      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      George S. Padgitt                                         Steven D. Murphy
      Sever-Storey, LLP                                         Lester H. Cohen
      Carmel, Indiana                                           Matthew L. Kelsey
                                                                Defur, Voran, LLP           Dec 04 2015, 8:43 am
                                                                Muncie, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Sara Ellison,                                             December 4, 2015
      Appellant,                                                Court of Appeals Case No.
                                                                18A02-1504-PL-233
              v.                                                Appeal from the Delaware Circuit
                                                                Court
      Town of Yorktown, Indiana,                                The Honorable Kimberly S.
      Appellee                                                  Dowling, Judge
                                                                Trial Court Cause No.
                                                                18C02-1305-PL-9



      Robb, Judge.



                                Case Summary and Issue
[1]   The Town of Yorktown initiated condemnation proceedings against Sara

      Ellison seeking to appropriate two permanent easements and one temporary

      construction easement on her property; specifically, Yorktown planned to

      construct a storm sewer and a residential hiking trail on Ellison’s property.


      Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015              Page 1 of 20
      Thereafter, the parties entered into settlement negotiations. After the parties

      purportedly reached a settlement agreement, Ellison executed the storm sewer

      and temporary construction easements, but did not execute the residential trail

      easement. As a result of the alleged breach of the settlement agreement,

      Yorktown filed an amended complaint seeking to exercise its right of eminent

      domain on the residential trail easement and to enforce the agreement the

      parties negotiated through counsel. Yorktown moved for summary judgment,

      arguing the parties reached a settlement agreement that satisfied the Statute of

      Frauds and Ellison breached the agreement when she sought additional

      consideration before fulfilling her end of the bargain. The trial court granted

      the motion and entered judgment in favor of Yorktown. On appeal, Ellison

      raises one issue, which we restate as whether the trial court erred in granting

      summary judgment in favor of Yorktown. Concluding there is no genuine issue

      of material fact and Yorktown is entitled to judgment as a matter of law, we

      affirm.



                            Facts and Procedural History
[2]   In early 2013, Yorktown decided to explore an alternate route for its Sports

      Park Storm Sewer, which was not adequately draining the Yorktown Sports

      Park. Contemporaneously, Yorktown was in the process of building recreation

      trails along Yorktown roads. Due to the location of Ellison’s property,

      Yorktown sought to appropriate two permanent easements and one temporary

      construction easement that would allow the town to build a storm sewer and


      Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 2 of 20
      recreational trail on the same strip of land running along the eastern boundary

      line of Ellison’s property. An appraiser valued the strip of land at $10,457. On

      February 1, Yorktown offered $10,457 in exchange for Ellison executing the

      easements. Ellison did not accept the offer.


[3]   On May 2, Yorktown initiated condemnation proceedings against Ellison. A

      month later, Ellison requested the parties convene to discuss a potential

      settlement of the condemnation proceeding. At the meeting, the Ellison family

      expressed concerns about the sewer’s proposed location and asked whether it

      could be relocated from the property’s eastern boundary line to the southern

      boundary. Ellison did not express any concerns about the location of the

      recreational hiking trail. Following the meeting, Yorktown contacted the

      project engineers to determine whether the storm sewer could be relocated to

      the southern boundary line of Ellison’s property. The engineers stated the

      storm sewer could be relocated, but at an additional cost to Yorktown.


[4]   On June 17, Ellison’s attorney, William Hughes, wrote to Yorktown’s attorney,

      Steven Murphy, stating:

              This letter is a privileged and confidential settlement
              communication . . . .


              Sara Ellison would agree to grant the Town of Yorktown
              (“Town”) an easement fifty feet in width from the centerline of
              County Road 600 West on and along the east boundary line of
              the property owned by Mrs. Ellison for the purpose of
              constructing a ten foot wide recreational trail and grass aprons.
              Sara Ellison would also agree to grant the Town an easement

      Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 3 of 20
        thirty-five feet in width from the centerline of Division Road on
        and along the south boundary line of the property and twenty-
        five feet in width on and along the west boundary line of the
        property to York Prairie Creek (Hiatt Ditch) for the purpose of
        installing a storm water sewer, together with an additional ten
        foot temporary easement for construction of the storm sewer.


