                                                                           FILED
                                                                      Nov 21 2017, 8:51 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bryan L. Ciyou                                            Gregory E. Steuerwald
Darlene R. Seymour                                        Graham T. Youngs
Ciyou & Dixon, P.C.                                       Steuerwald, Hannon & Witham, LLP
Indianapolis, Indiana                                     Danville, Indiana




                                             IN THE
       COURT OF APPEALS OF INDIANA

Robin King,                                               November 21, 2017
Appellant,                                                Court of Appeals Case No.
                                                          32A01-1612-PL-2670
        v.                                                Appeal from the Hendricks Circuit
                                                          Court
Rebecca Conley,                                           The Honorable Daniel F. Zielinski,
Appellee.                                                 Judge
                                                          Trial Court Cause No.
                                                          32C01-1606-PL-69



Brown, Judge.




Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017                   Page 1 of 18
[1]   Robin King appeals from an order of the trial court which denied her motion

      for eviction of Rebecca Conley and granted Conley’s request for specific

      performance. King raises one issue which we revise and restate as whether the

      trial court’s order is clearly erroneous. Conley requests appellate attorney fees.

      We affirm and remand for determination of appellate attorney fees.


                                         Facts and Procedural History

[2]   In the summer of 2015, Vince Wall, a real estate broker, assisted Conley in

      finding a home and located the residential property owned by King. King and

      Conley entered into two agreements dated December 16, 2015, specifically, a

      lease agreement (the “Lease”) and an Option to Purchase Real Estate (the

      “Option Agreement”) pursuant to which King granted Conley an exclusive and

      irrevocable option (the “Option”) to purchase the residential home and real

      estate.1 Conley paid King $13,000 pursuant to the Option Agreement.


[3]   The Lease provided that Conley, as the tenant, agreed to lease the residential

      property from King, as the landlord, for a term commencing on December 19,

      2015, ending on December 18, 2016. Paragraph 4 of the Lease, which was

      titled “alterations and maintenance of lease premises,” provided in part:




      1
        Wall testified that he initially wrote a land contract for Conley to purchase the property in accordance with
      King’s terms. He also testified that he advised King he was not an attorney and did not represent her, that he
      represented Conley, and that if she needed advice she needed to speak with an attorney or her realtor, that
      King did talk to an attorney, and that her attorney “restructured” the agreement and that “instead of a land
      contract, it became a lease, and then a separate option to purchase in return for a payment of thirteen
      thousand dollars.” Transcript at 13. He indicated that King’s attorney prepared the Lease and the Option
      Agreement.

      Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017                       Page 2 of 18
              Tenant shall not cause or permit any alterations, additions or
              changes to the Leased Premises without first obtaining the
              written consent of Landlord. All approved alterations, additions
              or changes to the Leased Premises shall be made by Tenant in
              accordance with all applicable laws and shall become the
              property of Landlord. Tenant shall be responsible for
              maintaining the interior and exterior of the house, and the
              ground of the premises, including minor and routine repairs. . . .


      Defendant’s Exhibit A. Paragraph 11 of the Lease defined Events of Default.

      Paragraph 15 of the Lease provided in part that King and her agents would be

      permitted to inspect and examine the leased premises “at all reasonable times”

      and that King would have the right to make any repairs to the premises she may

      deem necessary. Id.


[4]   The Option Agreement provided, “[i]n consideration of the non-refundable

      payment of Thirteen Thousand dollars ($13,000) (the ‘Option Money’), and for

      other good and valuable consideration, [King] does hereby grant to [Conley]

      the exclusive and irrevocable option [(the ‘Option’)] to purchase the residential

      home and real estate . . . .” Defendant’s Exhibit B. Conley’s right to exercise

      the Option commenced on December 19, 2015, and terminated on December

      18, 2016. The Lease and Option Agreement provided that, if Conley was in

      default under the Lease, King could terminate the Option Agreement. Both the

      Lease and Option Agreement provided for attorney fees.


[5]   On March 17, 2016, Conley reported a leak to King and provided the code to

      the garage so that King could access the house, and King noticed water in the

      sump was gone. King made a statement to Wall that the problem might have

      Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 3 of 18
      been caused by Conley, the statement concerned Conley, and Conley decided

      that King was not permitted to enter the house unless another person was

      present. Ultimately, King or contractors were given access on March 18th and

      22nd and the sump pump was replaced. Conley changed the lock on the front

      door on or after March 20th.


