                                                                                  FILED
                                                                              Sep 11 2019, 8:49 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
      Daniel L. Taylor                                           E. Scott Treadway
      J. Kent Minnette                                           Raymond J. Biederman
      Taylor, Chadd, Minnette, Schneider &                       Mattingly Burke Cohen &
      Clutter, P.C.                                              Biederman LLP
      Crawfordsville, Indiana                                    Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Thomas K. Downs and Laura H.                               September 11, 2019
      Downs,                                                     Court of Appeals Case No.
      Appellants-Defendants,                                     19A-PL-382
                                                                 Appeal from the Boone Superior
              v.                                                 Court
                                                                 The Honorable Matthew C.
      Stephen S. Radentz and                                     Kincaid, Judge
      Magdalena B. Czader,                                       Trial Court Cause No.
      Appellees-Plaintiffs.                                      06D01-1711-PL-1443




      Najam, Judge.


                                         Statement of the Case
[1]   Thomas and Laura Downs (collectively “Sellers”) appeal the trial court’s

      judgment in favor of Stephen Radentz and Magdalena Czader (collectively




      Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019                           Page 1 of 19
      “Buyers”) on Buyers’ complaint seeking specific performance of the parties’

      agreement for the sale of real estate. Sellers present two issues for our review:


              1.       Whether the trial court erred when it applied the parol
                       evidence rule and excluded certain evidence at trial.

              2.       Whether the trial court’s finding that the parties entered
                       into a valid and enforceable settlement agreement is clearly
                       erroneous.


[2]   Buyers cross appeal and ask that we award them appellate attorney’s fees.


[3]   We affirm and remand with instructions.


                                  Facts and Procedural History
[4]   On September 5, 2017, Sellers listed for sale their residence located on ten acres

      in Zionsville (“the property”). On September 18, Buyers made an offer to

      purchase the property. After the parties proposed offers and counter-offers,

      they agreed on a purchase price of $1.2 million and executed a purchase

      agreement. However, following disagreements regarding inspections and

      appraisals, on November 27, Buyers filed with the trial court a complaint for

      specific performance. Over the course of the next several months, the parties

      negotiated a settlement agreement, which Sellers executed on August 12, 2018.


[5]   The settlement agreement incorporated by reference the parties’ purchase

      agreement, which required in relevant part that Sellers provide a survey

      “certified as of a current date” and that was “reasonably satisfactory to Buyer.”

      Appellees’ App. Vol. 2 at 45. On August 16, before Buyers had executed the

      Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019      Page 2 of 19
      settlement agreement, Sellers’ attorney sent Buyers’ attorney a letter stating in

      relevant part as follows: “Pursuant to the Settlement Agreement, please find

      enclosed the original Anderson and Associates survey of the [property from

      1996] along with a copy of the original title policy.” Defendants’ Ex. C

      (emphasis added).


[6]   In response to that letter, Buyers informed Sellers that the 1996 survey was not

      acceptable and did not comply with the terms of the purchase agreement. On

      August 20, after Sellers had refused to provide a different survey, Buyers’

      attorney sent an email to Sellers’ attorney’s office stating:


                My client[s] are precariously close to walking away from the
                settlement. We expect a current survey of the property. The
                documents provided were decades old and of little value to us or
                the title company.

                Please advise by the close of business today whether we can
                expect a current survey. Otherwise, let’s move forward with the
                litigation.


      Defendants’ Ex. D. In particular, Buyers requested a current “ALTA” 1 survey

      of the property. Tr. at 98.


[7]   Despite not having received a current survey of the property, Buyers executed

      the settlement agreement on August 30. Still, Sellers refused to permit Buyers

      access to the property to perform inspections or appraisals. On September 30,



      1
          “ALTA” stands for American Land Title Association.


      Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019        Page 3 of 19
Buyers filed with the trial court a motion to enforce the settlement agreement.

