MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                        Jan 31 2017, 8:18 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
William L. Scales                                        Thomas P. Norton
Evansville, Indiana                                      Johnson, Carroll, Norton, Kent &
                                                         Goedde, P.C.
                                                         Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William L. Scales,                                       January 31, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         82A01-1512-CC-2323
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
Chester Levels,                                          The Honorable David D. Kiely,
Appellee-Defendant.                                      Judge
                                                         Trial Court Cause No.
                                                         82C01-1401-CC-21




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 1 of 20
[1]   William L. Scales appeals the trial court’s order granting summary judgment in

      favor of Chester Levels. Scales raises three issues which we consolidate and

      restate as whether the court erred in entering summary judgment in favor of

      Levels or abused its discretion in denying Scales’s subsequent motion to correct

      error. We affirm.


                                      Facts and Procedural History

[2]   Scales executed a quitclaim deed on March 10, 2011, conveying his undivided

      one-tenth interest in certain real property in Vanderburgh County, Indiana, to

      Levels, and the deed was recorded with the Vanderburgh County Recorder on

      March 28, 2011.


[3]   On January 16, 2014, Scales filed a complaint seeking a judgment declaring his

      right to an undivided one-half interest in the property. Scales alleged in part

      that he executed the March 10, 2011 deed pursuant to a verbal agreement with

      Levels in which Levels agreed to later deed an undivided one-half interest of the

      property back to him, with Levels and Scales each holding an undivided one-

      half interest as tenants in common; that Scales had originally acquired title to

      the property through intestate succession as set forth in a certain Affidavit of

      Heirship of Chester L. Scales, Deceased, recorded with the Vanderburgh

      County Recorder on December 21, 2010 (the “Affidavit of Heirship”); and that

      he reasonably relied on Levels’s promise and deeded his interest in the property

      to Levels as consideration for Levels’s promise to make improvements thereon

      and then deed an interest back to him.



      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 2 of 20
[4]   On January 6, 2015, Levels filed a motion for summary judgment and

      designation of materials in support of the motion, which included the affidavit

      of his mother Alethea Christian and a copy of the Affidavit of Heirship. In her

      affidavit, Christian states that she is the daughter of Chester L. Scales and the

      mother of Levels; that Chester L. Scales died on July 31, 2000; that his heirs

      were set forth in the Affidavit of Heirship; that the heirs had neither the desire

      nor the resources to singly assume ownership of the property as it was subject to

      efforts by the Department of Code Enforcement of the City of Evansville

      demanding remedial actions; that Levels agreed he would attend to the

      remediation and clean-up of the property if all of the family conveyed their

      interests in the property to him; and that Levels acquired the heirs’ interests

      through various quitclaim deeds, copies of which were attached to and made

      part of the affidavit. She further states that, at the time of the acquisition by

      Levels, the title to the property was subject to a recorded installment contract in

      favor of Clifford Preher; that following mediation Levels expended $18,000 to

      achieve a settlement with Preher; that at no time during the negotiations, at

      which Scales was present, did Scales assert any interest in the property; and that

      thereafter Levels expended further sums to demolish the structure on the

      property to satisfy demands of the City of Evansville. Christian also states that

      she was present for most of the discussions between Levels and Scales and has

      no recollection of any discussion between them as to Scales having an interest

      in the property or any promise made by Levels to convey any interest in the

      property to him.



      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 3 of 20
[5]   The Affidavit of Heirship stated that Levels is the grandson of the decedent

      Chester L. Scales; that the decedent was survived by his wife Dorothy Scales,

      four daughters, and his son Scales; and that, as of the date of the decedent’s

      death, Dorothy Scales owned an undivided one-half interest in the property and

      each of the children of the decedent, including Scales, owned an undivided one-

      tenth interest in the property. Each of the heirs of the decedent Chester L.

      Scales identified in the Affidavit of Heirship, including Scales, executed a

      quitclaim deed which conveyed his or her respective undivided interest in the

      property to Levels and expressly referenced the Affidavit of Heirship.


