Thomas K. Downs and Laura H. Downs v. Stephen S. Radentz and Magdalena B. Czader

FILED
Sep 11 2019, 8:49 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Daniel L. Taylor E. Scott Treadway
J. Kent Minnette Raymond J. Biederman
Taylor, Chadd, Minnette, Schneider & Mattingly Burke Cohen &
Clutter, P.C. Biederman LLP
Crawfordsville, Indiana Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Thomas K. Downs and Laura H. September 11, 2019
Downs, Court of Appeals Case No.
Appellants-Defendants, 19A-PL-382
Appeal from the Boone Superior
v. Court
The Honorable Matthew C.
Stephen S. Radentz and Kincaid, Judge
Magdalena B. Czader, Trial Court Cause No.
Appellees-Plaintiffs. 06D01-1711-PL-1443

Najam, Judge.

Statement of the Case
[1] Thomas and Laura Downs (collectively “Sellers”) appeal the trial court’s

judgment in favor of Stephen Radentz and Magdalena Czader (collectively

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 “Buyers”) on Buyers’ complaint seeking specific performance of the parties’

agreement for the sale of real estate. Sellers present two issues for our review:

1. Whether the trial court erred when it applied the parol
evidence rule and excluded certain evidence at trial.

2. Whether the trial court’s finding that the parties entered
into a valid and enforceable settlement agreement is clearly
erroneous.

[2] Buyers cross appeal and ask that we award them appellate attorney’s fees.

[3] We affirm and remand with instructions.

Facts and Procedural History
[4] On September 5, 2017, Sellers listed for sale their residence located on ten acres

in Zionsville (“the property”). On September 18, Buyers made an offer to

purchase the property. After the parties proposed offers and counter-offers,

they agreed on a purchase price of $1.2 million and executed a purchase

agreement. However, following disagreements regarding inspections and

appraisals, on November 27, Buyers filed with the trial court a complaint for

specific performance. Over the course of the next several months, the parties

negotiated a settlement agreement, which Sellers executed on August 12, 2018.

[5] The settlement agreement incorporated by reference the parties’ purchase

agreement, which required in relevant part that Sellers provide a survey

“certified as of a current date” and that was “reasonably satisfactory to Buyer.”

Appellees’ App. Vol. 2 at 45. On August 16, before Buyers had executed the

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 settlement agreement, Sellers’ attorney sent Buyers’ attorney a letter stating in

relevant part as follows: “Pursuant to the Settlement Agreement, please find

enclosed the original Anderson and Associates survey of the [property from

1996] along with a copy of the original title policy.” Defendants’ Ex. C

(emphasis added).

[6] In response to that letter, Buyers informed Sellers that the 1996 survey was not

acceptable and did not comply with the terms of the purchase agreement. On

August 20, after Sellers had refused to provide a different survey, Buyers’

attorney sent an email to Sellers’ attorney’s office stating:

My client[s] are precariously close to walking away from the
settlement. We expect a current survey of the property. The
documents provided were decades old and of little value to us or
the title company.

Please advise by the close of business today whether we can
expect a current survey. Otherwise, let’s move forward with the
litigation.

Defendants’ Ex. D. In particular, Buyers requested a current “ALTA” 1 survey

of the property. Tr. at 98.

[7] Despite not having received a current survey of the property, Buyers executed

the settlement agreement on August 30. Still, Sellers refused to permit Buyers

access to the property to perform inspections or appraisals. On September 30,

1
“ALTA” stands for American Land Title Association.

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Buyers filed with the trial court a motion to enforce the settlement agreement.

Following an evidentiary hearing, the trial court entered judgment for Buyers

and found and concluded as follows:

3. [Buyers] substantially performed or offered to perform their
contract obligations in relation to the Purchase Agreement. The
undisputed testimony from [Radentz], Barbara Ward, broker for
[Buyers], and Robbin Edwards, broker for [Sellers], was that the
[Buyers] fulfilled all conditions precedent under the Purchase
Agreement.

4. [Sellers] breached the Purchase Agreement by failing to satisfy
the terms of the same.

***

11. [Buyers] and [Sellers] entered into a written Settlement and
Release Agreement, dated August 30, 2018 (the “Settlement
Agreement”). . . .

12. The Settlement Agreement was executed by [Sellers] on
August 12, 2018, and executed by [Buyers] on August 30, 2018.

13. [Sellers] each testified, and the Court finds, that [Sellers]
knowingly and voluntarily executed the Settlement Agreement.

