MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 31 2017, 8:18 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEY FOR APPELLEE William L. Scales Thomas P. Norton Evansville, Indiana Johnson, Carroll, Norton, Kent & Goedde, P.C. Evansville, Indiana
IN THE COURT OF APPEALS OF INDIANA
William L. Scales, January 31, 2017 Appellant-Plaintiff, Court of Appeals Case No. 82A01-1512-CC-2323 v. Appeal from the Vanderburgh Circuit Court Chester Levels, The Honorable David D. Kiely, Appellee-Defendant. Judge Trial Court Cause No. 82C01-1401-CC-21
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 1 of 20 [1] William L. Scales appeals the trial court’s order granting summary judgment in
favor of Chester Levels. Scales raises three issues which we consolidate and
restate as whether the court erred in entering summary judgment in favor of
Levels or abused its discretion in denying Scales’s subsequent motion to correct
error. We affirm.
Facts and Procedural History
[2] Scales executed a quitclaim deed on March 10, 2011, conveying his undivided
one-tenth interest in certain real property in Vanderburgh County, Indiana, to
Levels, and the deed was recorded with the Vanderburgh County Recorder on
March 28, 2011.
[3] On January 16, 2014, Scales filed a complaint seeking a judgment declaring his
right to an undivided one-half interest in the property. Scales alleged in part
that he executed the March 10, 2011 deed pursuant to a verbal agreement with
Levels in which Levels agreed to later deed an undivided one-half interest of the
property back to him, with Levels and Scales each holding an undivided one-
half interest as tenants in common; that Scales had originally acquired title to
the property through intestate succession as set forth in a certain Affidavit of
Heirship of Chester L. Scales, Deceased, recorded with the Vanderburgh
County Recorder on December 21, 2010 (the “Affidavit of Heirship”); and that
he reasonably relied on Levels’s promise and deeded his interest in the property
to Levels as consideration for Levels’s promise to make improvements thereon
and then deed an interest back to him.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 2 of 20 [4] On January 6, 2015, Levels filed a motion for summary judgment and
designation of materials in support of the motion, which included the affidavit
of his mother Alethea Christian and a copy of the Affidavit of Heirship. In her
affidavit, Christian states that she is the daughter of Chester L. Scales and the
mother of Levels; that Chester L. Scales died on July 31, 2000; that his heirs
were set forth in the Affidavit of Heirship; that the heirs had neither the desire
nor the resources to singly assume ownership of the property as it was subject to
efforts by the Department of Code Enforcement of the City of Evansville
demanding remedial actions; that Levels agreed he would attend to the
remediation and clean-up of the property if all of the family conveyed their
interests in the property to him; and that Levels acquired the heirs’ interests
through various quitclaim deeds, copies of which were attached to and made
part of the affidavit. She further states that, at the time of the acquisition by
Levels, the title to the property was subject to a recorded installment contract in
favor of Clifford Preher; that following mediation Levels expended $18,000 to
achieve a settlement with Preher; that at no time during the negotiations, at
which Scales was present, did Scales assert any interest in the property; and that
thereafter Levels expended further sums to demolish the structure on the
property to satisfy demands of the City of Evansville. Christian also states that
she was present for most of the discussions between Levels and Scales and has
no recollection of any discussion between them as to Scales having an interest
in the property or any promise made by Levels to convey any interest in the
property to him.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 3 of 20 [5] The Affidavit of Heirship stated that Levels is the grandson of the decedent
Chester L. Scales; that the decedent was survived by his wife Dorothy Scales,
four daughters, and his son Scales; and that, as of the date of the decedent’s
death, Dorothy Scales owned an undivided one-half interest in the property and
each of the children of the decedent, including Scales, owned an undivided one-
tenth interest in the property. Each of the heirs of the decedent Chester L.
Scales identified in the Affidavit of Heirship, including Scales, executed a
quitclaim deed which conveyed his or her respective undivided interest in the
property to Levels and expressly referenced the Affidavit of Heirship.