Appellant’s Appendix at 64 (“June 17 Letter”). Ellison also sought certain

written assurances: 1) the sewer would never be enlarged, 2) the sewer would be

controlled by proper mechanisms to prevent discharge when the sewer was

experiencing a high flow, 3) sewer construction would take place in a fixed time

frame, 4) the sewer would be at a sufficient depth and Yorktown would be

responsible for maintenance of the trail, and 5) sewer construction would

comply with all applicable legal requirements. The letter continued,

        If these terms are acceptable, Sara Ellison will agree to donate the
        recreational trail easement to the Town. The Town will provide
        an appraisal of the value of the donated easement for Mrs.
        Ellison’s use for income tax purposes. Sara Ellison will be
        compensated for the storm sewer easement in the sum of
        $15,000.


        Upon execution of documents reflecting these terms, the pending
        action . . . will be dismissed.


        Recognizing that time is critical, this should be considered our
        final offer.




Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 4 of 20
      Id. at 65. The letter did not address any issues Ellison may have had with the

      residential trail easement. Yorktown’s Town Manager, Peter Olson,

      understood this final offer to mean,

              if [Yorktown] would locate the storm sewer along the south side
              of the property, which was a location preferred by Ellison, and if
              [Yorktown] would pay the sum of Fifteen Thousand and 00/100
              Dollars ($15,000) for the storm water easement, Ellison would
              execute and grant to Yorktown a temporary construction
              easement and a permanent storm sewer easement at the new
              location and also would grant by donation [the] recreational trail
              easement over the Real Estate at the location of the original
              proposed easement.


      Id. at 21 (Olson Affidavit ¶ 7). Olson instructed Yorktown’s counsel “to

      prepare the necessary documents.” Id.


[5]   On July 8, Murphy responded to Hughes stating Yorktown was “ready to get

      the matter resolved” and proposed one change in the language of one of

      Ellison’s assurances to address a more definite engineering specification. Id. at

      66 (“July 8 Letter”). If the change was satisfactory, Murphy stated he would

      “finalize the documents for resolution promptly.” Id.


[6]   On July 10, Hughes responded and stated the change would be satisfactory if

      Yorktown could clarify a nearby basin would not be enlarged to accept storm

      water from areas outside the Yorktown Sports Park. Further, “[t]o move the

      process forward,” Hughes requested the contractor answer certain questions

      pertaining to the construction of the sewer and requested copies of the

      applicable permits “before signing the easement documents.” Id. at 67-68
      Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 5 of 20
      (“July 10 Letter”). In a letter dated July 15, Murphy provided the requested

      answers.


[7]   On August 7, Murphy wrote,


              We have re-written the Storm Sewer Easement, the Grant of
              Easement for Recreational Trail and the Temporary
              Construction Easement Grant which, we believe, incorporate the
              changes which were requested in your letters of June 17 and July
              10. Please review the three documents with [Ellison] and obtain
              signatures that the documents are appropriate. I am informed by
              [Yorktown] that if we have a claim in their hands by August 13,
              the Town Board can approve the claim on the 19th and the
              checks can be delivered on Tuesday, August 20th.


      Id. at 71 (“August 7 Letter”). Murphy then informed Olson the necessary

      documents had been prepared, the parties were satisfied with the language in

      the easements, and Ellison would deliver the documents in late August.

      Thereafter, because “[t]he drainage issues with the Sports Park necessitated

      construction of the storm water easement as soon as possible[,]” Olson

      instructed Yorktown’s contractors to prepare “to mobilize for the construction

      of both the storm water facilities and for the recreational trail. The same

      company was constructing both projects, and it would be economical and

      efficient to construct both projects at the same time.” Id. at 22 (Olson Aff. ¶ 8).


[8]   On August 26, Ellison executed and delivered the temporary construction and

      storm sewer easements but did not execute and deliver the residential trail

      easement. Yorktown promptly recorded the temporary construction and storm

      sewer easements. At some point not clear from the record, but between August

      Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 6 of 20
       26 and September 9, the contractor arrived on site to simultaneously construct

       both the storm sewer and the recreational trail.


