Larry J. Jernas and R & R Horse Haven, Inc. v. Kevin J. Gumz

FILED
Apr 06 2016, 9:28 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Terry K. Hiestand Jere L. Humphrey
Hiestand Law Office Wyland, Humphrey & Clevenger,
Chesterton, Indiana LLP
Plymouth, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Larry J. Jernas and April 6, 2016
R & R Horse Haven, Inc., Court of Appeals Case No.
Appellants, 75A03-1511-CC-1903
Appeal from the Starke Circuit
v. Court
The Honorable William E. Alexa,
Kevin J. Gumz, Special Judge
Appellee. Trial Court Cause No.
75C01-1106-CC-192

Brown, Judge.

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[1] R & R Horse Haven, Inc., (“R & R”) and Larry J. Jernas appeal the trial court’s

ruling in favor of Kevin J. Gumz and raise three issues on appeal which we

consolidate and restate as whether the court’s order is clearly erroneous. We

affirm.

Facts and Procedural History

[2] R & R and Gumz entered into an Agreement to Sell Real Estate (the

“Agreement”) dated December 11, 2009. The Agreement provided that it was

made “between R & R Horse Haven , Seller, of 7491 S 100 W, City of North

Judson, State of IN , and Starke County, Buyer, of 7491 S 100 W, City of

North Judson, State of IN .”1 Plaintiff’s Exhibit 3; Defendant’s Exhibit 1. The

Agreement further provided in part:

3. [R & R] agrees to pay [Gumz] the sum of $ 800,000 , which
the Seller agrees to accept as full payment. This Agreement,
however, is conditional upon [R & R] being able to arrange
suitable financing on the following terms at least thirty (30) days
prior to the closing date for this Agreement: a mortgage in the
amount of 0 , payable in 0 monthly payments, with an
annual interest rate of 0 percent.[2]

4. The purchase price will be paid as follows:
Earnest deposit (upon signing this Agreement) $ 25,000

1
The underlined portions were handwritten on blank spaces/lines provided on a pre-printed form Agreement
to sell real estate. Gumz, Jernas, and Mary Wodrich indicated at trial that Gumz was the seller of the
property and R & R was the purchaser of the property.
2
The numbers were also handwritten on blank spaces/lines in the Agreement. Also, the dollar amounts
were handwritten on blank spaces/lines in sections 3, 4, and 5 of the Agreement and the date and time were
handwritten on the blank spaces/lines in section 6.

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 Other deposit: _______________ $ ______
Cash or certified check on closing $ ______
(subject to any adjustments or prorations on closing)
Total Purchase Price $ 800,000

5. [Gumz] acknowledges receiving the Earnest money deposit of
$ 25,000 from [R & R]. If [R & R] fails to perform this
Agreement, [Gumz] shall retain this money. If [Gumz] fails to
perform this Agreement, this money shall be returned to [R & R]
or [R & R] may have the right of specific performance. If [R &
R] is unable to obtain suitable financing at least thirty (30) days
prior to closing, then this money will be returned to [R & R]
without penalty or interest.

6. This Agreement will close on Jan 5 2010 , at 2 o’clock, at
_________, City of ______, State of ________.

Id. The Agreement was signed by Mary H. Wodrich on behalf of R & R.3 In

addition, a check dated December 10, 2009, was written by Larry Jernas 4 made

payable to Gumz in the amount of $25,000. The handwritten note in the memo

line of the check stated “Down payment horse farm” and “R & R.” Plaintiff’s

Exhibit 2.

3
Wodrich’s signature appears near the top of the first page of the Agreement rather than at the end of the
document or on a prepared signature line. An exhibit admitted at trial listed Wodrich as the chair of the
board of directors of R & R. The Agreement does not include a signature by Gumz.
4
An exhibit listed Jernas as the vice-chair of the board of directors of R & R.

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[3] However, the sale of the property to R & R did not occur, and Gumz later sold

the property to another purchaser. Gumz did not return the $25,000 deposit to

R & R or Jernas.

[4] In June 2011, Jernas and R & R filed a complaint against Kevin Gumz and

Amy Gumz alleging in part that, in the fall of 2009, R & R “reached an

agreement with Kevin Gumz to purchase the Horse Farm for the price of

$500,000”; that Jernas paid $25,000 to Kevin Gumz on behalf of R & R as an

earnest money deposit for the purchase of the property; that after the down

payment was made and on or about December 11, 2009, Kevin Gumz

presented the Agreement to R & R “which listed the price as $800,000 and

included the Trailer Home belonging to the Gumzes” and provided the

Agreement was contingent on R & R “being able to arrange suitable financing”;

that after signing the contract, R & R diligently pursued financing but was

unable to obtain suitable financing at the increased price; and that the Gumzes

failed to return the earnest money deposit to R & R or Jernas. Defendant’s

Exhibit 2 at 1-2. The complaint alleged counts of breach of contract, fraud,

conversion, and unjust enrichment.

