MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                     Oct 11 2016, 8:35 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.


ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEE
Harold Abrahamson                                        Margo R. Babineaux
Jonathan E. Halm                                         Meinzer & Babineaux LLC
Abrahamson, Reed & Bilse                                 Saint John, Indiana
Hammond, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Keith A. Eenigenburg and                                 October 11, 2016
Sandra Eenigenburg,                                      Court of Appeals Case No.
Appellants-Defendants,                                   45A05-1601-CC-66
                                                         Appeal from the Lake Superior
        v.                                               Court
                                                         The Honorable Calvin D.
Joan Andreotti,                                          Hawkins, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         45D02-1303-CC-149




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016        Page 1 of 23
[1]   Keith A. Eenigenburg (“Keith”) and Sandra Eenigenburg (“Sandra,” and

      together with Keith, the “Eenigenburgs”) appeal from the trial court’s order in

      favor of Joan Andreotti. The Eenigenburgs raise four issues which we

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

      affirm.


                                        Facts and Procedural History

[2]   In 2001, Keith contacted Andreotti inquiring if she would be interested in

      selling the Eenigenburgs a twenty-two acre parcel of real property in Cedar

      Lake, Indiana (the “Property”). At the time, Andreotti had not listed the

      Property for sale but agreed to sell it to the Eenigenburgs, and on May 31, 2001,

      the parties entered into an installment sale contract (the “Contract”) for a price

      of $650,000. Under the terms of the Contract, the Eenigenburgs paid Andreotti

      the sum of $5,000 as earnest money with an additional $195,000 to be paid at

      closing and a balance of $450,000 payable in monthly installments of $3,625.17

      at an interest rate of seven and one-half percent commencing on July 1, 2001,

      and payable until “the full amount of the purchase price, together with interest

      has been paid.” Plaintiff’s Exhibit 1 at 2.1 The Contract also provided that the

      Eenigenburgs were responsible for paying all real estate taxes on the Property.

      The Eenigenburgs paid Andreotti pursuant to the Contract’s terms of payment

      until late in 2006 when Keith informed her that he was experiencing financial




      1
       The Contract also provided that in “no event shall the term of the Contract exceed twenty (20) years.”
      Plaintiff’s Exhibit 1 at 2.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016           Page 2 of 23
      difficulties due to losing rental properties that he owned in Hammond, Indiana,

      to the City of Hammond. He requested that Andreotti modify the Contract’s

      payment terms, and in December 2006 Andreotti agreed to reduce the

      Contract’s interest rate to six and one-half percent effective January 1, 2007,

      which agreement was memorialized in an amendment to the Contract dated

      December 15, 2006, and reduced the Eenigenburgs’ monthly payment to

      $2,800.


[3]   In 2007, at around the same time that Andreotti agreed to reduce the Contract’s

      interest rate, the Eenigenburgs listed the Property for sale for a price of

      $1,500,000. In 2010, Andreotti received a tax delinquency notice for the

      Property stating that the 2009 real estate taxes had not been paid, which

      resulted in a sum due of $27,860.51 inclusive of penalties and interest.

      Andreotti requested that the Eenigenburgs, pursuant to the Contract, pay the

      tax bill, and after they failed to do so, she paid the full amount of the 2009 tax

      liability. Throughout 2010, Keith informed Andreotti about his continuing

      financial hardship and requested that she reduce the interest rate on the

      Contract, and, in December 2010, Andreotti reduced the interest rate from six

      and one-half percent to five percent, which lowered the Eenigenburgs’ monthly

      payment to $2,000.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 3 of 23
[4]   In May 2011 the Eenigenburgs received an offer to purchase the Property from

