MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Oct 31 2019, 6:33 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
ANTHONY L. ELROD                                         RAYMOND C. BAUMAN
Michael F. Vertesch                                      Jeffrey J. Jinks
Greenwood, Indiana                                       Elizabeth R. McAleese
                                                         Carmel, Indiana
ATTORNEY FOR APPELLANT
NANCY DAVIS
Andrew B. Arnett
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony L. Elrod, et al.,                                October 31, 2019
Appellants-Defendants,                                   Court of Appeals Case No.
                                                         18A-PL-3020
        v.                                               Appeal from the Marion Superior
                                                         Court
Raymond C. Bauman,                                       The Honorable Patrick J. Dietrick,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49D12-1604-PL-11727



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019           Page 1 of 30
                                          Case Summary
[1]   Anthony L. Elrod (“Elrod”) and Nancy Davis (“Davis”) (at times, collectively

      referred to as “Elrod”) appeal an order, entered upon remand from this Court,

      enforcing Elrod’s mediated settlement agreement with Raymond C. Bauman

      (“Bauman”) (“the Mediated Settlement Agreement”). Determining that Elrod

      did not show a constitutional deprivation of due process, and the trial court did

      not err in interpreting the unambiguous provisions of the settlement agreement,

      but that questions of fact pertinent to enforcement of certain ambiguous

      provisions of the settlement agreement remain, we affirm in part, reverse in

      part, and remand with instructions to hold an evidentiary hearing.



                                                    Issues
[2]   Elrod presents for our review the following restated issues:


              I.       Whether he was denied due process when the trial court
                       restricted the evidence on remand to exclude witness
                       testimony;


              II.      Whether the trial court erroneously interpreted the
                       Mediated Settlement Agreement when it concluded:


                       (a) Bauman could execute a quitclaim deed, rather than a
                           warranty deed, to transfer his interest in property at
                           1041 High Street;




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 2 of 30
                       (b) The assumption of mortgage payments by Elrod was to
                           be effective August 1, 2016, with formal refinancing to
                           follow;


                       (c) Certain claimed expenses including management fees,
                           storage fees, and repair costs were not authorized in the
                           agreement;


                       (d) Elrod must relinquish a claimed interest in an
                           easement;


                       (e) Elrod must transfer any interest in Lot 22/1030 High
                           Street to Bauman; and


              III.     Whether the trial court erroneously disposed of a potential
                       claim as to South East Neighborhood Development
                       (“SEND”).


      Davis presents the additional issue of whether the trial court erroneously

      ordered that she execute a quitclaim deed to Elrod, her brother, transferring her

      interest in 1041 High Street.



                            Facts and Procedural History
[3]   The relevant facts were recited in the prior appeal, which gave rise to the order

      of remand underlying this appeal:


              For over thirty years, Bauman and Elrod were engaged in an
              ongoing business venture of buying, developing, and selling real
              estate in Indianapolis. Bauman and Elrod were also the owners
              of Madison Avenue Athletic Club, Inc. and M.A.C.C.
              Properties, LLC. Bauman contributed capital to the venture, and
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 3 of 30
        Elrod managed the real estate. When the business venture
        sustained a loss, Bauman contributed additional capital.
        Bauman eventually decided to end the venture with Elrod due to
        ongoing losses and Elrod’s failure to provide Bauman with an
        accounting of how he managed the venture.


        Accordingly, on April 4, 2016, Bauman filed a complaint seeking
        to appoint a receiver and for declaratory judgment to determine
        the rights and interests of the parties to the property and assets of
        the venture. On June 13, 2016, the parties began court-ordered
        mediation. After a full day of mediation, the parties signed the
        Mediated Settlement Agreement, which provides in relevant part:


        Raymond Bauman (Ray) and Anthony Elrod (Tony) hereby
        stipulate and agree as follows:


        1. [Elrod] will receive all right, title and interest to lots 1033-
           1035, 1037, 1039, 1041, 1045, 1047, 1049, and 1055 which are
           all lots bordered by High Street on the west and Prospect
           Street on the south. [Elrod] will also receive all right, title and
           interest to the vacated alley due north of parcel 1033-35.
           [Elrod] will assume and be responsible for all debts,
           mortgages and other expenses of those parcels. The mortgage
           on lot 1045 was executed by [Bauman]. [Elrod] will assume
           and pay that mortgage and indemnify and hold [Bauman]
           harmless from any nonpayment.


