      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                May 08 2019, 8:35 am

      court except for the purpose of establishing                                  CLERK
                                                                                Indiana Supreme Court
      the defense of res judicata, collateral                                      Court of Appeals
                                                                                     and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      John E. Kolas                                            Jeffrey A. Boggess
      Kolas Law Firm, LLC                                      Jeffrey A. Boggess, P.C.
      Indianapolis, Indiana                                    Greencastle, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      S&C Financial Group, LLC,                                May 8, 2019
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               18A-PL-1787
              v.                                               Appeal from the
                                                               Putnam Superior Court
      Darren Gaston,                                           The Honorable
      Appellee-Defendant                                       Charles D. Bridges, Judge
                                                               Trial Court Cause No.
                                                               67D01-1803-PL-11



      Vaidik, Chief Judge.



                                          Case Summary
[1]   S&C Financial Group, LLC, entered into an oral agreement with Darren

      Gaston to sell him a house. When S&C filed an eviction action against Gaston
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1787 | May 8, 2019                       Page 1 of 10
      in Putnam County small-claims court, the parties entered into a settlement

      agreement, and S&C dismissed the case. S&C later sued Gaston for possession

      of the real estate in Putnam Superior Court. The trial court found that Gaston,

      not S&C, was the rightful owner and ordered S&C to give Gaston a deed to the

      property and pay $1,275 of his attorney’s fees. S&C now appeals. We affirm as

      to all issues except the trial court’s award of attorney’s fees to Gaston.



                            Facts and Procedural History
[2]   S&C is an Indianapolis company that acquires tax-sale properties, fixes them,

      and then rents or sells them. Tr. p. 6. Scott Wynkoop is the owner of S&C.

      Gaston worked as a subcontractor for S&C. S&C purchased a “rehab” house

      on Apple Street in Greencastle at a tax sale in October 2014. Id. at 6, 31.

      Thereafter, S&C and Gaston entered into an oral agreement whereby S&C

      would sell the Apple Street property to Gaston for $13,000. In October 2015,

      Gaston paid S&C $2,000 toward the purchase price and moved in and began

      making extensive repairs to the house, including adding electrical and

      plumbing. Gaston made additional payments toward the purchase price in the

      form of S&C deducting varying amounts from his paychecks. See Ex. E

      (deductions in August and September 2016).


[3]   On June 19, 2017, Wynkoop texted Gaston that his last payment was April 17

      for $250, which “leaves a balance of $2305.” Ex. B. Wynkoop added that

      “[w]hen it’s paid off, I will hand you a deed that you can go on record at

      county. It was never supposed to take this long to pay it off. I hadn’t even

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1787 | May 8, 2019   Page 2 of 10
      charged any interest.” Id. On June 26, Gaston paid S&C $305, leaving a

      balance of $2,000. Tr. p. 43.


[4]   In July, Gaston developed an infection in his brain, was hospitalized, and

      underwent brain surgery. He could not work for a year and thus S&C was no

      longer able to deduct money from his paychecks.


[5]   About a month after Gaston’s brain surgery, S&C filed a Notice of Claim for

      Eviction against Gaston in Putnam County small-claims court. See 67D01-

      1708-SC-388. S&C alleged as follows: “No lease in place. Verbal agreement.

      Tenant is no longer making payments.” Appellant’s App. Vol. II p. 13. An

      eviction hearing was set for September 21. When Wynkoop and Gaston

      appeared at court for the hearing, they reached an oral agreement off the record

      to settle the case, under which Gaston would pay S&C $3,855 and S&C would

      give Gaston a deed to the Apple Street property. The court reporter was present

      during the parties’ negotiations and told them that if they reached an

      agreement, a dismissal would have to be filed. Wynkoop then signed an order-

      of-dismissal form indicating that the “parties have reached an agreement.” The

      judge signed the order that same day. See Order of Dismissal, 67D01-1708-SC-

      388 (Sept. 21, 2017).


[6]   As soon as he left the courthouse in Putnam County, Gaston went to the bank

      to get a $3,855 cashier’s check. He then drove to S&C’s office in Indianapolis,

      gave the check to an employee, and got a “paid in full” receipt. Ex. A.

      Wynkoop arrived at S&C’s office right after Gaston left and was told by the


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1787 | May 8, 2019   Page 3 of 10
      employee that Gaston had made the payment but that he was still planning on

      pursuing a mechanic’s lien that he had recorded on an unrelated property.

      Wynkoop immediately texted Gaston as follows: “Come back and pick up your

      check. I am not going to accept the payment until everything is settled . . . .

      I’m not going to have you threaten a lawsuit against me.” Ex. B. Gaston

      texted back “Ur paid,” to which Wynkoop responded: “I am not going to

      deposit the check and I am not going to prepare the deed until that is resolved.

      I’m not going to be threatened.” Id. S&C then returned the cashier’s check to

      Gaston via certified mail.