      Jeffrey Lane and Mary Jo Wiltshire (the “Lanes”).2 Around Memorial Day of

      2011, Keith informed Andreotti that the Lanes could pay a $300,000 down

      payment at closing. In June 2011, Keith gave Andreotti the $5,000 earnest

      money deposit he had received from the Lanes. In July 2011, Andreotti

      received a tax delinquency notice stating that for 2010, $2,953.79 were owed in

      taxes on the Property, which she then paid to Lake County. Also, in July 2011,

      the Eenigenburgs received an additional $50,000 down payment from the

      Lanes. On August 1, 2011, the Eenigenburgs and the Lanes closed on the sale

      of the Property at Meridian Title for a purchase price of $837,000 with $55,000

      indicated as the down payment, which included the Lanes’ initial $5,000

      earnest money payment and their subsequent $50,000 down payment.3

      Andreotti was present at the closing but was situated in a separate conference

      room away from the Eenigenburgs and the Lanes. The Contract had an

      outstanding balance of $370,102.30.4 Andreotti was presented with a warranty

      deed conveying the Property from Andreotti, as trustee of the Joan Andreotti

      trust to Sandra, which she signed, in exchange for a check for $290,000, and a




      2
       Jeffrey Lane and Mary Jo Wiltshire married after they purchased the Property from the Eenigenburgs and
      Mary Jo uses Lane as her surname. Jeffrey Lane died on November 11, 2014.
      3
        The contract between the Eenigenburgs and the Lanes lists a purchase price of $832,000 due to a $5,000
      credit for preparation for a survey, which was a sum Andreotti loaned to Keith prior to the closing.
      4
        Andreotti’s amended complaint states that the amount she is owed under the Contract is $372,265.98, and
      she explained in trial that the discrepancy of $2,163.68 was due to an error in her calculations as she was
      transferring numbers from one ledger to another.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016           Page 4 of 23
      $5,000 promissory note in her favor by the Eenigenburgs.5 Andreotti was not

      aware of the additional $50,000 down payment the Eenigenburgs received from

      the Lanes until three weeks after the closing when the Lanes contacted her after

      the closing inquiring about the septic and grease traps on the Property, at which

      time they stated the full amount they had paid as a down payment.


[5]   On March 25, 2013, Andreotti filed a complaint alleging breach of contract,

      unjust enrichment, breach of promissory note, and foreclosure of a common

      law lien. On May 8, 2013, Andreotti filed a motion to dismiss her common law

      lien claim, and the court granted the motion that same day. The Eenigenburgs

      filed an answer to Andreotti’s complaint on June 28, 2013. On August 15,

      2013, Andreotti filed an amended complaint (the “Amended Complaint”)

      which included a claim that the Eenigenburgs committed misrepresentation and

      fraud in the inducement based on their actions leading up to and at the closing.

      The Eenigenburgs filed an answer to Andreotti’s Amended Complaint, and

      around that time they paid Andreotti $2,000 on the unpaid balance of the

      promissory note. On August 19, 2015, the court approved the parties’ proposed

      pretrial order which contained the parties’ stipulation of facts. On October 19,

      2015, the court held a one-day bench trial. At the start of the trial, the

      Eenigenburgs, by counsel, requested that the court enter special findings




      5
       Keith testified that, due to his financial problems, he “felt it was prudent on my part to just have [Sandra’s]
      name on it.” Transcript at 109. Andreotti also testified that Keith “had other financial problems and he
      wanted to avoid having any more liens put against him, so, therefore, he put [the deed] in his wife’s name to
      protect himself.” Id. at 44.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016               Page 5 of 23
      pursuant to Ind. Trial Rule 52(A) which the court granted. Andreotti, Mary Jo,

      and Keith testified at the trial.


[6]   Andreotti stated that initially she had “a good business relationship with the

      Eenigenburgs,” Transcript at 31, and felt that she had “heartaches in common”

      with them. Id. at 38. She testified that around June of 2011 the Eenigenburgs

      received an offer on the Property and that “Keith came over with a $5,000

      check” from the Lanes and told Andreotti that “[h]e didn’t give me the actual

      amount when I asked him what they was paying. He said it was less that he

      had paid me. That he would not even be getting his down payment back.” Id.

      at 35. Andreotti stated that Keith did not tell her what the actual price of the

      sale was but that “[h]e told around that,” and did not at any point between the

      Lanes’ offer and the August 1, 2011 closing mention that he had received an

      additional $50,000 deposit from the Lanes. Id. at 36. When asked whether she

      and Keith discussed a reduction in the outstanding balance on the Contract that

      was owed to her, Andreotti replied that “Keith came over repeatedly, and I told

      him I could not take less than what was owed because I had obligations to other

      people. . . . and I could not take less than the amount.” Id. at 37-38. She

      testified that, at the closing, she was taken to an individual room, that the title