[9]    On September 9, counsel spoke by telephone, and the conversation was

       memorialized in a letter written by Hughes to Murphy later that day. Hughes

       wrote,


                The signed storm sewer easement was delivered to you [sic]
                office on August 26th and you informed me, and Mrs. Ellison
                confirms, that work has begun.


                The Ellisons have not had the opportunity to consult with the
                accountant regarding the donation of the recreational trail
                easement, but Mrs. Ellison assured me today that they would
                make the donation per the agreement we reached to resolve all
                issues. However, she specifically asked that the $15,000 payment
                for the storm sewer easement, which I understand you are
                holding in your file, be released. I believe she is entitled to
                receive that payment now.


       Id. at 73 (“September 9 Letter”).


[10]   On September 13, Murphy responded,

                Enclosed is Yorktown’s check for $15,000.00 to be held by you in
                trust until Sara Ellison signs and delivers the trail easement to my
                office (or to yours), or until she has provided to you an
                enforceable written assurance that she will do so by the end of
                this month. As we have indicated previously, we and
                [Yorktown] are ready to assist in any reasonable manner with
                respect to the technical aspects of the Ellison’s [sic] donation. It
                is our understanding that the only reason why we do not have the


       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 7 of 20
               trail easement is that the Ellison’s [sic] are awaiting their CPA’s
               blessing.


               It is accurate to say that the work on the sewer and the trail is
               progressing. The same crew is working on the trail easement and
               it will slow progress if they can only work on one aspect of the
               construction while they are on site. It is our understanding that
               the Ellison’s [sic] do not object to the trail easement (and have
               agreed to sign it), but that they cannot do so until they have
               received advice from their CPA.


               We tender this check in good faith that the trail easement will be
               delivered before October 1, 2013. We believe that Ms. Ellison
               will have had more than adequate opportunity to secure her
               CPA’s blessing on this transaction by then. [Yorktown] has done
               everything it promised to do, and it is entirely in the Ellison’s
               [sic] control to finalize this agreement. With the understanding
               that the sewer and trail construction will continue, we tender this
               check.


       Id. at 74 (“September 13 Letter”).


[11]   On September 19, Hughes wrote to Murphy:


               Mrs. Ellison has asked me to present to you her final offer of
               donation of the recreation trail easement to the Town of
               Yorktown. Given the time to reflect, she has become concerned
               about the negative impact the presence of the trail will have on
               the value of her property . . . .


       Id. at 76 (“September 19 Letter”) (emphasis in original). The letter then

       requested seven changes to the most recent draft of the residential trail




       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015    Page 8 of 20
       easement.1 If those conditions were acceptable, Hughes stated he “must be

       authorized to release the payment for the storm sewer easement to Mrs. Ellison

       before any work on the sewer line continues.” Id. at 76.


[12]   Because Yorktown felt Ellison breached the parties’ purported settlement

       agreement, and because constructing the residential hiking trail before winter

       was no longer feasible, Yorktown “was required to proceed with condemnation

       of that easement and was required to postpone construction of the trail until the

       condemnation process was completed.” Id. at 22 (Olson Aff. ¶ 12). On

       October 7,2 Yorktown filed an amended complaint seeking to exercise its right

       of eminent domain on the residential trail easement and to enforce the

       agreement the parties negotiated through counsel. Specifically, Yorktown

       contended Ellison breached the agreement when she requested additional

       assurances before donating the residential trail easement.


[13]   At some point not clear from the record, Yorktown completed the

       condemnation process and purchased the residential trail easement for $4,665.

       In the summer of 2014, Yorktown constructed the residential trail on Ellison’s

       property. Despite the condemnation proceeding being complete, Yorktown




       1
         Specifically, the letter requested, 1) Yorktown install signage stating the trail was not to be used after dark,
       that no motorized vehicles or skateboards were permitted, and that the area immediately outside the
       easement was private property and there should be no trespassing beyond that point; and 2) Yorktown
       “install a farm grade, wood post Red Brand wire fence along the easement boundary for the full length of the
       trail with an opening for Ellisons’ access to their home.” Appellant’s App. at 75-76.
       2
        Around this time, Yorktown completed construction of the storm sewer on the southern boundary line of
       Ellison’s property.