[6] On March 18, 2015, Scales filed a motion to order third party discovery stating
that he sought discovery from the Grayson County Detention Center, that it
would not provide the discovery without a court order, and that the discovery
sought is limited to visitation records and recorded phone conversations
between the parties in November and December 2013. Levels filed an objection
stating in part that he was not made aware of any previous effort by Scales to
make third party discovery, that if he had been notified he would have objected
to any effort, and that any discussion that may have occurred would be in the
nature of settlement discussions and are not discoverable.
[7] On March 30, 2015, Scales filed a motion to deny Levels’s summary judgment
motion together with designated evidence, which included a copy of a
settlement check for $17,000 and the affidavits of Charis Thomas, William
Anderson, Darryl Christian, Scales, and Tarita Moore. Thomas’s affidavit
states that he was aware that Scales only removed his name from the property
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 4 of 20 because of a child support lien against him and that Levels agreed to place
Scales’s name back on the property once the child support was paid in full.
Anderson’s affidavit states that Scales’s name was removed from the property
solely due to the fact there was an outstanding child support order of $27,000;
that upon full payment of the support order Scales’s name would be reattached
to the property; and that, in addition, Levels expressed that he was in need of
money, that he was willing to release his fifty-percent portion of the property to
an investor for $45,000, of which he would receive $36,000 and the remaining
amount would be applied to back taxes and fees associated with the razing of
the building, and that it was confirmed that Scales would retain his fifty percent
of the property. Darryl’s affidavit states that he was present in a vehicle with
Scales, Dorothy, and Alethea when Levels was on the phone and placed on
speaker phone, that Levels stated that he and Scales had an understanding, and
that Scales then turned over his signed quitclaim deed to Alethea.
[8] In his affidavit, Scales states that at one time he had a child support debt of
$27,000 which could send any property in his name into a forced sale, that his
name had become attached to the property before he could pay that debt, that
he had his name removed from the property until he was able to resolve his
child support debt, and that he and Levels entered into an oral agreement that
his name would be returned to the property upon settlement of the child support
debt. Scales states that he had visited Levels at the detention center in
Leitchfield, Kentucky, in November and December of 2013, “which can prove
from [Levels’s] own mouth that we . . . indeed have an Oral Agreement,” and
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 5 of 20 that in April 2013 he paid $17,000 in child support settlement which brought his
balance to zero and fulfilled his end of the oral agreement. Appellant’s
Appendix at 67. He further states that he “lived up to [his] end of the Oral
Agreement” and “began to move forward in action to preserve the property
with sense of ownership,” that in May 2013 he paid $2,300 in taxes on the
property, he also spent thousands on maintenance of the property, there have
been no citations from the City of Evansville for weeds, he placed cable wire
barriers to keep intruders off the property, and that he had gravel and sand
brought to the property for the purpose of filling holes to prevent the collecting
of water and mosquitos from reproducing. Id.
[9] The designated affidavit of Moore, which was filed in December 2013 in a
paternity action following an information for contempt for nonpayment of child
support, states that prior to April 5, 2013, a child support arrearage of $27,000
existed and had accrued against Scales and that, by agreed entry and order
effective April 5, 2013, the existing arrearage was compromised and reduced to
$17,000 by Moore and Scales, thereby resolving the support arrearage through
that date.
[10] On April 28, 2015, the court held a hearing at which Levels’s counsel stated
that, at the time the Affidavit of Heirship was prepared, a building existed on
the property, inside there was an old tavern that was not in operation, the grass
was growing, and there were a lot of code enforcement questions concerning
the property. Counsel also stated that Levels wished to acquire an interest in
the property and possibly develop it, that the Affidavit of Heirship was prepared
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 6 of 20 to show the property’s ownership, and that then there was a process of
acquiring quitclaim deeds from all of the property holders, including Scales. He
stated that an unresolved installment contract of record related to the property
was discovered, Levels filed suit to quash the installment contract, and after
mediation Levels paid about $19,000 to settle the case. Levels’s counsel argued
in part that Scales’s theory of liability is based on a joint effort to remove Scales
from ownership in order to thwart the collection of child support through a
paternity action, that if the lien existed in 2011 then, whether or not Scales
deeded the property away, the lien stayed with the property and there was no
consideration and no basis for reliance, and that the court should grant the
motion for summary judgment based on the statute of frauds.