      company presented her with a warranty deed conveying the Property to Sandra,

      as well as a check for $290,000 and a $5,000 promissory note in her favor by the

      Eenigenburgs, and that she asked where the other parties were and was told

      they were in a separate room. Andreotti indicated that she was not presented

      with any closing documents, a HUD statement, or the contract between the


      Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 6 of 23
      Eenigenburgs and the Lanes. She stated that Keith had previously told her that

      if she “did not accept the offer, we would lose the buyer,” that the Lanes “could

      not come up with the balance of the money” due her, and that she “positively

      did not” know anything about the additional $50,000 the Eenigenburgs received

      because Keith “hid that quite well.” Id. at 48. Andreotti further testified that

      she did not know either the contract price or the additional $50,000 the Lanes

      had paid the Eenigenburgs prior to the closing and that, as she was leaving the

      closing, she was introduced to the Lanes, who had asked to meet her, by a clerk

      from the title company, and that she was shown “nothing” in addition to the

      warranty deed that she signed, the check, and the promissory note. Id. at 49.

      Andreotti testified that some time after the closing, she spoke with Jeffrey and

      he stated to her, “that they could have come up with the full amount,” and that

      she “did not know [Keith] had received another 50,000” until Mr. Lane told her

      what he had paid for the Property. Id. at 50.


[7]   On cross-examination, Andreotti stated she had been involved in the real estate

      business since 1970, along with her husband when he was alive, which involved

      remodeling distressed properties and holding them for rental. She further stated

      that as part of her work in real estate she had prepared contracts and leases.

      Andreotti testified that, as to whether she had a conversation with Keith in the

      spring of 2011 regarding whether she would accept $300,000 as a “cash-out” in

      connection with the Property, she acknowledged that she had such a

      conversation, “[b]ut at the time, I told him I could not.” Id. at 78-79. Andreotti

      stated that “she needed the full amount.” Id. at 80. She acknowledged that in


      Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 7 of 23
       2010 she had previously indicated to Keith that she would accept $300,000 if

       the purchase price on the sale was $650,000, and that Keith subsequently told

       her “many times” that he had found a purchaser who could pay a down

       payment of $300,000 cash but never stated the full purchase price. Id. at 81.

       Andreotti further testified that within a three-week period after the closing, she

       learned that the Lanes purchased the Property for $837,000, with $350,000 paid

       in total for the down payment, and that, until she spoke with the Lanes, she

       “was of the opinion [the purchase price] was less than he had - - the 650,000 he

       had paid me.” Id. at 87.


[8]    On redirect, Andreotti explained that in prior real estate closings at which she

       had participated she had always had the disclosure statements, HUD

       statements, closing statements, and all other closing documents before her. She

       further indicated that she had never participated in a closing where she was

       placed in a separate conference room, and she said that “there was a written

       document whereby [Keith] had written, requesting that I not be in the closing

       and that they not disclose the purchase price in his own writing.” Id. at 91.


[9]    The court asked Andreotti if she was forced by any party to sign the deed, and

       she stated that she was not, that there was no coercion, and she signed because

       of her “own mind and [her] circumstances.” Id. at 95.


[10]   Andreotti’s counsel asked her on redirect to clarify the circumstances that

       caused her to sign the deed, and she stated:




       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 8 of 23
               Well, my family situation; my son was dying. I had a lot of
               medical bills and things which I naturally was responsible for. I
               had two grandchildren I know I was going to have to try to
               educate, which being swindled out of this, my granddaughters
               did not go to college. Their children are in debt.


       Id. at 96. She added that she felt pressure to sign the deed because “[Keith] told

       me if I did not accept the $300,000, we would lose the buyer.” Id. at 97.


[11]   On re-cross-examination, Andreotti was asked when Keith told her this, and

       she stated: “Repeatedly. He was at my house at least two or three times three

       days before closing.” Id.


[12]   Mary Jo testified that she has resided at the Property since the August 1, 2011

       closing and that the Property was purchased from the Eenigenburgs. She stated

       that she and her husband initially paid $5,000 in earnest money and later paid

       Sandra an additional $50,000. Mary Jo testified that she first met Andreotti

       after she and her husband had signed all the closing documents and that her

       husband contacted Andreotti after the closing date regarding the condition of

       the Property. On cross-examination, she stated that in exchange for paying an

       additional $50,000 Keith reduced the interest rate on their contract.


