Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 1 of 26



### 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 S FOR A PPELLANT S Kimberly A. Jackson Indianapolis, Indiana Mark R. Waterfill India napolis, Indiana A TTORNEY S FOR A PPELLEE Kevin S. Smith Brent R. Borg Church, Church, Hittle & Antrim Fishers, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Christian Methodist Epi scopal Church and Second Episcopal District of the Christian Methodist Episcopal Church, Inc. , Appellant s - Defendant s ,

v. 

### Kevin P. Grimes, Sr. , Appellee

- Plaintiff

. August 26 , 2019 Court of Appeals Ca se No. 18A

- PL

- 2346 Appeal from the Marion Superior Court The Honorable John M.T. Chavis II, Judge Trial Court Cause No. 49D05

- 1211

- PL

- 43306

Kirsch , Judge
.Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 2 of 26

[1] Christian Methodist Episcopal Church (“CME”) and Second Episcopal District of the Christian Methodist Episcopal Church , Inc. (“Second District”) (together, “the Church”) appeal the trial court’s order granting a motion filed by Kevin P. Grimes, Sr. (“Grimes”) requesting enforcement of a settlement agreement and entering judgment against the Church in the amount of $80,000. 00. The Church raises the following restated issues on appeal:

I. Whether the trial court lacked subject matter jurisdiction
over Grimes’s claims against the Church;

II. Whether the trial court abused its di scretion when it denied CME and Second District’s motion to vacate the trial court’s previous order enforcing the alleged settlement agreement between the parties ; and

III. Whether the trial court abused its discreti on when it awarded $6,456.71 in appellate attorney fees to Grimes.

[2] We affirm

. 

### Facts and Procedural History

[3] Between June 2007 through June 2012, CME and Second District appointed Grimes to five consecutive one

- year terms as pastor of Stewart Memorial CME Co rporation (“Stewart Memorial”)

. Appellants’ App. Vol. II at 132. CME is a

not

- for

- profit religious corporation organized into eleven d istricts in the United States and Africa including S econd District, which is a separate corporation. Appellants’ App. V

ol. III at 5; Appellants’ App. Vol. IV at 22

. Stewart Memorial isCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 3 of 26

an Indianapolis church within the Second District. Appellants’ App. Vol. IV at 22.

[4] Under CME’s structure, a pastor’s salary is established by the local church’s steward board and approved by the Quarterly Conference of Second District, which is presided over by a CME Elder. Appellants’ App. Vol. II at 212; Appellants’ App. Vol. III at 83

. For each year of Grimes’s employment, financial accountings and pastoral reports contained i nformation stat ing that Grimes’s salary was $600 .00 per week and that Grimes was entitled to 12% of his salary as a pension. Appellants’ App. Vol. II at 142

- 51 , 230

- 47. Th is information w as also indicated in the minutes of the Quarterly Conference. Id

. at 152

- 53.

[5] When Grimes accepted his appointment, Stewart Memorial was in significant financial trouble. Id . at 132, 140, 185. Stewart Memorial paid one of its previous pastors $600 .00 per week before she left to organize her own church and took much of Stewart Memorial ’s membership with her, which is when Stewart Memorial’s downward financial spiral began

. Appellants’ App. Vol. IV at 133, 139

- 40, 236. The $600 .00 per week salary figu re remained in place for the pastor who served after her and before Grimes ; h owever, that pastor never was paid due to Stewart Memorial’s poor financial situation

. Id . at 205

- 06. On August 6, 2007, Grimes reportedly wrote a letter to Second District Bish op E. Lynn Brown in which Grimes stated: “ [ D ] ue to the extreme and severe financial conditions [ , ] I [ , ] as the Sr. Pastor [ , ] have made the temporary decision to defer the church pastoral salary obligations, until at such time I determine we can recover fro m this desperate financial situation.” Appellants’ App. Vol. II atCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 4 of 26

80. Grimes and Stewart Memorial’s Board of Stewards understood Grimes was not working for free and would eventually be paid his deferred salary. Id . at 132

- 33, 140, 188, 192

- 93. Although Grimes claimed years later that he entered into a single oral agreement with Stewart Memorial ’s Board of Stewards in 2007 to pay him $600 .00 weekly, church officials with CME and Second District denied any such agreement ever existed. Appellants’ App. Vol. IV at 42,
44

- 45; Appellants’ App. Vol. V at 5.

[6] On October 30, 2011, the Quarterly Conference was chaired by Reverend Charles King (“Reverend King”) , a presiding elder of CME and Second District. Appellants’ App. Vol. II at 92. At th at Quarterl y Conference, Reverend King stated it was Stewart Memorial’s duty to pay Grimes his salary and pension. Id

. at 9 3 , 167

- 70, 2 21

. Reverend King was aware of Stewart Memorial’s financial condition but stated that Stewart Memorial should set a salary and kee p a record of the amounts owed to Grimes. Id . at 221 ; Appellants’ App. Vol. III at 14. After the Quarterly Conference, Grimes instructed Stewart Memorial staff to draft checks to Grimes in amounts Grimes specified for his services dating back to his first appointment

. Appellants’ App. Vol. III at 120

- 2 1; Appellants’ App. Vol. V at 9

- 10. Grimes and his brother

- in

- law , who was a steward of Stewart Memorial, maintain that, at the October 2011 Quarterly Conference, R everend King directed Stewart Memorial to write checks to Grimes for his services as a promise to pay , and t heir position wa s supported by purported minutes of the Quarterly Conference drafted by Grimes. Appellants’ App. Vol. II at 92, 133

- 34, 167

- 68. Re verend King challenged the accuracy ofCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 5 of 26

the minutes and reported receiving the minutes only after Grimes’ s departure from Stewart Memorial. Appellants’ App. Vol. IV at 41

- 42.