[6]   On March 18, 2015, Scales filed a motion to order third party discovery stating

      that he sought discovery from the Grayson County Detention Center, that it

      would not provide the discovery without a court order, and that the discovery

      sought is limited to visitation records and recorded phone conversations

      between the parties in November and December 2013. Levels filed an objection

      stating in part that he was not made aware of any previous effort by Scales to

      make third party discovery, that if he had been notified he would have objected

      to any effort, and that any discussion that may have occurred would be in the

      nature of settlement discussions and are not discoverable.


[7]   On March 30, 2015, Scales filed a motion to deny Levels’s summary judgment

      motion together with designated evidence, which included a copy of a

      settlement check for $17,000 and the affidavits of Charis Thomas, William

      Anderson, Darryl Christian, Scales, and Tarita Moore. Thomas’s affidavit

      states that he was aware that Scales only removed his name from the property

      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 4 of 20
      because of a child support lien against him and that Levels agreed to place

      Scales’s name back on the property once the child support was paid in full.

      Anderson’s affidavit states that Scales’s name was removed from the property

      solely due to the fact there was an outstanding child support order of $27,000;

      that upon full payment of the support order Scales’s name would be reattached

      to the property; and that, in addition, Levels expressed that he was in need of

      money, that he was willing to release his fifty-percent portion of the property to

      an investor for $45,000, of which he would receive $36,000 and the remaining

      amount would be applied to back taxes and fees associated with the razing of

      the building, and that it was confirmed that Scales would retain his fifty percent

      of the property. Darryl’s affidavit states that he was present in a vehicle with

      Scales, Dorothy, and Alethea when Levels was on the phone and placed on

      speaker phone, that Levels stated that he and Scales had an understanding, and

      that Scales then turned over his signed quitclaim deed to Alethea.


[8]   In his affidavit, Scales states that at one time he had a child support debt of

      $27,000 which could send any property in his name into a forced sale, that his

      name had become attached to the property before he could pay that debt, that

      he had his name removed from the property until he was able to resolve his

      child support debt, and that he and Levels entered into an oral agreement that

      his name would be returned to the property upon settlement of the child support

      debt. Scales states that he had visited Levels at the detention center in

      Leitchfield, Kentucky, in November and December of 2013, “which can prove

      from [Levels’s] own mouth that we . . . indeed have an Oral Agreement,” and


      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 5 of 20
       that in April 2013 he paid $17,000 in child support settlement which brought his

       balance to zero and fulfilled his end of the oral agreement. Appellant’s

       Appendix at 67. He further states that he “lived up to [his] end of the Oral

       Agreement” and “began to move forward in action to preserve the property

       with sense of ownership,” that in May 2013 he paid $2,300 in taxes on the

       property, he also spent thousands on maintenance of the property, there have

       been no citations from the City of Evansville for weeds, he placed cable wire

       barriers to keep intruders off the property, and that he had gravel and sand

       brought to the property for the purpose of filling holes to prevent the collecting

       of water and mosquitos from reproducing. Id.


[9]    The designated affidavit of Moore, which was filed in December 2013 in a

       paternity action following an information for contempt for nonpayment of child

       support, states that prior to April 5, 2013, a child support arrearage of $27,000

       existed and had accrued against Scales and that, by agreed entry and order

       effective April 5, 2013, the existing arrearage was compromised and reduced to

       $17,000 by Moore and Scales, thereby resolving the support arrearage through

       that date.


[10]   On April 28, 2015, the court held a hearing at which Levels’s counsel stated

       that, at the time the Affidavit of Heirship was prepared, a building existed on

       the property, inside there was an old tavern that was not in operation, the grass

       was growing, and there were a lot of code enforcement questions concerning

       the property. Counsel also stated that Levels wished to acquire an interest in

       the property and possibly develop it, that the Affidavit of Heirship was prepared

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 6 of 20
       to show the property’s ownership, and that then there was a process of

       acquiring quitclaim deeds from all of the property holders, including Scales. He

       stated that an unresolved installment contract of record related to the property

       was discovered, Levels filed suit to quash the installment contract, and after

       mediation Levels paid about $19,000 to settle the case. Levels’s counsel argued

       in part that Scales’s theory of liability is based on a joint effort to remove Scales

       from ownership in order to thwart the collection of child support through a

       paternity action, that if the lien existed in 2011 then, whether or not Scales

       deeded the property away, the lien stayed with the property and there was no

       consideration and no basis for reliance, and that the court should grant the

       motion for summary judgment based on the statute of frauds.


