MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  Mar 06 2020, 9:11 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 APPELLEES
John J. Schwarz, II                                      John B. Powell
Royal Center, Indiana                                    Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert W. Bohnke,                                        March 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-PL-1849
        v.                                               Appeal from the Adams Circuit
                                                         Court
Susan J. Bender, Sandra B.                               The Honorable Chad E. Kukelhan,
Valentour, and Daniel Buchan,                            Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         01C01-1807-PL-11



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020                      Page 1 of 17
                                                 Case Summary
[1]   Robert Bohnke (“Robert”) brings this interlocutory appeal from the trial court’s

      entry of partial summary judgment in favor of Susan Bender (“Susan”), Sandra

      Valentour (“Sandra”), and Daniel Buchan (“Buchan”), (collectively, the

      “Appellees”). We affirm.


                                                          Issues
[2]   Robert raises seven issues on appeal, one of which we find to be dispositive:

      whether the trial court erred in entering partial summary judgment in favor of

      the Appellees. 1


                                                          Facts
[3]   Jennie Ruth Bohnke (“Ruth”) owned a life estate in an approximately fifty-six

      acre farm (the “Farm”) in Adams County. Ruth’s step-children—Robert,

      Edward Bohnke (“Edward”), Susan, and Sandra—are siblings, who jointly

      owned the remainder interests in the Farm as tenants in common. At some

      time before the events below, Edward sold his remainder interest to Robert.




      1
        Robert raises the following issues on appeal: (1) alleged error from the trial court’s grant of the Appellees’
      motion to strike alleged hearsay statements from Robert’s designated materials; (2) alleged error from the
      entry of partial summary judgment in the Appellees’ favor; (3)-(5) alleged error from the trial court’s
      determinations regarding the Statute of Frauds, promissory estoppel, and waiver; (6) whether the trial court
      erred when it did not rule upon Robert’s motion to strike the Appellees’ tendered findings of fact and
      conclusions of law; and (7) whether the trial court applied an improper legal standard. We do not reach the
      merits of issues (1), (2), (6), and (7) because issues (3), (4), and (5), which we have consolidated and restated,
      are dispositive. Error, if any, from the issues we have declined to address is harmless.



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020                         Page 2 of 17
[4]   On November 15, 2013, Robert, Sandra, and Susan executed separate purchase

      agreements (the “contracts”) wherein Robert sought to purchase Sandra’s and

      Susan’s respective remainder interests for $84,000.00 each. The contracts

      provided, in pertinent part, as follows:


              11. CLOSING AND CLOSING COSTS: As time is of the
              essence of this Agreement, it is hereby agreed that the purchase
              price shall be paid in full, the deed delivered, and all conditions
              herein complied with and this negotiation closed on or before
              December 31, 2013, provided however, that any time which may
              be consumed in correcting defects in title as heretofore provided
              for, or any interference by action or proceedings of a Court of
              competent jurisdiction, shall work as an extension of time in
              which this negotiation may be closed. [Robert] shall be
              responsible for [Susan’s and Sandra’s] title insurance, deed,
              disclosure, contract, lenders [sic] policy of title insurance and all
              other costs associated with [Robert’s] loan.


      Appellant’s App. Vol. II p. 28.


[5]   Robert was unable to timely secure financing, and the transactions

      contemplated by the contracts were not completed before December 31, 2013.

      A dispute exists between the parties regarding whether, as Robert maintains,

      Susan and Sandra agreed to give Robert additional time to secure financing,

      subject either to Ruth’s relinquishment of her life estate or Ruth’s passing.

      Robert contends that the parties agreed that the contracts would “stay in

      effect.” Id. at 21.


[6]   Ruth died on December 27, 2017. Thereafter, Robert, Susan, and Sandra

      owned the Farm in fee simple. Subsequently, on a date not apparent from the

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020   Page 3 of 17
      record, Susan and Sandra permitted Appellee Buchan to farm their jointly-

      owned acres of the Farm. Sandra and Susan subsequently sold their remainder

      interests to Appellee Buchan. 2 The effect of Buchan’s purchase was that

      Buchan and Robert each owned fifty percent of the Farm.


[7]   On July 25, 2018, Susan and Sandra filed a complaint to partition real estate

      regarding the Farm to effectuate the purchase agreement with Buchan. Robert

      filed his answer on August 17, 2018, which he subsequently amended, 3 to add a

      four-count counterclaim that included, most relevantly, Count II, alleging

      breach of the contracts, and Count III, alleging promissory estoppel

      (“counterclaim Counts II and III”). 4 Count II of Robert’s counterclaim,

      alleging “Breach of Purchase Agreement[,]” provides:


                 22. [ ] Robert [ ] entered into a purchase agreement with the
                 [Appellees] so as to purchase the [Appellees’] interest in the real
                 estate central to this dispute.