Following an evidentiary hearing, the trial court entered judgment for Buyers

and found and concluded as follows:


        3. [Buyers] substantially performed or offered to perform their
        contract obligations in relation to the Purchase Agreement. The
        undisputed testimony from [Radentz], Barbara Ward, broker for
        [Buyers], and Robbin Edwards, broker for [Sellers], was that the
        [Buyers] fulfilled all conditions precedent under the Purchase
        Agreement.

        4. [Sellers] breached the Purchase Agreement by failing to satisfy
        the terms of the same.

                                                 ***

        11. [Buyers] and [Sellers] entered into a written Settlement and
        Release Agreement, dated August 30, 2018 (the “Settlement
        Agreement”). . . .

        12. The Settlement Agreement was executed by [Sellers] on
        August 12, 2018, and executed by [Buyers] on August 30, 2018.

        13. [Sellers] each testified, and the Court finds, that [Sellers]
        knowingly and voluntarily executed the Settlement Agreement.

        14. [Sellers] each testified, and the Court finds, that [Sellers]
        were represented by legal counsel during the negotiation and
        preparation of the Settlement Agreement.

        15. [Sellers] each testified, and the Court finds, that [Sellers]
        intended to be bound by the terms and conditions of the
        Settlement Agreement.




Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019       Page 4 of 19
        16. [Sellers] each testified, and the Court finds, that [Sellers] did
        not revoke[] or withdraw the Settlement Agreement prior to
        written acceptance by [Buyers] on August 30, 2018.

        17. The Settlement Agreement contained the following
        provisions:

                 17. The Parties acknowledge that (1) they have read
                 and considered this Agreement carefully; (2) that it
                 was negotiated at arm’s length by Parties of equal
                 bargaining power; (3) that they had the opportunity
                 to have their attorneys negotiate this Agreement and
                 to discuss such Agreement in detail with their
                 attorneys, but elected, in their sole discretion, not to
                 do so; (4) that they have been given a reasonable period of
                 time (as long as they deemed necessary) to consider this
                 Agreement before signing; (5) that they fully understand
                 the extent and impact of its provisions; . . .

                 18. This Agreement has no terms other than those
                 expressly set forth herein. Each Party to this
                 Agreement represents and warrants to the other Party
                 that it is not signing this Agreement in reliance upon
                 any term, representation or warranty other than those
                 expressly set forth in this Agreement. This
                 Agreement shall not be modified in any respect
                 except by a writing executed by both Parties.

        19.[sic] Multiple undisputed witnesses, including both parties’
        real property brokers, testified and the Court finds [Buyers] fully
        complied with the terms of the Settlement Agreement, including
        attempting to perform required inspections.

        20. The undisputed evidence also established [Sellers] breached
        the Settlement Agreement on multiple occasions, including
        refusing to allow access to the Property, refusing to reschedule
        inspections, refusing to provide a current survey, and refusing to
Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019           Page 5 of 19
           pay attorneys’ fees, all of which are required by the terms of the
           Settlement Agreement.

           21. The Court finds the Settlement Agreement is unambiguous.

                                                     ***

           23. The Court finds the Settlement Agreement is valid and
           enforceable.


Appellants’ App. Vol. 2 at 11-13 (emphasis added). 2 The trial court then

entered judgment in favor of Buyers and ordered Sellers to comply with the

agreement. The trial court also ordered Sellers to pay Buyers’ attorney’s fees

and “additional damages,” to be determined at a future hearing. Id. at 15.

Accordingly, this appeal is not from a final judgment, as Sellers assert in their

notice of appeal. Rather, this is an interlocutory appeal of right under Indiana

Appellate Rule 14(A)(4). This appeal ensued.