       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015                            Page 9 of 20
       continued to pursue its claim against Ellison for breaching the settlement

       agreement. On September 12, 2014, Yorktown filed a motion for summary

       judgment arguing Ellison breached the agreement in failing to donate the

       residential trail easement. In its motion, Yorktown sought damages for the cost

       of court-appointed appraisers, the cost to purchase the easement from Ellison

       through the condemnation proceeding, attorney fees, and additional

       engineering and construction costs due to the contractors having to remobilize

       their resources on the Ellison property in the summer of 2014.


[14]   On February 2, 2015, the trial court held a hearing on the issue of whether the

       parties reached a settlement agreement and whether Ellison breached the

       agreement. On March 17, the trial court granted Yorktown’s motion for

       summary judgment and entered judgment in favor of Yorktown. The trial court

       reasoned the parties reached a valid settlement agreement, Ellison breached the

       agreement, counsel’s communications satisfied the Statute of Frauds, and even

       if the Statute of Frauds was not satisfied, the equitable doctrines of promissory

       estoppel and part performance supported judgment in favor of Yorktown. This

       appeal ensued.



                                  Discussion and Decision
                                       I. Standard of Review
[15]   We apply the same standard of review as the trial court in determining the

       propriety of summary judgment; it is appropriate only where the designated

       evidence shows there is no genuine issue of material fact and the moving party
       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 10 of 20
       is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Alexander v.

       Dowell, 669 N.E.2d 436, 439 (Ind. Ct. App. 1996). All facts and reasonable

       inferences drawn from those facts are construed in favor of the non-moving

       party. Spring Hill Developers, Inc. v. Arthur, 879 N.E.2d 1095, 1099 (Ind. Ct.

       App. 2008). “A trial court’s grant of summary judgment arrives on appeal

       cloaked with a presumption of validity, and the appellant bears the burden of

       demonstrating that the grant of summary judgment was erroneous.” Amaya v.

       Brater, 981 N.E.2d 1235, 1239 (Ind. Ct. App. 2013), trans. denied.


                                       II. Contract Formation
[16]   At the outset, we note all relevant communications between the parties

       occurred subsequent to Yorktown initiating condemnation proceedings on May

       2, 2013, and we thereby interpret their communications as attempts to settle the

       eminent domain action. In Indiana, settlement agreements are strongly

       favored.3 Germania v. Thermasol, Ltd., 569 N.E.2d 730, 732 (Ind. Ct. App.

       1991). If a party agrees to settle a pending action, but then refuses to

       consummate the settlement agreement, the opposing party may obtain a

       judgment enforcing the agreement. MH Equity Managing Member, LLC v. Sands,

       938 N.E.2d 750, 757 (Ind. Ct. App. 2010), trans. denied. Settlement agreements

       are governed by the general principles of contract law and they are generally not

       required to be in writing. Id. Whether a contract exists is a question of law. Id.




       3
         Because neither Yorktown nor Ellison contests whether their respective counsel had the authority to settle
       the claim on each party’s behalf, we address each communication as written by either Ellison or Yorktown.

       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015                      Page 11 of 20
       A valid contract consists of an offer, acceptance, consideration, and mutual

       assent. See id. In determining whether a contract is enforceable, we must

       consider whether there is an intent to be bound and a definiteness of terms.

       Wolvos v. Meyer, 668 N.E.2d 671, 675 (Ind. 1996). A breach of contract occurs

       when a party fails to perform all obligations that it agreed to undertake. Ind.

       Gas & Water Co. v. Williams, 132 Ind. App. 8, 15, 175 N.E.2d 31, 34 (1961).