[5] Jernas and R & R filed a motion to amend the complaint in October 2013,

which the court granted in December 2013. The amended complaint

eliminated Amy Gumz as a party and alleged in part that Kevin Gumz was at

all relevant times the owner of real estate located at 7491 S 100 W, North

Judson, Indiana (defined in the complaint as the Horse Farm); that, in the fall

of 2009, R & R “believed it had reached a parole [sic] agreement with Kevin

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 Gumz to purchase the Horse Farm for the price of $500,000”; that Jernas paid

$25,000 to Gumz on behalf of R & R as an earnest money deposit for the

purchase of the property; that after the down payment was made and on or

about December 11, 2009, Gumz presented the Agreement to R & R “which

listed the price as $800,000” and provided the Agreement was contingent on R

& R “being able to arrange suitable financing”; that on or about January 2010,

R & R notified Gumz of its inability to obtain suitable financing and requested

that Gumz return the earnest money deposit; and that Gumz failed to return the

earnest money deposit. Appellants’ Appendix at 11-12.

[6] The amended complaint, under Count I, titled Debt Due, alleged in part that

the Agreement “was never an enforceable contract because it omits essential

terms of an enforceable contract since the description of the Real Estate is

incomplete and the document was not properly executed by both parties”; that

“[a]s a consequence of the invalidity of [the Agreement], Gumz held the

$25,000 deposited as a trustee pending the execution of an enforceable contract

which was never prepared, presented, or signed”; and that, when R & R and

Jernas requested the $25,000 deposit be returned, Gumz indicated that he had

spent it. Id. at 12-13. Count II of the amended complaint, titled Unjust

Enrichment, alleged that Gumz would be unjustly enriched if not required to

repay the earnest money deposit to Jernas and R & R. R & R and Jernas

requested a judgment against Gumz in the amount of $25,000 and attorney

fees, prejudgment interest, and the costs of the action.

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[7] Gumz filed a counterclaim alleging that R & R entered into the Agreement,

that it breached the Agreement, that he later sold the property for $400,000 and

had been damaged in the amount of $400,000, that R & R previously

acknowledged the validity of the Agreement by suing on it in its original

complaint, and that it has waived any statute of frauds compliance, and Gumz

demanded judgment in the amount of $400,000, prejudgment interest, costs,

and all other proper relief.

[8] On July 15, 2015, the court held a bench trial at which it heard testimony from,

among others, Jernas, Wodrich, and Gumz. Jernas testified that, when Gumz

was approached about the sale of the property, “the $500,000 figure was thrown

out to our group,” that Jernas asked his banker if R & R could obtain a loan for

that amount, that his banker told him that R & R could be financed for up to

$500,000, that he wrote a check for $25,000 and gave it to Wodrich, who

planned to meet with Gumz, and that at the time he wrote the check he had no

reason to believe that the sale price was different than $500,000. Transcript at

24. Jernas testified that later, after learning the Agreement was for $800,000, he

called Gumz several times and requested that his deposit be returned, and

Gumz told him that he had already spent it.

[9] Bruce Shanks, Jernas’s banker, testified that Jernas told him that he found

Gumz’s property for $500,000 for forty acres plus a house and outbuildings,

that Shanks went to look at the buildings and house and based on what he

could see he felt the collateral would be strong enough to pursue a loan for

$500,000, that Jernas later called him and said that the price had changed to

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 $800,000, and that created a “different challenge because . . . the collateral

value is going to have to go up higher” and that “[u]ntil we had an official

purchase agreement, I wasn’t going to pursue it anymore.” Id. at 44. When

asked if the bank had a commitment to consider financing more than $500,000,

Shanks testified “[w]ell, that would all be determined by the appraisal,” that “I

could have got an approval of the loan but it still is subject to the appraisal,”

and “you don’t want to spend the money for an appraisal until I felt confident

the purchase order was with in line, everybody had signed it, and everybody

was committed to a set price.” Id. at 44-45. When asked if his bank ever

looked at lending more than the $500,000, Shanks replied “No.” Id. at 46.

[10] Wodrich testified that she visited the property,5 that Gumz wanted to keep a

track of woods behind the farm to keep as his hunting grounds, and that her

group “did not like that idea because of using horses and veterans” and

“[h]orses might spook at gunshots, not a very good idea.” Id. at 51. She

testified that she was present with Gumz and Jernas when a price of $500,000

was discussed, that she took Jernas’s check to meet with Gumz, that Gumz had

the Agreement “all ready,” that Gumz never mentioned that he was asking for

$800,000 rather than $500,000, and, when asked if she had an opportunity to

read the document before she signed it, that “[i]n my enthusiasm to sign it, I

just went ahead and signed it.” Id. at 55. When asked if she had the money,

5
The then-treasurer of R & R’s board of directors indicated that she toured the property with Wodrich and
Gumz. Wodrich testified that, the first time she went to the property, she went with Jernas and that, a few
weeks later, she went with R & R’s treasurer as well as two others.

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 she said that Jernas “said he would fund it for us until we got grants.” Id. at 52.

When later asked about a meeting in October with Gumz, Wodrich testified

that she and others looked at the house, the barns, and the arena, that Gumz

“said he could come down to our price at $500,000,” and that Gumz “still

wanted to keep that part of the woods and we still said no.” Id. at 61. When

asked “you knew who the seller was,” she replied “I knew who the seller was.”