[11] Scales, pro se, argued that it was “simply because I had that debt, and we didn’t
want a debt of mine to affect the process of us acquiring this land, transforming
it to . . . to do business on it, and so in a good will effort, I transferred my stake
in the land, and in that we had an agreement that since it was just us two parties
who were interested because none of my siblings were ever interested in the
property, I was the one who always had a historical attachment to it . . . .”
Transcript at 15. He argued that his stake went from ten to fifty percent
“because that is our arrangement, we was the last two people, we were the only
two people who were interested in this property” and “this is how it all of a
sudden came . . . this is how it ultimately manifested through these Quit-Claim
Deeds.” Id. at 16. He also argued that he paid $17,000 to bring his child
support balance down to zero, that since then he paid $2,300 in taxes on the
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 7 of 20 property, he maintained the property ever since Levels became incarcerated
over two years earlier, the property is located in front of his home, and that at
some point Levels had legal issues and extreme legal fees and “they tried to sell
the property out from under me before they put my name back on this
property.” Id. at 18.
[12] Levels’s counsel responded that Scales gave up his ten-percent interest in the
property at a time the property had issues, Levels then proceeded to settle the
issue with the installment contract, Scales then came back on the scene, and
that it was unclear whether Scales was seeking the benefit of the bargain or the
loss of his ten-percent interest.
[13] On October 12, 2015, the court entered an order granting Levels’s motion for
summary judgment. Scales filed a motion to correct error stating that,
following the April 28, 2015 hearing, the parties met inside the judge’s
chambers and were advised to reach an agreement and the parties agreed that
sixty days would suffice, that on October 7, 2015, the parties met and advised
the judge that they could not reach an agreement, and that the court later ruled
on the summary judgment motion. Scales argued that the fact the court advised
the parties to reach some form of agreement makes it obvious that a material
fact is still in dispute. The court denied the motion to correct error.
Discussion
[14] The issue is whether the trial court erred in entering summary judgment in
favor of Levels and against Scales or abused its discretion in denying Scales’s
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 8 of 20 motion to correct error. We generally review rulings on motions to correct
error for an abuse of discretion. Speedway SuperAmerica, LLC v. Holmes, 885
N.E.2d 1265, 1270 (Ind. 2008), reh’g denied; Ind. Bureau of Motor Vehicles v.
Charles, 919 N.E.2d 114, 116 (Ind. Ct. App. 2009). An abuse of discretion
occurs if the trial court’s decision is against the logic and effect of the facts and
circumstances before it, or the reasonable inferences drawn therefrom. Lighty v.
Lighty, 879 N.E.2d 637, 640 (Ind. Ct. App. 2008), reh’g denied.
[15] In reviewing an order granting or denying summary judgment, our standard of
review is the same as it is for the trial court. Manley v. Sherer, 992 N.E.2d 670,
673 (Ind. 2013). The moving party bears the initial burden of making a prima
facie showing that there are no genuine issues of material fact and that it is
entitled to judgment as a matter of law. Id. Summary judgment is improper if
the moving party fails to carry its burden, but if it succeeds, then the non-
moving party must come forward with evidence establishing the existence of a
genuine issue of material fact. Id. We construe all factual inferences in favor of
the non-moving party and resolve all doubts as to the existence of a material
issue against the moving party. Id. An appellate court reviewing a challenged
trial court summary judgment ruling is limited to the designated evidence
before the trial court, but is constrained to neither the claims and arguments
presented at trial nor the rationale of the trial court ruling. Id.
