Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017 Page 1 of 11

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 APPELLANTS

John J. Schwarz, II

Schwarz Law Office, PC

Hudson, Indiana

ATTORNEY FOR APPELLEES

Ralph R. Huff

Jones Huff Jones & Richeson, LLP

Plymouth, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Randy Glingle and Roberta 

Glingle,

Appellants-Defendants,

v.

Ryan Glingle and Julie Glingle,

Appellees-Plaintiffs.

October 30, 2017

Court of Appeals Case No.

50A05-1704-MI-723

Appeal from the Marshall Circuit 

Court

The Honorable Curtis D. Palmer, 

Judge

Trial Court Cause No.

50C01-1509-MI-50

Najam, Judge.
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Statement of the Case

[1] Randy Glingle and Roberta Glingle appeal the trial court’s order granting Ryan 

Glingle and Julie Glingle’s1 motion to enforce the parties’ settlement agreement

and impose sanctions. Randy presents the following issues for our review:

1. Whether the trial court erred when it denied Randy’s 

motion to dismiss Ryan’s motion.

2. Whether the trial court erred when it imposed sanctions on 

Randy.

3. Whether the trial court erred when it ordered Randy to 

pay one-half of an auctioneer’s commission.

[2] We affirm.

Facts and Procedural History

[3] Randy and Ryan each had an undivided one-half interest in an eighty-acre farm 

located in Marshall County (“the farm”). On September 30, 2015, Ryan filed a 

petition to compel partition of the real estate. On March 10, 2016, following 

mediation, the parties agreed to sell the farm and entered into a settlement 

agreement that provided in relevant part that: “[a]ll costs of sale or auction 

shall be paid one-half (1/2) by [Ryan] and one-half (1/2) by [Randy]”; if the 

property did not sell by October 1, 2016, the parties would enter into a contract 

 

1

 For ease of discussion, when we hereinafter refer to the appellants-defendants, we will name only Randy, 

and when we refer to the appellees-plaintiffs, we will name only Ryan.
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for the auction of the property; closing of any sale would be no longer than sixty 

days after the date of the sale; the auctioneer would be Phil Hahn & Associates

(“Hahn”); upon the sale of the property the parties would “execute and 

exchange, by their attorneys, a stipulation for dismissal of the [partition 

action]”; and they would “execute any and all documents necessary to carry out 

the terms hereof[.]” Appellants’ App. Vol. 2 at 33-34.

[4] On October 10, 2016, Randy and Ryan contracted with Hahn to sell the farm at 

auction, and they agreed to pay Hahn 3.5% of the “gross sale amount.” Id. at 

43. On December 6, Hahn sold the farm at auction to two buyers: Allen Motz

bought forty acres for $312,500, to be paid in cash; and Glingle Farms 

Holdings, LLC (“Glingle Farms”), bought forty acres for $312,500. Randy, an 

authorized member of Glingle Farms, executed the purchase agreement, which 

included a provision stating that Randy agreed to “pay the proportionate share 

of expenses.” Id. at 45. Randy bought the forty acres with his equity in the 

farm.

[5] The parties scheduled both closings for January 27, 2017, at Metropolitan Title 

of Indiana. At some point prior to that date, Tammy Borggren, Metropolitan’s 

branch manager, went to Randy’s house to get his signatures on the deed and 

an authorization for his son Rance “to sign everything else at closing” because 

Randy and Roberta were going to be out of town for the winter months. Tr. at 

27. Randy signed the documents as requested, but he told Tammy that he 

would not pay “any closing costs.” Id. at 28. Thereafter, on January 24, 

Tammy prepared the closing statements. The closing statement for the sale to 
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Randy included the following costs to be paid by Randy: Hahn’s commission 

of $10,937.50, and “Title/Escrow Charges” and “Disbursements” totaling 

$1,299. Appellants’ App. Vol. 2 at 16. After Tammy sent the closing statement 

to Rance, Rance called Tammy and told her that Randy “would not pay any 

costs.” Tr. at 29. Accordingly, Hahn and Tammy “mutual[ly] agree[d]” to 

cancel both closings. Id. at 60. 

[6] On February 7, Ryan filed a “Motion to Enter Judgment and Impose 

Sanctions, Including an Award of Costs and Fees.” Appellants’ App. Vol. 2 at 

35. In that motion, Ryan asked the trial court to: enforce the parties’ 

settlement agreement; order Randy to proceed to closing on both sales; impose 

sanctions against Randy, including Ryan’s attorney’s fees; and order Randy to 

pay his share of Hahn’s commission and other closing costs. Randy filed a 

motion to dismiss Ryan’s motion. Following a hearing on March 15, the trial 

court entered an order, the same day, stating in relevant part as follows:

After hearing evidence and argument, the Court Ordered that the 

auctioneer’s commission expense disputed by [Randy and 

Roberta] be paid by them at the real estate closing scheduled for 

March 16, 2017; but that those funds be held in trust by the title 

company until further order of the court. All parties were 

ordered to attend the real estate closing set for March 16, 2017.