                 23. [ ] Robert [ ] was unable to complete the purchase and the
                 [Appellees] agreed that he could do so under the agreement at a
                 future time when either he was able to do so or upon the passing
                 of Ruth Bohnke.




      2
          It is unclear from the record exactly when Susan and Sandra sold their interests to Buchan.
      3
          Robert amended his answer on October 4, 2018.
      4
       Count I of Robert’s counterclaim alleged “Breach of Lease Agreement[,]” and Count IV alleged “Unjust
      Enrichment[.]” Appellant’s App. Vol. II p. 22.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020                     Page 4 of 17
        24. That upon the passing of Ruth Bohnke, the [Appellees]
        refused to honor the prior purchase agreements.


        25. That the [Appellees] entered into an agreement to sell their
        interest in the real estate to [Buchan] which was directly at odds
        with their contractual obligation to sell the real estate to [ ]
        Robert [ ].


        26. [ ] Robert [ ] has been damaged by the breach of the purchase
        agreements by the [Appellees].


Id. at 21. Count III of Robert’s counterclaim provides:


        28. [ ] Robert [ ] maintains that a promise was made by [the
        Appellees] that the purchase agreements signed by [the
        Appellees] would stay in effect until a later date whe[n] [Robert]
        was in a position to pay the purchase price to [Appellees] or after
        the life estate of Ruth Bohnke was no longer in place.


        29. It was foreseeable and reasonable that [ ] Robert [ ] would
        rely on the promise.


        30. [ ] Robert [ ] had actual and reasonable reliance on the
        promise.


        31. The reliance was detrimental to [ ] Robert [ ] in that [ ] Robert
        [ ] is now suffering harm.


        32. Injustice can only be prevented by enforcing the promise.


        33. That [ ] Robert [ ] has, to [his] detriment, relied on the
        promises made by the [Appellees] and [Robert] has suffered
        damages from such.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020   Page 5 of 17
      Id. at 21-22.


[8]   Buchan joined the action as a plaintiff on or about January 4, 2019. On

      February 7, 2019, the Appellees filed a motion for partial summary judgment

      regarding counterclaim Counts II and III. The Appellees argued, in part, that:

      (1) “[t]he contracts for the sale of real estate expired by their own terms . . . and

      no written modification extending the time to close the transaction exists”; (2)

      Robert’s “designated materials establish[ ] no [ ] unjust and unconscionable

      injury and loss”; and (3):


              [e]ven assuming that [Robert] has [ ] properly plead[ed] the
              doctrine of waiver, it is not available to him as a defense. Waiver
              is [ ] “an intentional abandonment or relinquishment of a known
              right.” [ ] [Robert] presented no evidence that [Susan or Sandra]
              knew of a “right”, let alone “an intentional abandonment or
              relinquishment” of such a right.


      Appellant’s App. Vol. III pp. 24-25. The Appellees also designated Susan’s

      affidavit wherein she averred:


              6. Before December 31, 2013, Robert [ ] called me and told me
              the transaction was “off”.


              7. At no time was there any agreement, promise or
              understanding, written or oral, to extend the Contract to
              Purchase Real Estate until after [ ] Ruth [ ] died.


      Id. at 9.




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020   Page 6 of 17
[9]    On March 25, 2019, Robert filed his response to the Appellees’ motion for

       partial summary judgment, his brief in support, and his designated materials,

       which included his affidavit and a letter from his counsel, John J. Schwartz, II,

       to Jerry Sitzlar, who held Ruth’s power of attorney (“Schwartz Letter”). On

       May 10, 2019, the Appellees filed their reply in support of the motion for partial

       summary judgment; the Appellees also moved to strike Robert’s Affidavit and

       the Schwartz Letter for containing inadmissible hearsay.


[10]   On May 13, 2019, the trial court conducted a hearing on the pending motions

       and ordered the parties to tender proposed findings of fact and conclusions of

       law. On July 8, 2019, the trial court ordered stricken: (1) various hearsay

       statements from Robert’s Affidavit; and (2) the entire Schwartz letter. The trial

       court also entered partial summary judgment in the Appellees’ favor as to

       Counts II and III. Robert now brings this interlocutory appeal, pursuant to

       Indiana Appellate Rule 14(A)(4). 5


                                                     Analysis
[11]   Robert appeals from the trial court’s entry of partial summary judgment in the

       Appellees’ favor. We review a grant of partial summary judgment in the same

       manner as does the trial court. Ballard v. Lewis, 8 N.E.3d 190, 193 (Ind. 2014).