[7] Stewart Memorial drafted checks to Grimes totaling $165,276.00. Appellants’ App. Vol. II at 134, 157

- 66. Grimes knew Stewart Memorial’s accounts did not contain sufficient funds to cover the checks at the time they were issued. Appellants’ App. Vol. V at 14

- 16. Stewart Memorial did not intend for the checks to be cashed , and the recording steward kept the checks in her desk until Grimes requested that she give them to him

. Appellants’ App. Vol. III at 121; Appellants’ App. Vol. IV at 141

- 42.

[8] In July 2012, prior to the expiration of Grimes’s fifth term as pastor of Stewart Memorial , Reverend King offered Grimes pastor positions at two different churches, another Indianapolis church and a Cincinnati church

. Appellants’ App. Vol. V at 2,17. Grimes rejected those positions, was not reappointed as pastor of Stewart Memorial , and left his employment at Stewart Memorial on July 27, 2012. Appellants’ App. Vol. IV at 44, 249; Appellants’ App. Vol. V at 17. On July 20, 2012, Grimes cashed one of the checks written to him by Stewart Memorial for $600 .00 , and on July 30, 2012, he cashed another for $600 .00

. Appellants’ App. Vol. IV at 238. A n overdraft occurred as a result of the processing of those checks, and Stewart Memorial stopped payment on the other c hecks issued to Grimes. Id . at 161, 222.

[9] On November 2, 2012, Grimes filed a complaint against CME, Second District, and Stewart Memorial , alleging breach of contract and violation of Indiana’sCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 6 of 26

Wage Payment Statute and Wage Claims Statute

. Appellants’ App. Vol. II at 36

- 39

. CME and Second District filed separate motions to dismiss Grimes’ s complaint , alleging that th e Wage Payment Statute and Wage Claims Statute did not apply because Indiana’s minimum wage laws do not apply to pastors and the trial court lacked subject matter jurisdiction over Grimes’s claims because if the trial court adjudicated those claims, it would infringe the First
A mendment rights of CME and Second District to adjudicate matters concerning ecclesiastical law

. Id

. at 47

- 54

. The trial court denied the motions to dismiss. On April 23, 2013, Grimes filed an a mended c omplaint to add an unjust enrichment claim

. Id . at 71

- 75.

[10] In September 2014, Grimes filed a m otion for p artial s ummary j udgment on all claims except unjust enrichment. Id . at 115

- 16. Grimes argued, among other things, that his claims were not barred by the First Amendment

. Id . at 126

- 28. On November 21, 2014, CME and Second District filed separate cross motions for summary judgment , again arguing that Grimes’s claims were barred by the First Amendment

. Appellants’ App. Vol. III at 4

- 10

. On June 8, 2015, the trial

court denied all of the motions for summary judgment , specifically stating that “the Court can apply neutral principles of law without becoming excessively entangled in religious affairs in violation of the First Amendment.” Appellants’ App. Vol. V at 52

- 54. Grimes , CME , and Se cond District each filed motions for permissive interlocutory appeal of the trial court’s order , and this court denied the motions

. Appellants’ App. Vol. II at 21

- 23.Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 7 of 26

[11] The trial court set a jury trial for May 23, 2017. Id . at 24. Three weeks before the trial date , counsel for the Church and Grimes met in a settlement conference with their clients available by phone. Appellants’ A pp . Vol. V at 55

- 56. On June 9, 2017, Grimes filed a m otion to e nforce s ettlement a greement and a motion to set the matter for a hearing . In the motion, Grimes alleged the following occurred at the settlement conference

. After initial discussion, Grimes offered to settle his claims against the Church for $90,000 .00

. Id . at 56. The Church counteroffered for $40,000 .0 0 and a confidentiality provision. Id

. Grimes agreed to the confidentiality provision and counteroffered for $80,000 .00 paid via an initial reasonable lump

- sum payment followed by a reasonable payoff of the balance over time, and an attorney fee provisio n should the Church fail to pay. Id

. The Church agreed to the $80,000.00 settlement payment and the attorney fee provision and proposed that the initial payment be $15,000 .00 with semi

- annual payments of the balance over four
years. Id

. Grimes’s counse l then called Grimes to convey the parties’ agreement and confirm his approval of the payment terms the Church had recommended. Id

. As Grimes’s counsel was preparing to return to the conference room to convey Grimes’s approval of their proposed payment t erms,
t he Church ’s counsel attempted to rescind the parties’ agreement , stating that he only had authority to offer $50,000.00

. Id

.

