple Street property. Rather, they entered into an agreement to settle the pending small

- claims case. S&C does not cit e any authority for the proposition that settlement agreements regarding the sale of real estate must be in writing.Court of Appeals of Indiana | Memorandum Decision 18A

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trial court heard both version s and believed Gaston ’s and the cou rt reporter’s testimony that the mechanic’s lien was not part of the agreement

. See 15B Am. Jur. 2d Compromise & Settlement § 7 ( Feb. 2019 update ) ( “ A party ’ s mental reservations and unexpressed intentions will not supersede outward expressions of assent or override objective and unequivocal manifestations of assent to terms of the settlement agreement. ”). This evidence supports a conclusion that there was a meeting of the minds.

[18] Third , S&C contends that the parties’ oral agreement for the sale of the A pple Street property is not enforceable because it was not in writing, as required by the Statute of Frauds. However, S&C can no longer challenge this agreement b ecause it entered into a subsequent agreement with Gaston to settle the parties’ dispute rega rding the sale of the Apple Street property. A settlement agreement supersedes and extinguishes all preexisting claims the parties intended to settle and is effective except as to those claims specifically reserved. 15B Am. Jur. 2d Compromise & Settlement , § 24 ( Feb. 2019 update ). Accordingly, i f S&C believed that the parties’ oral agreement for the sale of the Apple Street property was not enforceable because it was not in writing, then it shouldn’t have entered into the settlement agreement wi th Gaston

. Having done so, it cannot now go back and challenge the parties’ original ag reement for the sale of the Apple Street property

.

[19] Finally, S&C contends that the trial court erred in ordering it to pay $1,275 in attorney’s fees because Gaston “ma de no claim for attorney fees whatsoever , ” either in his pleadings or at the hearing. Appellant’s Br. p. 26

. Indiana followsCourt of Appeals of Indiana | Memorandum Decision 18A

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the American Rule, which requires each party to a lawsuit to pay its own attorney ’s fees absent an agreement between the parties, statutory authority, or an equitable exception

. Loparex, LLC v. MPI Release Techs., LLC , 964 N.E.2d 806, 815

- 16 (Ind. 2012)

. Gaston argues that we should affirm the trial court’s award of attorney’s fees because “S&C litigated in bad faith.” Appellee’s Br. p.
17 (citing Ind. Code § 34

- 52

- 1

- 1)

. However, Gaston did not make such a “ bad faith ” argument below, nor did he request an award of attorney’s fees , nor did he present any evidence as to the amount of attorney’s f ees he had incurred. We therefore reverse the trial court’s award of attorney’s fees to Gaston

.

[20] Affirmed in part, reversed in part.
Mathias, J., and Crone, J., concur

.