[13]   Keith testified that he and Sandra purchased the Property from Andreotti in

       2001 pursuant to the Contract, listed the Property for sale in 2007 for

       $1,500,000 due to financial difficulty related to his and his brother’s rental

       property business, acknowledged that Andreotti paid the real estate taxes due in

       2009 and 2010, and that he had received two modifications to the interest rate.


       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 9 of 23
       He stated that prior to 2011 he had not received any other offers to purchase the

       Property and that when he received the Lanes’ offer he told Andreotti about it

       around Memorial Day of 2011. Keith indicated that he discussed the terms of

       the offer with Andreotti, but when asked whether he told her the price of the

       offer, he replied “[p]rice? The total amount? No, I didn’t.” Id. at 126. Keith

       testified that he knew in May 2011 that the price “was going to be between 800-

       and 900,000,” and added that he did not “think we would have gone any

       further with it had it been, you know, much lower.” Id. at 127. He stated that

       he did not recall telling Andreotti that he was not receiving any more from the

       Lanes than the $650,000 purchase price of the Property, but he acknowledged

       that he was “thinking more of what I paid with the interest and everything” in

       determining what he meant by the price of the Property. Id.


[14]   Keith stated that he did not know if he spoke to Andreotti within three days of

       the closing, that he spoke to Andreotti about the fact that she was taking less

       than what was due on the Contract, that he called Andreotti to inform her of

       the Lanes’ down payment of $300,000, and that he received the additional

       $50,000 about three and one-half weeks after the original down payment offer

       of $300,000. He acknowledged that an amount greater than $300,000 was due

       on the Contract, but stated that he asked Andreotti if $300,000 “would satisfy

       her contract,” that in June he presented her with a check for $5,000, and then in

       July he received an additional $50,000 check from the Lanes. Id. at 135. Keith

       stated that Andreotti told him he should “take the deal” offered by the Lanes

       for the Property and that, after Andreotti had accepted the deal, he began


       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 10 of 23
discussing with George Burrell about whether Burrell had any properties for

sale. Id. at 136.6 Keith acknowledged that he received $55,000 in total from the

Lanes, that his wife owns a property on Polk Street purchased from Burrell, and

he acknowledged that Andreotti was kept separate from the Eenigenburgs and

the Lanes at the closing. When asked whether he had asked anyone to refrain

from telling Andreotti the actual purchase price, he replied, “I can’t recall any

discussion about purchase price. I didn’t know it was that important,” but

acknowledged that he never told Andreotti about the purchase price.

Regarding the additional $50,000 he received from the Lanes, the following

exchange occurred:

        [Andreotti’s Counsel]: Do you feel any obligation with respect to
        that $50,000 that you received from the Lanes? Did you feel any
        obligation to turn that over to Joan?


        [Keith]: I don’t know - - you know, we made a purchase deal
        and we – you know, we made a purchase deal and we agreed to
        those terms and I don’t know if it had to go beyond that point.


Id. at 143. Keith stated that he did not provide Andreotti with the contract the

Lanes signed for the Property and that, at the time of the closing, he owed

Andreotti “in the general area of around 370,000.” Id. at 152.




6
  Keith was acquainted with Burrell because Burrell had performed maintenance work on some of Keith’s
rental properties.

Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016      Page 11 of 23
[15]   On cross-examination, Keith testified that the total amount he paid Andreotti

       for the Property, including principal and interest, was $896,763.26, that when

       he first met with the Lanes, Jeffrey “indicated to me at that time that he was

       only able to come up with $300,000,” that he then called Andreotti to inform

       her of the $300,000 down payment, and that Andreotti “called us on the

       [Memorial Day] holiday and had indicated to take the offer.” Id. at 159. He

       testified that, when Andreotti told him she would take $300,000 she did not

       express any conditions, and that, when Andreotti indicated her acceptance, the

       Eenigenburgs “celebrated with Subway sandwiches.” Id. He stated that, at that

       time, the Eenigenburgs were making plans to move into Sandra’s parents’

       home. Keith testified that in late June he met Burrell at a Casey’s station in

       Cedar Lake about purchasing a house and that Burrell “suggested to me to go

       to my buyer and give them a reduction in interest on the contract if they could

       come up with an additional $50,000,” and that in early July the Lanes agreed to

       pay an additional $50,000 in exchange for an interest rate reduction. Id. at 161.