       The moving party bears the initial burden of making a prima facie showing that




       5
         Although we question whether this appeal is properly brought pursuant to Indiana Appellate Rule 14(A)(4),
       the Appellees do not raise such an argument. We proceed to address the merits of the claims.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020                  Page 7 of 17
       there are no genuine issues of material fact and that the moving party is entitled

       to judgment as a matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind.

       2013). Summary judgment is improper if the moving party fails to carry its

       burden; but if the moving party succeeds, the non-moving party must then

       come forward with evidence that establishes 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.


[12]   “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. Where a challenge to the trial court’s

       summary judgment ruling presents only legal issues or a question of statutory

       interpretation, it is reviewed de novo. Horejs v. Milford, 117 N.E.3d 559, 562

       (Ind. 2019).


[13]   In granting partial summary judgment for the Appellees, the trial court found:


               35. The Contract[s] in question state[ ] “time is of the essence”
               and the transaction[s] w[ere] to be “closed on or before
               December 31, 2013”. [The transactions were] not closed by that
               deadline nor extended by the two specified exceptions.


               36. Further, there was no promise, contract, or agreement or
               memorandum or note describing the promise, contract or
               agreement . . . in writing and signed by the party against whom


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020   Page 8 of 17
               the action is brought . . . . extending this deadline as required by
               Indiana Code § 32-21-1-1.


               37. Robert has not presented sufficient facts to establish all the
               required elements of the doctrine of promissory estoppel or
               waiver and therefore the [Appellees] are entitled to summary
               judgement [sic] on Counts II and III of [Robert’s] Counterclaim.


       Appellant’s App. Vol. II pp. 16-17.


                                             I.      Statute of Frauds

[14]   Robert argues that the trial court erred in finding that the Statute of Frauds

       defeated Count II of Robert’s counterclaim. The Statute of Frauds requires

       land contracts to be in writing. Huber v. Hamilton, 33 N.E.3d 1116, 1117 (Ind.

       Ct. App. 2015). As we have stated:


               The Statute of Frauds provides, in relevant part:


                        (b) A person may not bring any of the following actions
                        unless the promise, contract, or agreement on which the
                        action is based, or a memorandum or note describing the
                        promise, contract, or agreement on which the action is
                        based, is in writing and signed by the party against whom
                        the action is brought or by the party’s authorized agent:


                                                    *****


                                (4) An action involving any contract for the sale of
                                land.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020   Page 9 of 17
               Ind. Code § 32-21-1-1. The law is settled that “any contract
               which seeks to convey an interest in land is required to be in
               writing.” That is, Indiana courts have long applied the principle
               that an agreement to convey land is subject to the Statute of
               Frauds’ writing requirement. Id.; see also Johnson v. Sprague, 614
               N.E.2d 585, 588 (Ind. Ct. App. 1993) (holding that “an
               enforceable contract for the sale of land must be evidenced by
               some writing: (1) which has been signed by the party against
               whom the contract is to be enforced or his authorized agent; (2)
               which describes with reasonable certainty each party and the
               land; and, (3) which states with reasonable certainty the terms
               and conditions of the promises and by whom and to whom the
               promises were made.”). Furthermore, where a contract is required by
               law to be in writing, it can only be modified by a written instrument.


       Huber, 33 N.E.3d at 1122-23 (some citations omitted).


[15]   Requiring a writing for a transaction that seeks to convey real estate “is

       consistent with the underlying purposes of the Statute of Frauds[,] namely: (1)

       to preclude fraudulent claims that would likely arise when the word of one

       person is pitted against the word of another[;] and (2) to remove the temptation

       of perjury by preventing the rights of litigants from resting wholly on the

       precarious foundation of memory.” Id. at 1123.


[16]   In Huber, the parties executed a written land contract that required monthly

       payments, including a balloon payment at the end of the contract term. The

       buyer could not make the balloon payment at the end of the term and asked the

       seller to extend the payment deadline. The parties, subsequently, reached an

       oral agreement wherein they extended the payment deadline; however, a

       dispute arose between the parties regarding the terms of the extension. The trial

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020   Page 10 of 17
       court found that the buyer breached the land contract when the buyer failed to

       make the balloon payment when it was originally due.


