MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Apr 16 2018, 8:38 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jennifer A. Joas Leanna Weissmann
Madison, Indiana Lawrenceburg, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Probst, April 16, 2018
Appellant-Plaintiff/Counterclaim- Court of Appeals Case No.
Defendant, 15A01-1709-PL-2061
Appeal from the Dearborn
v. Superior Court
The Honorable Jonathan N.
Jason Probst, Cleary, Judge
Appellee-Defendant/Counterclaimant. Trial Court Cause No.
15D01-1412-PL-76
Bailey, Judge.
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Case Summary
[1] Timothy Probst (“Tim”) initiated litigation against his brother, Jason Probst
(“Jason”), alleging breach of an oral agreement to convey farm land to him as a
co-owner. Tim sought the equitable remedy of specific performance and, in the
alternative, sought compensation under a theory of unjust enrichment.
Following a bench trial, the trial court ruled against Tim on these claims. Tim
now appeals, presenting three issues, which we consolidate and restate as a
single issue: whether the trial court erred in denying Tim’s requests for relief.1
[2] We affirm.
Facts and Procedural History
[3] This litigation involves farm land in Aurora that previously belonged to the
brothers’ deceased uncle, Gary Probst (“Gary”). During 2007 proceedings
concerning Gary’s estate, interested parties reached a settlement agreement
whereby Jason would receive the land in exchange for paying several
obligations. Around this time, Jason and Tim agreed to farm the land together
for a profit, and the brothers took steps to secure a $180,000 loan that would
cover Jason’s new obligations; Tim pledged collateral, and the brothers
executed a bank note as general partners. Thereafter, Jason received the land
1
In addition to ruling against Tim on the merits, the trial court articulated an additional basis for its
decision—namely, that Tim was judicially estopped from asserting an interest in the land. The parties direct
argument to the issue of judicial estoppel, however, we need not address this additional basis.
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by Personal Representative’s Deed, and the brothers began farming together.
At some point, Tim bought a mobile home and moved onto the land. He also
began storing equipment on the land for his own ongoing excavating business.
[4] The brothers continued farming together until a disagreement in 2014, which
led to Tim filing the instant lawsuit on December 17, 2014. Tim alleged that
there was an oral agreement to co-own the land under which Jason was
obligated to add Tim’s name to the deed “at a later date.” App. Vol. II at 7.
According to Tim, Jason had breached the oral agreement by refusing to
convey the land to him as a co-owner. Tim requested the equitable remedy of
specific performance. In the alternative, he sought compensation, alleging that
Jason had been unjustly enriched by Tim’s payments toward the loan “plus
other expenses and time in maintaining the farm.” Id. at 8. Jason then
counterclaimed, seeking (1) an accounting for the partnership and (2) an order
ejecting Tim from the land.
[5] The trial court eventually conducted a bench trial, after which it ruled against
Tim on his claims, and denied Jason’s request for an accounting. The trial
court also entered an ejectment order, which was stayed pending this appeal.
Discussion and Decision
[6] Neither party requested special findings and conclusions under Trial Rule
52(A), and the trial court did not designate any portion of its order as special
findings and conclusions. Rather, the court enumerated paragraphs in which it
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largely provided a recitation of the evidence presented at the hearing, observing
that various witnesses “testified” to certain facts. Yet, statements of this kind
do not constitute findings of fact, and we treat such evidentiary recitations as
mere surplusage. See Perez v. U.S. Steel Corp., 426 N.E.2d 29, 33 (Ind. 1981);
Garriott v. Peters, 878 N.E.2d 431, 438 (Ind. Ct. App. 2007), trans. denied.
[7] In the absence of special findings, we apply a general judgment standard of
review. Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind. 1997). Under this
standard, we presume that the court correctly followed the law, and we do not
reweigh the evidence or reassess the credibility of witnesses. Id. We will affirm
if the judgment is “sustainable upon any theory consistent with the evidence.”