        2. [Bauman] will receive all right, title, and interest to lots 330,
           332, 336, and 340 as well as the four-plex and garage which
           are 1046-1048 and 1042. Such properties are titled either in
           the name of [Bauman] and/or [Elrod] and MAAC[ ]
           Properties, Inc. [Bauman] will assume and be responsible for
           debts, mortgages and other expenses owing with respect to
           these parcels. [Bauman] will indemnify and hold [Elrod]


Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 4 of 30
            harmless for any nonpayment. [Bauman] will receive all
            shares equaling 100% of MAAC Properties, Inc.


        3. The vacated alley that is due west of lot 330 shall remain in
           [Elrod]’s name unless it is purchased by the purchaser of the
           gym in which case [Elrod] will transfer his interest at no
           additional cost to Madison Avenue Athletic Club, Inc. If the
           gym purchaser does not purchase the vacated alley, upon
           closing of that sale, [Elrod] will deed the vacated alley to
           [Bauman] so long as [Bauman] remains the owner of the
           parcels 336 and 340 Prospect set over to him in paragraph 2
           above.


        4. Madison Avenue Athletic Club, Inc. owns all right, title, and
           interest to the gym property located at 306 E. Prospect. Such
           property is currently listed for sale with Ray Stuck. Each
           party agrees to cooperate with Ray Stuck in an effort to sell
           the property. Upon a sale of the gym, [Bauman] will receive
           the fixed sum of $175,000. Madison Avenue Athletic Club,
           Inc. shall execute a mortgage against the gym to memorialize
           this obligation, and the remaining proceeds shall be split on
           an equal basis. It is anticipated that payments will be made to
           Madison Avenue Athletic Club, Inc. and the parties will
           receive their share as distributions pursuant to the terms of
           this paragraph. Both parties agree that their respective
           ownership interest is 50/50. * * *


        6. The parties agree that there [are] only 2 mortgages against the
           gym. Copies of each are attached hereto. Both mortgages
           shall be released of record by [Bauman].


        7. The liquor license associated with the gym is held in the name
           Madison Avenue Athletic Club, Inc. In the event it is not
           required as part of the sale [of] the gym, [Bauman] and


Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 5 of 30
            [Elrod] will market the liquor license and split any net
            proceeds on an equal basis.


        8. The gym and the apartments operate on a long-term lease for
           parking spaces on the south side of Prospect Street. That area
           referred to as the parking lot is to be retained by the parties,
           MAAC Properties, Inc. and/or Madison Avenue Athletic
           Club, Inc. In order to be fully marketable, the parking lot
           requires the installation of an additional parking lot directly
           east of the existing parking spaces. If either party invests that
           sum of money to install the parking lot in order to make the
           entire parcel marketable, the party who incurred such expense
           shall be refunded that amount of their investment from any
           sale proceeds. Remaining sale proceeds will be split on an
           equal basis.


        9. [Elrod] has building materials, tools and supplies located in
           the basement of both of the apartment buildings and the
           second and third floor of 336 Prospect set over to [Bauman]
           by this agreement. He shall have all materials and personal
           property removed from the apartment buildings no later than
           October 15, 2016. He shall remove any and all personal
           property building materials or tools from the four-plex located
           at 1046-1048 no later than August 15, 2016. All coin
           operated laundry machines in the laundry rooms and
           appliances in use in the individual apartments shall remain
           and are not property of [Elrod]. If not removed by the due
           date, such property shall become [Bauman]’s property.