All remaining matters were taken under advisement.

* * *

Upon preparing the matter for a real estate closing, [Randy and 

Roberta] refused to pay any portion of the auctioneer 

commission attributable to the second parcel. Apparently, 
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[Randy and Roberta’s] position is that they will not acquire any 

new property interest as a result of the auction that they did not 

already possess. The Court finds no legal support for [Randy and 

Roberta’s] position. [Randy and Roberta] initially held an 

undivided one-half interest in an 80[-]acre parcel; they now will 

own a 40[-]acre parcel in fee simple.

Furthermore, [Randy and Roberta] had the ability to bargain for 

the elimination of any auction or realtor commission in the event 

they purchased the property in the mediation agreement, the

auctioneer’s contract[,] and the purchase agreement. They failed 

to bargain for or include any such language in any of the 

numerous agreements they signed. The initial closing of the real 

estate matters was delayed because of [Randy and Roberta’s]

refusal to pay any portion of the auctioneer’s commission on the 

parcel they purchased, thereby causing [Ryan and Julie] to incur 

additional attorney fees in the sum of $2,360.00.

[Randy and Roberta’s] Motion to Dismiss asserts [Ryan and 

Julie] lack standing to attempt to enforce the Purchase 

Agreement and the auctioneer’s contract requiring the payment 

of a commission to the auctioneer. The court finds that, as 

parties to both contracts, [Ryan and Julie] have standing to 

enforce the contracts to obtain the benefits for which they 

bargained (auction services and closing of the real estate 

transactions).

THEREFORE, THE COURT NOW ORDERS:

l. A Judgment is entered enforcing the mediated agreement.

2. [Randy and Roberta’s] Motion to Dismiss is DENIED.

3. As a sanction for [Randy and Roberta’s] conduct they shall 

pay the sum of $2,360.00 to [Ryan and Julie] as a reimbursement 

for attorney fees.
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4. Metropolitan Title of Indiana[,] LLC shall disburse the 

disputed commission fees held in trust to Hahn Auctioneers, Inc.

Id. at 8-10. This appeal ensued.

Discussion and Decision

Standard of Review

[7] Because the court’s judgment follows an evidentiary hearing on Ryan’s motion 

to enforce the settlement agreement and Randy’s motion to dismiss, and 

because the court entered findings and conclusions based on the evidence 

presented at that hearing, we review the court’s judgment under our clearly

erroneous standard of review. We review the issues covered by the findings 

with a two-tiered standard of review that asks whether the evidence supports 

the findings and whether the findings support the judgment. See Steele-Giri v. 

Steele, 51 N.E.3d 119, 123 (Ind. 2016).

Issue One: Motion to Dismiss

[8] Randy first contends that the trial court erred when it denied his motion to 

dismiss, in which he ostensibly alleged both a lack of standing and a “failure to 

state a claim upon which relief [can] be granted.” Appellants’ App. Vol. 2 at 

53. However, we note that Randy’s motion to dismiss does not refer to Trial 

Rule 12(B)(6), and, on appeal, he does not cite to Trial Rule 12(B)(6) in support 

of any of his contentions. Neither does Randy cite to any case law that 

addresses the issue of standing. Rather, Randy now asserts, generally, that 

Ryan “lacked authority to request the trial court [to] impose commission fees 
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on [Randy]” because “Hahn was not a party to the partition action” and the 

“dispute of the commission fee was a matter between Hahn and [Randy].” 

Appellants’ Br. at 11. Randy also maintains that the trial court should have 

granted his motion to dismiss because Ryan had “failed to comply with the 

terms of the mediation agreement when [he] refused to file the stipulation of 

dismissal.” Id. We address each contention in turn.

Ryan’s “Authority” to Enforce Settlement Agreement

[9] First, Randy does not cite to any relevant statutory or case law to support his 

contentions regarding Ryan’s authority, or lack thereof, to enforce the 

settlement agreement. Second, to the extent Randy claims that Ryan did not 

have the “authority” to ask the trial court to enforce a provision of the parties’ 

settlement agreement,

2 we cannot agree. Ryan, as a party to the agreement, had 

a right to seek its enforcement. See Flaherty & Collins, Inc. v. BBR-Vision I, L.P., 

990 N.E.2d 958, 971 (Ind. Ct. App. 2013), trans. denied. And finally, to the 

extent Randy claims that Hahn was a necessary party, Randy made no 

contention to the trial court, and makes no contention on appeal under Trial 

Rule 12(B)(7) or supporting case law, that Ryan had failed to join “a party 

needed for just adjudication under [Trial] Rule 19[.]” Randy’s contentions on 

this issue are without merit.