[6]   In a letter dated March 25, 2016, Conley notified King that she was exercising

      her Option to purchase the property pursuant to the Option Agreement. In a

      letter to Conley dated March 30, 2016, King stated that Conley had painted the

      majority of the ground level interior walls, replaced door lock(s) on the house,

      and removed at least three hosta plants from the yard without written consent

      in violation of Paragraph 4 of the Lease, and denied King access to the property

      on several dates from March 18 to 25, 2016, in violation of Paragraph 15 of the

      Lease. The letter stated that Conley was required to correct the violations

      within fifteen days and also offered to waive the violation corrections if Conley

      agreed to exercise the Option on or before the deadline for the corrections, the

      closing would occur within thirty days, and the property would be sold in an

      “as is” condition and that no repairs would be made to the property.


[7]   In June 2016, King filed a complaint alleging that Conley was in breach of the

      Lease and had painted certain interior walls, changed the door locks, and

      denied King access. On August 15, 2016, Wall and King walked through the

      rooms of the house together so that King could inspect the home and take

      photographs. When they had finished, Wall asked King if she was satisfied

      with the property, King replied affirmatively, Wall then asked if the visit

      Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 4 of 18
      resolved her request to have access, and King again replied affirmatively and

      stated “well I guess I can go ahead and drop everything, uh because I have been

      granted access.” Transcript at 29.


[8]   On August 19, 2016, King filed a motion for eviction which alleged that Conley

      was in breach of the Lease and requested a hearing. Conley filed an answer,

      affirmative defenses, and a counterclaim for specific performance of the Option.

      In her counterclaim, Conley alleged that she had exercised the Option, that she

      had applied for and obtained the financing necessary to close as shown in an

      attached exhibit, and requested specific performance requiring King to close the

      transaction and attorney fees.


[9]   On November 9, 2016, the court held a hearing and heard the testimony of

      King, Conley, and Wall and admitted the parties’ agreements and letters to

      each other as well as text messages between King and Conley. King testified

      that Conley continued to pay rent and had never missed a monthly payment.

      On November 30, 2016, the court issued its Findings of Fact, Conclusions of

      Law, and Order. It found:


              2. The parties entered into a written Lease Agreement on
              December 16, 2015, wherein [King] leased to [Conley] certain
              real estate and improvements . . . (herein “Property”), for a term
              commencing on December 19, 2015 and ending on December
              18, 2016.

              3. At the same time, the parties executed an [Option Agreement]
              in which [Conley] made a non-refundable payment of $13,000
              for the option to purchase the Property subject to certain written


      Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 5 of 18
        terms and conditions. The Lease and Option Agreement was
        [sic] prepared by [King’s] attorney.

        4. The reason [King] was willing to lease her property with the
        Option to Purchase was because of her intent to move out of
        State to “help” her father. Thereafter, [King’s] plans changed
        and she advised [Wall] she no longer wanted to sell her property.

        5. Wall advised [King] that she would have to sell if [Conley]
        exercised her Option.

        6. In January and February of 2016, Wall had conversations
        with [King] about [Conley’s] desire to exercise the Option.

        7. In mid-March, 2016, the sump-pump located at the Property
        broke causing flooding in the basement of the Property.

        8. [King] and [Conley] exchanged text messages thereafter
        wherein [King] requested permission to stop by and see the
        damage. [Conley] responded that [King] could “go in any time”
        and gave [King] the code to the garage.

        9. Between March 17th and March 18th, [Conley] learned that
        [King] had suggested that the flooding might have been caused
        by [Conley’s] “negligence.” This caused the parties’ relationship
        to become strained. On March 20, 2016, [Conley] purchased a
        deadbolt lock from Lowe’s. [Conley] changed the lock on the
        front door because she felt “uncomfortable.” Additionally,
        [Conley] wanted to be at the premises when strangers were there.

        10. On March 25, 2016, [Conley] sent [King] a letter formally
        exercising her Option to purchase the Property.

        11. Paragraph 4 of the Lease also states that “[Conley] shall be
        responsible for maintaining the interior and exterior of the house,
        and the grounds of the premises, including minor and routine
        repairs.”




Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 6 of 18
        12. On March 30, 2016, [King] sent [Conley] a letter with a
        subject “Notice of Lease Violation” listing, in relevant part, two
        reasons for default: [Conley] painted the interior walls and
        replaced the front door lock. Prior to that in February, 2016,
        [Conley] sent a text message to Landlord advising her of the
        change in paint color and [King] responded “I am sure I will be
        envious. Always wanted to paint and never got to it. LOL!”

        13. No written Notice of an alleged breach of the Lease was
        served on [Conley] before [Conley] sent [King] a letter exercising
        the Option.

        14. [Conley] never missed a single monthly rent payment.


Appellant’s Appendix Volume 2 at 9-11. Under the heading “Conclusions of

Law,” the order provides in part:


        3. The term “alteration” is not defined by the Lease Agreement,
        is therefore ambiguous, and therefore the Court adopts its usual
        and common meaning as defined by Black’s Dictionary as
        follow[s]:

                 A substantial change to real estate, especially to a
                 structure, usually not involving an addition to or removal
                 of the exterior dimensions of a building structure’s parts.
                 Although any addition to or improvement of the real
                 estate is by its very nature in alteration, real estate lawyers
                 habitually use alteration in reference to a lesser change.
                 Still, to constitute an alteration, the change must be
                 substantial – not simply a trifling modification.

                                              *****

        5. In determining whether a breach of contract was material, the
        following five factors are considered: 1) The extent to which the
        injured party will be deprived of the benefit which he reasonably
        expected; 2) The extent to which the injured party can be

Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017       Page 7 of 18
        adequately compensated for the part of the benefit of which he
        will be deprived; 3) The extent to which the party failing to
        perform or to offer to perform will suffer forfeiture; 4) The
        likelihood that the party failing to perform or to offer to perform
        will cure his failure, taking account of all the circumstances
        including any reasonable assurances; and 5) The extent to which
        the behavior of the party failing to perform or to offer to perform
        comports with standards of good faith and fair dealing.

        6. It is clear from the evidence that [King] intended to move out
        of State and therefore was anxious to lease her property with the
        hopes that it may sell. It was not until after [King] decided not to
        move and after she received notice of intent to exercise the
        Option did [King] allege breach.

        7. The Court finds that the painting of walls and the changing of
        exterior locks is not a material breach of the contract. In fact, the
        evidence was that [King] did not initially take issue with the
        painting of the walls (quite contrary) and [Conley] did not
        unreasonably deny access of the Property to [King]. [Conley’s]
        reason for changing the locks was reasonable and [King] was not
        unreasonably denied access. Any reason for the denial of access
        was due to [Conley’s] inability to be at the Property at the time
        [King] wanted to have an inspection, and, in any event, such
        delay was only a matter of hours. And additionally, again,
        [King] did have the access code to the garage.

                                              *****

        10. [Conley] timely submitted to [King] a written notice of intent
        to exercise Option and she was in a substantial compliance with
        the Lease on that date. Court finds that [Conley’s] request for
        specific performance should be granted.

        11. [Conley] is not in breach of Lease and is entitled to specific
        Performance.




Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 8 of 18
       Id. at 12-14. The court denied King’s motion for eviction, granted Conley’s

       request for specific performance of the Option Agreement, and ordered King to

       close on the transaction on December 2, 2016. It also granted Conley’s request

       for attorney fees. The court later entered an order which stayed its November

       30th order subject to King posting an appeal bond or irrevocable letter of credit

       and naming Conley as an insured on the property.


                                                    Discussion

[10]   The issue is whether the trial court’s order denying King’s motion for eviction

       and granting Conley’s request for specific performance is clearly erroneous.

       The trial court entered findings of fact and conclusions. We may not set aside

       the findings or judgment unless they are clearly erroneous. State v. Int’l Bus.

       Machines Corp., 51 N.E.3d 150, 158 (Ind. 2016). In our review, we first consider

       whether the evidence supports the factual findings. Id. Second, we consider

       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. Id. A judgment is clearly erroneous if it relies on an incorrect legal

       standard. Id. We give due regard to the trial court’s ability to assess the

       credibility of witnesses. Id. While we defer substantially to findings of fact, we

       do not defer to conclusions of law. Id. We do not reweigh the evidence; rather

       we consider the evidence most favorable to the judgment with all reasonable

       inferences drawn in favor of the judgment. Id. Clear error occurs when our

       review of the evidence most favorable to the judgment leaves us firmly



       Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 9 of 18
       convinced that a mistake has been made. Salser v. Salser, 75 N.E.3d 553, 558

       (Ind. Ct. App. 2017).