                        A. Offer, Acceptance, and Consideration
[17]           A contract is based upon an offer, acceptance and consideration.
               An offer must be extended and the offeree must accept it, the
               communication of acceptance being crucial. It is well settled that
               in order for an offer and an acceptance to constitute a contract,
               the acceptance must meet and correspond with the offer in every
               respect. This rule is called the “mirror image rule.” An
               acceptance which varies the terms of the offer is considered a
               rejection and operates as a counteroffer, which may be then
               accepted by the original offeror.


       I.C.C. Protective Coatings, Inc. v. A.E. Staley Mfg. Co., 695 N.E.2d 1030, 1034-35

       (Ind. Ct. App. 1998) (internal citations omitted), trans. denied.


[18]   Ellison made a clear and unambiguous final offer to Yorktown in the June 17

       Letter. The offer provided in consideration for Yorktown agreeing to pay

       $15,000 for the storm sewer easement, Yorktown agreeing to relocate the storm

       sewer from the eastern boundary line to the southern boundary line, and

       Yorktown providing certain assurances relating to the storm sewer’s

       construction and engineering, Ellison promised to execute the storm sewer

       easement, the temporary construction easement, and the residential trail

       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 12 of 20
       easement. In other words, Ellison’s final offer listed the essential terms, and if

       Yorktown accepted, she promised to deliver all three easements. The letter did

       not express any concern with the language in, the location of, or any

       contingencies in regards to, the residential trail easement. The June 17 Letter

       also provided that timing was critical and if Yorktown agreed to Ellison’s terms,

       Ellison understood the agreement would settle the condemnation action. See

       Appellant’s App. at 65 (“[T]he pending action . . . will be dismissed.”)


[19]   Relevant here, Ellison sought an assurance:


               The storm sewer will be of adequate capacity to drain a defined
               area consisting exclusively of the Yorktown Sports Park, the
               drainage area will not be enlarged in the future and no additional
               connections to the storm sewer will be permitted, including none
               by the Ellisons. We understand that the Town is contemplating
               an 18 inch storm sewer line.


       Id. at 64. In the July 8 Letter, Yorktown responded to Ellison’s final settlement

       offer stating it was “ready to get th[e] matter resolved[,]” but requested a change

       in the wording in the assurance noted above:

               Referring back to your letter of June 17, we would like to reword
               paragraph 1 of your assurances as follows: The storm sewer will
               be of adequate capacity to drain the Yorktown Sports Park, and
               the Town will install an 18 inch storm sewer pipe. No additional
               connections will be permitted to attach to the storm sewer pipe
               other than the Sports Park Detention basins.


       Id. at 66 (internal quotation marks omitted). If Ellison found this change

       acceptable, Yorktown would “finalize the documents for resolution promptly.”

       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 13 of 20
       Id. Despite Yorktown expressing no disagreement as to any other material

       term in Ellison’s final settlement offer, we conclude the July 8 letter amounted

       to a counteroffer because Ellison’s final settlement offer contemplated no

       additional connections to the storm sewer whereas Yorktown’s response

       contemplated no additional connections “other than the Sports Park Detention

       basins.” Id.


[20]   In the July 10 Letter, Ellison stated, “The wording you suggest will be

       satisfactory if you can clarify that the Sports Park Detention Basins will not be

       enlarged to accept storm water from areas outside of the Yorktown Sports

       Park.” Id. at 67 (emphasis added). The July 10 Letter did not amount to an

       acceptance of Yorktown’s counteroffer. Rather, we interpret Ellison’s July 10

       Letter as another counteroffer: if Yorktown could assure the Sports Park

       Detention basins would not be enlarged to accept storm water from areas

       outside of the Yorktown Sports Park, the parties would then fully agree as to

       the essential terms of the settlement agreement.4 To be clear, Yorktown never

       expressed any disagreement with the vast majority of the material terms of

       Ellison’s final settlement offer, including the payment of $15,000, relocating the

       storm sewer to Ellison’s southern boundary line, and providing the requested

       assurances; the only dispute barring the parties from agreeing to all of the




       4
        In addition, we note Ellison’s July 10 Letter requested answers to certain questions regarding applicable
       permits. Ellison does not argue, and we find nothing in the record to indicate, the questions were a material
       part of the parties’ settlement negotiations. In any event, Yorktown provided the requested answers in its
       July 15 letter.