 

2

 The agreement provided in relevant part that “[a]ll costs of sale or auction shall be paid one-half (1/2) by 

[Ryan] and one-half (1/2) by [Randy].” Appellants’ App. Vol. 2 at 41.
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Stipulation of Dismissal

[10] Randy next contends that Ryan “failed to provide evidence that supports [his] 

allegations that [Randy] refused to pay costs pursuant to the mediation 

agreement and, therefore, delayed the closing beyond the terms and conditions 

of the mediation agreement.” Appellants’ Br. at 12. Further, Randy maintains 

that, in any event, it was not him but Ryan who caused the delay in the closings 

because Ryan “refused to comply with the terms of the mediation agreement 

and the title company testified [sic] that it would not close the land sale with 

pending litigation.” Appellants’ Br. at 13. We cannot agree.

[11] First, Borggren unequivocally testified that Randy and Rance had both told her

prior to the scheduled closings that Randy refused to pay “any closing costs.” 

Tr. at 28. Thus, the evidence supports the trial court’s finding that Randy 

caused the delay in the closing on that basis. Indeed, Randy’s declaration prior 

to closing that he would not pay the closing costs was, in effect, an anticipatory 

breach. See, e.g., Ralph E. Koressel Premier Elec., Inc. v. Forster, 838 N.E.2d 1037, 

1045 (Ind. Ct. App. 2005) (holding that prospective seller of business 

anticipatorily breached listing agreement with broker where seller notified 

broker that he did not intend to pay broker any commission on the sale because 

he believed that broker had not done enough work to justify payment of the 

commission). Second, Randy does not direct us to any part of the record on 

appeal to show that he argued to the trial court that Ryan’s “failure” to file the 

parties’ stipulation of dismissal caused the delay, and our review of the 

transcript and appendices does not indicate that he made that argument below. 
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In any event, the parties’ settlement agreement required only that the parties 

“execute and exchange” the stipulation for dismissal “upon the sale of the real 

estate” and is silent as to when it had to be filed with the trial court. 

Appellants’ App. Vol. 2 at 42. Randy has not shown that the trial court’s 

conclusion that he caused the delay in closing was clearly erroneous.

Issue Two: Sanctions

[12] Alternative Dispute Resolution Rule 2.7(E)(3) applies to mediation and

provides that, in the event of any breach or failure to perform under a mediation

agreement, upon motion, and after hearing, the court may impose sanctions, 

including entry of judgment on the agreement. Here, the trial court found that 

the closing was delayed “because of [Randy’s] refusal to pay any portion of the 

auctioneer’s commission on the parcel [he had] purchased, thereby causing 

[Ryan] to incur additional attorney fees in the sum of $2,360.00.” Appellants’ 

App. Vol. 2 at 9. Accordingly, the court imposed sanctions against Randy in 

the amount of $2,360.

[13] Again, Randy asserts that he “did not refuse to cooperate” and “met the terms 

of the mediation agreement” because he “did not refuse to pay any costs related 

to the closing.” Appellants’ Br. at 15. But Borggren’s testimony that Randy 

and Rance told her that Randy would not pay “any closing costs” supports the 

trial court’s finding that Randy caused the delay. Tr. at 28. And we reject 

Randy’s contention that Ryan caused the delay when he did not file the 
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stipulation of dismissal with the trial court prior to closing.3 The trial court did 

not err when it imposed sanctions on Randy for violating the terms of the 

settlement agreement, which required that the parties close the sales within 

sixty days of the date of the auction.

4

Issue Three: Auctioneer’s Commission

[14] Finally, Randy contends that the trial court erred when it ordered him to pay 

one-half of Hahn’s commission for the sale of the farm at auction. Randy 

maintains that, because the Indiana statute “regarding auctioneer expenses and 

fee states that the subsection does not apply to a partition action,” see Ind. Code 

§ 34-55-6-5 (2017), and because Randy “retained one-half of the land that was 

partitioned following the auction[,]” he was not responsible to pay for any 

portion of Hahn’s commission. Appellants’ Br. at 18. Again, we cannot agree.

[15] Randy signed the contract with Hahn, which provided in relevant part that 

Randy and Ryan agreed to pay Hahn 3.5% of the “gross sale amount” after 

auction. Appellants’ App. Vol. 2 at 43. Randy also signed the parties’ 

settlement agreement, which provided in relevant part that “[a]ll costs of sale or 

auction shall be paid one-half (1/2) by [Ryan] and one-half (1/2) by [Randy].” 

 

3

 Randy contends that Ryan “refused” to sign the stipulation of dismissal, but he does not support that 

contention with any evidence. Appellants’ Br. at 16. On the other hand, Ryan directs us to evidence that 

shows that the parties intended to present the stipulation of dismissal to the title company at closing and that 

he intended to file it with the trial court thereafter.

4

 Randy’s contention that the trial court erred when it awarded attorney’s fees pursuant to Indiana Code 

Section 34-52-1-1 is misplaced. The trial court awarded sanctions under ADR Rule 2.7(E)(3).
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Id. at 41. The gross sale amount of the farm at auction was $625,000. Thus, 

Randy was responsible to pay 1.75% of that sum to Hahn. The trial court did 

not err when it ordered Randy to pay one-half of Hahn’s commission.

[16] Affirmed.

Kirsch, J., and Brown, J., concur.