MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                          Apr 16 2018, 8:38 am
regarded as precedent or cited before any
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
Jennifer A. Joas                                          Leanna Weissmann
Madison, Indiana                                          Lawrenceburg, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Probst,                                           April 16, 2018
Appellant-Plaintiff/Counterclaim-                         Court of Appeals Case No.
Defendant,                                                15A01-1709-PL-2061
                                                          Appeal from the Dearborn
        v.                                                Superior Court
                                                          The Honorable Jonathan N.
Jason Probst,                                             Cleary, Judge
Appellee-Defendant/Counterclaimant.                       Trial Court Cause No.
                                                          15D01-1412-PL-76



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1709-PL-2061 | April 16, 2018              Page 1 of 7
                                            Case Summary
[1]   Timothy Probst (“Tim”) initiated litigation against his brother, Jason Probst

      (“Jason”), alleging breach of an oral agreement to convey farm land to him as a

      co-owner. Tim sought the equitable remedy of specific performance and, in the

      alternative, sought compensation under a theory of unjust enrichment.

      Following a bench trial, the trial court ruled against Tim on these claims. Tim

      now appeals, presenting three issues, which we consolidate and restate as a

      single issue: whether the trial court erred in denying Tim’s requests for relief.1


[2]   We affirm.



                             Facts and Procedural History
[3]   This litigation involves farm land in Aurora that previously belonged to the

      brothers’ deceased uncle, Gary Probst (“Gary”). During 2007 proceedings

      concerning Gary’s estate, interested parties reached a settlement agreement

      whereby Jason would receive the land in exchange for paying several

      obligations. Around this time, Jason and Tim agreed to farm the land together

      for a profit, and the brothers took steps to secure a $180,000 loan that would

      cover Jason’s new obligations; Tim pledged collateral, and the brothers

      executed a bank note as general partners. Thereafter, Jason received the land




      1
       In addition to ruling against Tim on the merits, the trial court articulated an additional basis for its
      decision—namely, that Tim was judicially estopped from asserting an interest in the land. The parties direct
      argument to the issue of judicial estoppel, however, we need not address this additional basis.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1709-PL-2061 | April 16, 2018             Page 2 of 7
      by Personal Representative’s Deed, and the brothers began farming together.

      At some point, Tim bought a mobile home and moved onto the land. He also

      began storing equipment on the land for his own ongoing excavating business.


[4]   The brothers continued farming together until a disagreement in 2014, which

      led to Tim filing the instant lawsuit on December 17, 2014. Tim alleged that

      there was an oral agreement to co-own the land under which Jason was

      obligated to add Tim’s name to the deed “at a later date.” App. Vol. II at 7.

      According to Tim, Jason had breached the oral agreement by refusing to

      convey the land to him as a co-owner. Tim requested the equitable remedy of

      specific performance. In the alternative, he sought compensation, alleging that

      Jason had been unjustly enriched by Tim’s payments toward the loan “plus

      other expenses and time in maintaining the farm.” Id. at 8. Jason then

      counterclaimed, seeking (1) an accounting for the partnership and (2) an order

      ejecting Tim from the land.


[5]   The trial court eventually conducted a bench trial, after which it ruled against

      Tim on his claims, and denied Jason’s request for an accounting. The trial

      court also entered an ejectment order, which was stayed pending this appeal.



                                 Discussion and Decision
[6]   Neither party requested special findings and conclusions under Trial Rule

      52(A), and the trial court did not designate any portion of its order as special

      findings and conclusions. Rather, the court enumerated paragraphs in which it


      Court of Appeals of Indiana | Memorandum Decision 15A01-1709-PL-2061 | April 16, 2018   Page 3 of 7
      largely provided a recitation of the evidence presented at the hearing, observing

      that various witnesses “testified” to certain facts. Yet, statements of this kind

      do not constitute findings of fact, and we treat such evidentiary recitations as

      mere surplusage. See Perez v. U.S. Steel Corp., 426 N.E.2d 29, 33 (Ind. 1981);

      Garriott v. Peters, 878 N.E.2d 431, 438 (Ind. Ct. App. 2007), trans. denied.


[7]   In the absence of special findings, we apply a general judgment standard of

      review. Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind. 1997). Under this

      standard, we presume that the court correctly followed the law, and we do not

      reweigh the evidence or reassess the credibility of witnesses. Id. We will affirm

      if the judgment is “sustainable upon any theory consistent with the evidence.”

