                                                                  FILED
                                                             May 04 2017, 8:41 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Nancy A. McCaslin                                         Steven J. Olsen
McCaslin & McCaslin                                       Yoder, Ainlay, Ulmer &
Elkhart, Indiana                                          Buckingham, LLP
                                                          Goshen, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

William J. Knapp and Rosalea                              May 4, 2017
M. Knapp,                                                 Court of Appeals Case No.
Appellants,                                               20A05-1610-PL-2344
                                                          Appeal from the Elkhart Superior
        v.                                                Court
                                                          The Honorable Stephen R.
The Estate of Carl R. Wright and                          Bowers, Judge
Joan M. Wright,                                           Trial Court Cause No.
Appellees                                                 20D02-1405-PL-131




Crone, Judge.




Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017                Page 1 of 21
                                                 Case Summary
[1]   William J. Knapp and Rosalea M. Knapp appeal the trial court’s entry of

      partial summary judgment and award of damages in favor of Carl R. Wright

      and Joan M. Wright.1 The Knapps argue that the trial court erred in

      concluding that a written contract for the sale of land was unenforceable

      pursuant to the Statute of Frauds for lack of a reasonably certain description of

      the land being sold. Determining that no genuine issue of material fact remains

      on this issue, we conclude that the trial court properly entered partial summary

      judgment in favor of the Wrights. The Knapps raise additional issues regarding

      the trial court’s subsequent order awarding damages to the Wrights and its

      order discharging the Knapps’ lis pendens notice regarding the subject real

      estate. Finding no error or abuse of discretion, we affirm the trial court’s

      judgments.


                                    Facts and Procedural History
[2]   The relevant material facts indicate that at all times relevant herein, the Wrights

      owned a fifty-six-acre parcel of property (“the Property”), which included a

      private lake, in Bristol. In 1993, the Wrights permitted the Knapps, the

      Wrights’ daughter and son-in-law, to move into a residential dwelling located



      1
        Carl R. Wright is now deceased. On November 1, 2016, the trial court granted the Knapps’ motion to
      substitute “The Estate of Carl Wright” as a party to this appeal. Therefore, the caption for this appeal reflects
      that change. The Wrights briefly mention in a footnote that no estate has been opened and no personal
      representative has been appointed for Carl R. Wright, and that perhaps the motions panel of this Court erred
      in denying their motion to dismiss this appeal for lack of jurisdiction on that basis. The Wrights cite to no
      authority or expand further on this assertion and, without more, we decline the invitation to reconsider the
      issue.

      Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017                              Page 2 of 21
on a portion of the Property at no cost to the Knapps. On February 27, 1999,

the Wrights and the Knapps entered into a lease agreement and option to

purchase (“the Lease”). The Lease contained the following description of the

portion of the Property being leased:


        certain real estate with an address of 51551 County Road 133,
        Bristol, Indiana 46507 (along with an easement for ingress and
        egress from County Road 133 to the property along the existing
        pathway) but only that part of the real estate that has the
        approximate boundary lines as shown on the attached Exhibit A,
        but retaining 50 feet for the [Wrights] along the railroad tracks.


Appellants’ App. Vol. 2 at 37. However, no Exhibit A was attached to the

Lease to describe that part of the Property that was considered the leased

premises. The Lease was for a term of five years. The Lease provided an

option to purchase that stated in relevant part:


        Provided [the Lease], or any renewal thereof, herein stated, is in
        full force and effect (i.e. has not expired, been terminated or
        otherwise rendered inapplicable), [the Knapps] [are] hereby
        granted the option and right to purchase the leased premises,
        listed items of personal property (if any), free and clear of any
        liens or encumbrances, for the sum of Fifty Thousand Dollars
        ($50,000.00). Said option, if it is to be exercised, must be
        exercised, in writing, prior to the termination of this Lease, or
        any extension thereof.


Id. at 41.




Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017       Page 3 of 21
[3]   Moreover, the Lease also provided that if the Knapps paid the full option price

      within thirty days of exercising the option to purchase, the Knapps would have

      also received a


              right of first refusal to purchase additional acreage to the east of
              the real estate, which additional real estate would include the
              additional structures to the east, sufficient to allow [the Knapps]
              to purchase a total of three (3) acres when combined with the real
              estate being leased hereunder, but such legal description to be as
              agreed by the parties with [the Wrights] retaining 50 feet along
              the railroad tracks.