[16] Scales, pro se, argues there was an agreement to reattach his name to the deed of
the property, that affidavits he submitted affirm there was an agreement
regarding reattaching his name to the property, and that his designated Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 9 of 20 materials conflict with Levels’s designated materials. He claims the statute of
frauds is not applicable based on the doctrines of part performance and
promissory estoppel, that the primary reason he deeded the property to Levels
was because Levels promised to reattach his name after he paid his child
support obligation and paid costs to improve the property, and that, “even if the
Court determined that [he] would have had to pay the child support obligation
regardless of the oral promise made by Levels,” he “would have never paid the
costs for any improvements on the property had Levels not made the oral
promise to reattach [his] name to the property once said costs were paid.”
Appellant’s Brief at 10. Scales argues that the information he sought through
his motion to order third party discovery would have assisted in determining
whether an oral agreement exists and that the trial court should have granted
his motion. He also asserts that he paid $2,300 in property taxes for the
property in 2013, erected a cable barrier around the property, cut the grass
weekly, filled in holes on the property, and kept it clear of debris.
[17] Levels maintains that there is no written document executed by him related to
the sale of the property and that the evidence does not support part performance
or estoppel to circumvent the statute of frauds. He contends that there is no
evidence he requested or knew of the property tax payments by Scales until
after they were made, and no evidence that Scales made material or substantial
improvements to the property. He also asserts he did not induce Scales’s child
support payment and that the payment was induced by the acts of the child’s
representatives to collect the support. As to Scales’s motion to order third party
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 10 of 20 discovery, Levels asserts that Scales has not shown that he complied with Ind.
Trial Rules 34(C) and 45(B) as a prerequisite to seeking a court order under
Trial Rule 37. 1
[18] The Indiana Statute of Frauds requires that contracts for the sale of real
property be in writing. Jernas v. Gumz, 53 N.E.3d 434, 445 (Ind. Ct. App. 2016)
(citing Fox Dev., Inc. v. England, 837 N.E.2d 161, 166 (Ind. Ct. App. 2005)),
trans. denied. Found at Ind. Code § 32-21-1-1, the Statute provides that a person
may not bring an action involving a contract for the sale of land unless the
contract “is in writing and signed by the party against whom the action is
brought or by the party’s authorized agent.” The Statute is intended to preclude
fraudulent claims that would probably arise when one person’s word is pitted
against another’s. Jernas, 53 N.E.3d at 446. To satisfy the Statute, an
enforceable contract for the sale of land must be evidenced by some writing
which has been signed by the party against whom the contract is to be enforced
or his authorized agent, which describes with reasonable certainty each party
and the land, and which states with reasonable certainty the terms and
1 Ind. Trial Rule 34 relates to a party’s request to produce and permit the party to inspect documents or electronically stored information. Trial Rule 34(C) relates to the application of the rule to non-parties and provides in part that a request to a person other than a party “shall be served upon other parties and included in or with a subpoena served upon such witness or person” and that “[n]either a request nor subpoena to produce or permit as permitted by this rule shall be served upon a non-party until at least fifteen (15) days after the date on which the party intending to serve such request or subpoena serves a copy of the proposed request and subpoena on all other parties.” Trial Rule 45 relates to subpoenas. Trial Rule 37 governs the failure to cooperate in discovery and provides in part that, if a person, in response to a request submitted under Rule 34, fails to respond, “the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request.”
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 11 of 20 conditions of the promises and by whom and to whom the promises were
made. Hrezo v. City of Lawrenceburg, 934 N.E.2d 1221, 1227 (Ind. Ct. App.
2010), trans. denied.
[19] Scales does not argue that his purported verbal agreement with Levels was
evidenced by some writing signed by Levels and containing the terms and
conditions of the agreement. Rather, he argues that two exceptions to the
Statute of Frauds, the doctrines of promissory estoppel and part performance,
are applicable.