[12] The trial court set the motion for a hearing on August 9, 2017. On June 29, 2017, after nineteen days had passed without the Church filing a response to the motion to enforce the settlement agreement, Grimes filed a mo tion to vacateCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 8 of 26

the hearing, contending that no hearing was needed because the Church ’s lack of response demonstrated the facts alleged in Grimes’s m otion were undisputed and the trial court could rule on the m otion based on the evidence Grimes had submitted

. Id . at 71

- 7 2

. After fifteen days passed without the Church filing any
response or objection to Grimes’s m otion to v acate h earing, the clerk filed an order from the court granting Grimes’s m otion and vacating the August 9 hearing. Appellants’ App. Vol. II at 26; Appellants’ App. Vol. V at 79. The Church did not file an objection or response to this ruling. See Appellants’ App. Vol. II at 26. On August 10, 2017, the trial court granted Grimes’s motion to enforce settlement agreement and entered judgment against the Church in the amount of $80,000 .00 and ordered reasonable attorney fees in enforcing the judgment

. Appellants’ App. Vol. V at 80. Grimes’ s claims against Stewart Memorial remained pending in the trial court.

[13] On September 9, 2017, the Church filed a m otion to c orrect e rror , a rguing the trial court’s August 10 order entering judgment “for a set amoun t does not properly include the terms that were part of the settlement conference and does not accurately set the terms of the deal.” Id . at 123

- 24. On September 15, 2017, Grimes filed a “ Statement in Opposition to Motion to Correct Error ,” in which he argued that the motion to correct error did not satisfy Trial Rule 59(D) because it did not state the alleged error in specific terms. Id . at 126

- 27. Grimes also argue d that the Church h ad waived any challenge to the motion to enforce settlement agreemen t because “‘[w]hen a [party] does not properly bring an objection to the court’s attention so that the court may rule on it at theCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 9 of 26

appropriate time, he is deemed to have waived that possible error .’” Id . at 127 (quoting Ingram v. State , 547 N.E.2d 823, 82 9 (Ind.1989)). Grimes continued:
If [ the Church ] disputed the Motion to Enforce, [it] had no fewer than three opportunities to object: first, when the undersigned sent a letter demanding [it] honor the terms of the agreement; second, via standard motion practice by filing an objection to the Motion to Enforce; and third, when Grimes moved to vacate the hearing. [ T he Church ha s] had many bites at the apple and declined each opportunity.

Id . On September 19, 2017, the Church ’s motion to correct error was denied. Appellee’s App. Vol. II at 53.

[14] On October 31, 2017, the Master Commissioner conducted proceedings supplemental , at which the Church argued th at th e trial court’s judgment for the entire $80,000 .00 was inconsistent with the terms of the parties’ settlement agreement and asked the matter be sent “back to the trial court for clarification.” Tr. Vol. 2 at 3 2

- 36. The Master Commissioner granted their request and continued the hearing. Id . at 37

- 38

. On November 13, 2017, the trial court issued an order , stating in pertinent part, “[T]here is no legitimate dispute regarding the terms of the settlement agreement or the Court’s order enforcing said settlement agreement. The Court stands by and reaffirms its order denying [ the Church ’s] Motion to Correct Error.” Appellants’ App. Vol. V

at 135. The order scheduled another proceedings supplemental for December 15, 2017 and ordered the Church to appear in person. Id

. The Church failed to appear at the pr oceedings supplemental. Appellants’ App. Vol. II at 29

- 30. TheCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 10 of 26

trial court issued “ Final Orders in Garnishment ” to two garnishee/defendant banks , and from th o se orders, Grimes collected $56,693.20, which is being held in his attorney’s trust account. Appellants’ App. Vol. V at 137

- 41 ; Appellee’s App. Vol. II at 57, 61.

[15] On January 25, 2018, the Church appealed the trial court’s “ Final Orders in Garnishment ” a nd stated in their notice of appeal that this court had jurisdiction because the “ Final Orders in Garnishment ” were final judgments. Appellee’s App. Vol. II at 30. A month later, through its new appellate counsel, the Church filed an a mended n otice of a p peal that again stated our c ourt had jurisdiction because the court’s “ Final Orders in Garnishment ” were final judgments

. Id . at 38. On May 11, 2018, the Church filed a motion seeking to dismiss its appeal because, it asserted that the trial court’s “ Final Orders in Garnishment ” were not “final judgments” and argued the garnishment orders were improper because the trial court’s order enforcing the parties’ settlement agreement did not constitute a final judgment and proceedings supplemental
“n ecessarily require a final judgment to execute.” Appellants’ App. Vol. V at 148

- 50.