[7]   In January 2018, S&C filed a new Notice of Claim for Eviction against Gaston

      in Putnam County small-claims court. See 67D01-1801-SC-1. S&C alleged as

      follows: “No lease in place. Verbal agreement. Occupant has made no

      payments since June 2017.” Appellant’s App. Vol. II p. 14. Gaston filed a

      motion to dismiss alleging that he was not leasing the Apple Street property but

      rather purchasing it on contract and that the “matter should be filed on the civil

      plenary docket.” Id. at 16. The next day, the small-claims court dismissed the

      case. S&C filed a motion to reconsider, which the court denied.


[8]   In March, S&C filed a Complaint for Possession of Real Estate and for

      Damages against Gaston in Putnam Superior Court. See 67D01-1803-PL-11.

      In the complaint, S&C acknowledged that Wynkoop and Gaston had reached

      an agreement at the courthouse whereby Gaston would pay S&C $3,855 and

      S&C would give him a deed to the Apple Street property. Appellant’s App.

      Vol. II p. 32. However, S&C claimed that the agreement also required Gaston

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1787 | May 8, 2019   Page 4 of 10
       to release the mechanic’s lien on the unrelated property, which he did not do

       and therefore breached the agreement. Accordingly, S&C asked for immediate

       possession of the real estate and damages. At S&C’s request, the court set a

       hearing for possession only.


[9]    Wynkoop, the court reporter, and Gaston testified at the hearing. First,

       Wynkoop testified that the oral agreement he made with Gaston for the sale of

       the Apple Street property “was that if he paid me $13,000 in 12 months, then I

       would convey the property to him.” Tr. p. 18. Wynkoop also testified that the

       agreement he made with Gaston at the courthouse to settle the case was that if

       Gaston paid $3,855 to S&C and released the mechanic’s lien on the unrelated

       property, then S&C would give him a deed to the Apple Street property. Id. at

       15. When Wynkoop was asked on cross examination if he and Gaston had

       discussed the mechanic’s lien during their negotiations at the courthouse,

       Wynkoop responded, “I can’t say for sure if it was.” Id.


[10]   Next, the court reporter testified that the parties reached an agreement that

       Gaston had to pay $3,855 to S&C and that S&C dismissed the case that same

       day. She also testified that the parties did not discuss the mechanic’s lien

       during their negotiations. Id. at 26-27.


[11]   Finally, Gaston testified that the oral agreement he made with Wynkoop for the

       sale of the Apple Street property was that he had to pay S&C $13,000 and that

       there was no hard-and-fast deadline for when the $13,000 had to be paid.

       Gaston also testified that the settlement agreement he reached with Wynkoop


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1787 | May 8, 2019   Page 5 of 10
       at the courthouse was that he had to pay $3,855 in order to get a deed to the

       Apple Street property. Gaston said the mechanic’s lien was not part of their

       agreement because that was “a separate issue.” Id. at 35.


[12]   Thereafter, the trial court issued an order finding that the parties entered into a

       settlement agreement in September 2017, that Gaston fulfilled his duties

       pursuant to the settlement agreement when he presented the cashier’s check for

       $3,855, and that S&C breached the settlement agreement when it refused to

       accept the payment. The court therefore ordered Gaston to “pay the $3,855

       agreed upon by the parties” and “retain possession of the property” and ordered

       S&C to “execute a quit claim deed to the property within ten (10) days of

       receiving Gaston’s payment.” Appellant’s App. Vol. II p. 55. The court also

       ordered S&C to pay $1,275 of Gaston’s attorney’s fees.


[13]   S&C now appeals.



                                  Discussion and Decision
[14]   S&C appeals the trial court’s order on several grounds. In ruling in favor of

       Gaston, the trial court made several findings. Pursuant to Indiana Trial Rule

       52(A), the reviewing court will 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. Steele-Giri v. Steele, 51

       N.E.3d 119, 123 (Ind. 2016).




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1787 | May 8, 2019   Page 6 of 10
[15]   First, S&C contends that the trial court “erred in issuing an order on all matters,

       as the scheduled hearing was limited to the issue of possession only, with any

       subsequent hearing to be scheduled at the request of a party.” Appellant’s Br.

       p. 13. Specifically, S&C argues that the court should have held a “bifurcated

       proceeding.” Id. at 23. That is, if the court found that S&C was not entitled to

       immediate possession after the first hearing, then “the proper course of conduct

       would have been for the Court to conduct a hearing on remaining issues,

       including the possibility of S&C obtaining possession, at a later date.” Id. at 24.

       However, any potential “remaining issues” were necessarily resolved when the

       trial court determined that Gaston was entitled to possession and ownership of

       the Apple Street property. As indicated below, the court enforced the parties’

       settlement agreement, which provided for Gaston to receive a deed to the Apple

       Street property upon the payment of $3,855 to S&C. The trial court did not err

       in disposing of the entire case after the first hearing.