      Id. at 43. The Knapps did not exercise their option to purchase by paying the

      full purchase price within the time allotted pursuant to the Lease, and the Lease

      terminated on December 31, 2003.


[4]   Thereafter, on November 1, 2004, the Wrights and the Knapps entered into a

      contract for sale of real estate (“the Real Estate Contract”). Like the Lease, the

      Real Estate Contract described the portion of the property being sold as:

              certain real estate with an address of 51551 County Road 133,
              Bristol, Indiana 46507 (along with an easement for ingress and
              egress from County Road 133 to the property along the existing
              pathway) but only that part of the real estate that has the
              approximate boundary lines as shown on the attached Exhibit A,
              but retaining fifty (50) feet for the [Wrights] along the railroad
              tracks. Upon payoff of this land contract, the parties shall have
              the property surveyed to provide a legal description of the
              property being purchased by [the Knapps].




      Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017     Page 4 of 21
      Id. at 48. No Exhibit A was attached to the Real Estate Contract to describe

      that part of the Property being sold. The Real Estate Contract further provided

      that the Lease was now void and of no further force and effect. After entering

      into the Real Estate Contract, the Knapps made monthly payments to the

      Wrights. The Knapps never paid any real estate taxes on any portion of the

      Property.


[5]   In May 2013, believing that they had “paid off the land contract,”2 the Knapps

      sought a warranty deed from the Wrights as to a three-acre portion of the

      Property, which included a residential dwelling, a pony barn, a shop building,

      and water rights to the private lake, that the Knapps assumed that they had

      been purchasing pursuant to the Real Estate Contract. Appellants’ Br. at 31.

      The Wrights, however, believed that they had been selling only approximately

      one acre of land that included the residential dwelling and no water rights to the

      private lake. It was the Wrights’ understanding that the one acre portion of the

      Property was identified on a hand-drawing. The Knapps learned that the

      Wrights’ attorney, who drafted both the Lease and the Real Estate Contract,

      possessed in his files a loose, undated, and unmarked drawing, not attached to

      any document, that depicted the boundaries of approximately one acre of the

      Property. Thereafter, the Wrights commissioned a survey of the approximate

      one acre of land that they considered to be the subject of the Real Estate



      2
        The Real Estate Contract required the Knapps to pay for real estate taxes and insurance on the portion of
      the property covered by the contract. See Appellants’ App. Vol. 2 at 50-51. The record reflects, and the
      Knapps admit, that they did not pay such amounts as required.

      Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017                           Page 5 of 21
      Contract, and had the survey recorded. The familial relationship between the

      parties quickly deteriorated, and beginning in June 2013, the Knapps occupied

      a one-acre portion of the Property and used the private lake without making

      any further payments to the Wrights.


[6]   In May 2014, the Knapps filed a complaint against the Wrights alleging that

      they are entitled to three specific acres of the Property, as well as a legal right to

      use the private lake adjacent to the three acres, pursuant to the Real Estate

      Contract. The Wrights filed their answer, as well as counterclaims for

      foreclosure, injunctive relief, assault and battery, and trespass. The Knapps

      subsequently filed an amended complaint to quiet title and for specific

      performance, injunctive relief, and trespass, alleging that, in addition to being

      the rightful owners of three specific acres of the Property or such acreage that

      the Wrights acquiesced to by their actions, they are entitled to an easement for a

      drainage field.


[7]   The Wrights replied with an amended answer asserting, among other things,

      the Statute of Frauds as an affirmative defense. The Wrights also filed an

      amended counterclaim requesting a judgment declaring the Real Estate

      Contract unenforceable and ordering the Knapps to forgo any claim and

      interest in the Property. To avoid the unjust enrichment of any party, the

      Wrights requested a quasi-contract remedy of ordering the Knapps to pay the

      Wrights the fair market rental value for a portion of the Property for the period

      during which they occupied the Property, and ordering the Wrights to pay the

      Knapps any amounts the Knapps had already paid in connection with the

      Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017      Page 6 of 21
      unenforceable Real Estate Contract to the extent those amounts exceeded the

      fair market rental value.


