      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                  Jun 23 2017, 9:21 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




      ATTORNEY FOR APPELLANT
      J. David Agnew
      Lorch Naville Ward, LLC
      New Albany, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Maria S. Sanchez,                                        June 23, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               13A01-1610-PL-2407
              v.                                               Appeal from the Crawford Circuit
                                                               Court
      Michael D. Sphire,                                       The Honorable K. Lynn Lopp,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               13C01-1508-PL-18



      Najam, Judge.


                                       Statement of the Case
[1]   Maria S. Sanchez appeals the trial court’s judgment, following a bench trial, in

      favor of Michael D. Sphire in his action to foreclose on a contract for the sale of


      Court of Appeals of Indiana | Memorandum Decision 13A01-1610-PL-2407 | June 23, 2017                Page 1 of 8
      real estate. On appeal, Sanchez raises four issues. However, we address only

      the following two dispositive issues:


              1. Whether the trial court erred when it failed to enforce the
                 parties’ oral settlement of Sphire’s foreclosure action.


              2. Whether the trial court erred when it failed to award Sanchez
                 her attorney’s fees.


[2]   We reverse in part and affirm in part.


                                 Facts and Procedural History
[3]   On May 27, 2010, Sphire entered into a Purchase Agreement with Sanchez for

      the sale of real estate situated in Crawford County, commonly known as 684

      East State Road 64, English, Indiana 47118, and Liquor License number

      RR1303400 (“the Property”). On June 2, Sphire and Sanchez entered into a

      contract for the sale of the Property. The contract between Sphire and Sanchez

      was never recorded.


[4]   On August 20, 2015, Sphire filed a complaint to foreclose on his contract with

      Sanchez for the sale of the Property. Sphire alleged that Sanchez had failed to

      make the required monthly payments and tax payments on the Property. He

      sought a judgment against Sanchez for the past due monthly payments, late

      fees, attorney’s fees, and foreclosure on the Property.


[5]   Sometime after the lawsuit was filed but before Sanchez’ answer to the

      complaint was due, Sanchez contacted Sphire by telephone and offered to pay a


      Court of Appeals of Indiana | Memorandum Decision 13A01-1610-PL-2407 | June 23, 2017   Page 2 of 8
      lump sum of $10,000 and monthly payments of $1,000 to settle the lawsuit.

      Sphire accepted that offer and Sanchez paid Sphire $10,000 in September of

      2015. Sphire subsequently sent to Sanchez a receipt for the $10,000 and a

      document purporting to “amend and substitute[]” the parties’ original contract

      for sale of the Property. Appellant’s Ex. at 26 (Plaintiff’s Ex. 3), and 43

      (Defendant’s Ex. D).1 Sanchez did not sign a written agreement to amend the

      original contract.


[6]   On October 16, 2015, Sphire moved for a default judgment against Sanchez in

      the foreclosure lawsuit. The trial court granted that motion on October 21. On

      November 6, Sanchez moved to set aside the default judgment on the grounds

      that the parties had already entered into a settlement of the lawsuit. The trial

      court held a hearing on Sanchez’ motion and, on August 3, 2016, the trial court

      granted the motion and set aside the default judgment.


[7]   The trial court held a hearing on the foreclosure action on August 16. Prior to

      the presentation of evidence, Sanchez orally requested written findings of fact

      and conclusions of law. In her proposed findings, Sanchez noted that the

      parties had a valid settlement agreement that the trial court should enforce



      1
        Plaintiff’s Exhibit 3 purports to be an amended agreement to sell the Property, while Defendant’s Exhibit D
      purports to be an amended agreement to lease the Property. Sphire offered conflicting testimony about
      which of the amended agreements he sent to Sanchez on September 12, 2015. However, neither party signed
      Plaintiff’s Exhibit 3, only Sphire signed Defendant’s Exhibit D, and there is no other evidence that Sanchez
      ever agreed to the terms of either document. See Ind. Bureau of Motor Vehicles v. Ash, Inc., 895 N.E.2d 359
      (Ind. Ct. App. 2008) (holding that, generally, the validity of a contract is not dependent upon the signature of
      the parties; however, some form of assent to the terms of the contract is necessary). In fact, Sanchez testified
      that she refused to sign either document because she did not agree that they memorialized the parties’ oral
      settlement agreement. Tr. at 56.