        10. [Bauman] shall receive, as his sole property and free of any
            claims by [Elrod], the real estate located at 6427 Canna Court
            in Indianapolis. There is currently a judgment lien in Cause
            No. 49D07-1208-MF-031117 against [Elrod] which is lodged
            as a lien against this parcel. Upon a sale of the gym, an
            amount of money equal to the unpaid balance of that
            judgment shall be deducted from [Elrod]’s proceeds and
Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 6 of 30
            placed into escrow. [Elrod] shall have 10 months from the
            date hereof to obtain a release of the lien and if he does so,
            there will be no deduction from his gym proceeds and any
            escrow will be released. If he is unable to obtain a release
            within such time, [Bauman] shall satisfy the judgment from
            such escrowed funds. [Bauman] shall assume and agree to
            pay the mortgage that is in [Elrod]’s name and indemnify and
            hold [Elrod] harmless. [Bauman] shall satisfy the mortgage
            upon the sale of this property or any interest therein.


        11. [Bauman] will also receive all right title and interest to 1027
            East Raymond St. in Indianapolis, 2191 Wakeland Road in
            Paragon, 3711 Farrington Dr. in Bloomington and 2236-2238
            Shelby St. in Indianapolis.


        12. [Elrod] should receive all right title and interest to 3272
            Clover Dr. in Plainfield. Such parcel is subject to a mortgage
            for which [Elrod] is solely obligated. [Elrod] will be
            responsible and assume the obligation to pay such mortgage
            and to indemnify and hold [Bauman] harmless with respect to
            such mortgage.


        13. [Elrod] shall manage and operate the gym until it is sold and
            properly account for all income and expense. In the event
            either party contributes to such expenses, that party shall be
            given a note by Madison Avenue Athletic Club, Inc. for such
            loan plus interest at 4%.


        14. The parties, either directly or through their various entities,
            shall ensure the proper transfer deeds are prepared
            transferring title to properties as set forth herein and to
            execute any and all documents deemed reasonably necessary
            to effectuate the terms of this mediated agreement.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 7 of 30
        15. Both parties agree to share the expenses of mediation on an
            equal basis[.]


        16. [Bauman]’s attorney shall prepare the definitive settlement
            agreement encompassing and incorporating the terms of this
            agreement to be reviewed and executed by the parties. Upon
            its execution, the parties agree to dismiss this litigation as to
            all parties.


        Appellant’s App., Vol. 3, pp. 13-17 (emphases added).


        On June 23, 2016, the mediator filed a report with the trial court
        indicating that mediation had been successful and that the parties
        had reached an agreement on the disputed issues. Bauman and
        Elrod subsequently took steps to implement the Mediated
        Settlement Agreement. For example: Elrod surrendered the
        keys of the apartment complex to Bauman; Elrod surrendered
        control and management of the apartments to Bauman; Elrod
        worked with Bauman to transfer all utilities at the apartments to
        Bauman; Elrod surrendered the rents received from tenants of the
        apartments to Bauman, which had previously been tendered to
        Elrod; Elrod filed the necessary documents with the Indiana
        Secretary of State to reinstate the status of the Madison Avenue
        Athletic Club, in order to facilitate the sale of the gym as called
        for in the Mediated Settlement Agreement; Elrod began
        removing building materials, tools, and supplies from both the
        Apartments and the four-plex; Elrod listed for sale the property
        located at 1045 High Street; Nancy Davis (“Davis”), the owner
        of record of the property at 1041 High Street, listed this property
        for sale; Elrod paid at least one month’s mortgage on the Clover
        property; and Elrod obtained satisfaction of the judgment lien.


        Pursuant to the terms of the Mediated Settlement Agreement,
        Bauman’s counsel prepared a document titled “Confidential
        Settlement Agreement and Mutual Release” (“Agreement and

Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 8 of 30
              Release”) along with the related deeds and other documents
              necessary to complete the distribution of the assets as agreed to
              under the Mediated Settlement Agreement. Bauman’s counsel
              sent the documents, including the definitive settlement agreement
              draft to be signed. Elrod refused to sign the drafted agreement.


      Elrod v. Bauman, No. 49A02-1703-PL-657, slip op. at 1 – 3 (Ind. Ct. App. Jan.

      25, 2018).