Id. at 62. When asked why she thought she was signing, she testified that she

“was very enthusiastic at the time and it just meant a lot of hopes and dreams

was going be fulfilled with that place.” Id.

[11] Kevin Gumz testified that Wodrich and several others met him at the property

and that they walked all the barns, the arena, and the house. He testified “[w]e

talked about that they didn’t want all the property, only wanted part of it,” that

“[s]o we kind of walked where they would like to square it off to separate the

property off,” and that they “talked about the price of what that would be. That

it would be 800,000.” Id. at 65. He testified that Wodrich visited him at the

property shortly after that and stated she wished to purchase the property and

that she visited again a couple of weeks later with others, at which time the

group walked through the barns to figure out how they were going to change

things to fit their needs.

[12] He testified that Wodrich later called him to say she wanted to buy the property

and that the next day, December 11, 2009, he met her and two women with her

and brought a form land purchase agreement which he had bought at Staples,

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 he wrote the contract out,6 Wodrich signed it, she gave him the deposit check,

and she “said they had the money, it was taken care of, and we would close as

soon as we could.” Id. at 69. He testified he told Wodrich that he was going to

a title company where the closing would occur to have the legal documents

prepared, that he had filled in “the amount of zero” in the blank spaces in the

agreement for the amount of the mortgage, the amount of the monthly

payments, and the annual interest rate, and when asked why he did so, stated

“[s]he told me that they had the money and that it wasn’t an issue, they didn’t

need any financing,” and “[t]hat they had it and they wanted to close as soon as

we can.” Id. at 69-70.

[13] Gumz testified that Jernas later called him and asked why he changed the price

and that he responded that the price had never changed and had always been

$800,000. He testified that he and Wodrich walked the property, that he placed

some flags “where she wanted it section it off,” and he had said he would

“move a fence over to that so there would be a property line on the fence

dividing the front part on the back 90 acres.” Id. at 71. Gumz testified that the

closing was scheduled for January 5th, that Jernas called him on New Year’s

Eve and said that R & R was not going to purchase the property and to send his

check back to him, and that he told “him no because I had to – we did move the

fence and stuff. I did the survey work. We did the legal work already. I hired

6
Gumz first stated “I wrote the contract out” and then later in his explanation stated “[w]e filled it out.”
Transcript at 68-69. He stated that he “put the zeros” in the blanks of the Agreement. Id. at 69. In his cross-
examination, he said “I wrote it out.” Id. at 79.

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 movers because the house was fully furnished at that time.” Id. at 72. He

testified that, two years later, he sold the property to another purchaser for

$400,000.7 When asked why the property was worth $800,000 in 2009 and

$400,000 in 2011, Gumz testified that real estate prices had really gone down,

that with the way banking had changed obtaining loans had become really

hard, that the property was going to sit there and not be insured because it was

vacant, that he was still paying property taxes and for heating and electric, and

that when he found someone who had the cash it was time to stop the bleeding

and sell the property.

[14] When asked on cross-examination how he knew what R & R was purchasing,

Gumz testified “[b]ecause when [Wodrich] and the two ladies were out there

before, like I said, we walked and put stakes on the property line where they

wanted it to be, what they were interested in buying, and not buying the whole

141 acres,” “[t]hey didn’t want the back part because they said they couldn’t

afford that much,” and “so we walked the property line and put flags and I said

that’s where we would -- I would have the survey to and move the fence to that

property line.” Id. at 80. He stated forty acres were being purchased, that he

knew the acreage after the property was surveyed, and that at the time of the

Agreement he did not know the exact acreage but he “had measured it off and

guessed it at about 40 acres.” Id. at 81. He testified “[t]hey said that’s where

7
Defendant’s Exhibit 7 is a title insurance commitment related to the 2011 sale of property owned by Gumz
which provides a legal description of the insured property indicating the land contained 39.23 acres more or
less.

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 they want it,” “we never really talked about exact acres,” “[w]e said this is the

property line. This is where we flagged it off, put stakes,” “[w]e’d move the

fence up to that because she said – [Wodrich] wanted it fenced in,” and “[s]o

we fenced it in so that way, that would be where the property was and when the

survey people came out, they surveyed it to that.” Id. at 81-82. He indicated he

installed the fence in mid-December and that he hired three people to help him.

[15] Wodrich was recalled to the stand and, when asked about the property R & R

was purchasing and the property that would be remaining, testified that “[t]here

was a boundary of woods in the back of that one barn, the last barn there” and

that “[h]e wanted to keep that for his hunting.” Id. at 89. When asked “did

you go with him and put any stakes out where there might be boundaries,”

Wodrich testified “[he] showed me, yes, but there was nothing staked out

there.” Id. When asked what she meant, she testified “[h]e drove me out there

in a golf cart and he showed me where the boundaries was that he wanted.” Id.