[16] Grimes objected to the motion to dismiss the appeal b ased on his contentions that, under Indiana law , an order issued as a result of proceedings supplemental is a “final judgment” for purposes of appellate jurisdiction and a “final judgment” against all parties is not required for a plaintiff to seek proceedings supplemental on a judgment entered against some of the parties. Appellants’ App. Vol. VI at 7

- 19. Alternative ly, Grimes requested that this c ourt awardCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 11 of 26

appellate attorney fees because it would be unfair for Grimes to bear the financial costs of the Church ’s tactical mistake in filing an appeal, especially when Grimes was prepared to defend the garnishment orders on appeal and because the trial court’s order allowed for reasonable attorney fees in enforcing the judgment. Id . at 20. On June 6, 2018, this court issued an order granting the Church ’s motion to dismiss and granting Grimes’s request for appellate attorney fees, ordering the trial court to determine the amount to be awarded. Appellee’s App. Vol. II at 51

- 52.

[17] O n July 5, 2018, Grimes filed a motion with the trial court for reasonable attorney fees, requesting $6,456.71. Appellants’ App. Vol. VI at 2

- 4. The Church filed a motion in opposition, arguing that the attorney fees should be reduced to $2,594.95. Id . at 43

- 44. The trial court granted attorney fe e s in the full amount request ed by Grimes , stating “Court finds that the amount of appellate attorney fees is reasonable for the services provided and made necessary by [ the Church ’s] initiating an appeal that they later sought and were granted dismissal without prejudice by the India na Court of Appeals.” Id . at 99.

[18] On July 24, 2018, the Church filed a motion to vacate, requesting that the trial court vacate the August 10, 2017 order enforcing the settlement agreement

. Id

. at 45

- 49. In its motion, the Church contended the trial co urt’s judgment should be vacated because the trial court lacked subject matter jurisdiction, the alleged settlement agreement never occurred, the alleged settlement agreement was unenforceable, and the judgment was erroneously entered without hearing and

w as inconsistent with Grimes’ s allegations of an agreement. Id . at 45

- 75. OnCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 12 of 26

August 29, 2018, the trial court denied the Church ’s motion to vacate and entered final judgment against the Church

. Id . at 100

- 01. The Church now appeal s

. 

### Discussion and Decision

I. Subject Matter Jurisdiction

[19] The Church initially argue s that the trial court lacked subject matter jurisdiction over Grimes’s claims

. The Church contend s that the First Amendment precluded G rimes’s claims against it because the determination of s uch issues would require inquiry into ecclesiastical law, doctrine, or polit y. The Church claim s that Grimes’s claims cannot be resolved without interpretation of religious, doctrinal, and ecclesiastical principles , specifically contained in the Book of D iscipline of the Christian Methodist Episcopal Church (“the Discipline”). As support for its claim, the Church note s that the Discipline provides the procedure s under which pastors receive wages and benefits and how salary disputes are resolved

.

[20] It ha s long been held that the First Amendment to the United States Constitution requires civil courts to refrain from interfering in matters of church discipline, faith, practice, and religious law. Stewart v. Kingsley Terrace Church of Christ, Inc. , 767 N.E. 2d 542, 546 (Ind. Ct. App. 2002) (citing Watson v. Jones , 80 U.S. 679, 727 (1871) )

. “ Thus, civil courts are precluded from resolving disputes involving churches if ‘ resolution of the disputes cannot be made without extensive inquiry

. . . into religious law and polity . . . .’ ” Id . (quoting Serbian E

.Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 13 of 26

Orthodox Diocese v. Milivojevich , 426 U.S. 696, 709 (1976) )

. However, t he First Amendment does not entirely prohibit courts from deciding issues related to religious organizations. Id . (citing K onkle v. Henson , 672 N.E.2d 450, 455 (Ind.
Ct. App. 1996) )

. Instead, courts can apply neutral principles of law to churches without violating the First Amendment. Id . (citing Konkle , 672 N.E.2d at 455). The First Amendment only prohibits the court from determining underlying questions of religious doctrine and practice. Brazauskas v. Fort Wayne

- South Bend Diocese, Inc. , 714 N.E.2d 253, 262 (Ind. Ct. App. 1999), trans. denied

.

[21] In Bra

zauskas v. Fort Wayne

- South Bend Diocese, Inc. , 796 N.E.2d 286 (Ind. 2003), our Supreme Court held that a court with general authority to hear matters like employment disputes is not deprived of subject matter jurisdiction because the defendant pleads a religious defense. Id . at 290. Here, Indiana c ourts, including the Marion Superior Court and this court, have the general authority to hear matters such as Grimes’s claims regarding breach of contract and unjust enrichment in an employment dispute

. The First Amendment claims of the Church did not dep rive the trial court of its subject matter jurisdiction over Grimes’s claims.