2
    In a footnote, the trial court added:

           This is the essential problem with [Sellers’] case. Mr. Downs told the court, essentially,
           that he felt [B]uyers behaved in a bullying fashion between the date he and Laura Downs
           signed [on] August 12, 2018, and when [Buyers] ultimately signed. If [B]uyers did that,
           they created a risk for themselves that the settlement agreement, signed only by [Sellers] at
           that point might be revoked. A proper revocation would have been in writing after August
           12, 2018, but delivered to [B]uyers before [B]uyers signed their acceptance—something
           they ultimately did on August 30, 2018. [Buyers], by signing, made a mirror acceptance of
           the Downs’ written offer before it was revoked. Once an offer is made there is a race to
           either accept it and bind the deal or to revoke it and thereby avoid being bound. The
           settlement agreement is enforceable. [B]uyers won the race.
Appellants’ App. Vol. 2 at 12.

Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019                                Page 6 of 19
                                      Discussion and Decision
                                         Issue One: Parol Evidence

[8]   Sellers contend that the trial court erred when it excluded from the evidence at

      trial an email from Sellers’ attorney dated August 9, 2018. They maintain that

      this issue turns on the construction of the parol evidence rule, not its application

      to any particular set of facts, and that our review is de novo. Cook v. Whitsell-

      Sherman, 796 N.E.2d 271, 277 (Ind. 2003). Sellers’ argument is two-fold.

      Sellers first assert that the email was admissible as an exception to the parol

      evidence rule because it shows that no contract was ever formed. Sellers also

      assert that the email was admissible because it is relevant to the issue of whether

      the settlement agreement was only partially or completely integrated. We

      address each contention in turn.


[9]   Initially, we note that Sellers were bound by the terms of the settlement

      agreement when they executed it on August 12. Appellants’ Br. at 5. As this

      Court has held,


              [i]n situations where fewer than all the proposed parties execute
              [a] document we look to the intent of the parties as determined
              by the language of the contract to determine who may be liable
              under the agreement. It should be assumed that all the parties
              who sign [a contract] are bound by it unless it affirmatively
              appears that they did not intend to be bound unless others also
              signed.


      Kruse Classic Auction, Co. v. Aetna Cas. & Sur. Co., 511 N.E.2d 326, 328 (Ind. Ct.

      App. 1987), trans. denied; see also Int’l Creative Mgmt., Inc. v. D & R Ent. Co., 670

      Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019        Page 7 of 19
       N.E.2d 1305, 1311 (Ind. Ct. App. 1996), trans. denied. And here, “there was no

       express intention or affirmation in the contract that [Sellers] not be bound

       unless [Buyers] also signed.” See Kruse Classic Auction, 511 N.E.2d at 328.

       Accordingly, when they executed the settlement agreement on August 12,

       Sellers were bound by it, including the provision that gave Buyers “a reasonable

       period of time (as long as they deemed necessary) to consider this agreement

       before signing.” Appellees’ App. Vol. 2 at 40. Once executed by Sellers, the

       settlement agreement was, in effect, an offer to Buyers, which, as the trial court

       found, Buyers had accepted before the offer was revoked. See Rosi v. Business

       Furniture Corp., 615 N.E.2d 431, 435 (Ind. 1993) (stating a contract is formed by

       the exchange of an offer and acceptance between the contracting parties. To

       form a contract, one party must extend an offer, and the other party must

       communicate acceptance of the offer to the offeror).


                                               Contract Formation

[10]   In general, where, as here, the parties to an agreement have reduced the

       agreement to a written document and have included an integration clause that

       the written document embodies the complete agreement between the parties,

       the parol evidence rule prohibits courts from considering parol or extrinsic

       evidence for the purpose of varying or adding to the terms of the written

       contract. Krieg v. Hieber, 802 N.E.2d 938, 943 (Ind. Ct. App. 2004). However,

       the prohibition against the use of parol evidence is by no means complete. Id.

       at 944. Indeed, parol evidence may be considered if it is not being offered to

       vary the terms of the written contract but to show that fraud, intentional

       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019    Page 8 of 19
       misrepresentation, or mistake entered into the formation of a contract. Id. In

       addition, parol evidence may be considered to apply the terms of a contract to

       its subject matter and to shed light upon the circumstances under which the

       parties entered into the written contract. Id.