[4]   Bauman filed an emergency motion to enforce the Mediated Settlement

      Agreement and the trial court ordered the parties to participate in a second

      mediation session. The second session was unsuccessful. Bauman filed a

      motion for summary judgment and a designation of evidence. Elrod did not

      respond. See id. at 4. However, counsel for Davis entered an appearance and

      requested an enlargement of time to respond to Bauman’s motion. Ultimately,

      she filed no response. On January 6, 2017, the trial court held a hearing on

      Bauman’s motion to enforce. The trial court considered briefs and affidavits

      submitted by the parties, with Elrod arguing that the parties had reached only

      an unenforceable agreement to agree. On February 28, 2017, the trial court

      granted summary judgment to Bauman and ordered Elrod to execute the

      Agreement and Release. See id. Elrod appealed.1




      1
       Bauman, Davis, Madison Avenue Athletic Club, M.A.A.C., and SEND each received notice of the appeal,
      but only Elrod and Bauman were active parties on appeal.
      By the time the Elrod opinion was handed down, the gym had been sold. On July 12, 2017, the closing for
      the sale took place. Chicago Title Company, LLC, Madison Avenue Athletic Club, Inc. (as the seller),
      Elrod, and Bauman executed an agreement to escrow the net sale funds of $811,742.83. The gym buyer
      granted M.A.A.C. and Elrod each a written easement to use an alley at 328 Prospect Street.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019              Page 9 of 30
[5]   On appeal, this Court considered whether the Mediated Settlement Agreement

      was an enforceable contract and whether the trial court had properly ordered

      Elrod to execute the Agreement and Release. We concluded:


              [T]he trial court erred to the extent that it ordered Elrod to
              comply with the terms of the Agreement and Release, as that
              document was not agreed to by the parties. However, Elrod is
              bound by the terms of the Mediated Settlement Agreement,
              which was the result of an hours-long mediation at which he was
              represented by counsel and which was signed by both parties.
              Accordingly, we reverse the order of the trial court enforcing the
              terms of the Agreement and Release and remand with
              instructions that the trial court enforce the terms of the Mediated
              Settlement Agreement.


      Id. at 7.


[6]   Bauman filed a motion to appoint a commissioner to enforce the Mediated

      Settlement Agreement. On May 23, 2018, Elrod filed a motion for

      interpretation and determination of rights, asking for a four-hour evidentiary

      hearing to address reimbursement for financial contributions, the date of

      assumption of mortgage obligations, and what type of deed would be required

      to transfer the property at 1041 High Street. On July 2, 2018, the trial court set

      the matter for a one-hour hearing and instructed the parties to “submit evidence

      and legal arguments in writing on these issues by July 27, 2018.” (Appellee’s

      App. Vol. II, pg. 47.) The hearing order was subsequently amended to permit

      an exchange of proposed evidence between the parties and to schedule two




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 10 of 30
      hours for the hearing. Bauman made submissions to the court; Elrod provided

      proposed submissions to Bauman’s attorney; and Davis made no submission.


[7]   At the hearing on August 3, 2018, attorneys for Davis, Bauman, and Elrod

      presented arguments. Elrod’s attorney attempted to call a witness to testify to

      the value of Elrod’s labor contributions, but the trial court disallowed

      testimony, clarifying that the proceeding before the bench was not a trial but a

      hearing on remand.


[8]   On October 4, 2018, the trial court entered its order of enforcement,

      accompanied by sua sponte findings of fact and conclusions of law.2 On

      November 5, 2018, Elrod and Davis filed motions to correct error. On

      November 21, 2018, the trial court entered an order amending the October 4,

      2018 order to require that Bauman formally assume a mortgage obligation as to

      property at 6427 Canna Court. Elrod and Davis each initiated an appeal, and

      the appeals were subsequently consolidated for review.



                                    Discussion and Decision
                                            Standard of Review
[9]   This Court instructed the trial court to enforce the terms of the Mediated

      Settlement Agreement. Settlement agreements are governed by the same




      2
          The findings and conclusions were not requested in writing by a party pursuant to Indiana Trial Rule 52(A).


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019                 Page 11 of 30
       general principles of contract law as any other agreement. Fackler v. Powell, 891

       N.E.2d 1091, 1095 (Ind. Ct. App. 2008), trans. denied. The interpretation and

       construction of a contract is a function for the courts. Id. at 1095-96. If the

       contract language is unambiguous and the intent of the parties is discernible

       from the written contract, the court is to give effect to the terms of the contract.