[22] The Church assert s that determination of whether Grimes was an employee and , therefore , the resolution of his claims , would require a prohibited inquiry into the Discipline because the Discipline contains procedures regarding a pastor’s compensation. However, the Discipline ’s provisions that the Church point to as support for their arguments are procedural an d administrative and do not concern church doctrine or religious law. Grimes’s claims did not hingeCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 14 of 26

on a review of his performance as a pastor or an interpretation of ecclesiastical law and polity, but only on whether a contract existed that required CME, Second Distr ict, and Stewa rt Memorial to pay Grimes wages or whether unjust enrichment occurred when Grimes was not paid for his services as a pastor. We, therefore, conclude that the trial court had subject matter jurisdiction over Grimes’s claims, and it properly rejected the Ch urch ’s challenges to the contrary. 1



### II. Enforcement of Settlement Agreement

[23] The Church next argue s that the trial court erred when it entered judgment on Grimes’s motion to enforce settlement agreement without having first held an evidentiary hearing. It cont end s that Grimes’s motion was erroneously granted based on a flawed interpretation of Marion County Local Rule LR49

- TR5

- 203. The Church assert s that LR49

- TR5

- 203 does not expressly require a written
response , but merely established a deadline for filing a written response if the opposing party decides to file one. It further claim s that , because the rule did not require a written response to Grimes’s motion , LR49

- TR5

- 203 did not

1 Grimes also raised claims under the Indiana Wage Claims Statute and Wage Payment Stat ut e. Grimes
con cedes that, had his case gone to trial rather than being settled, his claim under the Wage Claims Statute would have failed because he did not first file a claim with the Indiana Department o f Labor and exhaust his administrative remedies as required. See Alexander v. Linkmeyer Dev. II, LLC , 119 N.E.3d 603, 620 (Ind. Ct. App. 2019). As to his claim under the Wage Payment Statute, the Church argue s that the trial court did not have subject matter jurisdiction because the Wage Payment Statute only applies to current employees and those who have voluntarily left employment, see Indiana Code § 22

- 2

- 5

- 1, and Grimes was not a current employee at the time he fi led his complaint, and he claimed that he was terminated, not that he voluntarily left h i s employment. Rather than showing a lack of subject matter jurisdiction, the Church ’s arguments are a challenge to the legal sufficiency of Grimes’s claims. Therefor e, the trial court had subject matter jurisdiction over Grimes’s claim under the Wage Payment Statute.Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 15 of 26

provide any basis for the trial co urt’s entry of judgment against it , and the trial court’s entry of judgment without allowing the Church to present arguments at a hearing amounted to the functional equivalent of a default judgment, for which the local rule does not provide a basis. Becau se the trial court erred in granting Grimes’s motion to enforce the alleged settlement agreement, the Church maintain s that it was an abuse of discretion for the trial court to deny their motion to vacate that judgment.

[24] The Church is actually appealing f rom a denial of its motion to vacate the order enforcing the settlement agreement , not the previously entered judgment on Grimes’s motion to enforce settlement agreement

. When reviewing a trial

court ’ s denial of a motion to vacate its judgment, we review for an abuse of discretion. Kolbet v. Kolbet , 760 N.E.2d 1146, 1153 (Ind. Ct. App. 2002) (citing In re Marriage of Bates, 474 N.E.2d 140 , 142 (Ind. Ct. App. 1985) )

. An abuse of discretion occurs where the trial court ’ s ruling is clearly against the logic and effect of the facts and inferences supporting the judgment. Id

.

[25] Here, Grimes filed a m otion to e nforce s ettlement a greement , which detail ed what transpired du ring the parties’ settlement conference and evidence of the parties’ agreement and requested a hearing. Appellants’ App. Vol. V at 55

- 68. The trial court set it for a hearing. Id . at 70. The Church filed no written
response. Appellants’ App. Vol. II a t 26. After the deadline to file a response had passed, see generally Marion County Circuit and Superior Court Civil RuleCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 16 of 26

LR49

- TR5

- 203, 2 Grimes filed a m otion to v acate the h earing date , contending that there was no need to conduct a hearing because the Church ’s lack of
response showed that Grimes’s evidence was undisputed and the trial court could rule on his m otion to enforce the settlement agreement based on the evidence Grimes submitted. Appellants’ App. Vol. V at 71

- 7 2

. The Chu rch did not object to this motion and again filed no response

. Appellants’ App. Vol. II at 26. Fifteen days later, the clerk filed an order from the trial court granting Grimes’s motion to vacate the hearing. Id .; Appellee’s App. Vol. II at 55. The Chu rch did not file any objection to this order vacating the hearing, nor did it file anything requesting that the hearing be rescheduled so that it could present evidence and argument

. Appellants’ App. Vol. II at 26. On August 10, 2017, several weeks later, the clerk filed an order from the court granting Grimes’s

m otion to e nforce s ettlement a greement and entering judgment against the Church for $80,000 .00

. Appellants’ App. Vol. V at 74.

[26] Thirty days later, the Church filed a m otion t o c orrect e rror , requesting that the August 10 order be set aside and requesting that a hearing be set because the trial court’s order enforcing the parties’ settlement agreement entered judgment “for a set amount” and “[did] not properly include the terms that were part of the settlement conference and [did] not accurately set the terms of the deal.” Id

.

