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Brown v. Branch

Court: Indiana Supreme Court
Date filed: 2001-11-16
Citations: 758 N.E.2d 48
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ATTORNEY FOR APPELLANT:                 ATTORNEY FOR APPELLEE:

JAMES T. ROBERTS                  THOMAS M. BARR
Nashville, Indiana                           Nashville, Indiana







                                   IN THE


                          SUPREME COURT OF INDIANA



CLIFFORD BROWN,                   )
                                        )
      Appellant-Defendant,              )    Supreme Court Cause Number
                                        )    07S04-0011-CV-716
            v.                          )
                                        )    Court of Appeals Cause Number
RHONDA BRANCH,                    )     07A04-9907-CV-339
                                        )
      Appellee-Plaintiff.                    )


                     APPEAL FROM THE BROWN CIRCUIT COURT
                    The Honorable Heather M. Mollo, Judge
                        Cause No.  07C01-9704-CP-0130




                           ON PETITION TO TRANSFER



                              November 16, 2001


RUCKER, Justice

                                Case Summary


      Clifford Brown reneged on a promise to give a house to his  girlfriend
Rhonda Branch.  She sued, and  the  parties  debated  whether  Brown’s  oral
promise was subject to the Statute of Frauds.   After  a  bench  trial,  the
trial court awarded the house to  Branch  under  the  theory  of  promissory
estoppel.  The Court of Appeals affirmed on that theory and also  determined
that Brown’s promise was  not  within  the  Statute  of  Frauds.   We  grant
transfer and hold that an oral promise to give another person real  property
falls within the  Statute  of  Frauds.   We  also  hold  that  although  the
doctrine of  promissory  estoppel  may  remove  an  oral  promise  from  the
statute’s operation, in this case Branch failed in  her  burden  of  proving
that the doctrine applies.

                                    Facts
      Rhonda Branch and Clifford Brown were engaged in a ten-year  on-again,
off-again  relationship.   Sometime  during  that  ten-year  period,   Brown
purchased a home on State Road 135 in  southern  Indiana  that  the  parties
referred to as the “135 house.”  The couple lived in the home for  one  year
early in their relationship.  In 1995, Branch moved  to  Missouri,  found  a
job, and enrolled in a business school program.  Shortly  thereafter,  Brown
telephoned her and said that if she moved  back  to  Indiana,  Branch  would
“always have the 135 house” and that she “won’t  be  stuck  on  the  street.
You will have a roof over your head.”   R.  at  476.   Brown  also  proposed
marriage, and Branch accepted.  Branch quit her job, dropped out  of  school
after finishing the semester, and moved back to Indiana.  Branch  and  Brown
then  lived  together  for  two  brief  periods  before   the   relationship
eventually ended.
      Thereafter, Branch sued Brown when he failed to convey the 135  house.
Following a bench trial, the trial court awarded the house  to  Branch.   On
review, the Court of Appeals affirmed the  trial  court’s  judgment  ruling:
(i) Brown’s oral promise to give Branch the 135 house was not a sale  within
the meaning of the Statute of Frauds and therefore did not  need  to  be  in
writing in order to be enforced; and (ii) the oral promise  was  enforceable
under the doctrine of promissory estoppel.  Brown v. Branch, 733 N.E.2d  17,
25 (Ind. Ct. App. 2000).  We accept transfer and reverse the trial court.
                                 Discussion

                                     I.