[11]   Here, during the evidentiary hearing, Sellers attempted to introduce into

       evidence an email from their attorney to Buyers’ attorney dated August 9, 2018,

       which stated as follows:


               My clients have reviewed the modifications to the Settlement
               Agreement made by your clients. The modification made in
               paragraph 4 is unacceptable. My clients will not agree to any
               modification of the closing date or post-closing possession.
               However, we have made the modification requested in paragraph
               7. My clients have advised me the[y] will not consider any
               further modifications. If the Settlement Agreement is not fully
               executed by the close of business on Monday, August 13, 2018, I have
               been instructed to proceed with the litigation.


       Defendants’ Ex. B (emphasis added). Buyers objected to that proffered

       evidence on the ground that it violated the parol evidence rule.


[12]   Sellers’ attorney responded that the email was admissible under one or more of

       the several exceptions to the parol evidence rule, and he made two offers of

       proof—one during Radentz’ testimony and one during Thomas’ testimony. In

       his offers of proof, Sellers’ attorney stated that, “if admitted this exhibit would

       show by its very nature that the settlement agreement, if it was not fully

       executed by the close of business on Monday, August 13, [I had] been

       instructed to proceed with th[e] litigation[.]” Tr. at 70. In short, Sellers argued
       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019      Page 9 of 19
       to the trial court that the email proved that, because Buyers did not execute the

       settlement agreement by August 13, 2018, there was no timely “acceptance” of

       their offer and no contract was formed. Id. Thus, Sellers asserted that the email

       was admissible as an exception to the parol evidence rule because it “shed light

       upon the circumstances under which the parties entered into the written

       contract.” See Krieg, 802 N.E.2d at 944.


[13]   On appeal, Sellers contend that, when it excluded the email from the evidence,

       the trial court misapplied the parol evidence rule. Sellers cite our opinion in

       Sho-Pro of Ind., Inc. v. Brown, 585 N.E.2d 1357, 1360 (Ind. Ct. App. 1992), for

       the principle that the parol evidence rule presumes a valid written agreement

       between the parties and for its holding that the rule does not operate to exclude

       evidence of contract formation. But Sellers’ reliance on Sho-Pro is misplaced.

       In Sho-Pro, we concluded that the parol evidence rule did not apply both because

       “[n]o evidence was introduced . . . purporting to vary the terms of the written

       document offered” and because “the question was whether there was a meeting

       of the minds between the parties.” Id.


[14]   Here, unlike in Sho-Pro, the proffered evidence purported to vary a specific term

       of the settlement agreement. The August 9 email attempted to establish an

       abbreviated deadline for Buyers to execute the settlement agreement, which

       directly contradicted the provision in the agreement that gave Buyers “a

       reasonable period of time (as long as they deemed necessary) to consider this

       agreement before signing.” Appellants’ App. Vol. 2 at 12. Thus, while Sellers

       contend that the August 9 email was offered to show that no contract was

       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019    Page 10 of 19
       formed, the email was a clear attempt to vary an express provision of the

       settlement agreement and, as such, it was inadmissible under the parol evidence

       rule. Krieg, 802 N.E.2d at 944.


[15]   In sum, the settlement agreement had been formed and by its terms included

       “no terms other than those expressly set forth” in it. Appellants’ App. Vol. 2 at

       13. Sellers could not foist a different deadline term upon Buyers when the

       agreement provided that it “shall not be modified in any respect except by a

       writing executed by both Parties.” Id. Sellers had already signed and were

       bound by the agreement, Kruse Classic Auction, Co., 511 N.E.2d at 328, and

       Buyers executed the agreement within the time specified by its terms. The trial

       court did not err when it excluded the email from the evidence.


                                        Partial or Complete Integration

[16]   Still, Sellers assert that, if the trial court excluded the email “based on the

       purported agreement’s merger or integration clause,” that was erroneous

       because our Supreme Court has held that “the question of partial or complete

       integration ‘requires the court to hear all relevant evidence, parol or written.’”

       Appellant’s Br. at 14 (quoting Franklin v. White, 493 N.E.2d 161, 167 (Ind.