       Keith stated that the deal he had with Andreotti for $300,000 was “already a

       finished process” and that the sale of the Property to the Lanes was not

       contingent on their ability to pay the additional $50,000. Id. at 166.


[16]   Both during and after the trial, the parties submitted initial and supplemental

       affidavits of attorney’s fees. On December 11, 2015, the court issued findings of

       facts and conclusions thereon and entered a judgment in favor of Andreotti in

       the amount of $72,265.98 and awarded her $9,611.11 in attorney fees. The

       court’s order provides, in part, that:


       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 12 of 23
                                   FINDINGS OF FACT


        7. That at the closing in August 2011, [Andreotti] received the
        sum of Two Hundred Ninety Five Thousand ($295,000.00)
        Dollars from the Title Company and a promissory note from the
        [Eenigenburgs] in the sum of Five Thousand ($5,000.00) Dollars.


                                              *****


        10. That prior to May of 2011, the [Eenigenburgs] had the
        [Property] on the market for sale. They received no offers until
        May 2011, at which time they received a purchase offer from the
        [Lanes].


        11. That at that time the balance due on the [Contract] including
        the taxes paid by [Andreotti], was the approximate [sum] of
        Three Hundred Seventy Thousand One Hundred Two
        ($370,102.30) Dollars and Thirty Cents.


        12. That the down payment on the purchase price offered by the
        [Lanes] for the [Property] was Three Hundred Thousand
        ($300,000.00) Dollars.


        13. That [the Eenigenburgs] contacted [Andreotti] and advised
        her that this was the only offer they had received on the
        [Property] and the Three Hundred Thousand ($300,000.00)
        Dollars was the maximum amount that the [Lanes] could pay as
        a down payment, but it was not the actual offer. [Keith],
        conveyed this offer to [Andreotti] and asked her to think about it.


        14. That over the Memorial Day weekend of 2011, the
        [Eenigenburgs] received a telephone call from [Andreotti]
        indicating that she would accept the sum of Three Hundred


Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 13 of 23
        Thousand ($300,000.00) Dollars in full payment of the [Contract]
        balance.


        15. That the closing was scheduled for August 1, 2011.


                                              *****


        21. That the [Eenigenburgs] did not disclose to [Andreotti] the
        actual purchase price or the terms of the real estate offer and
        contract that they agreed to with the [Lanes].


        22. That, [Keith] told [Andreotti] that the total she would receive
        from the closing between the [Eenigenburgs] and the [Lanes] was
        the sum of Three Hundred Thousand ($300,000.00) Dollars even
        though the [Contract] balance between the parties as of the date
        of closing was about Three Hundred Seventy Thousand One
        Hundred Two ($370,102.30) Dollars and Thirty Cents, including
        the tax payments that [Andreotti] made in the sum of Thirty
        Thousand Eight Hundred Fourteen ($30,814.30) Dollars and
        Thirty Cents that [the Eenigenburgs] failed to pay.


        23. That [Andreotti] never agreed, verbally or otherwise, to
        accept any amount less than what was due to her on the
        remaining principal balance on the [Contract] and the tax
        payments that she made that [the Eenigenburgs] failed to pay.


        24. That the actual purchase price between [the Eenigenburgs]
        and the [Lanes] was Eight Hundred Thirty Seven Thousand
        ($837,000.00) Dollars.


        25. That from May through August of 2011, [Andreotti]
        repeatedly asked [Keith] what the purchase price was for the
        contract with the [Lanes]; [Keith] never disclosed that price to
        [Andreotti] and would only suggest that he was losing money on

Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 14 of 23
        this deal and that he was not even getting the price that he paid
        for the [Property].


        26. That from May through August of 2011, based upon the
        many conversations with [Keith], and the representations that he
        made along with his intentional omission of the purchase price
        and Fifty Thousand ($50,000.00) Dollars deposit, [Andreotti]
        believed that the [Lanes] agreed to a purchase price less than
        what the [Eenigenburgs] agreed to pay for the property, believed
        that the [Eenigenburgs] were in dire financial straits, that the
        [Eenigenburgs] had to move in with [Sandra’s] parent’s, that the
        [Eenigenburgs] were taking a loss on the property, that the
        [Lanes] would walk away if the [Eenigenburgs] did not follow
        through with the sale, and that the [Eenigenburgs] could no
        longer make payments on the contract with [Andreotti].