14. [Sellers] each testified, and the Court finds, that [Sellers]
were represented by legal counsel during the negotiation and
preparation of the Settlement Agreement.

15. [Sellers] each testified, and the Court finds, that [Sellers]
intended to be bound by the terms and conditions of the
Settlement Agreement.

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 16. [Sellers] each testified, and the Court finds, that [Sellers] did
not revoke[] or withdraw the Settlement Agreement prior to
written acceptance by [Buyers] on August 30, 2018.

17. The Settlement Agreement contained the following
provisions:

17. The Parties acknowledge that (1) they have read
and considered this Agreement carefully; (2) that it
was negotiated at arm’s length by Parties of equal
bargaining power; (3) that they had the opportunity
to have their attorneys negotiate this Agreement and
to discuss such Agreement in detail with their
attorneys, but elected, in their sole discretion, not to
do so; (4) that they have been given a reasonable period of
time (as long as they deemed necessary) to consider this
Agreement before signing; (5) that they fully understand
the extent and impact of its provisions; . . .

18. This Agreement has no terms other than those
expressly set forth herein. Each Party to this
Agreement represents and warrants to the other Party
that it is not signing this Agreement in reliance upon
any term, representation or warranty other than those
expressly set forth in this Agreement. This
Agreement shall not be modified in any respect
except by a writing executed by both Parties.

19.[sic] Multiple undisputed witnesses, including both parties’
real property brokers, testified and the Court finds [Buyers] fully
complied with the terms of the Settlement Agreement, including
attempting to perform required inspections.

20. The undisputed evidence also established [Sellers] breached
the Settlement Agreement on multiple occasions, including
refusing to allow access to the Property, refusing to reschedule
inspections, refusing to provide a current survey, and refusing to
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 pay attorneys’ fees, all of which are required by the terms of the
Settlement Agreement.

21. The Court finds the Settlement Agreement is unambiguous.

***

23. The Court finds the Settlement Agreement is valid and
enforceable.

Appellants’ App. Vol. 2 at 11-13 (emphasis added). 2 The trial court then

entered judgment in favor of Buyers and ordered Sellers to comply with the

agreement. The trial court also ordered Sellers to pay Buyers’ attorney’s fees

and “additional damages,” to be determined at a future hearing. Id. at 15.

Accordingly, this appeal is not from a final judgment, as Sellers assert in their

notice of appeal. Rather, this is an interlocutory appeal of right under Indiana

Appellate Rule 14(A)(4). This appeal ensued.

2
In a footnote, the trial court added:

This is the essential problem with [Sellers’] case. Mr. Downs told the court, essentially,
that he felt [B]uyers behaved in a bullying fashion between the date he and Laura Downs
signed [on] August 12, 2018, and when [Buyers] ultimately signed. If [B]uyers did that,
they created a risk for themselves that the settlement agreement, signed only by [Sellers] at
that point might be revoked. A proper revocation would have been in writing after August
12, 2018, but delivered to [B]uyers before [B]uyers signed their acceptance—something
they ultimately did on August 30, 2018. [Buyers], by signing, made a mirror acceptance of
the Downs’ written offer before it was revoked. Once an offer is made there is a race to
either accept it and bind the deal or to revoke it and thereby avoid being bound. The
settlement agreement is enforceable. [B]uyers won the race.
Appellants’ App. Vol. 2 at 12.

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 Discussion and Decision
Issue One: Parol Evidence

[8] Sellers contend that the trial court erred when it excluded from the evidence at

trial an email from Sellers’ attorney dated August 9, 2018. They maintain that

this issue turns on the construction of the parol evidence rule, not its application

to any particular set of facts, and that our review is de novo. Cook v. Whitsell-

Sherman, 796 N.E.2d 271, 277 (Ind. 2003). Sellers’ argument is two-fold.

Sellers first assert that the email was admissible as an exception to the parol

evidence rule because it shows that no contract was ever formed. Sellers also

assert that the email was admissible because it is relevant to the issue of whether

the settlement agreement was only partially or completely integrated. We

address each contention in turn.