A. Promissory Estoppel
[20] Oral promises that are not enforceable under the Statute of Frauds may
nonetheless be enforced under the equitable doctrine of promissory estoppel.
Hrezo, 934 N.E.2d at 1230. A party seeking to defeat the Statute of Frauds
requirement based upon promissory estoppel must establish: (1) a promise by
the promissor; (2) made with the expectation that the promisee will rely
thereon; (3) which induces reasonable reliance by the promisee; (4) of a definite
and substantial nature; and (5) injustice can be avoided only by enforcement of
the promise. Id. at 1231 (citing Spring Hill Developers, Inc. v. Arthur, 879 N.E.2d
1095, 1100 (Ind. Ct. App. 2008) (citation omitted)).
[21] We have observed that the fifth element creates a high bar for the party seeking
to establish promissory estoppel. Spring Hill, 879 N.E.2d at 1101. The Indiana
Supreme Court “has explained the type of injury required to establish” the fifth
element:
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 12 of 20 [I]n order to establish an estoppel to remove the case from the operation of the Statute of Frauds, the party must show [ ] that the other party’s refusal to carry out the terms of the agreement has resulted not merely in a denial of the rights which the agreement was intended to confer, but the infliction of an unjust and unconscionable injury and loss.
In other words, neither the benefit of the bargain itself, nor mere inconvenience, incidental expenses, etc. short of a reliance injury so substantial and independent as to constitute an unjust and unconscionable injury and loss are sufficient to remove the claim from the operation of the Statute of Frauds.
Id. at 1101-1102 (quoting Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001)
(quoting Whiteco Indus. v. Kopani, 514 N.E.2d 840, 845 (Ind. Ct. App. 1987)
(citation omitted), trans. denied)).
[22] In Spring Hill, we observed that the Indiana Supreme Court, in Brown, reversed
the trial court’s judgment enforcing the defendant’s oral promise to convey a
house based on a theory of promissory estoppel, and we noted that “[c]ritical to
the court’s conclusion was its observation that Whiteco stood for the proposition
that ‘[i]f what the party gave up in reliance on an oral promise was no greater
than what the party would have given up in any event, then the consideration is
deemed insufficient to remove the oral promise from the operation of the
Statute of Frauds.’” Id. at 1102 (citing Brown, 758 N.E.2d at 53). We observed
that thus, although the plaintiff quit her job, dropped out of college, and moved
from Missouri to Indiana in reliance on the defendant’s promise to convey a
house to her, the court reasoned such injuries merely established that the
plaintiff “was inconvenienced as well as denied the benefit that [the
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 13 of 20 defendant’s] promise was intended to confer,” but not that the defendant’s “oral
promise resulted in the ‘infliction of an unjust and unconscionable injury and
loss.’” Id. (citing Brown, 758 N.E.2d at 53).
[23] Further, we noted that, for the promissory estoppel doctrine to limit application
of the Statute of Frauds, “the reliance injury must be not only (1) independent
from the benefit of the bargain and resulting incidental expenses and
inconvenience, but also (2) so substantial as to constitute an unjust and
unconscionable injury.” Id. at 1103 (citing Coca-Cola Co. v. Babyback’s Int’l, Inc.,
841 N.E.2d 557, 569 (Ind. 2006)). We also observed that “the test in Babyback’s
addresses reliance injuries only” and that “expectancy injuries are excluded
from the unconscionability analysis.” Id. (citing Jarboe v. Landmark Cmty.
Newspapers of Ind., Inc., 644 N.E.2d 118, 122 (Ind. 1994) (“To the extent that the
plaintiff’s request for estoppel seeks to compel the defendants to resume their
employment of the plaintiff, or seeks damages in the form of lost wages
following his discharge, such requested relief represents expectancy damages,
not reliance costs, and thus is not recoverable.”)).