        27. That up to the date of closing, August 1, 2011, [Keith],
        continued to make statements to [Andreotti] that the only cash
        that the [Lanes] could come up with was Three Hundred
        Thousand ($300,000.00) dollars despite the fact that the
        [Eenigenburgs] received an additional Fifty Thousand
        ($50,000.00) Dollars in cash from the [Lanes] in July, 2011.


        28. That during the closing, a Meridian Title Representative
        presented [Andreotti] with a Deed to [Sandra]; [Andreotti]
        executed said Deed.


        29. That thereafter a Meridian Title Representative presented
        [Andreotti] with a check in the sum of Two Hundred Ninety
        Thousand ($290,000.00) Dollars and a promissory note from the
        [Eenigenburgs] for Five Thousand ($5,000.00) Dollars.


        30. That the sum of Seventy Two Thousand Two Hundred Sixty
        Five ($72,265.98) Dollars and Ninety Eight Cents, including the
        taxes, remained and still remain due and owing to [Andreotti].

Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 15 of 23
                                       CONCLUSIONS OF LAW


                                                     *****


               9. [Andreotti] agreed to accept the sum of Three Hundred
               Thousand ($300,000.00) Dollars in full payment of the balance
               due under the [Contract] based upon the knowing
               misrepresentations of [Keith] about the sale price of the
               [Property] in question and the down payment on same.


               10. [Andreotti] is entitled to judgment against the
               [Eenigenburgs] based on their willful misrepresentations
               concerning the amounts that they were going to derive from the
               sale of the subject [Property] in the aggregate sum of Seventy
               Two Thousand Two Hundred Sixty Five ($72,265.98) Dollars
               and Ninety Eight Cents.


               11. The [Contract] entered into by and between the parties
               provided for attorney fees for the prevailing party.


               12. [Andreotti], as the prevailing party, is entitled to recover of
               and from [the Eenigenburgs] the sum of Nine Thousand Six
               Hundred Eleven ($9,611.11) Dollars and Eleven Cents for
               attorney’s fees and costs, which the Court finds to be reasonable.


       Appellant’s Appendix at 12-17.


                                                    Discussion

[17]   The issue is whether the trial court’s findings of fact and conclusions of law

       entered pursuant to Ind. Trial Rule 52(A) are clearly erroneous. “Where a trial

       court has made special findings pursuant to a party’s request under Trial Rule

       52(A), the reviewing court may affirm the judgment on any legal theory
       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 16 of 23
       supported by the findings.” Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind.

       1998). We may not set aside the findings or judgment unless they are clearly

       erroneous. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000),

       reh’g denied. In our review, we first consider whether the evidence supports the

       factual findings. Id. Second, we consider whether the findings support the

       judgment. Id. “Findings are clearly erroneous only when the record contains

       no facts to support them either directly or by inference.” Quillen v. Quillen, 671

       N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it relies on an

       incorrect legal standard. Menard, 726 N.E.2d at 1210. We give due regard to

       the trial court’s ability to assess the credibility of witnesses. Id. While we defer

       substantially to findings of fact, we do not do so to conclusions of law. Id. We

       do not reweigh the evidence; rather we consider the evidence most favorable to

       the judgment with all reasonable inferences drawn in favor of the judgment.

       Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999). We evaluate questions of law

       de novo and owe no deference to a trial court’s determination of such questions.

       Kwolek v. Swickard, 944 N.E.2d 564, 570 (Ind. Ct. App. 2011) (citing McCauley v.

       Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010), reh’g denied, trans. denied),

       trans. denied.


[18]   The essential elements of fraudulent inducement are the same as those for any

       action on fraud: “The elements of actual fraud are: (1) a material

       misrepresentation of past or existing facts; (2) made with knowledge or reckless

       ignorance of falsity; (3) which caused the claimant to rely upon the

       misrepresentation to the claimant’s detriment. Massey v. Conseco Servs., L.L.C.,

       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 17 of 23
       879 N.E.2d 605, 611 (Ind. Ct. App. 2008) (citing Siegel v. Williams, 818 N.E.2d

       510, 515 (Ind. Ct. App. 2004)), aff’d on reh’g, 886 N.E.2d 581 (Ind. Ct. App.

       2008), trans. denied. “One cannot be allowed, under the law, to partially

       disclose the facts as he knows them to be, yet create a false impression in the

       mind of the hearer by failing to fully reveal the true state of affairs.” Thompson v.