Id. Moreover, because it was Tim’s burden to prove entitlement to relief, he
now appeals from a negative judgment. See Burnell v. State, 56 N.E.3d 1146,
1149-50 (Ind. 2016). “On appeal from a negative judgment, this Court will
reverse the trial court only if the judgment is contrary to law. A judgment is
contrary to law if the evidence leads to but one conclusion and the trial court
reached an opposite conclusion.” Id. (citation omitted).
Specific Performance
[8] “We review a trial court’s decision to grant or deny specific performance for an
abuse of discretion—that is, for whether the decision is ‘clearly against the logic
and effect of the facts and circumstances before the court or if the court has
misinterpreted the law.’” Fulp v. Gilliland, 998 N.E.2d 204, 210 (Ind. 2013)
(citation omitted) (quoting State v. Willits, 773 N.E.2d 808, 811 (Ind. 2002)).
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[9] Specific performance is an equitable remedy that is available when monetary
damages do not adequately redress the breach of an agreement. Duckwall v.
Rees, 119 Ind. App. 474, 477-78, 86 N.E.2d 460, 461-62 (1949). Yet, the Statute
of Frauds generally prohibits the enforcement of oral agreements involving the
sale of land. See Ind. Code § 32-21-1-1(b). Tim concedes that to obtain specific
performance, he must overcome the Statute of Frauds; he focuses on whether
Jason’s alleged oral promise is enforceable under the doctrine of promissory
estoppel. This equitable doctrine provides an exception to the Statute of
Frauds, and requires that the plaintiff demonstrate—among other things—that
the defendant made a promise that induced reasonable reliance. See Spring Hill
Developers, Inc. v. Arthur, 879 N.E.2d 1095, 1100 (Ind. Ct. App. 2008).
[10] Here, however, the evidence favorable to the judgment indicates that Jason
never promised co-ownership. Tr. at 187 (“He was never supposed to be on the
deed. I mean, that’s a fact. There’s no doubt. There was nothing promised to
him by me.”). Thus, because there was conflicting evidence concerning the
existence of a promise from Jason, we cannot say that the trial court’s decision
to deny specific performance was contrary to law.
Unjust Enrichment
[11] Where there is no contract between the parties, a plaintiff may nevertheless seek
compensation by claiming unjust enrichment—a theory of recovery also known
as quantum meruit or quasi-contract. Zoeller v. E. Chi. Second Century, Inc., 904
N.E.2d 213, 220-21 (Ind. 2009). To recover, “the plaintiff must show that (1)
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he rendered a measurable benefit to the defendant at the defendant’s express or
implied request; (2) he expected payment from the defendant; and (3) allowing
the defendant to retain the benefit without restitution would be unjust.” Neibert
v. Perdomo, 54 N.E.3d 1046, 1051 (Ind. Ct. App. 2016).
[12] Tim argues that the trial court should have awarded him compensation for
improvements to the land and payments toward the loan obligation. Yet, Tim
was positioned to benefit from this informal arrangement. Indeed, there is
evidence indicating that Tim aspired to grow the farming operation and
eventually reap profits from the land. By physically and financially helping to
improve the land for farming, Tim furthered his partnership interest—and he
bore the risk of making these contributions without the protection of a long-
term farm lease. Furthermore, by making loan contributions, Tim hedged
against Jason losing the farm and thereby Tim’s base of operations. This base
provided Tim with land on which he could live, run his excavating business,
and graze his cattle for several years—all without paying rent. Finally, to the
extent Tim sought compensation for digging ponds and installing a water
trough, the evidence indicates that Tim took these actions against Jason’s
wishes.
[13] In light of evidence indicating that Jason was not unjustly enriched, we cannot
say that the trial court’s decision was contrary to law.
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Conclusion
[14] The court did not err in declining to grant the relief sought by Tim.
[15] Affirmed.
Crone, J., and Brown, J., concur.
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