       1986)). In essence, Sellers suggest that all parol evidence is admissible to show

       whether the parties intended the settlement agreement to be only partially

       integrated or completely integrated. We cannot agree.


[17]   In Franklin, the Court held that




       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019      Page 11 of 19
               “[a] merger (integration) clause does not control the question of
               whether a writing was intended to be a completely integrated
               agreement.” An integration clause is only some evidence of the
               parties’ intentions. The trial court should consider an integration
               clause along with all other relevant evidence on the question of
               integration.


       493 N.E.2d at 166 (citations omitted, emphasis added). The Court added that,

       “[i]f the court determines that a writing is integrated as to a specific term, then

       prior statements or negotiations of the parties which would tend to contradict

       that term as it appears in their final written expression are simply irrelevant.”

       Franklin, 493 N.E.2d at 167 (emphasis added).


[18]   Here, Sellers do not explain how the August 9 email is relevant to the issue of

       whether the parties intended that the settlement agreement constituted “the

       final and complete agreement between” them. Id. (citation omitted).

       Moreover, again, the purported August 13 deadline for Buyers to execute the

       settlement agreement directly contradicted the provision in the settlement

       agreement stating that the parties had “a reasonable period of time (as long as

       they deemed necessary) to consider this agreement before signing.” Appellees’

       App. Vol. 2 at 40. On its face the deadline for the parties’ execution of the

       agreement was clearly stated and fully integrated in the document signed by

       Sellers. Thus, on that specific term, the August 9 email was irrelevant to a

       determination of whether the agreement was partially or completely integrated,

       and the trial court did not err when it excluded it from the evidence. Franklin

       493 N.E.2d at 167.


       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019      Page 12 of 19
                                                  Harmless Error

[19]   In any event, it is well settled that, even if an evidentiary decision was

       erroneous, we will not reverse if the ruling constituted harmless error. Techna-

       Fit, Inc. v. Fluid Trans. Prods., Inc., 45 N.E.3d 399, 411 (Ind. Ct. App. 2015). An

       error is harmless when the probable impact of the erroneously admitted or

       excluded evidence on the factfinder, in light of all the evidence presented, is

       sufficiently minor so as not to affect a party’s substantial rights. Id.; Ind.

       Appellate Rule 66(A).


[20]   Here, while on direct examination Thomas Downs testified he believed that

       August 13 was the deadline for Buyers to accept Sellers’ offer, Thomas also

       testified, in effect, that the sale was still pending after August 13. In particular,

       on redirect examination Thomas testified that Buyers’ agent had issued

       “ultimatums” on August 20 and 29, whereby Buyers had threatened that “the

       transaction [wa]s over” if Sellers did not “do something by midnight” on each

       of those dates. Tr. at 114. If, as Sellers contend on appeal, there was no sale

       pending because Buyers had not executed the settlement agreement by August

       13, then the subsequent ultimatums issued by Buyers would have been of no

       consequence or concern to Sellers. But, rather than simply testifying that, in his

       view, there was no sale pending after August 13, Thomas testified he “believed

       that the deal was dead because of” Buyers’ ultimatums, which occurred after

       that date. Id.


[21]   Further, Sellers’ conduct shows that, notwithstanding the purported August 13

       deadline, Sellers believed that the settlement agreement was still viable. The
       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019        Page 13 of 19
       clearest evidence of that fact is the August 16 letter from Sellers’ attorney to

       Buyers’ attorney stating, “Pursuant to the Settlement Agreement, please find

       enclosed” the 1996 survey of the property and thanking him for his

       “cooperation.” Defendants’ Ex. C (emphasis added). Sellers would have had

       no reason to send Buyers a survey on August 16 if their offer of the settlement

       agreement had expired on August 13.


[22]   Finally, Laura Downs testified that she was always ready, willing, and able to

       sell the property to Buyers. Laura was apparently unaware of any deadline or

       ultimatum, other than a reasonable time, as stated in the settlement agreement,

       for Buyers to execute the settlement agreement. And at no time after August 13

       did Sellers revoke their offer to Buyers.