      The Statute of Frauds provides in pertinent  part  that  “[n]o  action
shall be brought . . . [u]pon any contract for the  sale  of  lands  .  .  .
[u]nless the promise, contract or agreement upon which such action shall  be
brought . . . shall be in writing . . . .”  Ind. Code § 32-2-1-1.   Although
not conceding that he made a promise at all, Brown seems to  say  that  even
if he did, the promise of the 135 house was an oral contract  for  the  sale
of lands, and thus to be enforceable  it  had  to  be  in  writing.   Branch
counters that Brown made a promise, and that the promise was  to  “give  the
land and not to sell the  land.”   Appellee’s  Br.  in  Opp’n  to  Pet.  for
Transfer at 3.  According to Branch, “The Statute of Frauds applies only  to
promises to sell land,” and thus Brown’s agreement does not have  to  be  in
writing to be enforceable.  Id.  Relying  on  Black’s  Law  Dictionary  1337
(6th ed. 1990), both parties point  to  varying  definitions  of  “sale”  to
support their positions.
      The Statute of Frauds does not define the term “sale.”   However,  the
law is settled that “a  right  to  the  possession  of  real  estate  is  an
interest therein, and any contract which seeks  to  convey  an  interest  in
land is required to be in writing.”  Guckenberger v. Shank,  110  Ind.  App.
442, 37 N.E.2d  708,  713  (1941)  (emphasis  added).   Although  not  often
articulating it as such, our courts have long applied the principle that  an
agreement to convey land is  subject  to  the  Statute  of  Frauds’  writing
requirement.  And this is so whether there is actually a “sale” as the  term
is commonly used.  See, e.g., Hensley v. Hilton, 191 Ind. 309, 131 N.E.  38,
40 (1921) (contract to “devise” real estate  required  to  be  in  writing);
Fuelling v. Fuesse, 43 Ind. App.  441,  87  N.E.  700,  701  (1909)  (mutual
agreement concerning a boundary line  between  parties  required  to  be  in
writing); McCoy v.  McCoy,  32  Ind.  App.  38,  69  N.E.  193,  195  (1903)
(contract for the “exchange” of real estate  required  to  be  in  writing).
Indeed, over  three  quarters  of  a  century  ago,  our  courts  implicitly
acknowledged that a gift of  land  was  subject  to  the  operation  of  the
Statute of Frauds. Osterhaus v. Creviston, 62 Ind. App. 382, 111  N.E.  634,
636-37 (1916) (concerning the allegation that one party “gave” thirty  acres
of land to another, the court observed that  “a  parol  gift,  or  a  verbal
contract for the sale of land, may be taken out  of  the  operation  of  the
statute of frauds . . . . ”).
      Requiring a writing for transactions concerning the conveyance of real
estate, regardless of whether a sale  has  occurred  within  the  dictionary
definition of the term, is consistent with the underlying  purposes  of  the
Statute of Frauds, namely: to preclude fraudulent claims that  would  likely
arise when the word of one person is pitted against  the  word  of  another,
Summerlot v. Summerlot, 408 N.E.2d 820, 828 (Ind. Ct.  App.  1980),  and  to
remove the temptation of perjury by preventing the rights of litigants  from
resting  wholly  on  the  precarious  foundation  of  memory,  Ohio   Valley
Plastics, Inc. v. National City Bank, 687 N.E.2d 260,  263  (Ind.  Ct.  App.
1997), trans. denied.  These purposes are underscored  in  this  case.   The
record shows the parties vigorously disputed the content and meaning of  the
conversation preceding Branch’s move back to Indiana.[1]  In any event,  the
Statute of Frauds is unambiguous and provides a bright  line  rule  that  is
applicable here.   Despite  Brown’s  protest  to  the  contrary,  there  was
sufficient evidence before the trial court to show that he  made  a  promise
to Branch to convey real estate.  However, that  promise  falls  within  the
Statute of Frauds, and because it was not in writing it generally  would  be
unenforceable.   Nonetheless,  even  when  oral  promises  fall  within  the
Statute of Frauds, they may be enforced under  the  doctrine  of  promissory
estoppel.  Tincher v. Greencastle Fed. Sav. Bank, 580 N.E.2d 268, 272  (Ind.
Ct. App. 1991); Tipton County Farm Bureau Coop. Ass’n, Inc. v.  Hoover,  475
N.E.2d 38, 41 (Ind. Ct. App. 1985), trans. denied.  We next examine  whether
the doctrine is applicable here.
                                     II.
      Estoppel  is  a  judicial  doctrine  sounding  in  equity.    Although
variously defined, it is a concept  by  which  one’s  own  acts  or  conduct
prevents the claiming of a right to the detriment of another party  who  was
entitled to and did rely on the conduct.  In re  Edwards,  694  N.E.2d  701,
715 (Ind. 1998).  There are  a  variety  of  estoppel  doctrines  including:
estoppel  by  record,  estoppel  by  deed,  collateral  estoppel,  equitable
estoppel - also referred to as estoppel in pais,  promissory  estoppel,  and
judicial estoppel.  28 Am. Jur. 2d Estoppel and Waiver  §  2  (2000).   All,
however, are based on the same underlying principle:  one  who  by  deed  or
conduct has induced another to act  in  a  particular  manner  will  not  be
permitted to adopt an inconsistent position, attitude, or course of  conduct
that causes injury to such  other.   31  C.J.S.  Estoppel  and  Waiver  §  2
(1996).
      In this case, Branch pursued  her  claim  against  Brown  asserting  a
number of theories including the doctrine of promissory  estoppel.   It  was
upon this theory the trial court granted Branch relief and  upon  which  the
Court of Appeals also affirmed.[2]  This  species  of  estoppel  encompasses
the following elements:  (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.  First Nat’l Bank of  Logansport  v.  Logan  Mfg.  Co.,  Inc.,  577
N.E.2d 949, 954 (Ind. 1991).  However, regardless of the  type  of  estoppel
asserted, as our Court of Appeals has observed:
      [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.