[11]   Scales, pro se, argued that it was “simply because I had that debt, and we didn’t

       want a debt of mine to affect the process of us acquiring this land, transforming

       it to . . . to do business on it, and so in a good will effort, I transferred my stake

       in the land, and in that we had an agreement that since it was just us two parties

       who were interested because none of my siblings were ever interested in the

       property, I was the one who always had a historical attachment to it . . . .”

       Transcript at 15. He argued that his stake went from ten to fifty percent

       “because that is our arrangement, we was the last two people, we were the only

       two people who were interested in this property” and “this is how it all of a

       sudden came . . . this is how it ultimately manifested through these Quit-Claim

       Deeds.” Id. at 16. He also argued that he paid $17,000 to bring his child

       support balance down to zero, that since then he paid $2,300 in taxes on the


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 7 of 20
       property, he maintained the property ever since Levels became incarcerated

       over two years earlier, the property is located in front of his home, and that at

       some point Levels had legal issues and extreme legal fees and “they tried to sell

       the property out from under me before they put my name back on this

       property.” Id. at 18.


[12]   Levels’s counsel responded that Scales gave up his ten-percent interest in the

       property at a time the property had issues, Levels then proceeded to settle the

       issue with the installment contract, Scales then came back on the scene, and

       that it was unclear whether Scales was seeking the benefit of the bargain or the

       loss of his ten-percent interest.


[13]   On October 12, 2015, the court entered an order granting Levels’s motion for

       summary judgment. Scales filed a motion to correct error stating that,

       following the April 28, 2015 hearing, the parties met inside the judge’s

       chambers and were advised to reach an agreement and the parties agreed that

       sixty days would suffice, that on October 7, 2015, the parties met and advised

       the judge that they could not reach an agreement, and that the court later ruled

       on the summary judgment motion. Scales argued that the fact the court advised

       the parties to reach some form of agreement makes it obvious that a material

       fact is still in dispute. The court denied the motion to correct error.


                                                   Discussion

[14]   The issue is whether the trial court erred in entering summary judgment in

       favor of Levels and against Scales or abused its discretion in denying Scales’s


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 8 of 20
       motion to correct error. We generally review rulings on motions to correct

       error for an abuse of discretion. Speedway SuperAmerica, LLC v. Holmes, 885

       N.E.2d 1265, 1270 (Ind. 2008), reh’g denied; Ind. Bureau of Motor Vehicles v.

       Charles, 919 N.E.2d 114, 116 (Ind. Ct. App. 2009). An abuse of discretion

       occurs if the trial court’s decision is against the logic and effect of the facts and

       circumstances before it, or the reasonable inferences drawn therefrom. Lighty v.

       Lighty, 879 N.E.2d 637, 640 (Ind. Ct. App. 2008), reh’g denied.


[15]   In reviewing an order granting or denying summary judgment, our standard of

       review is the same as it is for the trial court. Manley v. Sherer, 992 N.E.2d 670,

       673 (Ind. 2013). The moving party bears the initial burden of making a prima

       facie showing that there are no genuine issues of material fact and that it is

       entitled to judgment as a matter of law. Id. Summary judgment is improper if

       the moving party fails to carry its burden, but if it succeeds, then the non-

       moving party must come forward with evidence establishing the existence of a

       genuine issue of material fact. Id. We construe all factual inferences in favor of

       the non-moving party and resolve all doubts as to the existence of a material

       issue against the moving party. Id. An appellate court reviewing a challenged

       trial court summary judgment ruling is limited to the designated evidence

       before the trial court, but is constrained to neither the claims and arguments

       presented at trial nor the rationale of the trial court ruling. Id.