       Id. at 1096. A contract is ambiguous if a reasonable person would find the

       contract subject to more than one interpretation; however, the terms of a

       contract are not ambiguous merely because the parties disagree as to their

       interpretation. Id. When the contract terms are clear and unambiguous, the

       terms are conclusive and we do not construe the contract or look to extrinsic

       evidence, but will merely apply the contractual provisions. Id.


[10]   Here, one settlement term contemplated future conduct of the parties and future

       expenditures to accomplish renovation of the gym. In enforcing the terms of

       the Mediated Settlement Agreement, the trial court was required to determine

       whether reimbursable expenditures had been made by a party. Thus, the trial

       court acted as a fact-finder. The court did not hear witness testimony but heard

       argument and examined documentary submissions. The trial court sua sponte

       entered findings of fact and conclusions thereon. Sua sponte findings and

       conclusions control only as to the issues they cover, and a general judgment

       standard applies to any issue upon which the court has not found. Nelson v.

       Marchand, 691 N.E.2d 1264, 1267 (Ind. Ct. App. 1998). In reviewing findings

       and conclusions, we first determine whether the evidence supports the findings

       and then whether findings support the judgment. K.I. ex rel J.I. v. J.H., 903

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 12 of 30
       N.E.2d 453, 457 (Ind. 2009). We will not set aside the judgment unless it is

       clearly erroneous. Id. A judgment is clearly erroneous when there is no

       evidence supporting the findings or the findings fail to support the judgment.

       Id. A judgment is also clearly erroneous when the trial court applies the wrong

       legal standard to properly found facts. Id.


                              Summary Proceedings on Remand
[11]   At the hearing upon remand, Elrod’s counsel requested the opportunity to

       present witness testimony. The trial court denied the request, on grounds that

       there was no need “to try a case settled two years ago” and the parties had been

       ordered to submit evidence in documentary form. (Tr. Vol. II, pg. 105.) On

       appeal, Elrod contends “the trial court’s ruling that no witnesses were allowed

       by any party to be called deprived him of his constitutionally-protected right to

       due process under U.S. Const. Amend. XIV § 1 and IN. Const. Art 1 § 12.”

       Appellant’s Brief at 16. The “opportunity to be heard” is a fundamental

       requirement of due process under the Fourteenth Amendment to the United

       States Constitution. Podgor v. Indiana University, 381 N.E.2d 1274, 1281 (Ind.

       Ct. App. 1978). Also, Article 1, Section 12 of the Indiana Constitution provides

       for the right to be heard in court:


               All courts shall be open; and every person, for injury done to him
               in his person, property, or reputation, shall have remedy by due
               course of law. Justice shall be administered freely, and without
               purchase; completely, and without denial; speedily, and without
               delay.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 13 of 30
[12]   In Elrod, this Court remanded the matter for enforcement of the Mediated

       Settlement Agreement. We did not order the trial court to conduct further

       evidentiary proceedings and thus, Elrod had no such entitlement. The trial

       court, having been advised that the parties disagreed as to how several

       provisions of their agreement should be enforced, ordered that the parties make

       written evidentiary submissions. The trial court subsequently amended its order

       to permit exchange of materials between the parties. Elrod did not comply with

       the order for written submissions to the court. Rather, after his written requests

       for an evidentiary hearing had been denied, he appeared on the day of hearing

       prepared to elicit testimony from an expert witness. Elrod was constrained to

       making an offer of proof regarding the value of his work. Even so, he did not

       raise any constitutional objection. He does not fully develop constitutional

       arguments on appeal.