2 LR49

- TR5

- 203 states in pertinent part: “If the statement regarding the position of the opposing party(ies) required under subsection A herein indicate d that objection to the granting of said motion m a y ensue, said objecting party shall have 15 days from the date of filing to file a response to said motion.” LR49

- TR5

- 203(B).Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 17 of 26

at 123

- 24

. No other errors were alleged in the motion

. Id . The trial court denied the motion to correct error on September 19, 2017. Appellants’ App. Vol.
II at 29. On July 24, 2018, the Church filed a m otion to v acate the trial court’s order enforcing the parties’ settlement agreement , raising ten arguments, none of which had been presented in response to Grimes’s m otion to e nforce

s ettlement a greement, and only two of which had been presented in the m otion

to c orrect e rror, specifically , that the judgment should have awarded payment in installments rather than a lump

- sum, and the trial court should have held a hearing

. Appellants’ App. Vol. VI at 45

- 75

.

[27] We conclude that it was proper for the trial court to issue an order on Grimes’s motion to enforce the settlement agreement without holding a hearing. Initially, the tri al court was not required to conduct a hearing on Grimes’s motion to enforce the settlement agreement. U nder LR49

- TR5

- 203(C), “any oral argument requested may be heard at the discretion of the Court.” Therefore, the trial court was within its discretion to make a ruling on Grimes’s motion without first conducting oral argument or a hearing on the motion.

[28] Secondly, the Church ’s lack of action regarding the motions filed by Grimes and the actions taken by the trial court weaken its arguments. The Church fa iled to file a response in opposition to Grimes’s motion , and then again failed to file a response or objection when Grimes filed a motion to vacate the hearing

set for the initial motion to enforce the settlement agreement . Th ese failures to respond or object to Grimes’s motions created an inference that the Church did

not oppose those motions , particularly considering the statements in the motionCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 18 of 26

to vacate the hearing , which contend ed that there was no need to conduct a hearin g because the Church ’s lack of response showed that Grimes’s evidence was undisputed and the trial court could rule on his motion to enforce the settlement agreement based on the evidence Grimes submitted. Appellants’ App. Vol. V at 71

- 72. Fifteen days p assed before the trial court granted Grimes’s motion to vacate the hearing, 3 and then several weeks passed before the trial

court issued its order granting Grimes’s motion to enforce the settlement agreement . At no time from June 9, 2017, when Grimes file d his motion to enforce the settlement agreement, until August 10, 2017, when the trial court granted the motion and entered judgment against the Church , did the Church file any responses or objections to the motions filed. Although the Church ’s contentio ns appear to indicate that they did not believe it was necessary to file a response to Grimes’s motions because it planned to argue its position at the scheduled hearing , if this were true, the trial court’s order vacating the hearing should have prompted them to file an objection. The Church did not file any sort of objection to the enforcement of the settlement agreement or vacation of the hearing until it filed a motion to correct error on September 8, 2017

. Id . at 123

- 24. The Church failed to raise its contentions before the trial court until after a ruling on the motion for enforcement of the settlement agreement had been made. A party may not raise an issue for the first time in a motion to

3 Although the Church argue s that the trial court did not comply with LR49

- TR5

- 203 because it granted Grimes’s motion to vacate hearing on the same date that the motion was filed, the order granting the motion
w as not actually filed by the clerk until July 14, 2017, fifteen days after the motion was filed. Appellants’ App. Vol. II a t 26.Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 19 of 26

correct error or on appeal. Christmas v . Kindred Nursing Ctrs. Ltd. P’ship , 952 N.E.2d 872, 878 (Ind. Ct. App. 2011) (citing Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000) )

. W e conclude that the trial court did not abuse its discretion when it ruled on Grimes’s motion to enforce the settlem ent agreement without conducting a hearing.

[29] The Church also argue s that the trial court abused its discretion when it granted Grimes’s motion to enforce the settlement agreement bec ause no settlement agreement existed. Specifically, the Church contend s th at (1) the purported oral settlement agreement is unenforceable because it violates the Statute of Frauds , (2) the evidence of the settlement agreement presented by Grimes’s counsel was inadmissible because the statements of counsel are not evidence, and c ounsel should have withdrawn under Indiana Rules of Professional Conduct 3.7, which states that a lawyer shall not act as an advocate at a trial where the lawyer is likely to be a necessary witness , (3) no settlement agreement existed because there was no evidence that the required meeting of the minds occurred or evidence to demonstrate agreement on the essential terms of the purported settlement agreement , and (4) the trial court’s judgment contravened the terms of the alleged settlement agreement

. We no te that all of these issues , except for (4), were raised for the first time by the Church in its motion to vacate o n July 24, 2018

. Appellants’ App. Vol. VI at 45

- 49.

[30] In its order enforcing the settlement agreement, the trial court found that the parties had reached an agreement and entered judgment in favor of Grimes and against the Church in the amount of $80,000.00. Appellants’ App. Vol. V at 80.Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 20 of 26

The Church assert s that the allegations by Grimes’s counsel showed that it had , in fact, rejected Grimes’s last counteroffer and had presented a new counteroffer to Grimes, and before Grimes could accept such counteroffer, the Church revoked the counteroffer, leaving no offer accepted and no settlement terms still pending. The Church thus maintain s that no offer and acceptance occurred, and no enforceable settlement agreement existed. We disagree and , as we explain below, conclude that the evidence presented by Grimes in his motion for enforcement of the settlement agreement was suff icient to support the judgment by the trial court.