[23]   In sum, the evidence, including Thomas’ testimony on redirect examination,

       shows that Sellers did not consider their offer of the settlement agreement to

       have expired after August 13, and Sellers had not revoked their offer before

       Buyers executed the settlement agreement on August 30. At most, the August 9

       email threat from Sellers’ attorney to “proceed with this litigation” was a threat

       which neither Sellers nor Buyers took seriously at that time. Whatever its

       evidentiary value may have been, the email was vitiated by the subsequent

       conduct of the parties. If there were error in the exclusion of the email, it was

       harmless.




       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019     Page 14 of 19
                             Issue Two: Enforceable Settlement Agreement

[24]   Sellers next contend that the evidence does not support the trial court’s “finding

       that the parties entered into a valid and enforceable settlement agreement[.]”

       Appellants’ Br. at 14. The trial court entered findings of fact and conclusions

       thereon pursuant to Indiana Trial Rule 52(A). This court has outlined the

       standard of review when the trial court has issued such findings and

       conclusions:


               In reviewing a judgment based on such findings, we must first
               determine whether the evidence supports the findings and then
               determine whether the findings support the judgment. Atterholt v.
               Robinson, 872 N.E.2d 633, 638-39 (Ind. Ct. App. 2007). “[T]he
               court on appeal shall not set aside the findings or judgment
               unless clearly erroneous, and due regard shall be given to the
               opportunity of the trial court to judge the credibility of the
               witnesses.” Ind. Trial Rule 52(A). “Findings are clearly
               erroneous only when the record contains no facts to support
               them either directly or by inference.” Randles v. Ind. Patient’s
               Comp. Fund, 860 N.E.2d 1212, 1219 (Ind. Ct. App. 2007)
               (citation omitted), trans. denied. A judgment is clearly erroneous
               if it applies the wrong legal standard to properly found facts.
               Johnson v. Wysocki, 990 N.E.2d 456, 460 (Ind. 2013). “In either
               case, we must be left with the firm conviction that a mistake has
               been made.” Id. (citation and internal quotation marks omitted).
               When the specific issue on appeal relates to the award of
               damages, we will affirm the damage award if it was “within the
               scope of the evidence before the trial court.” Smith v. Washington,
               734 N.E.2d 548, 550 (Ind. 2000). In conducting our review, we
               consider only the evidence favorable to the judgment and the
               reasonable inferences to be drawn therefrom. Samples v. Wilson,
               12 N.E.3d 946, 950 (Ind. Ct. App. 2014). We do not reweigh the
               evidence. Id.


       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019    Page 15 of 19
       Green v. Robertson, 56 N.E.3d 682, 691 (Ind. Ct. App. 2016).


[25]   Sellers first assert that Buyers’ “purported settlement agreement acceptance on

       30 August 2018 did not satisfy Indiana’s mirror image rule[.]” Appellants’ Br.

       at 15. 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. I.C.C. Protective Coatings, Inc. v. A.E. Staley Mfg. Co., 695 N.E.2d 1030,

       1034 (Ind. Ct. App. 1998), trans. denied. This rule is called the “mirror image

       rule.” Id. 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. Id. at 1035.


[26]   Sellers maintain that, when Buyers rejected the 1996 survey Sellers provided on

       August 16, “this communication was deemed a counteroffer, because it

       proposed additional terms from [Sellers’] purported offer” in the settlement

       agreement. Appellants’ Br. at 16. Sellers state that, “[e]ven if a valid offer,

       nothing in [Sellers’] 12 August 2018 communication to [Buyers] required

       [Sellers] to give [Buyers] an ‘ALTA’ survey[,]” as Buyers had requested. Id.

       Sellers’ argument on this issue misses the mark. The parties’ purchase

       agreement, which was incorporated by reference in the settlement agreement,

       clearly states that Sellers would provide a survey “certified as of a current date”

       and that is “reasonably satisfactory to Buyer.” Appellees’ App. Vol. 2 at 45.