[16]   Scales, pro se, argues there was an agreement to reattach his name to the deed of

       the property, that affidavits he submitted affirm there was an agreement

       regarding reattaching his name to the property, and that his designated
       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 9 of 20
       materials conflict with Levels’s designated materials. He claims the statute of

       frauds is not applicable based on the doctrines of part performance and

       promissory estoppel, that the primary reason he deeded the property to Levels

       was because Levels promised to reattach his name after he paid his child

       support obligation and paid costs to improve the property, and that, “even if the

       Court determined that [he] would have had to pay the child support obligation

       regardless of the oral promise made by Levels,” he “would have never paid the

       costs for any improvements on the property had Levels not made the oral

       promise to reattach [his] name to the property once said costs were paid.”

       Appellant’s Brief at 10. Scales argues that the information he sought through

       his motion to order third party discovery would have assisted in determining

       whether an oral agreement exists and that the trial court should have granted

       his motion. He also asserts that he paid $2,300 in property taxes for the

       property in 2013, erected a cable barrier around the property, cut the grass

       weekly, filled in holes on the property, and kept it clear of debris.


[17]   Levels maintains that there is no written document executed by him related to

       the sale of the property and that the evidence does not support part performance

       or estoppel to circumvent the statute of frauds. He contends that there is no

       evidence he requested or knew of the property tax payments by Scales until

       after they were made, and no evidence that Scales made material or substantial

       improvements to the property. He also asserts he did not induce Scales’s child

       support payment and that the payment was induced by the acts of the child’s

       representatives to collect the support. As to Scales’s motion to order third party


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 10 of 20
       discovery, Levels asserts that Scales has not shown that he complied with Ind.

       Trial Rules 34(C) and 45(B) as a prerequisite to seeking a court order under

       Trial Rule 37. 1


[18]   The Indiana Statute of Frauds requires that contracts for the sale of real

       property be in writing. Jernas v. Gumz, 53 N.E.3d 434, 445 (Ind. Ct. App. 2016)

       (citing Fox Dev., Inc. v. England, 837 N.E.2d 161, 166 (Ind. Ct. App. 2005)),

       trans. denied. Found at Ind. Code § 32-21-1-1, the Statute provides that a person

       may not bring an action involving a contract for the sale of land unless the

       contract “is in writing and signed by the party against whom the action is

       brought or by the party’s authorized agent.” The Statute is intended to preclude

       fraudulent claims that would probably arise when one person’s word is pitted

       against another’s. Jernas, 53 N.E.3d at 446. To satisfy the Statute, an

       enforceable contract for the sale of land must be evidenced by some writing

       which has been signed by the party against whom the contract is to be enforced

       or his authorized agent, which describes with reasonable certainty each party

       and the land, and which states with reasonable certainty the terms and




       1
         Ind. Trial Rule 34 relates to a party’s request to produce and permit the party to inspect documents or
       electronically stored information. Trial Rule 34(C) relates to the application of the rule to non-parties and
       provides in part that a request to a person other than a party “shall be served upon other parties and included
       in or with a subpoena served upon such witness or person” and that “[n]either a request nor subpoena to
       produce or permit as permitted by this rule shall be served upon a non-party until at least fifteen (15) days
       after the date on which the party intending to serve such request or subpoena serves a copy of the proposed
       request and subpoena on all other parties.” Trial Rule 45 relates to subpoenas. Trial Rule 37 governs the
       failure to cooperate in discovery and provides in part that, if a person, in response to a request submitted
       under Rule 34, fails to respond, “the discovering party may move for an order compelling an answer, or a
       designation, or an order compelling inspection in accordance with the request.”

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017           Page 11 of 20
       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.


[19]   Scales does not argue that his purported verbal agreement with Levels was

       evidenced by some writing signed by Levels and containing the terms and

       conditions of the agreement. Rather, he argues that two exceptions to the

       Statute of Frauds, the doctrines of promissory estoppel and part performance,

       are applicable.


       A. Promissory Estoppel


[20]   Oral promises that are not enforceable under the Statute of Frauds may

       nonetheless be enforced under the equitable doctrine of promissory estoppel.