       Best, 478 N.E.2d 79, 84 (Ind. Ct. App. 1985), reh’g denied, trans. denied. Fraud

       need not be proven by direct or positive evidence; it may be proven by

       circumstantial evidence, provided there are facts from which the existence of all

       the elements can be reasonably inferred. Plymale v. Upright, 419 N.E.2d 756,

       760 (Ind. Ct. App. 1981).


[19]   The Eenigenburgs argue that the trial court’s findings are not supported by the

       evidence and do not provide a basis for the judgment against either Keith or

       Sandra. They maintain that the findings fail to specify which statements

       induced Andreotti to accept $300,000, including when the statements were

       made, whether they were false when made, whether they were material to

       Andreotti’s decision to accept $300,000, and whether Andreotti “reasonably

       relied” on the statements to her detriment. Appellant’s Brief at 16. The

       Eenigenburgs state that the court clearly erred in concluding that Keith induced

       Andreotti to accept the $300,000 and down payment terms because Andreotti

       did not “‘reasonably rely’ on any misrepresentations either concerning the

       Lanes’ contract price, or the amount of their down payment.” Id. at 25. They

       contend that Andreotti is “a sophisticated real estate investor, with 32 years

       experience in the industry,” that she had previously participated in real estate


       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 18 of 23
       closings but did not examine the closing papers associated with the transaction

       at issue which would have disclosed to her the full purchase price and down

       payment, and failed to “independently investigate” the purchase price and

       down payment, and that no one had pressured her to sign the deed. Id. at 26-

       27.


[20]   Andreotti asserts that the Eenigenburgs, despite her inquiries, intentionally

       omitted the purchase price and deposit in their contract with the Lanes which

       were the material misrepresentations that induced her to accept less than the

       full amount owed to her under the Contract. She further argues that, despite

       her requests for information about the purchase price in the Eenigenburgs’

       contract with the Lanes, the Eenigenburgs “repeatedly gave waffling answers,”

       “never disclos[ed] the actual sales price, deposit, or sales contract,” and

       “requested that the title company staff place [Andreotti] in a separate

       conference room without the closing documents during the closing” which

       supports the trial court’s order in her favor. Appellee’s Brief at 15-16.


[21]   In reply, the Eenigenburgs assert that Andreotti’s own financial circumstances,

       rather than any of Keith’s alleged misrepresentations, led her to sign the deed.

       They also contend that no evidence was presented that she asked to be in the

       same room as the Eenigenburgs and Lanes, that she asked to review the closing

       documents, that she did not refuse to accept the settlement check on grounds

       that she should have received more money, and that she acknowledged that no

       one forced or pressured her to sign the deed.



       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 19 of 23
[22]   The trial court entered findings consistent with the evidence. With respect to

       whether the findings support the judgment, in Finding 12 the court found that,

       around Memorial Day 2011, the Lanes offered $300,000 as the down payment,

       and in Finding 27 the court found that, in addition to the initial down payment

       offer of $300,000, “the [Eenigenburgs] received an additional Fifty Thousand

       ($50,000.00) Dollars in cash from the [Lanes] in July, 2011.” Appellant’s

       Appendix at 15. Findings 25, 26, and 27 all reference evidence which reveals

       that the parties had conversations in which Keith failed to specify the full

       amount of the purchase price to Andreotti prior to the closing. The evidence at

       trial shows that, in the context of the parties’ dealings, the amount of the

       purchase price was material to Andreotti’s decision to accept $300,000 instead

       of the full $372,265.98 remaining balance under the Contract. In 2010,

       Andreotti had stated to Keith that she would be willing to accept $300,000 if the

       purchase price on the sale was $650,000. At the time of their initial

       conversation over Memorial Day of 2011, Andreotti instructed the

       Eenigenburgs to proceed with the sale to the Lanes and that she would accept

       $300,000 in satisfaction of the full balance remaining under the Contract, Keith

       was aware that the full purchase price was going to be between $800,000-

       $900,000, and he represented to her that he was receiving only what he had

       paid for the Property.7 Finding 21 also reflects this evidence and states that the