Whiteco Indus., Inc. v. Kopani, 514 N.E.2d 840, 845  (Ind.  Ct.  App.  1987)
(citations omitted), trans. denied; accord Ohio Valley Plastics,  Inc.,  687
N.E.2d at 264 (holding that Bank’s damages were benefit of the bargain  type
damages that “fail  to  constitute  a  substantial  and  independent  injury
sufficient to remove Borrower’s claim from the operation of the  Statute  of
Frauds.”); Wabash Grain, Inc. v. Bank One, 713 N.E.2d 323, 326-27 (Ind.  Ct.
App. 1999) (concluding that in  a  summary  judgment  action,  Wabash  Grain
“designate[d] no evidence demonstrating  how  its  reliance  upon  the  oral
agreement to extend the  loan  caused  it  an  ‘injury  so  substantial  and
independent as  to  constitute  an  unjust  and  unconscionable  injury.’”).
Thus, while it is true that the doctrine of promissory estoppel  may  remove
an oral agreement from the operation of the Statute of Frauds,  it  is  also
true  that  the  party  asserting  the  doctrine  carries  a  heavy   burden
establishing its applicability.

      In the case before us, assuming without deciding there was  sufficient
evidence before the trial  court  to  support  the  elements  of  promissory
estoppel, the question remains whether there was sufficient evidence  before
the trial court to show that Branch suffered an “unjust  and  unconscionable
injury and loss” as a result of her reliance on Brown’s oral  promise.   See
Whiteco, 514 N.E.2d at 845.  In reaching that determination, we  are  guided
by cases that examine the degree of consideration given in  reliance  on  an
oral promise.  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.  For example, in Whiteco, relying on  an
employer’s  oral  promise  of  employment,  a  theatre  producer  and  other
employees:  (i) gave up their existing employment to accept the  jobs;  (ii)
moved to  Indiana  from  other  states;  and  (iii)  two  of  the  employees
purchased homes  in  Indiana.   Rejecting  the  employees’  claim  that  the
employer’s oral representation should be removed from the operation  of  the
Statute of Frauds on grounds of promissory estoppel or  constructive  fraud,
our Court of Appeals determined that the foregoing factors “do  not  possess
the quality of those which courts have found  sufficient  to  constitute  an
independent consideration.”  Id. at 843.  According to  the  court  “neither
the actions involved in moving one’s household to a  new  location  nor  the
mere relinquishment of an existing employment are sufficient  to  constitute
independent consideration.”  Id. at 843-44.   Endorsing  this  approach,  we
have observed:

      The reason for this view is that in moving and/or giving up her  prior
      job, the employee is merely placing herself in a  position  to  accept
      the new employment.  There is no independent detriment to the employee
      because she would have had to do the same things in  order  to  accept
      the job on any basis, and there is  no  independent  benefit  bestowed
      upon the employer.




Wior v. Anchor Indus., Inc., 669 N.E.2d 172, 176 (Ind. 1996)  (quoting  Ohio
Table Pad Co. of Ind., Inc. v. Hogan, 424 N.E.2d 144,  146  (Ind.  Ct.  App.
1981)); see also Bee Window, Inc. v. Turman, 716 N.E.2d 498, 501  (Ind.  Ct.
App. 1999) (discussing independent  consideration  in  the  context  of  the
employment at  will  doctrine,  the  Court  of  Appeals  held  that  “simply
surrendering another job or moving  to  another  location,  standing  alone,
does not constitute adequate independent consideration.”).

      In the case before us, the  record  shows  that  in  order  to  accept
Brown’s oral promise of the 135 house, Branch quit her modest  job,  dropped
out of college at the end

of the semester, and moved back to Indiana from Missouri where she had  been
living with her parents.   R.  at  398,  463,  593.   For  sure  Branch  was
inconvenienced as well as  denied  the  benefit  that  Brown’s  promise  was
intended to confer.  However, Branch has not  shown  that  her  reliance  on
Brown’s  oral  promise  resulted  in  the  “infliction  of  an  unjust   and
unconscionable injury and loss” that  would  remove  the  promise  from  the
operation of the  Statute  of  Frauds.   We  are  therefore  constrained  to
reverse the judgment of the trial court.

                                 Conclusion

      The judgment of the trial court is reversed.


SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
      [1]  For example, there was testimony that  Brown  never  intended  to
give  Branch  the  135  house  but  rather  to  allow  her  to  live   there
indefinitely.  R. at 574.  According to Brown, that was the  reason  he  did
not promise to “deed” the house to Branch.  R. at 706.   On  another  point,
Branch testified that the promise of the 135 house was  a  major  factor  in
her decision to move back to Indiana and give the relationship another  try.
 R. at 554.  Brown testified there was evidence  to  show  that  Branch  had
made up her mind to come back to Indiana before the  purported  promise  was
ever made.  R. at 693-94.


      [2]  In addition to various forms of estoppel, there are a  number  of
equitable doctrines that also may provide  a  basis  for  avoidance  of  the
Statute of Frauds, including quantum meruit, see Galanis v. Lyons &  Truitt,
715 N.E.2d 858, 861 (Ind. 1999); part performance, see Marathon Oil  Co.  v.
Collins, 744 N.E.2d 474, 478 (Ind. Ct. App. 2001); and  constructive  fraud,
see id. at 480.  None of these alternative grounds  are  at  issue  in  this
appeal.