[31] “ Indiana strongly favors settlement agreements and if a party agrees to settle a pending action, but then refuses to consummate his settlement agreement, the opposing party may obtain a judgment enforcin g the agreement. ” MH Equity Managing Member, LLC v. Sands , 938 N.E.2d 750, 757 (Ind. Ct. App. 2010) (citing Georgos v. Jackson, 790 N.E.2d 448, 453 (Ind. 2003) ) , trans. denied

. Settlement agreements are governed by the same general principles of contract law as other agreements. Id. Generally, a settlement agreement is not required to be in writing. Id . (citing Estate of Skalka v. Skalka, 751 N.E.2d 769, 771 (Ind.
Ct. App. 20 01) )

. The existence of a contract is a question of law , and t he basic requirements are “ offer, acceptance, consideration, and ‘ a meeting of the minds of the contracting parties. ’ ” Id. (quoting Batchelor v. Batchelor, 853 N.E.2d 162, 165 (Ind. Ct. App. 20 06) ). The intention of the parties to a contract is a factual

matter that must be determined from all the circumstances. Zimmerman v. McColley, 826 N.E.2d 71, 76 (Ind. Ct. App. 2005). To be valid and enforceable,Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 21 of 26

a contract must be reasonably certain an d definite. Zukerman v. Montgomery , 945 N.E.2d 813 , 819 (Ind. Ct. App. 2011). “All that is required to render a contract enforceable is reasonable certainty in the terms and conditions of the promises made, including by whom and to whom; absolute certainty in all terms is not required.” Id

. Only essential terms are necessary for a contract to be enforceable. Id.

[32] H ere , the evidence 4 in Grimes’s motion to enforce the settlement agreement established that a fter initial discussion, Grimes offered to settle his claims against the Church for $90,000.00. Id . at 6 6. The Church countero ffered for $40,000.00 and a confidentiality provision. Id . Grimes agreed to the confidentiality provision and counteroffered for $80,000.00 paid via an initial reasonable lump

- sum payment followed by a reasonable payoff of the balance over time, and an a ttorney fee provision should the Church fail to pay. Id

. The Church agreed to the $80,000.00 settlement payment and the attorney fee provision and proposed that the initial payment be $15,000.00 with semi

- annual payments of the balance over four years. Id . Grimes’s counsel then called

4 As to the Church ’s arguments that there was no admissible evidence presented to establish that an agreement has occurred, we disagree. When Grimes filed his motion to enforce the settlement agreement, he included tw o exhibits, a letter that he had sent to counsel for the Church , outlining what had transpired during the settlement conference and emails between counsel discussing whether the Church would honor the agreement. Appellants’ App. Vol. V at 62

- 67. Additiona lly, we disagree with i t s contention that Grimes’s counsel was required to withdraw under Indiana Professional Conduct Rule 3.7(a), which states that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. If the Church believed that Grimes’s counsel was prohibited from acting as both an advocate and a witness as to what transpired at the settlement conference, it should have moved to disqualify him at the time the motion to enforce the settlement agreement wa s filed. If the Church had done so, then a hearing could have been held to determine if the attorney should have be en disqualified from arguing the motion.Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 22 of 26

Grimes to convey the parties’ agreement and confirm his approval of the payment terms the Church had recommended. Id . As Grimes’s counsel was preparing to return to the conference room to convey Grimes’s approval of its proposed payment terms, the Church ’s counsel attempted to rescind the parties’ agreement, stating that he only had authority to offer $50,000.00. Id

. A follow

up conversation between the parties occurred, during which Grimes’s counsel reserved the right to enforce the settlement agreement reached at $80,000.00, and counsel for the Church acknowledged Grimes’s right to do so. Id

. From this evidence, the parties had reached a reasonable certainty on the essential terms of the settlement agreement, $80,00 0 .00 in a reasonable initial lump sum and reasonable installments thereafter, a confidentiality clause, and an attorney fee provision in favor of Grimes should the Church fail to pay

. We conclude that, from th e undisputed evidence, the trial court was within it s discretion to determine that the parties had agreed to settle the ca s e for $80,000.00 and, therefore, did not abuse its discretion in granting Grimes’s motion to enforce the settlement agreement. 5

[33] The Church also argue s that there was no enforceable agreement under the Statute of Frauds because the agreement could not be performed within one

5 The Church also contend s that the trial court’s judgment contravened the terms of the settlement agreement . However, as we have concluded that the parties had reached a reasonable certainty on the essential terms of the settlement agreement, $80,000.00 , in a reasonable initial lump sum , and reasonable installments thereafter, a confidentiality clause , and an attorney fee provision in favor of Grimes should the Church fail to pay , the trial court was within its discretion to enter judgement in favor of Grimes in the amount of $80,000.00.Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 23 of 26

year of the agreement. Indiana Code section 32

- 21

- 1

- 1 provides in pertinent part :
(b) A person may not bring any of the following actions unless the promise, con tract, or agreement on which the action is based, or a memorandum or note describing the promise, contract, or agreement on which the action is based, is in writing and signed by the party against whom the action is brought or by the party's authorized age nt:

. . . . (5) An action involving any agreement that is not to be performed within one (1) year from the making of the agreement.