      Court of Appeals of Indiana | Memorandum Decision 13A01-1610-PL-2407 | June 23, 2017                Page 3 of 8
      against Sphire in resolution of the lawsuit. Sanchez’ proposed findings also

      noted that she was entitled to her attorney’s fees under the terms of the

      Indemnification section of the parties’ Purchase Agreement because she was the

      substantially prevailing party.


[8]   On October 3, 2016, the trial court issued its Findings of Fact and Conclusions

      of Law in which it ruled for Sphire on all of his claims.2 Those findings did not

      address the oral settlement of the lawsuit. This appeal ensued.


                                        Discussion and Decision
                                                Standard of Review

[9]   Sanchez appeals the trial court’s findings and conclusions granting Sphire’s

      claims for past-due payments and fees and for foreclosure on the Property.

      When a trial court’s judgment contains special findings and conclusions, we

      apply a two-tiered standard of review. Bester v. Lake Cnty. Ofc. of Family &

      Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

      evidence supports the findings and, second, we determine whether the findings

      support the judgment. Id. “Findings are clearly erroneous only when the

      record contains no facts to support them either directly or by inference.” Quillen

      v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). However, when the trial court enters

      findings sua sponte, the specific findings control only as to the issues they cover.




      2
        The trial court ordered the Sheriff of Crawford County to sell the Property and apply the proceeds first to
      the costs of this action and Sheriff’s fees, then to unpaid property taxes, and then to Sphire. Appellant’s App.
      at 9-10. The record does not disclose whether such a sale has already taken place.

      Court of Appeals of Indiana | Memorandum Decision 13A01-1610-PL-2407 | June 23, 2017                 Page 4 of 8
       See Humphries v. Ables, 789 N.E.2d 1025, 1029-30 (Ind. Ct. App. 2003). A

       general judgment standard applies to any issue upon which the trial court has

       not made a finding. Id. A general judgment may be affirmed upon any legal

       theory supported by the evidence. Id.


[10]   We also note that Sphire has not filed a brief in support of the trial court’s

       judgment. As such, we will not undertake the burden of developing an

       argument on his behalf. Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind.

       2014). Instead, we will reverse the trial court’s judgment if the appellant

       presents a case of prima facie error. Id. Prima facie error is error “at first sight,

       on first appearance, or on the face of it.” Id. (quotation marks omitted).


                                   Issue One: Oral Settlement Agreement

[11]   Sanchez has demonstrated prima facie error in the trial court’s failure to enforce

       the parties’ oral settlement of the lawsuit.3 It is established law that, in general,

       settlement agreements need not be in writing to be enforceable, Vernon v. Acton,

       732 N.E.2d 805, 809 (Ind. 2000), and Indiana “strongly favors settlement

       agreements,” Georgos v. Jackson, 790 N.E.2d 448, 453 (Ind. 2003). Settlement

       agreements are governed by the same general principles of contract law as any

       other agreement. Georgos, 790 N.E.2d at 453. And “[t]he law concerning



       3
          It was not reversible error that the trial court failed to make findings on the issue of the parties’ oral
       settlement agreement, as Sanchez asserts. Sanchez failed to request findings in writing before the presentation
       of the evidence, as required by Indiana Trial Rule 52(A). Therefore, we review the findings “as if they were
       issued sua sponte by the trial court.” Humphries, 789 N.E.2d at 1029-30. Thus, the trial court was not
       required to make special findings. Id. And when special findings are made but not required under Indiana
       Trial Rule 52, the court may make special findings of fact upon less than all the issues. Ind. Trial Rule 52(D).

       Court of Appeals of Indiana | Memorandum Decision 13A01-1610-PL-2407 | June 23, 2017                Page 5 of 8
       contracts is well settled in Indiana. An offer, acceptance, plus consideration

       make up the basis for a contract.” Zimmerman v. McColley, 926 N.E.2d 71, 76

       (Ind. Ct. App. 2005) (citations omitted). Moreover, “[i]t is established law that

       if a party agrees to settle a pending action, but then refuses to consummate his

       settlement agreement, the opposing party may obtain a judgment enforcing the

       agreement.” Id.