[9] Initially, we note that Sellers were bound by the terms of the settlement

agreement when they executed it on August 12. Appellants’ Br. at 5. As this

Court has held,

[i]n situations where fewer than all the proposed parties execute
[a] document we look to the intent of the parties as determined
by the language of the contract to determine who may be liable
under the agreement. It should be assumed that all the parties
who sign [a contract] are bound by it unless it affirmatively
appears that they did not intend to be bound unless others also
signed.

Kruse Classic Auction, Co. v. Aetna Cas. & Sur. Co., 511 N.E.2d 326, 328 (Ind. Ct.

App. 1987), trans. denied; see also Int’l Creative Mgmt., Inc. v. D & R Ent. Co., 670

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 N.E.2d 1305, 1311 (Ind. Ct. App. 1996), trans. denied. And here, “there was no

express intention or affirmation in the contract that [Sellers] not be bound

unless [Buyers] also signed.” See Kruse Classic Auction, 511 N.E.2d at 328.

Accordingly, when they executed the settlement agreement on August 12,

Sellers were bound by it, including the provision that gave Buyers “a reasonable

period of time (as long as they deemed necessary) to consider this agreement

before signing.” Appellees’ App. Vol. 2 at 40. Once executed by Sellers, the

settlement agreement was, in effect, an offer to Buyers, which, as the trial court

found, Buyers had accepted before the offer was revoked. See Rosi v. Business

Furniture Corp., 615 N.E.2d 431, 435 (Ind. 1993) (stating a contract is formed by

the exchange of an offer and acceptance between the contracting parties. To

form a contract, one party must extend an offer, and the other party must

communicate acceptance of the offer to the offeror).

Contract Formation

[10] In general, where, as here, the parties to an agreement have reduced the

agreement to a written document and have included an integration clause that

the written document embodies the complete agreement between the parties,

the parol evidence rule prohibits courts from considering parol or extrinsic

evidence for the purpose of varying or adding to the terms of the written

contract. Krieg v. Hieber, 802 N.E.2d 938, 943 (Ind. Ct. App. 2004). However,

the prohibition against the use of parol evidence is by no means complete. Id.

at 944. Indeed, parol evidence may be considered if it is not being offered to

vary the terms of the written contract but to show that fraud, intentional

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 misrepresentation, or mistake entered into the formation of a contract. Id. In

addition, parol evidence may be considered to apply the terms of a contract to

its subject matter and to shed light upon the circumstances under which the

parties entered into the written contract. Id.

[11] Here, during the evidentiary hearing, Sellers attempted to introduce into

evidence an email from their attorney to Buyers’ attorney dated August 9, 2018,

which stated as follows:

My clients have reviewed the modifications to the Settlement
Agreement made by your clients. The modification made in
paragraph 4 is unacceptable. My clients will not agree to any
modification of the closing date or post-closing possession.
However, we have made the modification requested in paragraph
7. My clients have advised me the[y] will not consider any
further modifications. If the Settlement Agreement is not fully
executed by the close of business on Monday, August 13, 2018, I have
been instructed to proceed with the litigation.

Defendants’ Ex. B (emphasis added). Buyers objected to that proffered

evidence on the ground that it violated the parol evidence rule.

[12] Sellers’ attorney responded that the email was admissible under one or more of

the several exceptions to the parol evidence rule, and he made two offers of

proof—one during Radentz’ testimony and one during Thomas’ testimony. In

his offers of proof, Sellers’ attorney stated that, “if admitted this exhibit would

show by its very nature that the settlement agreement, if it was not fully

executed by the close of business on Monday, August 13, [I had] been

instructed to proceed with th[e] litigation[.]” Tr. at 70. In short, Sellers argued
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 to the trial court that the email proved that, because Buyers did not execute the

settlement agreement by August 13, 2018, there was no timely “acceptance” of

their offer and no contract was formed. Id. Thus, Sellers asserted that the email

was admissible as an exception to the parol evidence rule because it “shed light

upon the circumstances under which the parties entered into the written

contract.” See Krieg, 802 N.E.2d at 944.

[13] On appeal, Sellers contend that, when it excluded the email from the evidence,

the trial court misapplied the parol evidence rule. Sellers cite our opinion in

Sho-Pro of Ind., Inc. v. Brown, 585 N.E.2d 1357, 1360 (Ind. Ct. App. 1992), for

the principle that the parol evidence rule presumes a valid written agreement

between the parties and for its holding that the rule does not operate to exclude

evidence of contract formation. But Sellers’ reliance on Sho-Pro is misplaced.