[11]   King claims that the court’s order denying her motion for eviction is clearly

       erroneous and that the record shows Conley intentionally and continually

       violated the Lease by changing the locks and denying her access to the property.

       King states that she provided Conley with notice that she violated the Lease on

       March 30, 2016, and argues that all of Conley’s violations were curable and

       that Conley chose to ignore the request to cure causing an Event of Default.

       Conley responds that she was in full compliance with the Lease when she

       exercised her Option, that even if she breached the Lease it was not a material

       breach warranting forfeiture of the Option, and that, even if there were a

       material breach, she exercised her Option before receiving notice and an

       opportunity to cure any defect under the Lease.


[12]   Indiana courts have recognized the contractual nature of leases and the

       applicability of the law of contracts to leases. Stewart v. TT Commercial One,

       LLC, 911 N.E.2d 51, 55 (Ind. Ct. App. 2009) (citations omitted), trans. denied.

       Interpretation of a contract presents a question of law and is reviewed de novo.

       Id. When interpreting a contract, our paramount goal is to ascertain and

       effectuate the intent of the parties. Id. at 56. This requires the contract to be

       read as a whole, and the language construed so as not to render any words,

       phrases, or terms ineffective or meaningless. Id.




       Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 10 of 18
[13]   An option to purchase real estate is a contract by which the owner of the realty

       agrees with another person that the latter shall have the power to purchase such

       property at a fixed price within a certain period of time. Pinkowski v. Calumet

       Twp. of Lake Cty., 852 N.E.2d 971, 981 (Ind. Ct. App. 2006) (citation omitted),

       trans. denied. By an option, the owner subjects himself to the liability of having

       to convey the property if the option is exercised within the time and in the

       manner stipulated. Id. By failing to comply with the option’s terms, the option

       holder deprives himself of the right to demand the enforcement of the contract.

       Id. When a party exercises an option to purchase, recitation of the exact terms

       of the agreement is not necessary. Id. Only essential terms need be included to

       render a real estate option contract enforceable. Id. Indiana courts order

       specific performance of contracts for the purchase of real estate as a matter of

       course. Id. Courts readily order specific performance with regard to real estate

       purchases because each piece of real estate is considered unique. Id. A party

       seeking specific performance of a real estate contract must prove that she has

       substantially performed or offered to do so. Id. at 982.


[14]   To the extent King claims Conley was in breach of the Lease and thus not

       entitled to specific performance, we note that Section 1.6 of the Option

       Agreement provides that, if at any time Conley is in default of the Lease, then

       King may terminate the Option Agreement. According to Paragraph 11 of the

       Lease, an “Event of Default” included “[t]he failure to pay any installment of

       rent when the same becomes due and the failure continues for fifteen (15) days”

       and Conley’s “failure to perform or observe any other covenant, term or

       Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 11 of 18
condition of this lease to be performed or observed by [Conley] and if curable,

the failure continues for fifteen (15) days after notice thereof is given to

[Conley].” Defendant’s Exhibit A. The evidence establishes that Conley did

not fail to pay any installment of rent when it became due. The evidence also

supports the trial court’s finding that, at the time Conley exercised the Option,

King had not yet served Conley with notice of any failure to perform a term of

the Lease. The Lease required that Conley be given fifteen days after notice

was given to her of a violation of the Lease to cure any noncompliance before

an Event of Default was deemed to have occurred. The determination that

Conley exercised her Option before the occurrence of any Event of Default

under the Lease is not clearly erroneous. See Fetz v. Phillips, 591 N.E.2d 644,

648 (Ind. Ct. App. 1992) (observing that the tenants failed to maintain liability

insurance and to pay the property taxes as required under the lease and that the

lease provided the landlord was required to provide the tenants notice of

noncompliance and the landlord never did so; holding that, because notice was

necessary before the lease and option could be cancelled, the option remained

valid even though the tenants failed to comply with two requirements under the

lease; and affirming summary judgment in favor of the tenants’ action seeking

specific performance of their option to purchase); see also Pinkowski, 852 N.E.2d

at 984 (finding that, because the rent was paid within the thirty days after notice

was sent in accordance with correspondence and any alleged arrearage was

cured by the payment, the prerequisite to exercising an option to purchase was

satisfied and thus the appellee properly exercised the option).



Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 12 of 18
[15]   In addition, the evidence supports the trial court’s findings that the painting of

       the walls and the changing of the lock did not constitute a material breach of

       the Lease and that Conley was in substantial compliance with the Lease when

       she exercised the Option. Paragraph 4 of the Lease provided that Conley

       would not cause any alterations, additions, or changes to the premises without

       obtaining King’s written consent, and Paragraph 15 provided that King would

       be permitted to inspect and examine the premises at all reasonable times.

       Black’s Law Dictionary defines an alteration to be “[a] substantial change to

       real estate” and states, “[a]lthough any addition to or improvement of real

       estate is by its very nature an alteration, real-estate lawyers habitually use

       alteration in reference to a lesser change” and “[s]till, to constitute an alteration,

       the change must be substantial — not simply a trifling modification.” BLACK’S

       LAW DICTIONARY 94 (10th ed. 2014). We construe any contract ambiguity

       against the party who drafted it. Time Warner Entm’t Co., L.P. v. Whiteman, 802

       N.E.2d 886, 894 (Ind. 2004), reh’g denied. “As a general rule, an express

       provision in a lease that allows the breach of a covenant to work a forfeiture of

       the agreement, is enforced if the breach is material.” Page Two, Inc. v. P.C.

       Mgmt., Inc., 517 N.E.2d 103, 107 (Ind. Ct. App. 1987). In determining whether

       a breach is material, the following factors may be considered:


               (a) the extent to which the injured party will be deprived of the
               benefit which he reasonably expected;

               (b) the extent to which the injured party can be adequately
               compensated for the part of that benefit of which he will be
               deprived;


       Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 13 of 18
               (c) the extent to which the party failing to perform or to offer to
               perform will suffer forfeiture;

               (d) the likelihood that the party failing to perform or to offer to
               perform will cure his failure, taking account of all the
               circumstances including any reasonable assurances;

               (e) the extent to which the behavior of the party failing to
               perform or to offer to perform comports with standards of good
               faith and fair dealing.


       Frazier v. Mellowitz, 804 N.E.2d 796, 803 (Ind. Ct. App. 2004) (citing the

       RESTATEMENT (SECOND) OF CONTRACTS § 241 (1981)).


[16]   The evidence shows that, when Conley sent a text message to King stating

       “[y]ou need to stop by sometime and see the painting I’ve done inside the

       house,” King replied by sending a text message to Conley stating: “Sure!! I am

       sure I will be envious. Always wanted to paint and never got to it. Lol!”

       Defendant’s Exhibit F. Conley also sent text messages to King containing

       several photographs of the painted walls. Conley testified that she had

       correspondence through other text messages with King about painting the

       house and there was no objection from her. Conley testified that she was

       employed as a flight attendant, there were times it was difficult to make

       arrangements to be home, and that she always provided reasonable access for

       King. King testified that Conley contacted her by text message on March 17th

       about a leak. King sent a text message to Conley on March 17th stating that a

       claim was filed, that she would be in touch as soon as she heard from the

       insurance company, and that she would like to stop by in the afternoon, and


       Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 14 of 18
       Conley replied with a text message stating that King could go in any time and

       providing the code to the garage. King accessed the house on March 17th while

       Conley was not home and noticed that water in the sump was gone.


[17]   The court heard testimony that King mentioned to Wall that the problem in the

       basement might have been caused by Conley’s negligence and that Wall in turn

       told Conley about King’s comment. Conley testified that she became very

       concerned about King’s statement. The court heard testimony that King

       arrived at the property on the morning of March 18th, that Conley did not let

       her in at that time, and that King called the police. Conley testified that she did

       not feel comfortable with the situation, would not let King in until she knew her

       rights, and had texted King. The court heard testimony that Wall arranged to

       be at the property at 4:30 p.m. that day and stayed for three hours to make sure

       that access was granted, that King visited the property and was allowed in the

       house, and that, when Wall did leave the property, the contractor was still there

       working. Conley testified she purchased a lock on March 20th and sometime

       after that changed the lock to the front door because King was asking to enter at

       certain times when she was not present. Wall testified that King was allowed

       in, but only with another person being there, and that Conley felt that the only

       way she would feel comfortable was if somebody else was present. On March

       22nd, a plumber or contractor replaced the sump pump. Wall testified that he

       was also present for King to inspect the property on August 15th, that King

       went room to room snapping photographs, that he asked her to stop taking

       photographs of personal items, he asked King if she was satisfied with the


       Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 15 of 18
       property and she replied affirmatively, and he asked her if the visit resolved her

       request to have access and she again replied affirmatively.