[13]   Elrod was not deprived of his opportunity to be heard. He was afforded the

       opportunity to make written submissions to the trial court and present argument

       thereon. We acknowledge that, in light of factual determinations to be made,

       the better practice may have been to allow witness testimony. This concept will

       be more fully addressed as we discuss the issues on appeal; however, Elrod has

       not shown that the exclusion of witness testimony rises to the level of

       constitutional deprivation.


                                                  Quitclaim
[14]   Elrod contends that the trial court erred in ordering Bauman to execute a

       quitclaim deed to Elrod transferring any interest Bauman might have in 1041
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 14 of 30
       High Street. According to Elrod, because Davis is the sole legal owner of 1041

       High Street, a quitclaim deed would transfer “no interest whatsoever” to Elrod

       and this is inconsistent with the intent of the Mediated Settlement Agreement.

       Elrod’s Brief at 19, Davis’s Brief at 15. Elrod argues that Bauman must obtain

       and transfer interest in 1041 High Street via a warranty deed, to avoid breach of

       the Mediated Settlement Agreement. Id. at 20 (emphasis added).


[15]   Indisputably, both parties knew when they negotiated the Mediated Settlement

       Agreement that Davis, who is Elrod’s sister, was the owner of record and the

       occupant of 1041 High Street. Elrod bargained for – and received – the right to

       have Bauman relinquish any claim to 1041 High Street. But Bauman and Elrod

       inserted no language in their agreement requiring, or even suggesting, that

       Bauman would be required to purchase 1041 High Street from Davis so that he

       could in turn execute a warranty deed for that property to Elrod. The value of

       the bargain to Elrod may consist of the intrinsic value derived from providing

       for his sister or it may be that he has an expectation of ultimately receiving a

       financial benefit. Regardless, the Mediated Settlement Agreement did not

       specify that Bauman would execute a warranty deed; a quitclaim deed –

       conveying Bauman’s interest, if any – is sufficient to satisfy Bauman’s

       obligation.


                  Assumption of Mortgage Payments/Refinancing
[16]   At the time of the execution of the Mediated Settlement Agreement, Bauman

       was liable for mortgage payments on certain properties that were to be allocated

       to Elrod. The parties agreed to the assumption of liabilities corresponding to
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 15 of 30
       ownership but did not specify a particular date or method. The trial court

       found that the parties intended immediate assumption of mortgage payments,

       to be followed by formal refinancing.3 Specifically, the order stated:


               66. A plain language reading of the Agreement clearly indicates
               that the parties intended Mr. Elrod to assume the mortgages and
               indemnify Mr. Bauman effective from the date of the Agreement.


               67. Mr. Elrod is required to assume the mortgage on 1045 High
               Street and indemnify Mr. Bauman thereon effective August 1,
               2016.


               68. Mr. Elrod is required to assume the mortgage on Clover
               Drive and indemnify Mr. Bauman thereon effective August 1,
               2016.


       (App. Vo. II, pg. 26).


[17]   Elrod contends that the parties intended the assumption of liabilities to take

       place on the date of the real estate closing as to a respective property.


               [W]here no time for performance is specified in the contract the
               law will imply that it must be performed within a reasonable
               time. Marion Trucking, Inc. v. Harwood Trucking, Inc. (1954), 125
               Ind. App. 1, 116 N.E.2d 636. Moreover, what constitutes a
               reasonable time within which an act is to be performed depends




       3
         Recognizing that the mortgagees might not consider Elrod qualified to assume the mortgages, the trial court
       ordered that, if Elrod was unsuccessful in obtaining his own financing, the mortgages would be satisfied from
       the gym proceeds.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019               Page 16 of 30
               on the subject matter of the contract, the situation of the parties
               and the circumstances attending the performance.


       Jay Clutter Custom Digging v. English, 393 N.E.2d 230, 232 (Ind. Ct. App. 1979).


[18]   The Mediated Settlement Agreement distributed multiple properties, several of

       which were mortgaged. The trial court concluded that the parties intended an

       allocation of responsibility for debt contemporaneous with the allocation of

       ownership. An immediate assumption by Elrod of the obligation to pay for his

       own individual properties is reasonable where he had ownership rights to those

       properties and no further responsibility to manage Bauman’s individual

       properties.