       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015                       Page 14 of 20
       material terms was whether Yorktown could assure Ellison the Sports Park

       Detention basins would not be enlarged to accept storm water from areas

       outside of the Yorktown Sports Park.


[21]   In response to the July 10 Letter, Yorktown wrote in its August 7 letter it had

       “re-written the Storm Sewer Easement, the Grant of Easement for Recreation

       Trail and the Temporary Construction Easement Grant, which, we believe,

       incorporate the changes which were requested in your letters of June 17 and July 10.” Id.

       at 71 (emphasis added). By re-writing the easements to alleviate Ellison’s final

       concern as to the potential enlargement of the Sports Park Detention basins,

       Yorktown accepted the terms of Ellison’s counteroffer. At this point, we hold

       Ellison made a final settlement offer, and Yorktown accepted the offer.


[22]   As to whether the agreement was supported by valid consideration, we note

       consideration is found when there is either a benefit to the party making the

       promise, or a loss or detriment to the party to whom the promise is made.

       OVRS Acquisition Corp. v. Cmty. Health Servs., Inc., 657 N.E.2d 117, 126 (Ind. Ct.

       App. 1995), trans. denied. Here, the agreement was supported by valid

       consideration because in exchange for Ellison’s promise to execute all three

       easements, Yorktown promised 1) to pay her $15,000, 2) to relocate the storm

       sewer to the southern boundary line of Ellison’s property, and 3) to provide

       certain assurances in regards to the construction and engineering of the storm

       sewer. Therefore, we conclude the parties’ settlement agreement was supported

       by valid consideration.



       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015    Page 15 of 20
                                            B. Mutual Assent
[23]   A meeting of the minds of the contracting parties is essential to the formation of

       a contract. Wallem v. CLS Indus., Inc., 725 N.E.2d 880, 883 (Ind. Ct. App.

       2000). Our inquiry does not focus on each party’s subjective intent, but focuses

       on each party’s outward manifestation of intent. Centennial Mortg., Inc. v.

       Blumenfeld, 745 N.E.2d 268, 277 (Ind. Ct. App. 2001). A party’s assent to the

       terms of a contract may be expressed by acts which manifest acceptance.

       DiMizio v. Romo, 756 N.E.2d 1018, 1022 (Ind. Ct. App. 2001), trans. denied.


[24]   Here, and as noted above, Ellison proposed a final settlement agreement which,

       if accepted, required Yorktown to pay her $15,000, to relocate the storm sewer

       to the southern boundary line, and to make certain assurances in regards to the

       storm sewer’s construction and engineering. If Yorktown agreed, Ellison

       promised to execute all three easements. Yorktown agreed to Ellison’s terms,

       and Ellison had a contractual duty to execute and deliver all three easements as

       agreed by the parties.


[25]   On August 26, Ellison signed and delivered the storm sewer easement and the

       temporary construction easement, but did not donate and deliver the residential

       trail easement per the parties’ settlement agreement. However, she did not fail

       to sign the residential trail easement because she disagreed with its language or

       because it was not a part of parties’ final settlement agreement. Rather, as

       stated in the September 9 Letter, “The Ellisons have not had the opportunity to

       consult with the accountant regarding the donation of the recreational trail


       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 16 of 20
       easement, but Mrs. Ellison assured me today they would make the donation per

       the agreement we reached to resolve all issues.” Appellant’s App. at 73 (emphasis

       added). This evidences Ellison’s initial, and continuing, manifestation of intent

       to be bound by the terms of the parties’ settlement agreement. Ellison’s

       manifestation of intent is further evidenced by her request for the $15,000

       payment, which Yorktown tendered in good faith presuming Ellison would

       uphold her end of the bargain by donating the residential trail easement.

       Ultimately, however, Ellison declined to donate the residential easement unless

       Yorktown provided additional assurances in regards to the residential trail

       easement—assurances that were never a part of the bargained-for-exchange.

       Therefore, we conclude the parties formed a valid settlement agreement and

       Ellison breached the agreement by failing to donate the residential trail

       easement.