In Sho-Pro, we concluded that the parol evidence rule did not apply both because

“[n]o evidence was introduced . . . purporting to vary the terms of the written

document offered” and because “the question was whether there was a meeting

of the minds between the parties.” Id.

[14] Here, unlike in Sho-Pro, the proffered evidence purported to vary a specific term

of the settlement agreement. The August 9 email attempted to establish an

abbreviated deadline for Buyers to execute the settlement agreement, which

directly contradicted the provision in the agreement that gave Buyers “a

reasonable period of time (as long as they deemed necessary) to consider this

agreement before signing.” Appellants’ App. Vol. 2 at 12. Thus, while Sellers

contend that the August 9 email was offered to show that no contract was

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 formed, the email was a clear attempt to vary an express provision of the

settlement agreement and, as such, it was inadmissible under the parol evidence

rule. Krieg, 802 N.E.2d at 944.

[15] In sum, the settlement agreement had been formed and by its terms included

“no terms other than those expressly set forth” in it. Appellants’ App. Vol. 2 at

13. Sellers could not foist a different deadline term upon Buyers when the

agreement provided that it “shall not be modified in any respect except by a

writing executed by both Parties.” Id. Sellers had already signed and were

bound by the agreement, Kruse Classic Auction, Co., 511 N.E.2d at 328, and

Buyers executed the agreement within the time specified by its terms. The trial

court did not err when it excluded the email from the evidence.

Partial or Complete Integration

[16] Still, Sellers assert that, if the trial court excluded the email “based on the

purported agreement’s merger or integration clause,” that was erroneous

because our Supreme Court has held that “the question of partial or complete

integration ‘requires the court to hear all relevant evidence, parol or written.’”

Appellant’s Br. at 14 (quoting Franklin v. White, 493 N.E.2d 161, 167 (Ind.

1986)). In essence, Sellers suggest that all parol evidence is admissible to show

whether the parties intended the settlement agreement to be only partially

integrated or completely integrated. We cannot agree.

[17] In Franklin, the Court held that

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 “[a] merger (integration) clause does not control the question of
whether a writing was intended to be a completely integrated
agreement.” An integration clause is only some evidence of the
parties’ intentions. The trial court should consider an integration
clause along with all other relevant evidence on the question of
integration.

493 N.E.2d at 166 (citations omitted, emphasis added). The Court added that,

“[i]f the court determines that a writing is integrated as to a specific term, then

prior statements or negotiations of the parties which would tend to contradict

that term as it appears in their final written expression are simply irrelevant.”

Franklin, 493 N.E.2d at 167 (emphasis added).

[18] Here, Sellers do not explain how the August 9 email is relevant to the issue of

whether the parties intended that the settlement agreement constituted “the

final and complete agreement between” them. Id. (citation omitted).

Moreover, again, the purported August 13 deadline for Buyers to execute the

settlement agreement directly contradicted the provision in the settlement

agreement stating that the parties had “a reasonable period of time (as long as

they deemed necessary) to consider this agreement before signing.” Appellees’

App. Vol. 2 at 40. On its face the deadline for the parties’ execution of the

agreement was clearly stated and fully integrated in the document signed by

Sellers. Thus, on that specific term, the August 9 email was irrelevant to a

determination of whether the agreement was partially or completely integrated,

and the trial court did not err when it excluded it from the evidence. Franklin

493 N.E.2d at 167.

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 Harmless Error

[19] In any event, it is well settled that, even if an evidentiary decision was

erroneous, we will not reverse if the ruling constituted harmless error. Techna-

Fit, Inc. v. Fluid Trans. Prods., Inc., 45 N.E.3d 399, 411 (Ind. Ct. App. 2015). An

error is harmless when the probable impact of the erroneously admitted or

excluded evidence on the factfinder, in light of all the evidence presented, is

sufficiently minor so as not to affect a party’s substantial rights. Id.; Ind.

Appellate Rule 66(A).

[20] Here, while on direct examination Thomas Downs testified he believed that

August 13 was the deadline for Buyers to accept Sellers’ offer, Thomas also

testified, in effect, that the sale was still pending after August 13. In particular,

on redirect examination Thomas testified that Buyers’ agent had issued

“ultimatums” on August 20 and 29, whereby Buyers had threatened that “the

transaction [wa]s over” if Sellers did not “do something by midnight” on each

of those dates. Tr. at 114. If, as Sellers contend on appeal, there was no sale

pending because Buyers had not executed the settlement agreement by August

13, then the subsequent ultimatums issued by Buyers would have been of no

consequence or concern to Sellers. But, rather than simply testifying that, in his

view, there was no sale pending after August 13, Thomas testified he “believed

that the deal was dead because of” Buyers’ ultimatums, which occurred after

that date. Id.