       Hrezo, 934 N.E.2d at 1230. A party seeking to defeat the Statute of Frauds

       requirement based upon promissory estoppel must establish: (1) a promise by

       the promissor; (2) made with the expectation that the promisee will rely

       thereon; (3) which induces reasonable reliance by the promisee; (4) of a definite

       and substantial nature; and (5) injustice can be avoided only by enforcement of

       the promise. Id. at 1231 (citing Spring Hill Developers, Inc. v. Arthur, 879 N.E.2d

       1095, 1100 (Ind. Ct. App. 2008) (citation omitted)).


[21]   We have observed that the fifth element creates a high bar for the party seeking

       to establish promissory estoppel. Spring Hill, 879 N.E.2d at 1101. The Indiana

       Supreme Court “has explained the type of injury required to establish” the fifth

       element:

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 12 of 20
               [I]n order to establish an estoppel to remove the case from the
               operation of the Statute of Frauds, the party must show [ ] that
               the other party’s refusal to carry out the terms of the agreement
               has resulted not merely in a denial of the rights which the
               agreement was intended to confer, but the infliction of an unjust
               and unconscionable injury and loss.

               In other words, neither the benefit of the bargain itself, nor mere
               inconvenience, incidental expenses, etc. short of a reliance injury
               so substantial and independent as to constitute an unjust and
               unconscionable injury and loss are sufficient to remove the claim
               from the operation of the Statute of Frauds.

       Id. at 1101-1102 (quoting Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001)

       (quoting Whiteco Indus. v. Kopani, 514 N.E.2d 840, 845 (Ind. Ct. App. 1987)

       (citation omitted), trans. denied)).


[22]   In Spring Hill, we observed that the Indiana Supreme Court, in Brown, reversed

       the trial court’s judgment enforcing the defendant’s oral promise to convey a

       house based on a theory of promissory estoppel, and we noted that “[c]ritical to

       the court’s conclusion was its observation that Whiteco stood for the proposition

       that ‘[i]f what the party gave up in reliance on an oral promise was no greater

       than what the party would have given up in any event, then the consideration is

       deemed insufficient to remove the oral promise from the operation of the

       Statute of Frauds.’” Id. at 1102 (citing Brown, 758 N.E.2d at 53). We observed

       that thus, although the plaintiff quit her job, dropped out of college, and moved

       from Missouri to Indiana in reliance on the defendant’s promise to convey a

       house to her, the court reasoned such injuries merely established that the

       plaintiff “was inconvenienced as well as denied the benefit that [the

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 13 of 20
       defendant’s] promise was intended to confer,” but not that the defendant’s “oral

       promise resulted in the ‘infliction of an unjust and unconscionable injury and

       loss.’” Id. (citing Brown, 758 N.E.2d at 53).


[23]   Further, we noted that, for the promissory estoppel doctrine to limit application

       of the Statute of Frauds, “the reliance injury must be not only (1) independent

       from the benefit of the bargain and resulting incidental expenses and

       inconvenience, but also (2) so substantial as to constitute an unjust and

       unconscionable injury.” Id. at 1103 (citing Coca-Cola Co. v. Babyback’s Int’l, Inc.,

       841 N.E.2d 557, 569 (Ind. 2006)). We also observed that “the test in Babyback’s

       addresses reliance injuries only” and that “expectancy injuries are excluded

       from the unconscionability analysis.” Id. (citing Jarboe v. Landmark Cmty.

       Newspapers of Ind., Inc., 644 N.E.2d 118, 122 (Ind. 1994) (“To the extent that the

       plaintiff’s request for estoppel seeks to compel the defendants to resume their

       employment of the plaintiff, or seeks damages in the form of lost wages

       following his discharge, such requested relief represents expectancy damages,

       not reliance costs, and thus is not recoverable.”)).