[19]   Additionally, the trial court concluded that the parties intended that Elrod

       refinance the indebtedness for his own properties in his own name. Elrod

       argues that the language obligating Elrod to pay “that” mortgage held by

       Bauman means that the particular mortgage “would have to remain in force as

       agreed by Bauman and the lender.” Appellant’s Brief at 23. The complaint

       was filed to end the business venture and the business relationship between the

       parties. This was more efficiently accomplished if the parties held respective

       properties and respective debts and were not co-obligors on debt. The trial

       court did not err in concluding that the parties intended a formalization of the

       division as opposed to continuation of long term obligation by a non-owner

       with an expectation of indemnification by the other party.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 17 of 30
                                             Reimbursements
[20]   During the thirty plus years of their joint venture, Bauman provided capital and

       Elrod provided sweat equity. Profits were divided equally. If there was a

       monthly loss, Elrod would meet with Bauman and report the aggregate amount

       of the shortfall, and Bauman would provide additional funding. This course of

       conduct ended on June 13, 2016, when the parties executed the Mediated

       Settlement Agreement and defined their future course of conduct. Paragraph

       13, employing prospective language, decrees that Elrod will manage the gym

       and account for the income and expenses from its operation. In the event that

       income does not exceed expenses and a party contributes to expenses described

       in Paragraph 13, he is to be given a corporate note.


               [Elrod] shall manage and operate the gym until it is sold and
               properly account for all income and expenses. In the event either
               party contributes to such expenses, that party shall be given a
               note by Madison Avenue Athletic Club, Inc. for such loan plus
               interest at 4%.


[21]   (App. Vol. II, pg. 71.) The plain language of Paragraph 13 contemplates a

       contribution that is (1) in the future (2) before sale of the gym and (3) for which

       a proper accounting has been made.


[22]   At the time the agreement was executed, there may have been ongoing work to

       remediate public health violations at the gym. On August 22, 2014, four

       months after Bauman filed his complaint, the Indiana Board of Health filed a

       complaint against the Madison Avenue Athletic Club, as the owner of the


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 18 of 30
       gym.4 The potential penalty for continued violation was $2,500 per day. The

       parties agreed that remediation was necessary to effectuate a sale and cure the

       violation. The Board of Health conducted an inspection of the gym on August

       29, 2016 and, on September 23, 2016, the Board of Health complaint was

       dismissed. On December 29, 2016, Elrod filed a mechanic’s lien against the

       gym property, in the amount of $83,302.00.5


[23]   At the remand hearing, Elrod argued that he was entitled to payment for his

       services and reimbursement of expenses related to two primary events, the

       remediation of health code violations at the gym and the move out upon the

       sale of the gym. Elrod also sought reimbursement for leasing a property after

       the sale of the gym (where he had reportedly stored gym property not taken by

       the gym buyer). Finally, he requested payment for time spent negotiating for

       parking access and sale of a liquor license.


[24]   Elrod submitted photographs to show before and after conditions at the gym.

       He claimed he was due: $112,195.85 for work, labor, and materials to complete

       Board-of-Health complaint renovations, $31,005.27 for cash advances for gym

       operating shortfalls, and $62,000.37 for cleaning, storage, and interest. He

       provided a copy of a contractor agreement between ALE and Madison Avenue



       4
        Allegedly, there had been deterioration of exterior trim, eaves, and window frames; there were exposed
       surfaces with lead-based paint; exterior masonry was loose; an exterior stairway had a loose or missing
       handrail; exterior steps were unsafe; gutters were missing; the roof needed repair; panes of glass were missing
       or broken; and some exterior bricks were loose.
       5
         Elrod executed a limited release of the lien to permit the sale of the gym to close, agreeing that the issue of
       reimbursement would be determined before distribution of the escrowed sales proceeds.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019                     Page 19 of 30
       Athletic Club, reciting that ALE would be paid $75.00 per hour for removal of

       debris. Elrod had signed the agreement as the President of Madison Avenue

       Athletic Club, and his wife, Jan Elrod, had signed as the secretary of ALE. 6

       Elrod also submitted bills from ALE, albeit lacking descriptions of work

       performed. For example, a “total bill for work completed at Madison Avenue

       Athletic Club from 5/13/2016 – 8/30/16” aggregating to $84,072.00,

       contained only summaries of amounts, such as a “5/13/16 bill of $6,000.00.”7

       Exhibit L.