[24] In this case, Scales alleges that he relied on Levels’s promise to convey an
interest in the property to him when he made a settlement payment toward his
child support arrearage and by incurring costs to maintain and improve the
property. To the extent Scales points to his settlement payment, we note that
Scales had already been ordered to make support payments. Scales’s action of
making the payment toward his arrearage was no greater than what he was
required to do in any event and is insufficient to remove the oral promise from
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 14 of 20 the operation of the Statute of Frauds. See Brown, 758 N.E.2d at 53 (“If what
the party gave up in reliance on an oral promise was no greater than what the
party would have given up in any event, then the consideration is deemed
insufficient to remove the oral promise from the operation of the Statute of
Frauds.”). We also observe that estoppel, including promissory estoppel, is a
judicial doctrine sounding in equity. See id. at 51-52; Lightle v. Harcourt Mgmt.
Co., 634 N.E.2d 858, 860 (Ind. Ct. App. 1994) (observing the doctrine of
promissory estoppel is an equitable claim for relief), trans. denied. The unclean
hands doctrine is an equitable tenet that demands that one who seeks equitable
relief be free of wrongdoing in the matter before the court, and the purpose of
the unclean hands doctrine is to prevent a party from reaping benefits from his
or her misconduct. Coppolillo v. Cort, 947 N.E.2d 994, 1000 (Ind. Ct. App.
2011). To the extent Scales transferred his one-tenth interest in the property to
Levels in an attempt to avoid full and timely compliance with his child support
obligation, he should not reap a benefit from his conduct.
[25] With respect to the costs Scales asserts he incurred to maintain or improve the
property, we note that he states in his affidavit that he made a property tax
payment in 2013, spent thousands on maintenance of the property, placed cable
wire barriers to keep intruders off the property, and had gravel and sand
brought to the property for the purpose of filling holes. Levels designated the
affidavit of Christian, which states that, after he acquired the heirs’ interests in
the property, Levels expended $18,000 to obtain a settlement with the contract
purchaser under an installment contract and expended further sums to demolish
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 15 of 20 the structure on the property to satisfy demands of the City of Evansville.
Scales does not claim he made any contributions toward these costs. Moreover,
Scales was not precluded from receiving the reasonable value of his services and
reimbursement of the amounts he expended. See Spring Hill, 879 N.E.2d at
1103-1104 (holding that the reliance injuries Spring Hill and Brinkworth
incurred in developing the property into a suitable condition for subdivision and
sale “are not unconscionable because they pertain to Brinkworth’s services, and
nothing prevents Brinkworth from receiving the reasonable value of his services
based on quantum meruit . . . or, more generally, from receiving restitution
based on unjust enrichment”).
[26] Based on the designated evidence, including evidence of the costs to maintain
and improve the property incurred by Scales relative to those costs incurred by
Levels, and keeping in mind Scales is not prevented from receiving
reimbursement of the costs he incurred to maintain and improve the property,
we conclude that none of Scales’s injuries is so substantial as to constitute an
unjust and unconscionable injury and that Scales cannot show that injustice can
be avoided only by enforcement of Levels’s purported promise. See id. at 1104
(holding, where Spring Hill and Brinkworth filed a complaint alleging the
Arthurs agreed to convey property to Spring Hill and seeking an order of
specific performance to convey the property, that none of Spring Hill and
Brinkworth’s reliance injuries, which they alleged included time and expense
toward the development of the property, was so substantial as to constitute an
unjust and unconscionable injury, that they could not show that injustice could
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 16 of 20 be avoided only by enforcement of the promise to convey the property, and that
therefore promissory estoppel did not apply to remove the promise from the
Statute of Frauds). Accordingly, promissory estoppel does not apply to remove
Levels’s purported promise from the Statute of Frauds.
B. Part Performance
[27] The part performance doctrine is based on the rationale that equity will not
permit a party who breaches an oral contract to invoke the Statute of Frauds
where the other party has performed his part of the agreement to such an extent
that repudiation of the contract would lead to an unjust or fraudulent result. Id.