[24]   In this case, Scales alleges that he relied on Levels’s promise to convey an

       interest in the property to him when he made a settlement payment toward his

       child support arrearage and by incurring costs to maintain and improve the

       property. To the extent Scales points to his settlement payment, we note that

       Scales had already been ordered to make support payments. Scales’s action of

       making the payment toward his arrearage was no greater than what he was

       required to do in any event and is insufficient to remove the oral promise from

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 14 of 20
       the operation of the Statute of Frauds. See Brown, 758 N.E.2d at 53 (“If what

       the party gave up in reliance on an oral promise was no greater than what the

       party would have given up in any event, then the consideration is deemed

       insufficient to remove the oral promise from the operation of the Statute of

       Frauds.”). We also observe that estoppel, including promissory estoppel, is a

       judicial doctrine sounding in equity. See id. at 51-52; Lightle v. Harcourt Mgmt.

       Co., 634 N.E.2d 858, 860 (Ind. Ct. App. 1994) (observing the doctrine of

       promissory estoppel is an equitable claim for relief), trans. denied. The unclean

       hands doctrine is an equitable tenet that demands that one who seeks equitable

       relief be free of wrongdoing in the matter before the court, and the purpose of

       the unclean hands doctrine is to prevent a party from reaping benefits from his

       or her misconduct. Coppolillo v. Cort, 947 N.E.2d 994, 1000 (Ind. Ct. App.

       2011). To the extent Scales transferred his one-tenth interest in the property to

       Levels in an attempt to avoid full and timely compliance with his child support

       obligation, he should not reap a benefit from his conduct.


[25]   With respect to the costs Scales asserts he incurred to maintain or improve the

       property, we note that he states in his affidavit that he made a property tax

       payment in 2013, spent thousands on maintenance of the property, placed cable

       wire barriers to keep intruders off the property, and had gravel and sand

       brought to the property for the purpose of filling holes. Levels designated the

       affidavit of Christian, which states that, after he acquired the heirs’ interests in

       the property, Levels expended $18,000 to obtain a settlement with the contract

       purchaser under an installment contract and expended further sums to demolish


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 15 of 20
       the structure on the property to satisfy demands of the City of Evansville.

       Scales does not claim he made any contributions toward these costs. Moreover,

       Scales was not precluded from receiving the reasonable value of his services and

       reimbursement of the amounts he expended. See Spring Hill, 879 N.E.2d at

       1103-1104 (holding that the reliance injuries Spring Hill and Brinkworth

       incurred in developing the property into a suitable condition for subdivision and

       sale “are not unconscionable because they pertain to Brinkworth’s services, and

       nothing prevents Brinkworth from receiving the reasonable value of his services

       based on quantum meruit . . . or, more generally, from receiving restitution

       based on unjust enrichment”).


[26]   Based on the designated evidence, including evidence of the costs to maintain

       and improve the property incurred by Scales relative to those costs incurred by

       Levels, and keeping in mind Scales is not prevented from receiving

       reimbursement of the costs he incurred to maintain and improve the property,

       we conclude that none of Scales’s injuries is so substantial as to constitute an

       unjust and unconscionable injury and that Scales cannot show that injustice can

       be avoided only by enforcement of Levels’s purported promise. See id. at 1104

       (holding, where Spring Hill and Brinkworth filed a complaint alleging the

       Arthurs agreed to convey property to Spring Hill and seeking an order of

       specific performance to convey the property, that none of Spring Hill and

       Brinkworth’s reliance injuries, which they alleged included time and expense

       toward the development of the property, was so substantial as to constitute an

       unjust and unconscionable injury, that they could not show that injustice could


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 16 of 20
       be avoided only by enforcement of the promise to convey the property, and that

       therefore promissory estoppel did not apply to remove the promise from the

       Statute of Frauds). Accordingly, promissory estoppel does not apply to remove

       Levels’s purported promise from the Statute of Frauds.


       B. Part Performance


[27]   The part performance doctrine is based on the rationale that equity will not

       permit a party who breaches an oral contract to invoke the Statute of Frauds

       where the other party has performed his part of the agreement to such an extent

       that repudiation of the contract would lead to an unjust or fraudulent result. Id.

       Where the oral promise is to sell an interest in land, “‘some combination’ of the

       following acts of performance are sufficient for the doctrine to apply: 1)

       payment of the purchase price or a part thereof; 2) possession; and 3) lasting

       and valuable improvements on the land.” Id. (citations omitted).