[21] Further, Sellers’ conduct shows that, notwithstanding the purported August 13

deadline, Sellers believed that the settlement agreement was still viable. The
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 clearest evidence of that fact is the August 16 letter from Sellers’ attorney to

Buyers’ attorney stating, “Pursuant to the Settlement Agreement, please find

enclosed” the 1996 survey of the property and thanking him for his

“cooperation.” Defendants’ Ex. C (emphasis added). Sellers would have had

no reason to send Buyers a survey on August 16 if their offer of the settlement

agreement had expired on August 13.

[22] Finally, Laura Downs testified that she was always ready, willing, and able to

sell the property to Buyers. Laura was apparently unaware of any deadline or

ultimatum, other than a reasonable time, as stated in the settlement agreement,

for Buyers to execute the settlement agreement. And at no time after August 13

did Sellers revoke their offer to Buyers.

[23] In sum, the evidence, including Thomas’ testimony on redirect examination,

shows that Sellers did not consider their offer of the settlement agreement to

have expired after August 13, and Sellers had not revoked their offer before

Buyers executed the settlement agreement on August 30. At most, the August 9

email threat from Sellers’ attorney to “proceed with this litigation” was a threat

which neither Sellers nor Buyers took seriously at that time. Whatever its

evidentiary value may have been, the email was vitiated by the subsequent

conduct of the parties. If there were error in the exclusion of the email, it was

harmless.

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 Issue Two: Enforceable Settlement Agreement

[24] Sellers next contend that the evidence does not support the trial court’s “finding

that the parties entered into a valid and enforceable settlement agreement[.]”

Appellants’ Br. at 14. The trial court entered findings of fact and conclusions

thereon pursuant to Indiana Trial Rule 52(A). This court has outlined the

standard of review when the trial court has issued such findings and

conclusions:

In reviewing a judgment based on such findings, we must first
determine whether the evidence supports the findings and then
determine whether the findings support the judgment. Atterholt v.
Robinson, 872 N.E.2d 633, 638-39 (Ind. Ct. App. 2007). “[T]he
court on appeal shall not set aside the findings or judgment
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A). “Findings are clearly
erroneous only when the record contains no facts to support
them either directly or by inference.” Randles v. Ind. Patient’s
Comp. Fund, 860 N.E.2d 1212, 1219 (Ind. Ct. App. 2007)
(citation omitted), trans. denied. A judgment is clearly erroneous
if it applies the wrong legal standard to properly found facts.
Johnson v. Wysocki, 990 N.E.2d 456, 460 (Ind. 2013). “In either
case, we must be left with the firm conviction that a mistake has
been made.” Id. (citation and internal quotation marks omitted).
When the specific issue on appeal relates to the award of
damages, we will affirm the damage award if it was “within the
scope of the evidence before the trial court.” Smith v. Washington,
734 N.E.2d 548, 550 (Ind. 2000). In conducting our review, we
consider only the evidence favorable to the judgment and the
reasonable inferences to be drawn therefrom. Samples v. Wilson,
12 N.E.3d 946, 950 (Ind. Ct. App. 2014). We do not reweigh the
evidence. Id.

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 Green v. Robertson, 56 N.E.3d 682, 691 (Ind. Ct. App. 2016).

[25] Sellers first assert that Buyers’ “purported settlement agreement acceptance on

30 August 2018 did not satisfy Indiana’s mirror image rule[.]” Appellants’ Br.

at 15. It is well settled that in order for an offer and an acceptance to constitute

a contract, the acceptance must meet and correspond with the offer in every

respect. I.C.C. Protective Coatings, Inc. v. A.E. Staley Mfg. Co., 695 N.E.2d 1030,

1034 (Ind. Ct. App. 1998), trans. denied. This rule is called the “mirror image

rule.” Id. An acceptance which varies the terms of the offer is considered a

rejection and operates as a counteroffer, which may be then accepted by the

original offeror. Id. at 1035.