[8]   Thereafter, the Wrights filed a motion for partial summary judgment as to their

      amended counterclaim alleging that the Real Estate Contract lacked an

      essential term, i.e., a sufficient description of the property being sold, such that

      the contract is unenforceable pursuant to the Statute of Frauds. The Knapps

      responded and agreed that a sufficient description of the property being sold

      was not contained in the Real Estate Contract and that no exhibit otherwise

      describing the property being sold was attached to the contract. The Knapps

      further stated that the loose, undated, and unmarked drawing found by the

      Wrights’ attorney in 2013 was not attached to the Real Estate Contract when

      they signed it, nor was there any evidence that it was intended to be the

      description of the portion of the Property being conveyed. Instead, the Knapps

      maintained that the doctrines of acquiescence and estoppel were “exceptions”

      to the Statute of Frauds that were applicable to defeat the Wrights’ motion for

      partial summary judgment. Appellants’ App. Vol. 5 at 61. The Knapps also

      filed a cross-motion for summary judgment alleging that the Wrights’

      foreclosure claim based on unpaid taxes and insurance was barred by the

      doctrine of accord and satisfaction, and the Knapps further requested dismissal

      of the Wrights’ counterclaims premised on the Knapps’ alleged lack of riparian

      rights.


[9]   On October 22, 2015, the trial court entered an amended order granting partial

      summary judgment in favor of the Wrights and denying the Knapps’ cross-

      Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017      Page 7 of 21
       motion for summary judgment as moot. Specifically, the trial court determined

       as a matter of law that the Real Estate Contract was unenforceable and that the

       Knapps do not have an ownership interest, equitable or otherwise, in any

       portion of the Property, and thus partial summary judgment in favor of the

       Wrights was warranted. The court further determined that the Knapps’ cross-

       motion for summary judgment was moot because the issues raised therein

       presupposed the enforceability of the Real Estate Contract, which had now

       been deemed unenforceable.


[10]   On November 18, 2015, the Knapps filed their first notice of appeal, which was

       subsequently dismissed without prejudice.3 On November 20, 2015, the

       Knapps also filed a motion to stay execution of the trial court’s amended order.

       The Wrights filed their objection to a stay and, in July 2016, also filed a motion

       for immediate possession of real property from the Knapps and requested the

       trial court to enter an order denying the Knapps’ motion to stay execution of

       the trial court’s amended order.


[11]   The trial court heard argument on the motion for stay in July 2016, and set

       bond at $90,000 to be paid by the Knapps within seven days. The Knapps did

       not post the bond and requested an extension of time to do so. Following a




       3
         Concluding that the partial summary judgment order that the Knapps were attempting to appeal was not
       eligible for an interlocutory appeal as of right under Indiana Appellate Rule 14(A), and had not been certified
       for discretionary interlocutory appeal under Indiana Appellate Rule 14(B), this Court dismissed the appeal
       without prejudice and remanded to the trial court for further proceedings. We specifically ordered that the
       Knapps, after filing a new notice of appeal, were permitted to raise the issues that they would have raised,
       along with any new issues created by the trial court’s ruling on remand.

       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017                             Page 8 of 21
       hearing, the trial court denied the extension and entered an order of immediate

       possession in favor of the Wrights. On September 12, 2016, the Knapps filed a

       notice of lis pendens claiming an ownership interest in a portion of the Property

       arising out of the Real Estate Contract. The Wrights then filed an emergency

       motion for discharge and release of lis pendens stating that the lis pendens was

       based upon a contract that had been declared unenforceable by the trial court.


[12]   On September 21, 2016, the trial court held an evidentiary hearing on the issue

       of damages. Thereafter, on September 23, 2016, the trial court awarded the

       Wrights $24,000 in damages and entered a final appealable order stating, “This

       is a final appealable judgment as all issues relating to title to the real estate and

       damages [have] been resolved.” Appellants’ App. Vol. 2 at 19. The court

       further noted that the “parties are in agreement that this should be an

       appealable judgment.” Id. Later that same day, the trial court granted the

       Wrights’ emergency motion for discharge and release of the Knapps’ lis

       pendens notice, expressly authorizing the Wrights to sell the subject property

       free of any claim listed in the notice. Three days later, the Wrights sold the

       subject property to a third party at auction. This appeal ensued. We will state

       additional facts in our discussion as necessary.