Ind. Code § 32

- 21

- 1

- 1(b)(5). T he one

- year clause of the S tatute of F rauds applies “only to contracts which, by the express stipulations of the parties, were not to be performed within a year, and not to those which might or might not upon a contingency, be performed within a year.” Tobin v. Ruman , 819 N.E.2d 78, 85 (Ind. Ct. App. 2004) (quoting Wallem v. CLS Indus., Inc. , 725 N.E.2d 880, 887 (Ind. Ct. App. 2000) ), trans. denied

. In other words, “it is apparent that only
if it is impossible for an oral contract to be completed within one year does it fall within the Statute of Frauds.” Id. (emphasis in original).

[34] Here, the essential terms of the settlement agreement between the pa rties was for $80,000.00 , in a reasonable initial lump sum , and reasonable installments thereafter, a confidentiality clause, and an attorney fee provision in favo r of Grimes should the Church fail to pay

. Appellants’ App. Vol. V at 66. AlthoughCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 24 of 26

the attorneys thereafter discussed what the “reasonable lump

- sum payment” and “reasonable payoff of the balance over time” would be, those specifics were not material term s , which is clear from the trial court’s judgment, which only ordered a judgment in favor of Grimes in the amount of $80,000.00. Id . at 80. While the Church did not expect to pay the settlement amount in less than one year, such an expectation is not suf ficient to cause the agreement to be unenforceable under the Statute of Frauds. See Tobin , 819 N.E.2d at 85. We, therefore, conclude that the trial court did not abuse its discretion when it denied the Church ’s motion to vacate the order enforcing the settlement agreement.


### III. Attorney Fees

[35] The Church lastly argue s that the trial court abused its discretion when it awarded attorney fees

. It initially claim s that the attorney fee award was an abuse of discretion because the award was based on a provision in the order enforcing the settlement agreement that authorized attorney fees expended in Grimes’s enforcement of the judgment , and it maintain s that the jud gment was void. However, if we find that the judgment was not void, as we have in this opinion, the Church further contend s that the trial court abused its discretion because the attorney fee award was unreasonable for the services provided , and the appel late attorney fees requested by Grimes were not made necessary by the Church ’s initiation of the previous premature appeal. Therefore, the Church request s that we reduce the attorney fee amount to $2,594.98.Court of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 25 of 26

[36] We review a trial court ’ s award of attorney fee s, and the amount of any such award, for an abuse of discretion. R.L. Turner Corp. v. Wressell , 44 N.E.3d 26, 38 (Ind. Ct. App. 2015) (citing Daimler Chrysler Corp. v. Franklin, 814 N.E.2d 281, 286 (Ind. Ct. App. 2004) ) , trans. denied

. An abuse of discre tion occurs when the trial court ’ s award is clearly against the logic and effect of the facts and circumstances before the court. Id

. “ ‘ An award of attorney ’ s fees will be reversed on appeal as excessive only where an abuse of the trial court ’ s discretio n is apparent on the face of the record. ’ ” Id . (quoting Daimler Chrysler , 814 N.E.2d at 287. We do not reweigh the evidence , but instead, we determine whether the evidence before the trial court can serve as a rational basis for its decision. Id

. (citing DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d 729, 732 (Ind. 2015) ).

[37] In the present case, although the trial court included in its order enforcing the settlement agreement a n order that Grimes “shall be entitled to recover his reasonable attorney fees in enforcing said judgment,” Appellants’ App. Vol. V at 80, the attorney fees at issue in this appeal were ordered pursuant to this court’s order dismissing the appeal filed by the Church in January 2018 and dismissed in June 2018. Appellee’s App. Vol. II at 51. Thereafter, Grimes submitted his request for reasonable appellate attorney fees to th e trial court , asking for $6, 456.71

. Appellants’ App. Vol. VI at 2

- 5

. His request set out the work done in association with the appeal filed by the Church , including conducting research and preparation in anticipation of responding to arguments on appeal , responding to and researching the motion to dismiss their own appeal filed byCourt of Appeals of Indiana | Memorandum Decision 18A

- PL

- 2346 | August 26 , 2019 Page 26 of 26

the Church , preparing a motion to strike filed by Grimes, and preparing the motion for attorney fees, totaling 26.25 hours at $245.97 per hour. Id

.

[38] Grimes contends that the attorney fee award was reasonable beca use in the previous appeal, his counsel not only opposed the motion to dismiss the appeal based on a contention that the Church ’s legal arguments were wrong, but that his counsel also expended time preparing a defe nse of the garnishment orders that he argues were ripe for appeal. Appellee’s Br . at 42 (citing Appellants’ App. Vol. VI at 17). He also asserts that it was reasonable to spend time preparing the motion to strike a reply that the Church had no right to f ile and that raised a new argument and that such a motion was not frivolous just because it was not granted. Id . at 42

- 43. We agree and conclude that the trial court did not abuse its discretion when it awarded appellate attorney fees in the amount of $ 6, 456.71.

[39] Affirmed

. Vaidik, C

. J ., and Najam , J

. , c o ncur.