[17]   On appeal, we affirmed and held that the Statute of Frauds unambiguously

       “applie[d] to the parties’ oral agreement to modify the written land contract

       and, therefore, the oral agreement [wa]s unenforceable because it was not

       reduced to writing.” Id. at 1117-18. Also, we held:


               . . . neither party has met its heavy burden of removing the oral
               agreement from the Statute of Frauds based on the equitable
               doctrine of promissory estoppel. Finally, because the oral
               agreement is unenforceable, we agree with the trial court that the
               buyer breached the written land contract by failing to make the
               balloon payment when it was originally due.


       Id. at 1118.


[18]   Here, it is undisputed that the contracts were fully executed and unambiguous.

       Robert, Sandra, and Susan manifested their intentions that Robert would pay

       $84,000.00 to Sandra and Susan, respectively, for their remainder interests in

       the Farm; on or before December 31, 2013, the $84,000.00 purchase price was

       required to be “paid in full, the deed delivered, [ ] all conditions [in the

       contracts] complied with[,] and th[e] negotiation closed on or before December

       31, 2013 . . . .” See Appellant’s App. Vol. II pp. 28, 34. The contracts explicitly

       contemplated two exceptions that allowed additional time to: (1) “correct[ ]




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020   Page 11 of 17
       defects in title”; or (2) to address “any interference by action or proceedings of a

       Court of competent jurisdiction.” Id. Neither exception applies here. 6


[19]   Robert failed to timely obtain financing and tender payments to Sandra and

       Susan before December 31, 2013, and thereby, breached the contracts. See

       Black’s Law Dictionary 7th ed. 182 (1999) (defining “breach of contract” as a

       “[v]iolation of a contractual obligation . . . by failing to perform one’s own

       promise”). Most significantly, Robert’s failure to memorialize, in a writing, the

       terms of the alleged modification rendered the alleged modification

       unenforceable pursuant to the Statute of Frauds.


[20]   Our analysis does not end here. As the Huber panel held, even when oral

       agreements fall within the Statute of Frauds, they may still be enforced under

       the doctrine of promissory estoppel. 33 N.E.3d at 1123. Thus, we proceed to

       address Robert’s arguments regarding the doctrine of promissory estoppel.


                                              II.      Promissory Estoppel

[21]   Robert argues that the trial court erred in failing to find that the doctrine of

       promissory estoppel removed the alleged modification of the contracts from

       application of the Statute of Frauds. Robert argues in his brief:


                First, the [Appellees] told [Robert] that he could complete the
                purchase[s] at a later date. The [Appellees] knew, or should have
                known, that [Robert] greatly wanted to purchase the family farm,



       6
        The plain language of the contracts does not evince any intent by the parties to allow for a third exception
       extending Robert’s time to perform his contractual obligations if Robert failed to secure financing.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020                    Page 12 of 17
               and thus [Robert] would rely on the promise of the Plaintiffs.
               [Robert] then relied on the promise made by the [Appellees].
               The promise was of a definite and substantial nature in that
               [Robert] would be able to purchase the [Appellees]’ portion of the
               Bohnke Family Farm at a later date. And, injustice can be
               avoided only by enforcement of the promise.


       Robert’s Br. pp. 29-30 (citations omitted).


[22]   In granting partial summary judgment for the Appellees, the trial court found,

       in part: “Robert’s designated materials do not . . . establish [ ] an ‘unjust and

       unconscionable injury and loss[.]’” Appellant’s App. Vol. II p. 16. This is the

       crux of the issue before us.


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

       nonetheless be enforced under the equitable doctrine of promissory estoppel.

       Hrezo v. City of Lawrenceburg, 934 N.E.2d 1221, 1230 (Ind. Ct. App. 2010).


               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.


       Hrezo v. City of Lawrenceburg, 934 N.E.2d at 1231.


[24]   We have previously stated that the fifth element creates a high hurdle for the

       party seeking to establish promissory estoppel. Spring Hill Developers, Inc. v.

       Arthur, 879 N.E.2d 1095, 1101 (Ind. Ct. App. 2008); see Huber, 33 N.E.3d at


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020   Page 13 of 17
       1124 (“In 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 that the agreement was intended to confer, but the infliction of an unjust

       and unconscionable injury and loss.”). With respect to the fifth element, our

       Supreme Court has explained:


                         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.


       Spring Hill Developers, Inc., 879 N.E.2d at 1101-1102 (citations omitted),

       emphasis added.