       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017       Page 9 of 21
                                       Discussion and Decision

        Section 1 – Partial summary judgment in favor of the Wrights
                               is appropriate.
[13]   An appellate court reviews summary judgment using the same standard as the

       trial court. Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016). Summary

       judgment is appropriate only when the designated evidence shows no genuine

       issue of material fact and the moving party is entitled to judgment as a matter of

       law. Id. (citing Ind. Trial Rule 56(C) and Hughley v. State, 15 N.E.3d 1000, 1003

       (Ind. 2014)). “We construe all factual inferences in the nonmoving party’s

       favor and resolve all doubts as to the existence of a material issue against the

       moving party.” McCullough v. CitiMortgage, Inc., 70 N.E.3d 820, 824 (Ind. 2017)

       (citation omitted). Although our review is de novo, a trial court’s judgment

       comes to the appellate court clothed with a presumption of validity, and the

       appellant bears the burden of proving that the trial court erred. Schwartz v.

       Heeter, 994 N.E.2d 1102, 1105 (Ind. 2013).


[14]   In support of their motion for partial summary judgment, the Wrights asserted

       that the Real Estate Contract was unenforceable as a matter of law.

       Specifically, they claimed that the Real Estate Contract does not include a

       reasonably certain description of the land being conveyed as required for a

       contract regarding the sale of land, and thus the Knapps cannot maintain an

       action for specific performance. The Indiana Statute of Frauds provides in

       relevant part:



       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017   Page 10 of 21
                (b) A person may not bring any of the following actions unless
                the promise, contract, or agreement on which the action is based,
                or a memorandum or note describing the promise, contract, or
                agreement on which the action is based, is in writing and signed
                by the party against whom the action is brought or by the party’s
                authorized agent:
                …


                (4) An action involving any contract for the sale of land.


       Ind. Code § 32-21-1-1. “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.” Jernas v. Gumz, 53

       N.E.3d 434, 446 (Ind. Ct. App. 2016), trans. denied. The Statute does not

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

       have been formed. Fox Dev., Inc. v. England, 837 N.E.2d 161, 165 (Ind. Ct. App.

       2005).


[15]   An agreement required to be in writing must completely contain the essential

       terms without resort to parol evidence in order to be enforceable. Coca-Cola Co.

       v. Babyback’s Int’l, Inc., 841 N.E.2d 557, 565 (Ind. 2006). This Court has stated,


                Under the Statute, an enforceable contract for the sale of land
                must be evidenced by some writing: (1) which has been signed by
                the party against whom the contract is to be enforced or his
                authorized agent; (2) which describes with reasonable certainty each
                party and the land; and (3) which states with reasonable certainty
                the terms and conditions of the promises and by whom the
                promises were made.



       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017     Page 11 of 21
Schuler v. Graf, 862 N.E.2d 708, 713 (Ind. Ct. App. 2007) (quoting Johnson v.

Sprague, 614 N.E.2d 585, 588 (Ind. Ct. App. 1993)) (emphasis in Schuler). We

have further explained regarding whether the land is described with reasonable

certainty that

        it is not essential that the description have such particulars and
        tokens of identification as to render a resort to extrinsic aid
        entirely needless when the writing comes to be applied to the
        subject matter. The terms may be abstract and of a general
        nature, if with the assistance of external evidence the description,
        without being contradicted or added to, can be connected with
        and applied to the very property intended, to the exclusion of all
        other property.


Id. (quoting Cripe v. Coates, 124 Ind. App. 246, 250-51, 116 N.E.2d 642, 644-45

(1954) (citation omitted)). “Thus, it is a familiar rule that it is not the office of a

description to identify lands, but simply to furnish the means of identification.”

Id. (citation and quotation marks omitted). In addition,


        [i]f the premises bargained for are a part of a larger tract owned
        by the vendor the question whether or not the writing satisfies the
        statute as to description will depend upon whether within itself or by
        references made it does or it does not in practical effect describe or
        designate the part covered by the contract.


Cripe, 124 Ind. App. at 251, 116 N.E.2d at 645 (citation omitted). Where the

contract “merely describes the area or dimensions of the land sold, but not

fixing the boundary between the land sold and the seller’s remaining lands, it is

insufficient to meet the requirements of the [S]tatue of [F]rauds.” Id. (citations

omitted).
Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017      Page 12 of 21
[16]   Moreover, it is well settled that 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. Wenning v. Calhoun, 827 N.E.2d 627, 629 (Ind. Ct.