[26] Sellers maintain that, when Buyers rejected the 1996 survey Sellers provided on

August 16, “this communication was deemed a counteroffer, because it

proposed additional terms from [Sellers’] purported offer” in the settlement

agreement. Appellants’ Br. at 16. Sellers state that, “[e]ven if a valid offer,

nothing in [Sellers’] 12 August 2018 communication to [Buyers] required

[Sellers] to give [Buyers] an ‘ALTA’ survey[,]” as Buyers had requested. Id.

Sellers’ argument on this issue misses the mark. The parties’ purchase

agreement, which was incorporated by reference in the settlement agreement,

clearly states that Sellers would provide a survey “certified as of a current date”

and that is “reasonably satisfactory to Buyer.” Appellees’ App. Vol. 2 at 45.

Buyers rejected the 1996 survey provided by Sellers because it was not certified

as of a current date, and they requested an ALTA survey, which is consistent

with the provision that the survey be “reasonably satisfactory” to Buyers. Thus,

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 nothing about Buyers’ demands regarding the survey constituted a

“counteroffer” or otherwise sought to alter the terms of the proposed settlement

agreement.

[27] As the trial court found, on August 30, Buyers executed the same settlement

agreement that Sellers had executed on August 12. Indeed, Sellers each

testified that Buyers executed the same agreement that they had executed.

Accordingly, the settlement agreement satisfies the mirror image rule. 3

[28] Finally, Sellers assert that the “Statute of Frauds[ 4] precludes enforcement of the

purported settlement agreement, because [Sellers’] signatures of 12 August 2018

were not valid when [Buyers] signed on 30 August 2018.” Appellants’ Br. at

19. Sellers appear to argue that when Buyers demanded an ALTA survey

certified as of a current date, Buyers “rejected” the settlement agreement,

which, in turn, “extinguished” Sellers’ signatures on the settlement agreement.

Id. at 20. Again, Sellers’ contention misses the mark. Buyers did not reject the

settlement agreement when they requested a survey that was consistent with the

terms of the parties’ purchase agreement. Sellers have not demonstrated that

the settlement agreement violates the statute of frauds.

3
We reject Sellers’ suggestion that, because Sellers rejected Buyers’ proposed settlement agreement dated
August 9, 2018, the parties have no valid settlement agreement. That proposed settlement agreement, which
was rejected, is not at issue here.
4
The statute of frauds provides in relevant part that a person may not bring an action regarding a contract
for the sale of real property unless the contract is in writing and signed by the party against whom the action
is taken. Ind. Code § 32-21-1-1(b)(4) (2019).

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 Cross appeal

[29] Finally, Buyers cross appeal and ask that we award them appellate attorney’s

fees pursuant to the attorney’s fee provision in the settlement agreement. In

particular, the settlement agreement provides that Sellers “shall also issue a

credit to [Buyers] for any outstanding attorneys’ fees incurred between the

Effective Date and Closing.” Appellee’s App. Vol. 2 at 38-39. The settlement

agreement also provides, generally, that if “any party is required to pursue legal

action to enforce their [sic] rights under this Agreement, the prevailing party in

such action shall be entitled to recover their [sic] attorneys’ fees and costs.” Id.

at 41. We hold that Sellers shall pay Buyers’ appellate attorney’s fees, and we

remand to the trial court with instructions to determine the amount of those

fees.5

Conclusion

[30] The trial court did not err when it excluded from the evidence the August 9

email from Sellers’ attorney to Buyers’ attorney. Further, even if the exclusion

of that evidence were error, it was harmless. The overwhelming and

undisputed evidence shows that Sellers’ offer of the settlement agreement

remained in effect until Buyers executed the settlement agreement on August

30. Sellers tendered a survey to Buyers on August 16, “pursuant to the

5
Buyers also request that, in addition to appellate attorney’s fees, we award them “all attorney’s fees
incurred from the date of the settlement agreement to and until closing.” Appellees’ Br. at 31. But the trial
court’s order already awards Buyers all such fees other than appellate attorney’s fees, and that order was not
challenged on appeal.

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 settlement agreement,” which belied any notion that Sellers considered that the

sale was off. The evidence supports the trial court’s finding that the settlement

agreement is valid and enforceable. And Buyers are entitled to an award of

appellate attorney’s fees from Sellers in an amount to be determined by the trial

court on remand.

[31] Affirmed and remanded with instructions.

Bailey, J., and May, J., concur.

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