When asked “this was something that was agreed or understood that for

$500,000, you were getting to that point,” Wodrich testified “[w]e did not want

that done because, like I said, the guns and the hunting would square [sic] the

horses, and this was discussed with the board of directors.” Id. When asked if

the matter of Gumz keeping the woods had been resolved by the time she gave

him the $25,000 deposit, she testified “[h]e had agreed he wasn’t going to use –

. . . [h]e had supposedly agreed that he wasn’t going to use that.” Id. at 91.

When asked “[s]o then it had been resolved,” she stated “[t]hat had been

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 resolved” and that “[o]therwise, I wouldn’t have never give him that check.”

Id. at 91-92.

[16] The court also admitted documentary evidence which included the Agreement,

Jernas’s check, R & R’s bylaws, a title commitment related to Gumz’s 2011 sale

of the property, and an advertisement for the sale of the property, which Gumz

indicated ran after the deal with Jernas fell through, stating “40 Acres of fenced

pasture and paddocks,” “custom brick ranch home,” and “$795,000 – well

below the appraised value.” Defendant’s Exhibit 4.8

[17] On October 6, 2015, the court entered Findings of Facts and Conclusions of

Law. The court found that R & R and Gumz had entered into a contract for

the property, that the Agreement “between R & R and [Gumz] gives a location

of the land, and this is sufficient for a description of the land,” that “even

though R & R was listed as the seller, both parties knew who was selling and

who was purchasing the land,” that although the Agreement “was only signed

by one party, it was signed by the appropriate party, the party charged with the

sale,” and that “[a]s the [A]greement gave an adequate description of the

property, the parties knew their roles in the [A]greement and the party who was

charged was the party who signed, the . . . [A]greement is a valid contract.”

Appellants’ Appendix at 8.

8
This exhibit also contains a summary of a listing with an entry date of March 8, 2004 and expiration date of
February 8, 2006, for property located at 7491 S 100 West, North Judson, Indiana, consisting of 141 acres,
and which showed a list price of $1,680,000.

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[18] The court further concluded that the Agreement “clearly states that the $25,000

is in the form of earnest money,” that it provided that “if the buyer fails to

perform this Agreement, the Seller shall retain this money,” and that Gumz “is

entitled to keep the earnest money and could seek [ ] other damages from R &

R.” Id. at 8-9. The court noted that Gumz chose to waive other damages and

limit his recovery to the earnest money already paid and that, should Jernas

seek recourse for his $25,000 earnest money, he may seek it from R & R as he

paid the money on its behalf.

Discussion

[19] The issue is whether the judgment of the trial court that an enforceable

agreement existed between R & R and Gumz and that Gumz is entitled to

retain the earnest money deposit is clearly erroneous. When a trial court enters

findings of fact and conclusions thereon, findings control only as to the issues

they cover and a general judgment will control as to the issues upon which

there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). A

general judgment entered with findings will be affirmed if it can be sustained on

any legal theory supported by the evidence. Id. When a court has made special

findings of fact, an appellate court reviews sufficiency of the evidence using a

two-step process. Id. First, it must determine whether the evidence supports

the trial court’s findings of fact, and second it must determine whether those

findings of fact support the trial court’s conclusions. Id. Findings will only be

set aside if they are clearly erroneous. Id. Findings are clearly erroneous only

when the record contains no facts to support them either directly or by

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 inference. Id. A judgment is clearly erroneous if it applies the wrong legal

standard to properly found facts. Id. In order to determine that a finding or

conclusion is clearly erroneous, an appellate court’s review of the evidence must

leave it with the firm conviction that a mistake has been made. Id. We review

questions of law de novo and owe no deference to the trial court’s legal

conclusions. M.K. Plastics Corp. v. Rossi, 838 N.E.2d 1068, 1075 (Ind. Ct. App.

2005). Interpretation of a contract presents a question of law. Stewart v. TT

Commercial One, LLC, 911 N.E.2d 51, 55 (Ind. Ct. App. 2009), trans. denied.

[20] Jernas and R & R contend that in Indiana a contract for the sale of real estate is

required by the statute of frauds to be totally in writing to be enforceable, and

that a contract which is partly written and partly oral is a parol contract and

does not satisfy the statutory requirement of a written contract. They then

assert that the alleged Agreement is defective in several aspects, including: it

lists R & R as the seller; Gumz is not listed anywhere in the Agreement, did not

sign it, and therefore could not be bound to it; there was a total lack of a legal

description which could be used to determine whether the Agreement was for

forty acres, ninety acres or some other acreage; the signature of Wodrich

appears randomly on the document; and no reference to signing in any capacity

under R & R was made nor was it signed by any other representatives of R & R

as required by its bylaws. They further argue that, if the alleged Agreement was

enforceable, the court erred when it did not consider the language related to the

buyer obtaining suitable financing. They also assert unjust enrichment in that

Gumz neglected to bring to their attention that he had deviated from the

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 parties’ understanding of selling the property for $500,000 and then refused to

return the $25,000 deposit that this requires the imposition of a constructive

trust, and that the trial court should have awarded them attorney fees.