       App. 2005), opinion on reh’g, trans denied. The contracting parties “have the right

       to define their mutual rights and obligations, and a court may not make a new

       contract or supply omitted terms while professing to construe the contract.”

       Johnson v. Sprague, 614 N.E.2d 585, 588 (Ind. Ct. App. 1993). “Absolute

       certainty in all terms is not required, but if any essential elements are omitted or

       left obscure and undefined, so as to leave the intention of the parties uncertain

       respecting any substantial terms of the contract, the case is not one for specific

       performance.” Id.


[17]   Here, during the summary judgment proceedings, both parties agreed that the

       Real Estate Contract does not adequately describe the portion of the Property

       being conveyed as required by the Statute of Frauds. Indeed, it was undisputed

       that while the Real Estate Contract was intended to provide for the sale of land

       that was part of a larger tract owned by the Wrights, the Real Estate Contract

       does not within itself or by references made, describe or designate the part,

       whether it be one acre, three acres, or some other acreage, or the boundaries

       thereof, covered by the contract. Although the Real Estate Contract notes that

       the approximate boundary lines of the land being conveyed were referenced in

       “Exhibit A,” the Knapps clearly conceded to the trial court that no Exhibit A

       was attached to the contract. The Knapps further maintained that there was no

       evidence that the loose, undated, and unmarked drawing found by the Wrights’


       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017    Page 13 of 21
       attorney in 2013 existed at the time the Real Estate Contract was entered into,

       was intended to be Exhibit A, or in any way described or designated the portion

       of the Property, or the boundaries thereof, covered by the contract.


[18]   The Knapps attempt to change their position on appeal. They now assert that

       the Real Estate Contract contains a sufficient description of the land being

       conveyed based upon its reference to Exhibit A, and they claim that the

       drawing provides the requisite description of the portion of the Property that

       they are entitled to. However, it is well settled that a party may not change his

       or her theory on appeal and present arguments that are different from those

       raised in the trial court. See Kentucky Nat’l Ins. Co. v. Empire Fire & Marine Ins.

       Co., 919 N.E.2d 565, 597 n.34 (Ind. Ct. App. 2010); see also Dunaway v. Allstate

       Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004) (“Issues not raised before the

       trial court on summary judgment cannot be argued for the first time on appeal

       and are waived.”). The Knapps cannot now dispute material facts that were

       undisputed below, and they cannot now argue that the designated evidence

       supports a position opposite that which they maintained to the trial court.


[19]   Based upon the undisputed evidence presented and relied upon by the parties

       during the summary judgment proceedings, we agree with the trial court that

       the Real Estate Contract does not satisfy the Statute of Frauds because it lacks a

       reasonably certain description of the land being conveyed. As the Knapps do

       not assert that a genuine issue of material fact exists regarding an exception to

       the Statute, we conclude that the Real Estate Contract is unenforceable as a

       matter of law and the Knapps cannot maintain an action for specific

       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017     Page 14 of 21
       performance. 4 Accordingly, the trial court properly entered partial summary

       judgment in favor of the Wrights.5


           Section 2 – The trial court’s award of damages is within the
                              scope of the evidence.
[20]   We next address the Knapps’ contention that the trial court abused its

       discretion when it awarded the Wrights $24,000 in damages based on the fair

       market rental value of the subject property for the time that the Knapps

       occupied the subject property without making any payment to the Wrights.

       The Knapps argue that the award is speculative and not within the scope of the

       evidence. We disagree.


[21]   The computation of damages is a matter within the trial court’s sound

       discretion. Fischer v. Heymann, 12 N.E.3d 867, 870 (Ind. 2014). We will not

       reverse a damage award on appeal unless it is based on insufficient evidence or

       is contrary to law. City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000,