[18]   Our review of the evidence based on the Restatement considerations does not

       leave us firmly convinced that a mistake has been made. King did not suffer

       significant loss due to the painting or changing of the lock, King granted Conley

       the Option in consideration of a non-refundable payment of $13,000, and the

       painting of the interior walls and the changed lock became a part of the

       property subject to the Lease and the Option Agreement. The Restatement

       factors, taken together under these circumstances, favor the conclusion reached

       by the trial court that Conley’s actions of painting the interior walls and

       changing a lock did not constitute a material breach of the Lease. See Page Two,

       517 N.E.2d at 108 (finding the factors set forth in § 275 of the Restatement of

       Contracts reasonably supported the trial court’s determination that any breach

       of a covenant to maintain insurance upon the premises was not sufficiently

       material to justify termination of the lease),2 reh’g denied.


[19]   We additionally observe that Conley made a non-refundable payment to King

       of $13,000 in consideration for the Option and that any alterations to the leased

       premises would become part of the property which, if Conley exercised her

       Option as she did, would be retained by Conley together with any such




       2
         Page Two cites the original Restatement of Contracts § 275. However, the Restatement (Second) of
       Contracts § 241 has since been adopted. Collins v. McKinney, 871 N.E.2d 363, 375 n.4 (Ind. Ct. App. 2007)
       (citing Frazier, 804 N.E.2d at 802-804). The considerations listed in the Restatement (Second) of Contracts §
       241 are similar to those listed in the Restatement of Contracts § 275.

       Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017                    Page 16 of 18
       alterations. We note that contract provisions resulting in forfeiture are

       generally disfavored, see Colonial Mortg. Co. of Ind. v. Windmiller, 176 Ind. App.

       535, 540, 376 N.E.2d 529, 532 (1978) (noting, in interpreting a contract, that

       the law views forfeiture provisions with disfavor and that “if there is doubt we

       favor the construction avoiding a forfeiture”), and that, to the extent there is

       doubt as to whether the painting and changing of a lock amounted to a material

       breach which would result in the forfeiture of Conley’s payment and her right to

       exercise the Option, we favor the interpretation avoiding the forfeiture. We

       also construe any ambiguity as to whether the painting and changing of the lock

       amounted to a breach or a material breach of the Lease against King as the

       party who prepared the Lease. See Time Warner, 802 N.E.2d at 894.


[20]   Giving due regard to the trial court’s ability to assess the credibility of witnesses

       and noting we consider the evidence most favorable to the judgment with all

       reasonable inferences drawn in favor of the judgment, we cannot conclude that

       the record contains no facts to support the trial court’s findings either directly or

       by inference. The trial court’s findings and conclusions that Conley was not in

       material breach of the Lease and was entitled to specific performance of the

       Option Agreement are not clearly erroneous, and it did not err in denying

       King’s motion for eviction.


[21]   Conley also requests appellate attorney fees. When a contract provision

       provides that attorney fees are recoverable, appellate attorney fees may also be

       awarded. Kishpaugh v. Odegard, 17 N.E.3d 363, 377 (Ind. Ct. App. 2014). Here,

       both the Lease and Option Agreement provide for attorney fees. Paragraph 14

       Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 17 of 18
       of the Lease provides that each party shall pay the other party’s reasonable legal

       costs and attorney fees incurred in successfully enforcing against the other party

       any covenant, term, or condition of the Lease, and Section 6.6 of the Option

       Agreement provides that, “[i]n connection with any litigation, including

       appellate proceedings, arising out of or in connection with this Option to

       Purchase, the prevailing party shall be entitled to recover reasonable attorney’s

       fees and costs from the other party.” Defendant’s Exhibit B. Accordingly, we

       remand to the trial court for determination of reasonable appellate attorney

       fees.


                                                    Conclusion

[22]   For the foregoing reasons, we affirm the order of the trial court and remand for

       determination of reasonable appellate attorney fees.


[23]   Affirmed and remanded for determination of appellate attorney fees.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 32A01-1612-PL-2670 | November 21, 2017   Page 18 of 18