[21] Gumz maintains that the Agreement’s reference to R & R as the seller rather

than the purchaser is nothing more than a scrivener’s error and that the

testimony shows that the parties knew the identity of the seller. He argues that

the Agreement was signed by R & R’s authorized agent, that Wodrich had the

authority to act on behalf of R & R, and that the court found the description of

the property to be adequate, the address of the property was given, and

Wodrich testified she was satisfied with the forty acres and there was no

uncertainty to her. Gumz further argues that his signature was not required for

him to be able to enforce the Agreement, and that the Agreement need be

signed only by Wodrich as R & R’s agent to be enforceable against R & R

under the statute of frauds. He also asserts that Jernas and R & R have forfeited

their request for a constructive trust as it is raised for the first time on appeal,

and that Jernas has no cause of action as he loaned the money to R & R.

[22] If a contract’s terms are clear and unambiguous, courts must give those terms

their clear and ordinary meaning. Lily, Inc. v. Silco, LLC, 997 N.E.2d 1055,

1064 (Ind. Ct. App. 2013) (citing Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d

249, 252 (Ind. 2005)), reh’g denied, trans. denied. Courts should interpret a

contract so as to harmonize its provisions, rather than place them in conflict.

Id. We will make all attempts to construe the language of a contract so as not

to render any words, phrases, or terms ineffective or meaningless. Id. A

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 contract will be found to be ambiguous only if reasonable persons would differ

as to the meaning of its terms. Stewart, 911 N.E.2d at 56 (citations omitted); see

also McDivitt v. McDivitt, 42 N.E.3d 115, 117 (Ind. Ct. App. 2015) (a contract

may be ambiguous if its terms are susceptible to more than one interpretation

and reasonably intelligent persons would honestly differ as to its meaning),

trans. denied. A contract is not ambiguous merely because the parties disagree as

to its proper construction. Stewart, 911 N.E.2d at 56. When interpreting a

contract, our paramount goal is to ascertain and effectuate the intent of the

parties. Id. This requires the contract to be read as a whole, and the language

construed so as not to render any words, phrases, or terms ineffective or

meaningless. Id. Rules of contract construction and extrinsic evidence may be

employed in giving effect to the parties’ reasonable expectations. Lily, 997

N.E.2d at 1064 (citing Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind. 2010)).

When a contract’s terms are ambiguous or uncertain and its interpretation

requires extrinsic evidence, its construction is a matter for the fact-finder. Id.;

see also McDivitt, 42 N.E.3d at 117 (when a contract is ambiguous, extrinsic

evidence may be examined to determine the parties’ reasonable expectations).

When a contract contains general and specific provisions relating to the same

subject, the specific provision controls. Ryan v. Lawyers Title Ins. Corp., 959

N.E.2d 870, 875 (Ind. Ct. App. 2011).

[23] To the extent R & R and Jernas cite to the Indiana Statute of Frauds and argue

the Agreement is defective, we note that the Statute of Frauds “does not govern

the formation of a contract but only the enforceability of contracts that have

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 been formed.” Schuler v. Graf, 862 N.E.2d 708, 712-713 (Ind. Ct. App. 2007)

(citing Fox Dev., Inc. v. England, 837 N.E.2d 161, 165 (Ind. Ct. App. 2005)),

trans. denied; 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); see

also 14 Richard R. Powell, Powell on Real Property § 81.02[1][a] (Michael A.

Wolf ed. 2000) (noting that “the statute of frauds affects the enforceability of

contracts that have not yet been performed” and that the writing requirement

“is generally viewed as crucial to the enforceability of a contract, but not

necessarily to its validity”).

[24] Contracts are formed when parties exchange an offer and acceptance. Fox Dev.,

837 N.E.2d at 165 (citing Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 435 (Ind.

1993)). A meeting of the minds of the contracting parties, having the same

intent, is essential to the formation of a contract. Id. The basic requirements

for a contract are offer, acceptance, consideration, and a meeting of the minds

between the contracting parties on all essential elements or terms of the

transaction. Morris v. Crain, 969 N.E.2d 119, 123 (Ind. Ct. App. 2012);

Fiederlein v. Boutsells, 952 N.E.2d 847, 856 (Ind. Ct. App. 2011). There must be

mutual assent or a meeting of the minds on all essential elements or terms in

order to form a binding contract. Bennett v. Broderick, 858 N.E.2d 1044, 1048

(Ind. Ct. App. 2006), trans. denied.

[25] In addition, to be valid and enforceable, a contract must be reasonably definite

and certain. Allen v. Clarian Health Partners, Inc., 980 N.E.2d 306, 309 (Ind.
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 2012) (citing Conwell v. Gray Loon Outdoor Mktg. Grp., Inc., 906 N.E.2d 805, 813

(Ind. 2009); RESTATEMENT (SECOND) OF CONTRACTS § 33 (recognizing that in

order to give effect to a contract, its terms must be “reasonably certain”));

Wenning v. Calhoun, 827 N.E.2d 627, 629 (Ind. Ct. App. 2005) (“In order to be

enforceable, a contract must be reasonably definite and certain in its material

terms so that the intention of the parties may be ascertained.”), trans. denied.