       Buyers rejected the 1996 survey provided by Sellers because it was not certified

       as of a current date, and they requested an ALTA survey, which is consistent

       with the provision that the survey be “reasonably satisfactory” to Buyers. Thus,

       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019      Page 16 of 19
       nothing about Buyers’ demands regarding the survey constituted a

       “counteroffer” or otherwise sought to alter the terms of the proposed settlement

       agreement.


[27]   As the trial court found, on August 30, Buyers executed the same settlement

       agreement that Sellers had executed on August 12. Indeed, Sellers each

       testified that Buyers executed the same agreement that they had executed.

       Accordingly, the settlement agreement satisfies the mirror image rule. 3


[28]   Finally, Sellers assert that the “Statute of Frauds[ 4] precludes enforcement of the

       purported settlement agreement, because [Sellers’] signatures of 12 August 2018

       were not valid when [Buyers] signed on 30 August 2018.” Appellants’ Br. at

       19. Sellers appear to argue that when Buyers demanded an ALTA survey

       certified as of a current date, Buyers “rejected” the settlement agreement,

       which, in turn, “extinguished” Sellers’ signatures on the settlement agreement.

       Id. at 20. Again, Sellers’ contention misses the mark. Buyers did not reject the

       settlement agreement when they requested a survey that was consistent with the

       terms of the parties’ purchase agreement. Sellers have not demonstrated that

       the settlement agreement violates the statute of frauds.




       3
        We reject Sellers’ suggestion that, because Sellers rejected Buyers’ proposed settlement agreement dated
       August 9, 2018, the parties have no valid settlement agreement. That proposed settlement agreement, which
       was rejected, is not at issue here.
       4
          The statute of frauds provides in relevant part that a person may not bring an action regarding a contract
       for the sale of real property unless the contract is in writing and signed by the party against whom the action
       is taken. Ind. Code § 32-21-1-1(b)(4) (2019).

       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019                             Page 17 of 19
                                                     Cross appeal

[29]   Finally, Buyers cross appeal and ask that we award them appellate attorney’s

       fees pursuant to the attorney’s fee provision in the settlement agreement. In

       particular, the settlement agreement provides that Sellers “shall also issue a

       credit to [Buyers] for any outstanding attorneys’ fees incurred between the

       Effective Date and Closing.” Appellee’s App. Vol. 2 at 38-39. The settlement

       agreement also provides, generally, that if “any party is required to pursue legal

       action to enforce their [sic] rights under this Agreement, the prevailing party in

       such action shall be entitled to recover their [sic] attorneys’ fees and costs.” Id.

       at 41. We hold that Sellers shall pay Buyers’ appellate attorney’s fees, and we

       remand to the trial court with instructions to determine the amount of those

       fees.5


                                                      Conclusion

[30]   The trial court did not err when it excluded from the evidence the August 9

       email from Sellers’ attorney to Buyers’ attorney. Further, even if the exclusion

       of that evidence were error, it was harmless. The overwhelming and

       undisputed evidence shows that Sellers’ offer of the settlement agreement

       remained in effect until Buyers executed the settlement agreement on August

       30. Sellers tendered a survey to Buyers on August 16, “pursuant to the




       5
         Buyers also request that, in addition to appellate attorney’s fees, we award them “all attorney’s fees
       incurred from the date of the settlement agreement to and until closing.” Appellees’ Br. at 31. But the trial
       court’s order already awards Buyers all such fees other than appellate attorney’s fees, and that order was not
       challenged on appeal.

       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019                            Page 18 of 19
       settlement agreement,” which belied any notion that Sellers considered that the

       sale was off. The evidence supports the trial court’s finding that the settlement

       agreement is valid and enforceable. And Buyers are entitled to an award of

       appellate attorney’s fees from Sellers in an amount to be determined by the trial

       court on remand.


[31]   Affirmed and remanded with instructions.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-382 | September 11, 2019   Page 19 of 19