       7
         Keith stated that he took receiving what he had paid Andreotti for the Property under the Contract to
       include accrued interest, which was a sum he presented to the trial court in a handwritten exhibit, titled
       Defendant’s Exhibit A, containing his computation of the total amount he had paid Andreotti which showed
       that he had paid $896,763.26.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016        Page 20 of 23
       Eenigenburgs “did not disclose to [Andreotti] the actual purchase price or the

       terms of the real estate offer and contract that they had agreed to with [the

       Lanes].” Id. at 14. Three days prior to the August 1, 2011 closing, Andreotti

       testified that she met with Keith two or three times in the time after he had

       received the additional $50,000 from the Lanes, that he stated to her that if “she

       did not accept the 300,000 we would lose the buyer,” but that he did not reveal

       he had received an additional $50,000 from the Lanes in July. Transcript at 97.

       Finding 27 reflects Andreotti’s testimony that even prior to closing Keith did

       not reveal to her that the Lanes paid an additional $50,000 down payment.


[23]   Based upon the evidence before it, the trial court could have reasonably

       concluded that Keith materially misrepresented past or existing facts, that he

       made the statements knowingly or recklessly, and that Andreotti relied upon

       the statements to her detriment. See Fimbel v. DeClark, 695 N.E.2d 125, 127-129

       (Ind. Ct. App. 1998) (stating that where a buyer and a seller had conversations

       which imposed a duty to disclose the unsuitability of home lots for

       construction, an action for fraud can be supported where a party does not make

       full disclosure of the facts known to him which were relevant to the decision of

       another party to enter the transaction, and noting that if there is “any behavior

       of the seller which points affirmatively to a suppression of the truth or to a

       withdrawal or distraction of the other parties’ attention to the facts, the

       concealment becomes fraudulent” (quoting Ind. Bank & Trust Co. of Martinsville,

       Ind. v. Perry, 467 N.E.2d 428, 431 (Ind. Ct. App. 1984))), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 21 of 23
[24]   With respect to whether Andreotti’s reliance was reasonable, the complaining

       party must have had a reasonable right to rely on the representations. Westfield

       Ins. Co. v. Yaste, Zent & Rye Agency, 806 N.E.2d 25, 31 (Ind. Ct. App. 2004),

       trans. denied.


               The legal obligation that a person exercise the common sense and
               judgment of which he is possessed is a practical limitation on the
               actionability of various representations. Where persons stand
               mentally on equal footing, and in no fiduciary relation, the law
               will not protect one who fails to exercise common sense and
               judgment.


       Ruff v. Charter Behavioral Health Sys. of Nw. Ind., Inc., 699 N.E.2d 1171, 1175

       (Ind. Ct. App. 1998) (citations omitted), reh’g denied, trans. denied. Whether

       reliance was reasonable is usually a question for the trier of fact, but when “the

       evidence is so clear as to be susceptible of only one reasonable inference, it is for

       the court to determine as a matter of law whether [the party asserting fraud]

       was justified in relying on the representation and whether he was negligent in

       doing so.” Plymale, 419 N.E.2d at 763 (quoting 37 C.J.S. Fraud § 129 (1943)).

       Whether reliance was justified is, on conflicting evidence, a matter for the trier

       of fact to determine. Biberstine v. New York Blower Co., 625 N.E.2d 1308, 1316

       (Ind. Ct. App. 1993), reh’g denied, trans. denied.


[25]   Andreotti testified that at the closing she was in a separate conference room and

       that “there was a written document whereby [Keith] had written, requesting

       that I not be in the closing and that they not disclose the purchase price in his

       own writing.” Id. at 91. The Eenigenburgs did not object to this testimony.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 22 of 23
       She further testified that the title company representatives presented her with a

       warranty deed conveying the Property to Sandra, a check for $290,000, and a

       $5,000 promissory note in her favor by the Eenigenburgs. Andreotti indicated

       that she was not presented with any closing documents, such as a HUD

       statement, the contract between the Eenigenburgs or other documents that

       would have revealed the full price of the Eenigenburg-Lane contract and the full

       amount of the down payment. Based upon the record, we cannot say that

       Andreotti’s reliance was unreasonable.


                                                   Conclusion

[26]   We cannot say that the trial court’s order concluding that Andreotti was

       fraudulently induced to accept less than the full amount owed to her under the

       Contract is clearly erroneous.


[27]   For the foregoing reasons, we affirm the court’s order in favor of Andreotti.


[28]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CC-66 | October 11, 2016   Page 23 of 23