Only “reasonable” certainty is necessary; “absolute certainty in all terms is not

required.” Allen, 980 N.E.2d at 310 (citing Conwell, 906 N.E.2d at 813). Only

essential terms need be included to render a contract enforceable. Conwell, 906

N.E.2d at 813. The existence of a contract is a question of law. Morris, 969

N.E.2d at 123; Fox Dev., 837 N.E.2d at 165.

[26] The Indiana Statute of Frauds requires that contracts for the sale of real

property be in writing. Fox Dev., 837 N.E.2d at 166. Specifically, the Statute,

found at Ind. Code § 32-21-1-1, 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 and

that would open wide the floodgates of litigation. Fox Dev., 837 N.E.2d at 166.

Nevertheless, oral contracts for the sale of real property are voidable, not void.

Id.; see Owens, 46 Ind. at 518 (“A contract that is required to be in writing by the

statute of frauds is not invalid if made by parol. The statute only inhibits all

actions brought to enforce it. It is only voidable, and not void.”) (citations and

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 internal quotation marks omitted). Further, the writing must contain the

agreement’s essential terms and, as to a description of land, must “furnish the

means of identification.” Schuler, 862 N.E.2d at 713 (citation omitted); Blake v.

Hosford, 180 Ind. App. 175, 181, 387 N.E.2d 1335, 1340 (1979), reh’g denied.

[27] To address the claims of R & R and Jernas related to whether Gumz and R & R

entered into a reasonably definite agreement, we note that R & R and Jernas do

not argue that the parties did not exchange an offer and acceptance or point to

testimony or evidence suggesting Wodrich or Gumz did not intend to enter the

Agreement on December 11, 2009. The evidence shows that Gumz, as the

seller of the property, agreed to be bound by the terms of the Agreement. While

Gumz did not sign the Agreement, he purchased the form land purchase

agreement, wrote in the blank spaces of the form to complete the terms of the

Agreement, and met with Wodrich to obtain her signature and to accept the

earnest money deposit. These actions evidenced Gumz’s intent to enter into

and be bound by the terms of the Agreement. Knapp v. Beach, 52 Ind. App. 573,

101 N.E. 37, 38 (1913) (noting a contract signed by one party may become

binding upon both only if it is accepted and acted upon by the party not

signing). Turning to Wodrich’s signature, the fact the signature appears near

the identification of R & R as a party to the Agreement rather than near the end

of the document or on a prepared signature line does not mean that her

signature was invalid as evincing R & R’s intent to be bound by the terms of the

Agreement. See Globe Acc. Ins. Co. v. Reid, 19 Ind. App. 203, 47 N.E. 947, 951

(1897) (“Ordinarily, written obligations are executed by signing the names of

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 the parties to be bound thereby at the bottom or close of the instrument. But

this method of execution is not essential to the validity of the instrument.”)

(citing McMillen v. Terrell, 23 Ind. 163, 167 (1864)), reh’g denied.

[28] In addition, as the president of R & R and chair of its board of directors,

Wodrich, by her conduct, including several visits to Gumz’s property with

other representatives of R & R and discussions regarding the property and her

meeting with Gumz to sign the Agreement and deliver the earnest money

check, had apparent authority to enter into the Agreement on behalf of R & R.

A reasonable person would believe Wodrich possessed the authority to act on

behalf of R & R, and R &R and Jernas do not point to evidence to show they

informed Gumz that any agreement with R & R regarding the sale and

purchase of real property was required to be signed or otherwise ratified by

other representatives of R & R under its bylaws. 9 See Somerville Auto Transp.

Serv., Inc. v. Auto. Fin. Corp., 12 N.E.3d 955, 967-968 (Ind. Ct. App. 2014)

(concluding AFC reasonably believed that Merenciano was an agent of

Somerville for the purpose of purchasing vehicles using the financing made

available to Somerville by AFC pursuant to an agreement) (citing Cain Family

Farm, L.P. v. Schrader Real Estate & Auction Co., Inc., 991 N.E.2d 971, 978-979

(Ind. Ct. App. 2013) (holding that Cain Family Farm placed Candace in a

position to perform acts appearing reasonable to a third person sufficient to

9
A section of R & R’s bylaws states that “Both the Treasurer and Executive Director shall sign all financial
instruments, such as checks, issued from the Corporation.” Plaintiff’s Exhibit 1. Wodrich testified she was
the president of R & R at the time she signed the Agreement.

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 endow her with apparent authority and that Candace had apparent authority to

execute a purchase agreement)), trans. denied. Gumz and R & R entered into

and agreed to be bound by the terms of the Agreement.

[29] With respect to the identification of the purchaser under the Agreement, to the

extent the name “R & R” was handwritten into the blank space for the seller on

the form purchase agreement rather than the blank space for the buyer, we note

that the testimony of Jernas, Wodrich, and Gumz reflected their understanding

that Gumz owned the real property which was the subject of the Agreement

and was the seller, and this is consistent with the pleadings filed and the

exhibits introduced by the parties. As to the description of the property, the

Agreement referred to the street address of the property to be purchased and did

not include a legal description. All that is required to render a contract

enforceable is reasonable certainty in its terms. Conwell, 906 N.E.2d at 813.