[25]   In Classic Cheesecake Company, Inc. v. JPMorgan Chase Bank, N.A., 546 F.3d 839

       (7th Cir. 2008), the Seventh Circuit engaged in an instructive analysis of the

       meaning of “unjust and unconscionable injury and loss” within in the context

       of Indiana’s jurisprudence. 7 Judge Posner reasoned that “the whole weight of

       the doctrine of ‘unjust and unconscionable injury and loss’ falls on the gravity”




       7
         Classic Cheesecake involved, inter alia, supplemental claims that: (1) were based on Indiana law; (2)
       “require[d] [the Seventh Circuit] to interpret a gloss that the Indiana courts have placed on [Indiana’s] statute
       of frauds”; and (3) prompted the Seventh Circuit to analyze what constitutes “unjust and unconscionable
       injury and loss” under Indiana law. 546 F.3d at 840.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020                      Page 14 of 17
       and the duration of the injury. Classic Cheesecake, 546 F.3d at 845. As to the

       duration of the injury, Posner opined:


               [t]he more protracted the period during which reliance costs are
               being incurred, the stronger the inference that the oral promise
               was as the plaintiff represents it to be; for had there been no
               promise the plaintiff's conduct—his immense reliance cost
               relative to his resources—would have been incomprehensible.


       Id. Judge Posner further reasoned that:


               a party that wants to get around the statute of frauds [is required]
               to prove an enhanced promissory estoppel, and the enhancement
               consists of proving a kind or amount of reliance unlikely to have
               been incurred had the plaintiff not had a good-faith belief that he
               had been promised remuneration.


       Id. We agree.


[26]   Robert’s promissory estoppel claim fails to clear the high hurdle of establishing

       “unjust and unconscionable” injury and loss. First, Robert’s designated

       materials include meager reference to the duration of his alleged injury. In

       Count II of his counterclaim, Robert states that “for many years, [he] had

       leased the real estate central to this dispute for farming.” Appellant’s App. Vol.

       II p. 20; see Robert’s Br. p. 35 (“For over six (6) years[,] [Robert] has sought to

       purchase the entirety of the Bohnke Family Farm.”). Although six years is not

       an insignificant length of time, the usefulness of this information for purposes of

       Robert’s promissory estoppel claim is undermined by the fact that Robert




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020   Page 15 of 17
       farmed the land for a profit during the six-year duration; we would be hard-

       pressed to consider Robert’s lease to constitute injury and loss.


[27]   Next, as to the gravity of Robert’s alleged injury, Robert summarizes his

       “unjust and unconscionable injury and loss” argument as follows in his brief:


                  . . . [W]e are dealing with a family farm. It should go without
                  saying that one simply does not replace the family farm with
                  another chunk of real estate. [Robert] being promised to have the
                  opportunity to purchase his family farm is no mere
                  inconvenience. Rather, the injury is definite and permanent.


       Robert’s Br. p. 33. As Judge Posner wrote in Classic Cheesecake: “. . .[T]he

       reliance is more easily imagined as based on hope than on a promise”; and “[i]n

       the end, this case turns out to be a routine promissory estoppel case, and that is

       not enough in Indiana to defeat a defense of [S]tatute of [F]rauds.” 546 F.3d at

       846-47. Such is precisely the case here. We acknowledge, and are sympathetic

       to, Robert’s investment of time, money, and emotion in his failed effort to

       acquire the Farm; however, Robert’s designated evidence does not give rise to

       an “unjust and unconscionable injury and loss” of the gravity and duration

       contemplated by Indiana jurisprudence. See id.


[28]   For the foregoing reasons, we find that the doctrine of promissory estoppel does

       not operate here to remove Susan’s and Sandra’s alleged promise from the

       Statute of Frauds. 8 The trial court did not err in granting partial summary



       8
           As noted above, Susan denies making such a promise in her designated affidavit.


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020         Page 16 of 17
       judgment in favor of the Appellees regarding Counts II and III of Robert’s

       counterclaim. 9


                                                    Conclusion
[29]   The trial court did not err in granting partial summary judgment in favor of the

       Appellees. We affirm.


[30]   Affirmed.


       Najam, J., and Vaidik, J., concur.




       9
         We do not reach Robert’s argument that waiver operated to remove the contracts from the Statute of
       Frauds. “Waiver is an intentional abandonment or relinquishment of a known right.” Waxman Industries,
       Inc. v. Trustco Development Co., 455 N.E.2d 376, 378 (Ind. Ct. App. 1983). “With reference to a breach of
       contract, it includes giving up the right to treat the contract as breached by the other party.” Id. Robert’s
       designated materials do not identify a right that Susan and Sandra intentionally abandoned or relinquished.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1849 | March 6, 2020                    Page 17 of 17