Where the oral promise is to sell an interest in land, “‘some combination’ of the
following acts of performance are sufficient for the doctrine to apply: 1)
payment of the purchase price or a part thereof; 2) possession; and 3) lasting
and valuable improvements on the land.” Id. (citations omitted).
[28] An alternative way to determine whether the doctrine applies is to use the
standard expressed in the Restatement:
A contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with the Statute of Frauds if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement.
Id. at 1105 (citing RESTATEMENT (SECOND) OF CONTRACTS § 129; Summerlot v.
Summerlot, 408 N.E.2d 820, 828 (Ind. Ct. App. 1980) (“Where one party to an
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 17 of 20 oral contract in reliance on that contract has performed his part of the
agreement to such an extent that repudiation of the contract would lead to an
unjust or fraudulent result, equity will disregard the requirement of a writing
and enforce the oral agreement.”)). Comment b to Section 129 states that the
reliance of the promisee must provide “a compelling substantive basis for relief
in addition to the expectations created by the promise” and that determining
whether this substantive basis is established “requires consideration of the
adequacy of the remedy of restitution.” Id.
[29] In this case, even if Scales changed his position in reliance on Levels’s
purported promise, we cannot find that the nature of the injury is so substantial
that injustice can be avoided only through specific performance. As noted
above, Scales was already required to pay his child support arrearage, and he
was not prevented from receiving the reasonable value of his services and
reimbursement of his costs in maintaining the property. Scales cannot establish
that injustice can be avoided only through specific performance. See id.
(holding that, assuming Brinkworth sufficiently changed his position in reliance
on the promise to convey the property, the nature of the injury cannot be
characterized as so substantial that injustice can be avoided only through
specific performance, that nothing prevented Brinkworth from receiving the
reasonable value of his services or restitution or both, and that the part
performance doctrine does not apply to remove the promise from the Statute of
Frauds). Accordingly, the part performance doctrine does not apply to remove
Levels’s promise from the Statute of Frauds.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 18 of 20 [30] Because the doctrines of part performance and promissory estoppel do not
apply to remove Levels’s alleged promise from the Statute of Frauds, and the
writing requirement of the Statute of Frauds was not satisfied, any verbal
agreement between Scales and Levels regarding the transfer of an interest in the
property to Scales is unenforceable. See id. 1097-1105 (concluding that the trial
court properly applied the Statute of Frauds to bar Spring Hill and Brinkworth’s
complaint, rejecting the arguments that the equitable doctrines of promissory
estoppel and part performance were applicable, and affirming the trial court’s
grant of summary judgment in favor of the Arthurs).
[31] We also observe that, to the extent Scales asserts that his designated evidence
conflicts with Levels’s designated evidence as to whether a verbal agreement
existed and that the trial court should have granted his motion to order third
party discovery because the discovery would have assisted the court in
determining whether an oral agreement exists, we have explained that the
Statute of Frauds “does not govern the formation of a contract but only the
enforceability of contracts that have been formed.” Jernas, 53 N.E.3d at 445
(citing Schuler v. Graf, 862 N.E.2d 708, 712-713 (Ind. Ct. App. 2007) (citing Fox
Dev., 837 N.E.2d at 165); Owens v. Lewis, 46 Ind. 488, 518 (1874) (noting an
agreement that is not in writing, although required to be in writing by the
Statute of Frauds, is not invalid, and that the statute only inhibits actions to
enforce the agreement)). Thus, even assuming Scales and Levels entered into a
verbal agreement, the agreement is unenforceable because it was not
memorialized in writing as required by the Statute of Frauds.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 19 of 20 Conclusion
[32] For the foregoing reasons, we affirm the trial court’s entry of summary
judgment in favor of Levels and denial of Scales’s motion to correct error.
[33] Affirmed.
Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017 Page 20 of 20