While the Agreement did not refer to a legal description and may not have

expressly stated whether the parties intended to include a certain wooded area

of Gumz’s land, the trial court heard extensive testimony and admitted several

documents regarding the property subject to the Agreement, and, based on the

Agreement and the evidence, would have been able to determine with

reasonable certainty the boundaries of the property which the parties intended

to convey. The evidence demonstrates there was an understanding by the

parties at the time of the Agreement as to the boundaries of the property to be

conveyed. See Schuler, 862 N.E.2d at 715 (noting that the parties agreed to the

location of the boundary as where a fence line or row of trees existed and

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 holding that the argument that there was not a meeting of the minds regarding

the property boundary was without merit). We find R & R and Jernas’s claims

that the Agreement was invalid because it was indefinite or not properly

executed to be unpersuasive.

[30] We also note that the Statute of Frauds does not preclude Gumz from enforcing

the Agreement’s deposit provisions against R & R. As noted, contracts for the

sale of real property that do not satisfy the Statute of Frauds are voidable, not

void. Fox Dev., 837 N.E.2d at 166; Owens, 46 Ind. at 518; see also 14 Richard R.

Powell, Powell on Real Property § 81.02[1][a] (noting courts treat a contract that is

not enforceable under the statute of frauds as voidable, but not absolutely void,

and that this distinction is important in part because an oral contract to convey

real estate may be successful if the statute of frauds defense is not raised in the

pleadings). The Statute of Frauds is an affirmative defense, and affirmative

defenses must be specifically pled. See Ind. Trial Rule 8(C) (“A responsive

pleading shall set forth affirmatively and carry the burden of proving: . . . statute

of frauds . . . .”); Joyner v. Citifinancial Mort. Co., 800 N.E.2d 979, 982 (Ind. Ct.

App. 2003) (noting that affirmative defenses must be specifically pled).

Generally an affirmative defense, including the affirmative defense of the

statute of frauds, is waived by failure to raise it in the pleadings. See E & L

Rental Equip., Inc. v. Wade Const., Inc., 752 N.E.2d 655, 660 (Ind. Ct. App. 2001)

(noting a party failed to plead the Statute of Frauds as an affirmative defense in

its responsive pleading as required by Ind. Trial Rule 8(C) and thus waived the

defense); Uebelhack Equip., Inc. v. Garrett Bros., Inc., 408 N.E.2d 136, 140 (Ind.

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 Ct. App. 1980) (holding that the affirmative defense of the statute of frauds was

waived because it was not raised until a motion for judgment on the evidence).

In his counterclaim against R & R, Gumz alleged in part that R & R entered

into the Agreement, breached the Agreement, previously acknowledged the

validity of the Agreement, and waived any statute of fraud compliance, and

Gumz requested all proper relief. In its answer to the counterclaim, R & R

denied that the Agreement was a valid contract and stated in part “R & R

denies waving [sic] any statute of frauds compliance.” Appellants’ Appendix at

33. We cannot say that R & R’s answer specifically pled the Statute of Frauds

as an affirmative defense under Ind. Trial Rule 8(C).

[31] Even assuming R & R did not waive its Statute of Frauds defense, we find that

the Statute of Frauds does not prevent Gumz from enforcing the Agreement.

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.” Ind.

Code § 32-21-1-1. Gumz brought his counterclaim against R & R and the

Agreement was signed by Wodrich on behalf of R & R. Thus, the Statute of

Frauds is not a valid defense against Gumz’s action to enforce the Agreement

or its terms regarding the earnest money deposit. We also observe that the

Statute of Frauds requires that the writing be signed only by the party against

whom the action is brought and not by all parties to the agreement, and thus the

fact that Gumz did not sign the Agreement does not render the Agreement

unenforceable by him. See Ind. Code § 32-21-1-1; Grabill Cabinet Co., Inc. v.

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 Sullivan, 919 N.E.2d 1162, 1166 (Ind. Ct. App. 2010) (observing that only the

party against whom the action is brought need sign the writing, that this

proposition is well-settled in Indiana law, and that the Statute of Frauds has

existed in substantially the same form for well over a century) (citing Graham v.

Henderson Elevator Co., 60 Ind. App. 697, 703, 111 N.E. 332, 335 (1916) (noting

the memorandum must be signed by the defendant but need not necessarily be

signed by the plaintiff)); Foltz v. Evans, 113 Ind. App. 596, 49 N.E.2d 358, 363-

364 (1943) (collecting cases for the proposition that, under the statute of frauds,

a contract which requires a signature by the party to be charged need be signed

only by the party sued or to be charged); Knapp, 101 N.E. at 38 (noting that

“[t]he general rule is that the statute [of frauds] is satisfied and the plaintiff may

enforce the contract, if the writing is signed alone by the party sued, the

defendant in the action, and is not signed by the plaintiff”); 14 Richard R.

Powell, Powell on Real Property § 81.02[1][e][i] (noting that the crucial signature

is that of the other contracting party; that the non-signing party generally is able

to enforce a contract against the signing party even though if the situation were

reversed the signing party would be prevented by the statute of frauds from

enforcing the obligation of the non-signing party; that, if the defendant asserts

an enforceable contract in a counterclaim, then the writing must contain the

plaintiff’s signature; and that a signature may fulfill the statute of frauds

requirement even if it appears at the top of the document).