      Id. Moreover, because it was Tim’s burden to prove entitlement to relief, he

      now appeals from a negative judgment. See Burnell v. State, 56 N.E.3d 1146,

      1149-50 (Ind. 2016). “On appeal from a negative judgment, this Court will

      reverse the trial court only if the judgment is contrary to law. A judgment is

      contrary to law if the evidence leads to but one conclusion and the trial court

      reached an opposite conclusion.” Id. (citation omitted).


                                       Specific Performance
[8]   “We review a trial court’s decision to grant or deny specific performance for an

      abuse of discretion—that is, for whether the decision is ‘clearly against the logic

      and effect of the facts and circumstances before the court or if the court has

      misinterpreted the law.’” Fulp v. Gilliland, 998 N.E.2d 204, 210 (Ind. 2013)

      (citation omitted) (quoting State v. Willits, 773 N.E.2d 808, 811 (Ind. 2002)).


      Court of Appeals of Indiana | Memorandum Decision 15A01-1709-PL-2061 | April 16, 2018   Page 4 of 7
[9]    Specific performance is an equitable remedy that is available when monetary

       damages do not adequately redress the breach of an agreement. Duckwall v.

       Rees, 119 Ind. App. 474, 477-78, 86 N.E.2d 460, 461-62 (1949). Yet, the Statute

       of Frauds generally prohibits the enforcement of oral agreements involving the

       sale of land. See Ind. Code § 32-21-1-1(b). Tim concedes that to obtain specific

       performance, he must overcome the Statute of Frauds; he focuses on whether

       Jason’s alleged oral promise is enforceable under the doctrine of promissory

       estoppel. This equitable doctrine provides an exception to the Statute of

       Frauds, and requires that the plaintiff demonstrate—among other things—that

       the defendant made a promise that induced reasonable reliance. See Spring Hill

       Developers, Inc. v. Arthur, 879 N.E.2d 1095, 1100 (Ind. Ct. App. 2008).


[10]   Here, however, the evidence favorable to the judgment indicates that Jason

       never promised co-ownership. Tr. at 187 (“He was never supposed to be on the

       deed. I mean, that’s a fact. There’s no doubt. There was nothing promised to

       him by me.”). Thus, because there was conflicting evidence concerning the

       existence of a promise from Jason, we cannot say that the trial court’s decision

       to deny specific performance was contrary to law.


                                          Unjust Enrichment
[11]   Where there is no contract between the parties, a plaintiff may nevertheless seek

       compensation by claiming unjust enrichment—a theory of recovery also known

       as quantum meruit or quasi-contract. Zoeller v. E. Chi. Second Century, Inc., 904

       N.E.2d 213, 220-21 (Ind. 2009). To recover, “the plaintiff must show that (1)


       Court of Appeals of Indiana | Memorandum Decision 15A01-1709-PL-2061 | April 16, 2018   Page 5 of 7
       he rendered a measurable benefit to the defendant at the defendant’s express or

       implied request; (2) he expected payment from the defendant; and (3) allowing

       the defendant to retain the benefit without restitution would be unjust.” Neibert

       v. Perdomo, 54 N.E.3d 1046, 1051 (Ind. Ct. App. 2016).


[12]   Tim argues that the trial court should have awarded him compensation for

       improvements to the land and payments toward the loan obligation. Yet, Tim

       was positioned to benefit from this informal arrangement. Indeed, there is

       evidence indicating that Tim aspired to grow the farming operation and

       eventually reap profits from the land. By physically and financially helping to

       improve the land for farming, Tim furthered his partnership interest—and he

       bore the risk of making these contributions without the protection of a long-

       term farm lease. Furthermore, by making loan contributions, Tim hedged

       against Jason losing the farm and thereby Tim’s base of operations. This base

       provided Tim with land on which he could live, run his excavating business,

       and graze his cattle for several years—all without paying rent. Finally, to the

       extent Tim sought compensation for digging ponds and installing a water

       trough, the evidence indicates that Tim took these actions against Jason’s

       wishes.


[13]   In light of evidence indicating that Jason was not unjustly enriched, we cannot

       say that the trial court’s decision was contrary to law.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1709-PL-2061 | April 16, 2018   Page 6 of 7
                                               Conclusion
[14]   The court did not err in declining to grant the relief sought by Tim.


[15]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1709-PL-2061 | April 16, 2018   Page 7 of 7