                                       III. Statute of Frauds
[26]   Nonetheless, Ellison contends the letters described above do not state with

       reasonable certainty the terms and conditions of the agreement, making the

       agreement unenforceable for failure to satisfy the Statute of Frauds. An

       easement is an interest in land within the meaning of the Statute of Frauds, and

       a contract creating such an interest must be in writing. One Dupont Ctr., LLC v.

       Dupont Auburn, LLC, 819 N.E.2d 507, 515 (Ind. Ct. App. 2004). The Statute of

       Frauds provides, in pertinent part,

               A person may not bring any of the following actions unless the
               promise, contract, or agreement on which the action is based, or

       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 17 of 20
                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.[5]


       Ind. Code § 32-21-1-1(b)(4). In addition, we have held the agreement or other

       writing must 1) describe with reasonable certainty each party and the land, and

       2) state with reasonable certainty the terms and conditions of the promises and

       by whom and to whom the promises were made. Hrezo v. City of Lawrenceburg,

       934 N.E.2d 1221, 1227 (Ind. Ct. App. 2010), trans. denied.


[27]   Although the requirements above must still be met, “[t]he ‘writing’ need not be

       the contract itself; for example, the terms of a contract can be extracted from

       written communications between two parties.” Stender v. BAC Home Loans

       Servicing LP, No. 2:12-CV-41, 2013 WL 832416, at *3 (N.D. Ind. Mar. 6, 2013)

       (citing Highland Inv. Co. v. Kirk Co., 96 Ind. App. 5, 184 N.E. 308 (1933)); see also

       Ind. Code § 32-21-1-1(b) (providing an agreement is valid if there is a




       5
         In its brief, Yorktown argues an agreement to settle an eminent domain action is not subject to the Statute
       of Frauds because it is not a contract for the sale of land, but is merely an agreement to settle ongoing
       litigation that requires the transfer of land. No Indiana court before us has addressed such an argument.
       Although we do find some logic in Yorktown’s argument, we are not persuaded to create an exception to
       Indiana’s general rule: “[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); see also, e.g., Hensley v. Hilton, 191 Ind. 309, 131 N.E. 38, 40 (1921)
       (holding a contract to devise real estate was required to be in writing); Fuelling v. Fuesse, 43 Ind. App. 441, 87
       N.E. 700, 701 (1909) (holding a mutual agreement concerning a boundary line between parties was required
       to be in writing); McCoy v. McCoy, 32 Ind. App. 38, 69 N.E. 193, 195 (1903) (holding a contract for the
       “exchange” of real estate was required to be in writing).

       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015                          Page 18 of 20
       “memorandum or note describing the promise, contract, or agreement”). Thus,

       when a series of communications between the parties sufficiently provides the

       essential terms and conditions of the contract, the Statute of Frauds is satisfied.

       See Stender, 2013 WL 832416, at *3 (citing Mason Produce Co. v. Harry C. Gilbert

       Co., 194 Ind. 462, 141 N.E. 613 (1923)).


[28]   Here, Ellison does not dispute whether the letters were signed or whether the

       letters describe with sufficient certainty the parties and the land, and we find

       nothing in the record to indicate anything to the contrary. Rather, Ellison

       contends the letters do not state with reasonable certainty the terms and

       conditions of the agreement. Based on the discussion above, see supra Part II,

       we conclude the parties’ letters state with reasonable certainty the terms and

       conditions of the parties’ agreement to settle the eminent domain action.

       Therefore, the parties’ agreement satisfies the writing requirement under the

       Statute of Frauds.



                                               Conclusion
[29]   We hold there is no genuine issue of material fact as to whether the parties

       agreed to settle the eminent domain action, whether Ellison breached the terms

       of the settlement, and whether the parties’ agreement satisfies the Statute of

       Frauds. Because we conclude the parties formed a valid settlement agreement

       that satisfies the Statute of Frauds and Ellison breached the agreement, we

       conclude the trial court did not err in granting summary judgment in favor of

       Yorktown. We affirm.

       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 19 of 20
[30]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A02-1504-PL-233 | December 4, 2015   Page 20 of 20