[32] Further, the Agreement adequately identified or provided a means of

identifying the parcel to be conveyed to satisfy the Statute of Fraud’s

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 requirement that the essential terms of the agreement be in writing. See Schuler,

862 N.E.2d at 714 (holding that the parties’ agreement furnished the means of

identification of the property; that, once so identified, the trial court could

admit parol evidence to complete the legal description of the property; that

there was testimony the parties walked the property and agreed on the

boundaries; and that the parties’ description was sufficiently definite to meet the

statute’s requirements); Blake, 180 Ind. App. at 181, 387 N.E.2d at 1340 (stating

“it is not necessary that the contract by itself be sufficient to identify the land,

but only that it furnishes the means of identification”); 14 Richard R. Powell,

Powell on Real Property § 81.02[1][d][iii] (noting that a contract may be

enforceable under the statute of frauds if it describes the property by its street

address and that testimony of the parties is permissible to clarify the parties’

intent as long as some basis for designating the property interest is included in

the writing). In sum, even assuming R & R did not waive its affirmative

defense of the Statute of Frauds, the Statute does not serve as a valid defense to

the enforcement of the Agreement.

[33] Having determined the Agreement was enforceable against R & R, we now turn

to the Agreement’s terms regarding R & R’s earnest money deposit. The

Agreement unambiguously provided that R & R’s $25,000 payment to Gumz

constituted an earnest money deposit. Further, the pre-printed form language

of paragraph 5 of the Agreement provides that, if R & R fails to perform, Gumz

shall retain the deposit, except that, if R & R is unable to obtain suitable

financing at least thirty days prior to closing, then the deposit would be returned

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to R & R. However, the court heard Gumz’s testimony that Wodrich told him

that R & R did not need financing and that the language in the form agreement

related to financing terms was not applicable. Gumz testified that, in the blank

spaces in the Agreement setting forth the terms of suitable financing, he had

filled in “the amount of zero” for the amount of the mortgage, the amount of

the monthly payments, and the annual interest rate because R & R did not need

financing and the section was not applicable to the contract. Transcript at 69.

Paragraph 3 of the Agreement provides that the Agreement “is conditional

upon [R & R] being able to arrange suitable financing on the following terms at

least thirty (30) days prior to the closing date for this Agreement: a mortgage in

the amount of 0 , payable in 0 monthly payments, with an annual

interest rate of 0 percent.” Plaintiff’s Exhibit 3; Defendant’s Exhibit 1. The

handwritten “0” in the blanks support the conclusion that the parties did not

intend that R & R’s obligations under the Agreement be conditioned upon R &

R obtaining financing. See Ryan, 959 N.E.2d at 874-877 (noting that it is well

settled that, when interpreting a contract, specific terms control over general

terms, that there was a discrepancy between the general pre-printed text of a

purchase agreement and the more specific language in type filled in on the form

purchase agreement, and that the specific filled-in language controlled over the

more general pre-printed language). Additionally, the Agreement provided that

the closing date was January 5, 2010, which was less than thirty days following

the date of the Agreement, December 11, 2009, and this is also consistent with

the determination the parties did not contemplate that R & R would need to

obtain financing at least thirty days prior to closing. The trial court properly
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 concluded that, pursuant to the provisions of the Agreement governing R & R’s

earnest money deposit, R & R and Jernas are not entitled to a refund of the

deposit.

[34] With respect to the request to impose a constructive trust on the deposit in favor

of R & R and Jernas, we agree with the trial court that the parties’ Agreement

governs the earnest money deposit, and based on the record we cannot

conclude that the court erred or abused its discretion in not finding that Gumz

obtained the deposit from R & R through wrongful means or that Gumz would

be unjustly enriched by retaining the deposit, and thus do not find the

arguments of R & R and Jernas that a constructive trust must be imposed to be

persuasive. See Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d 1099, 1109

(Ind. 2012) (“Constructive trusts are generally imposed when legal title is

gained through wrongful means (e.g., fraud, duress, undue influence, theft,

etc.).”), reh’g denied, cert. denied, 133 S. Ct. 2022 (2013); Leever v. Leever, 919

N.E.2d 118, 122 (Ind. Ct. App. 2009) (noting “[a] constructive trust is imposed

where a person holding title to property is subject to an equitable duty to

convey it to another on the ground that he would be unjustly enriched if he

were permitted to retain it” and “[t]he duty to convey the property may arise

because the property was acquired through fraud, duress, undue influence or

mistake, or through a breach of a fiduciary duty or the wrongful disposition of

another’s property”). As we affirm the trial court’s ruling in favor of Gumz, we

cannot say the court erred or abused its discretion in failing to award attorney

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 fees to R & R and Jernas. Neither R & R nor Jernas is entitled to a refund from

Gumz of the earnest money deposit.

Conclusion

[35] For the foregoing reasons, we affirm the judgment of the trial court.

[36] Affirmed.

Kirsch, J., and Mathias, J., concur.

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