[16]   Second, S&C contends that the trial court erred in concluding that the parties

       entered into an enforceable settlement agreement in September 2017 because

       “[t]he facts . . . do not support a meeting of the minds.” Id. at 20. A settlement

       is an agreement to terminate or forestall all or part of a lawsuit. Harding v. State,

       603 N.E.2d 176, 179 (Ind. Ct. App. 1992), trans. denied; see also Vance v. Lozano,

       981 N.E.2d 554, 558 (Ind. Ct. App. 2012) (“A ‘compromise’ or ‘settlement’ is a

       contract between two or more people to amicably settle or adjust their

       differences on such terms as they can agree.” (citing 15B Am. Jur.

       2d Compromise & Settlement § 1 (2011)). Indiana strongly favors settlement


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1787 | May 8, 2019   Page 7 of 10
       agreements. Georgos v. Jackson, 790 N.E.2d 448, 453 (Ind. 2003), reh’g denied.

       Settlement agreements are governed by the same principles of contract law as

       other agreements and require an offer, acceptance, consideration, and meeting

       of the minds. Jonas v. State Farm Life Ins. Co., 52 N.E.3d 861, 868 (Ind. Ct. App.

       2016), trans. denied. Generally, a settlement agreement is not required to be in

       writing.1 Id. The breach of a settlement agreement by one of the parties is

       actionable, and a trial court has the power to order specific performance.

       Harding, 603 N.E.2d at 179.


[17]   Here, it is undisputed that the parties reached an oral agreement at the

       courthouse to settle the case and that S&C dismissed the case that same day.

       That is, the parties agreed that Gaston would pay S&C $3,855 and S&C would

       give Gaston a deed to the Apple Street property. However, the parties dispute

       whether the agreement contained an additional term. Wynkoop testified that

       the agreement also required Gaston to release the mechanic’s lien on the

       unrelated property. Tr. p. 15; see also Appellant’s App. Vol. II p. 32 (S&C’s

       complaint conceding that “an agreement had been made to resolve issues for

       the payment of $3,855.00” but “only with the understanding [Gaston] would

       also release a Mechanic’s Lien”). Gaston and the court reporter, however,

       testified that the mechanic’s lien was not part of the parties’ agreement. The




       1
         S&C notes that when a contract is required by law to be in writing, it can only be modified by a written
       instrument. See Huber v. Hamilton, 33 N.E.3d 1116 (Ind. Ct. App. 2015), reh’g denied. Here, however, the
       parties did not modify their original oral agreement regarding the sale of the Apple Street property. Rather,
       they entered into an agreement to settle the pending small-claims case. S&C does not cite any authority for
       the proposition that settlement agreements regarding the sale of real estate must be in writing.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1787 | May 8, 2019                       Page 8 of 10
       trial court heard both versions and believed Gaston’s and the court reporter’s

       testimony that the mechanic’s lien was not part of the agreement. See 15B Am.

       Jur. 2d Compromise & Settlement § 7 (Feb. 2019 update) (“A party’s mental

       reservations and unexpressed intentions will not supersede outward expressions

       of assent or override objective and unequivocal manifestations of assent to

       terms of the settlement agreement.”). This evidence supports a conclusion that

       there was a meeting of the minds.


[18]   Third, S&C contends that the parties’ oral agreement for the sale of the Apple

       Street property is not enforceable because it was not in writing, as required by

       the Statute of Frauds. However, S&C can no longer challenge this agreement

       because it entered into a subsequent agreement with Gaston to settle the parties’

       dispute regarding the sale of the Apple Street property. A settlement agreement

       supersedes and extinguishes all preexisting claims the parties intended to settle

       and is effective except as to those claims specifically reserved. 15B Am. Jur. 2d

       Compromise & Settlement, § 24 (Feb. 2019 update). Accordingly, if S&C believed

       that the parties’ oral agreement for the sale of the Apple Street property was not

       enforceable because it was not in writing, then it shouldn’t have entered into the

       settlement agreement with Gaston. Having done so, it cannot now go back and

       challenge the parties’ original agreement for the sale of the Apple Street

       property.


[19]   Finally, S&C contends that the trial court erred in ordering it to pay $1,275 in

       attorney’s fees because Gaston “made no claim for attorney fees whatsoever,”

       either in his pleadings or at the hearing. Appellant’s Br. p. 26. Indiana follows

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1787 | May 8, 2019   Page 9 of 10
       the American Rule, which requires each party to a lawsuit to pay its own

       attorney’s fees absent an agreement between the parties, statutory authority, or

       an equitable exception. Loparex, LLC v. MPI Release Techs., LLC, 964 N.E.2d

       806, 815-16 (Ind. 2012). Gaston argues that we should affirm the trial court’s

       award of attorney’s fees because “S&C litigated in bad faith.” Appellee’s Br. p.

       17 (citing Ind. Code § 34-52-1-1). However, Gaston did not make such a “bad

       faith” argument below, nor did he request an award of attorney’s fees, nor did

       he present any evidence as to the amount of attorney’s fees he had incurred.

       We therefore reverse the trial court’s award of attorney’s fees to Gaston.


[20]   Affirmed in part, reversed in part.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1787 | May 8, 2019   Page 10 of 10