       4
         Although the Knapps argued to the trial court that the doctrines of “acquiescence” and “estoppel” applied
       as “exceptions” to the Statute of Frauds, see Appellants’ App. Vol. 5 at 61, they appear to have abandoned
       those arguments and do not raise them on appeal, so we need not address them. See Appellants’ Amended
       Br. at 49 (“The only dispute of facts, which would defeat summary judgment, is the precise description of the
       real estate.”). Additionally, the Knapps assert for the first time in their reply brief that a genuine issue of
       material fact remains as to whether the doctrine of part performance applies as an exception to the Statute of
       Frauds. Not only did the Knapps fail to specifically raise this claim before the trial court, but they also failed
       to raise this claim in their amended appellants’ brief. Accordingly, the issue is waived. See Monroe Guar. Ins.
       Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (noting that issues raised for first time in a reply brief
       are deemed waived on appeal).
       5
        We similarly conclude that the trial court properly denied the Knapps’ cross-motion for summary judgment
       as moot because the issues raised by the Knapps therein presuppose the enforceability of the Real Estate
       Contract, which is no longer a matter of controversy between these parties. See Rainbow Cmty., Inc. v. Town of
       Burns Harbor, 880 N.E.2d 1254, 1261 (Ind. Ct. App. 2011) (an issue is moot when it has ceased to be a matter
       of real controversy between the parties).

       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017                              Page 15 of 21
       1015 (Ind. Ct. App. 2011). “In determining whether an award is within the

       scope of the evidence, we may not reweigh the evidence or judge the credibility

       of witnesses.” Id.


[22]   During the evidentiary hearing on damages, licensed real estate appraiser

       Robert Dorsam testified that he inspected the Property on January 8, 2016. He

       computed the current average fair market rental value for one acre of the

       Property with water rights ($700), one acre of the Property without water rights

       ($650), three acres of the Property with water rights ($1050), and three acres of

       the Property without water rights ($1000). Admitting that the assigned rental

       values were based on his current inspection of the Property and that he could

       not opine as to the fair market rental value for any time prior to his inspection,

       he did confirm that while “rental rates fluctuate … it did not appear that rental

       rates changed much” over the last several years. Tr. Vol 2. at 49. Based upon

       the evidence presented, the trial court concluded that the fair market rental

       value of the one-acre portion of the property with water rights occupied by the

       Knapps from June 2013 through June 2014 was $600 per month, and that for

       the period from July 2014 through July 2016, it was $700 per month. The sum

       of the rent for those periods was $24,000. Accordingly, the trial court awarded

       the Wrights damages in that amount.


[23]   The Knapps complain that the fair market rental values presented by the

       appraiser established the rental values only for the single day he inspected the

       Property, and therefore the trial court’s determination of a rental value for any

       other time was outside the scope of the evidence. However, the trial court

       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017   Page 16 of 21
       specifically noted that based upon the testimony presented, it was “reasonable

       to assume that the rental value was roughly the same in the year and a half

       preceding the time period identified by the appraiser” and that the value in 2013

       “was presumably somewhat less because of additional improvements claimed

       to have been performed” by the Knapps as well as changes to the economy.

       Appellants’ App. Vol. 2 at 17-18. We conclude that the trial court’s

       determination in this regard was patently reasonable based on the evidence

       before it and that the court’s award of $24,000 to the Wrights was well within

       the scope of the evidence. The Knapps have shown no abuse of discretion.


           Section 3 – The trial court did not err when it ordered the
                     Knapps’ lis pendens notice removed.
[24]   Finally, we address the Knapps’ assertion that the trial court erred when it

       ordered their lis pendens notice removed. Specifically, the Knapps argue that

       the trial court’s removal of their notice and the discharge of their claim to the

       subject property was premature because any determination by the trial court

       regarding their ownership rights or lack thereof to the subject property “was not

       final until there was an appeal and a final decision was rendered.” Appellants’

       Amended Br. at 57. Again, we disagree with the Knapps.


[25]   Our supreme court has explained lis pendens generally as follows:


               The doctrine of lis pendens is fundamentally about notice. The
               term lis pendens itself means “pending suit,” and it refers
               specifically to “the jurisdiction, power, or control which a court
               acquires over property” involved in a pending real estate action.
               Any successor in interest to real estate is deemed to take notice of

       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017    Page 17 of 21
               a pending action involving title to that real estate and is subject to
               its outcome. The judgment in the pending lawsuit binds all
               successors in interest, regardless of whether a successor was a
               party to the litigation. The doctrine’s purpose is to protect the
               finality of court judgments by discouraging purchases of
               contested real estate.


       JPMorgan Chase Bank, N.A. v. Claybridge Homeowners Ass’n, 39 N.E.3d 666, 670-

       71 (Ind. 2015).