[12]   Sanchez has made a prima facie showing that the evidence established the

       parties’ oral agreement to settle Sphire’s foreclosure lawsuit. At trial, both

       Sanchez and Sphire testified that, after the lawsuit was filed, Sanchez contacted

       Sphire and offered to pay Sphire a lump sum of $10,000 and subsequent

       monthly payments of $1,000 in settlement of the foreclosure action.4 Tr. at 12-

       14, 17, 19, 32, 56. Sphire admitted at trial that he accepted that offer, both

       orally and by accepting Sanchez’ cashier’s check for $10,000. Tr. at 13-14. In

       fact, Sphire admitted that he gave Sanchez a written receipt for the $10,000.

       Appellant’s App. at 42 (Defendant’s Ex. C); Tr. at 13-14. And Sphire admitted

       that he and Sanchez “came to an agreement so [he] could get this thing settled.”

       Tr. at 19. Thus, Sanchez has made a prima facie showing that the parties had




       4
         Sanchez has also made a prima facie showing that the parties’ oral settlement agreement did not include an
       agreement that Sanchez pay Sphire’s attorney’s fees. Sanchez testified at trial that the parties had no such
       agreement, and Sphire testified only that his “assumption” was that she would pay attorney’s fees pursuant to
       “the contract.” Tr. at 20. Thus, the evidence shows there was no meeting of the minds as to the issue of
       attorney’s fees. See, e.g., Zimmerman, 826 N.E.2d at 77 (noting the intention of the parties—or the “meeting
       of the minds”—is a factual matter to be determined from all the circumstances). Moreover, as discussed
       below, Sphire was not the substantially prevailing party in this action such that he would have been entitled
       to attorney’s fees under the Indemnification section of the parties’ Purchase Agreement.

       Court of Appeals of Indiana | Memorandum Decision 13A01-1610-PL-2407 | June 23, 2017             Page 6 of 8
       an offer, acceptance, and consideration making up an oral agreement in

       settlement of Sphire’s foreclosure lawsuit against Sanchez, and that the trial

       court erred when it failed to enforce that settlement agreement. Zimmerman,

       926 N.E.2d at 76. We reverse the trial court’s judgment for Sphire.


                                    Issue Two: Sanchez’ Attorney’s Fees

[13]   Sanchez also contends that she is entitled to her attorney’s fees pursuant to the

       terms of the parties’ Purchase Agreement,5 which contained the following

       indemnification clause:

                If any legal action is necessary either to enforce the terms of this
                Agreement or due to the condition of the Property, the
                substantially prevailing party shall be entitled to recover all costs,
                including, but not limited to, reasonable attorney fees.


       Appellant’s App. at 76; Appellant’s Ex. at 76 (Defendant’s Ex. K). The

       Purchase Agreement does not define “substantially prevailing party.” Id.


[14]   In the absence of a consent judgment after the settlement or a contractual

       definition of prevailing party and a trial on the merits, Sanchez is not the

       “prevailing party” for purposes of an attorney’s fee award. See, e.g., Delgado v.

       Boyles, 922 N.E.2d 1267, 1272 (Ind. Ct. App. 2010) (citing Reuille v. E.E.




       5
          On appeal, Sanchez alleges that she is also entitled to her attorney’s fees on the grounds that Sphire acted
       in bad faith when he continued to prosecute his case following the parties’ oral settlement agreement and his
       acceptance of the $10,000 payment from her. However, Sanchez has waived that argument as she failed to
       make it to the trial court. See, e.g., Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009),
       trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 13A01-1610-PL-2407 | June 23, 2017                 Page 7 of 8
       Brandenberger Construction, Inc., 888 N.E.2d 770 (Ind. 2008), and Daffron v.

       Snyder, 854 N.E.2d 52, 53 (Ind.Ct.App.2006)) (“[L]itigation which is resolved

       by mediation or private settlement cannot result in a winner or loser.”), trans.

       denied. Because the parties’ oral settlement is not a judgment but only a private

       settlement, it cannot provide the basis of “prevailing party” status. Id. (quoting

       Reuille, 888 N.E.2d at 771) (noting that “a contract [which lacks a definition of

       ‘prevailing party’] produces fees only when one party or the other wins a

       judgment”). The trial court did not err in refusing to award Sanchez her

       attorney’s fees.


                                                   Conclusion

[15]   We reverse the judgment for Sphire and affirm the denial of Sanchez’ attorney

       fees.


[16]   Reversed in part, affirmed in part.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 13A01-1610-PL-2407 | June 23, 2017   Page 8 of 8