[28]   An alternative way to determine whether the doctrine applies is to use the

       standard expressed in the Restatement:

               A contract for the transfer of an interest in land may be
               specifically enforced notwithstanding failure to comply with the
               Statute of Frauds if it is established that the party seeking
               enforcement, in reasonable reliance on the contract and on the
               continuing assent of the party against whom enforcement is
               sought, has so changed his position that injustice can be avoided
               only by specific enforcement.

       Id. at 1105 (citing RESTATEMENT (SECOND) OF CONTRACTS § 129; Summerlot v.

       Summerlot, 408 N.E.2d 820, 828 (Ind. Ct. App. 1980) (“Where one party to an

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 17 of 20
       oral contract in reliance on that contract has performed his part of the

       agreement to such an extent that repudiation of the contract would lead to an

       unjust or fraudulent result, equity will disregard the requirement of a writing

       and enforce the oral agreement.”)). Comment b to Section 129 states that the

       reliance of the promisee must provide “a compelling substantive basis for relief

       in addition to the expectations created by the promise” and that determining

       whether this substantive basis is established “requires consideration of the

       adequacy of the remedy of restitution.” Id.


[29]   In this case, even if Scales changed his position in reliance on Levels’s

       purported promise, we cannot find that the nature of the injury is so substantial

       that injustice can be avoided only through specific performance. As noted

       above, Scales was already required to pay his child support arrearage, and he

       was not prevented from receiving the reasonable value of his services and

       reimbursement of his costs in maintaining the property. Scales cannot establish

       that injustice can be avoided only through specific performance. See id.

       (holding that, assuming Brinkworth sufficiently changed his position in reliance

       on the promise to convey the property, the nature of the injury cannot be

       characterized as so substantial that injustice can be avoided only through

       specific performance, that nothing prevented Brinkworth from receiving the

       reasonable value of his services or restitution or both, and that the part

       performance doctrine does not apply to remove the promise from the Statute of

       Frauds). Accordingly, the part performance doctrine does not apply to remove

       Levels’s promise from the Statute of Frauds.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 18 of 20
[30]   Because the doctrines of part performance and promissory estoppel do not

       apply to remove Levels’s alleged promise from the Statute of Frauds, and the

       writing requirement of the Statute of Frauds was not satisfied, any verbal

       agreement between Scales and Levels regarding the transfer of an interest in the

       property to Scales is unenforceable. See id. 1097-1105 (concluding that the trial

       court properly applied the Statute of Frauds to bar Spring Hill and Brinkworth’s

       complaint, rejecting the arguments that the equitable doctrines of promissory

       estoppel and part performance were applicable, and affirming the trial court’s

       grant of summary judgment in favor of the Arthurs).


[31]   We also observe that, to the extent Scales asserts that his designated evidence

       conflicts with Levels’s designated evidence as to whether a verbal agreement

       existed and that the trial court should have granted his motion to order third

       party discovery because the discovery would have assisted the court in

       determining whether an oral agreement exists, we have explained that the

       Statute of Frauds “does not govern the formation of a contract but only the

       enforceability of contracts that have been formed.” Jernas, 53 N.E.3d at 445

       (citing Schuler v. Graf, 862 N.E.2d 708, 712-713 (Ind. Ct. App. 2007) (citing Fox

       Dev., 837 N.E.2d at 165); Owens v. Lewis, 46 Ind. 488, 518 (1874) (noting an

       agreement that is not in writing, although required to be in writing by the

       Statute of Frauds, is not invalid, and that the statute only inhibits actions to

       enforce the agreement)). Thus, even assuming Scales and Levels entered into a

       verbal agreement, the agreement is unenforceable because it was not

       memorialized in writing as required by the Statute of Frauds.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 19 of 20
                                                   Conclusion

[32]   For the foregoing reasons, we affirm the trial court’s entry of summary

       judgment in favor of Levels and denial of Scales’s motion to correct error.


[33]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CC-2323 | January 31, 2017   Page 20 of 20