[26]   Here, the Knapps filed their lis pendens notice on September 12, 2016, claiming

       an interest in a three-acre portion of the Property pursuant to the Real Estate

       Contract, and giving notice to any successor in interest that they intended to

       appeal any decision by the trial court determining ownership rights and

       damages. The Wrights filed an emergency motion for discharge and removal of

       the notice stating that the lis pendens was based upon a contract that had been

       declared unenforceable by the trial court’s entry of partial summary judgment.

       On September 23, 2016, having already determined that the Real Estate

       Contract was unenforceable and that the Knapps had no ownership rights to the

       subject property, the trial court entered its order awarding damages to the

       Wrights, stating that the order was a “final and appealable judgment as all

       issues relating to title to the real estate and damages [have] been resolved” and

       that “[t]he parties are in agreement that this should be an appealable

       judgment.” Appellants’ App. Vol. 2 at 19. That same day, the trial court

       granted the Wrights’ emergency motion for discharge and removal of lis

       pendens, determining that “there has been a final determination rendered in this


       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017      Page 18 of 21
       case” and ordering the clerk of the Elkhart Circuit and Superior Courts to

       remove the lis pendens notice filed in this case. Id. at 21.


[27]   Regarding lis pendens, Indiana Code Chapter 32-30-11-7 provides in relevant

       part,


               Upon the final determination of any suit brought:

               (1) for the purposes described in section 2 or 3 of this chapter;
               and

               (2) adversely to the party seeking to enforce a lien upon, right to,
               or interest in the real estate;

               the court rendering the judgment shall order the proper clerk to
               enter in the lis pendens record a satisfaction of the lien, right, or
               interest sought to be enforced against the real estate. When the
               entry is made, the real estate is forever discharged from the lien,
               right, or interest.


[28]   We agree with the trial court that the final appealable judgment it entered on

       September 23, 2016, which disposed of all issues relating to title to the subject

       property and damages, constituted a “final determination” within the meaning

       of the statute, thus mandating the trial court to order the clerk of the Elkhart

       Circuit and Superior Courts to enter in the lis pendens record a satisfaction of

       the Knapps’ lien, right, or interest sought to be enforced against the subject

       property. See UFG, LLC v. Southwest Corp., 784 N.E.2d 536, 546 (Ind. Ct. App.

       2003) (holding that plain and ordinary meaning of words “final determination”

       in Ind. Code § 32-30-11-7 includes a final appealable judgment entered by the

       trial court in the underlying action regardless of pending appellate rights), trans.
       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017      Page 19 of 21
       denied. Contrary to the Knapps’ assertion, the fact that they intended to appeal

       the trial court’s entry of partial summary judgment and award of damages did

       not render the trial court’s entry of a final appealable judgment any less of a

       “final determination” of their suit within the meaning of the statute. Id.6 The

       trial court did not err when it ordered the Knapps’ lis pendens notice removed

       as required by statute.


                                                     Conclusion
[29]   In sum, the trial court properly entered partial summary judgment in favor of

       the Wrights declaring the Real Estate Contract unenforceable as a matter of

       law, and the court’s subsequent award of $24,000 in damages to the Wrights

       was within the scope of the evidence presented. Moreover, the trial court did

       not err when it ordered the Knapps’ lis pendens notice removed. Accordingly,

       we affirm the judgments of the trial court.7




       6
         The Wrights rely on Farmer’s Bank of Frankfort v. First National Bank, 30 Ind. App. 520, 66 N.E. 503 (1903),
       for the proposition that the trial court’s entry of a final appealable judgment was not a “final determination”
       of their claims because they intended to appeal the trial court’s decision. See id. at 506 (stating that one
       purchasing real estate after judgment rendered in trial court becomes purchaser pendente lite, and takes
       chances incident to appeal since appeal is not commencement of new action but prosecution of same action
       in higher court). We agree with the trial court that Indiana Code Section 32-30-11-7, enacted in 2002, and
       our much more recent decision in UFG interpreting the relevant statutory language, are the more accurate
       statements of the current state of the law regarding lis pendens.
       7
        The Knapps raise additional issues in their reply brief that they did not raise in their amended appellants’
       brief. As we have already noted, issues raised for the first time in a reply brief are deemed waived on appeal.
       See Monroe Guar. Ins. Co., 829 N.E.2d at 977.



       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017                            Page 20 of 21
[30]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017   Page 21 of 21