[25]   The trial court found that Bauman contributed $30,000.00 to “making repairs to

       bring the Gym into compliance as ordered by the Board of Health” and that

       Elrod had not properly accounted for the use of those funds. Appealed Order at

       10. As for Elrod’s claims for reimbursement, the trial court disallowed the

       claimed expenses as unsubstantiated, unnecessary, or conflict of interest

       transactions that were a breach of Elrod’s fiduciary duty. Ultimately, the trial

       court concluded that Elrod had breached his fiduciary duty under Indiana Code

       Section 23-1-35-2.


[26]   That statute defines a “conflict of interest transaction” and provides in relevant

       part:




       6
           Elrod is the President and owner of ALE.
       7
        There is a handwritten notation that this $6,000 charge was paid in full by check #4847 on July 13, 2016.
       Elrod claimed to have paid this from his personal funds, as a loan to the corporation.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019               Page 20 of 30
               A conflict of interest transaction is a transaction with the
               corporation in which a director of the corporation has a direct or
               indirect interest. A conflict of interest transaction is not voidable
               by the corporation solely because of the director’s interest in the
               transaction if any one (1) of the following is true:


               (1) The material facts of the transaction and the director’s interest
                   were disclosed or known to the board of directors or a
                   committee of the board of directors and the board of directors
                   or committee authorized, approved, or ratified the
                   transaction.


               (2) The material facts of the transaction and the director’s interest
                   were disclosed or known to the shareholders entitled to vote
                   and they authorized, approved, or ratified the transaction.


               (3) The transaction was fair to the corporation.


[27]   The trial court considered whether transactions were conflict-of-interest

       transactions but did not address whether any were ultimately fair to the

       corporation. Elrod contends that each of the transactions for which he claimed

       reimbursement was a transaction “fair to the corporation.” See id. He also

       contends that the remediation of health and safety violations had not been

       completed when the Mediated Settlement Agreement was executed. The

       record before us, consisting of documents and the transcript of argument of

       counsel, does not permit meaningful appellate review of these contentions.

       Although the trial court had not been specifically ordered on remand to conduct

       an evidentiary hearing at which witness testimony would be heard, the better

       practice would have been to do so.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 21 of 30
[28]   The Mediated Settlement Agreement did not entitle Elrod to payment for his

       subsequent sweat equity or management services. Bauman had in the past

       infused capital into the venture and continued to do so. Elrod was to continue

       to manage the gym with an expectation of a share of the profits upon sale.

       Nonetheless, Bauman and Elrod agree that remediation work was necessary

       and it in fact occurred; the record indicates that the Board of Health complaint

       was dismissed approximately three months after the Mediated Settlement

       Agreement was executed. But it is unclear what remediation expenses, if any,

       were post-agreement expenses not covered by Bauman’s $30,000.00

       contribution.


[29]   Beyond denying Elrod’s claims for compensation for services, the trial court

       excluded the entirety of Elrod’s claims for reimbursement. The trial court

       expressed concerns about inadequacy of billing, lack of documentation,

       unilateral decision-making and self-dealing, and our review of the woefully

       inadequate documents causes us to share the trial court’s concerns. That said,

       however, we simply cannot ascertain, as a matter of law, that the trial court did

       not clearly err in its blanket denial. With further factual development,

       testimony, and determinations of credibility, the trial court is in a position to

       determine whether the expenses claimed by Elrod are each outside the

       parameters of Paragraph 13 and not “fair to the corporation.” I.C. § 23-1-35-2.

       We are not in a position to do so. Nor can we make a factual determination

       that Elrod did, or did not, make a legitimate loan of $6,000.00 to Madison

       Avenue Athletic Club after the execution of the Mediated Settlement


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 22 of 30
       Agreement.8 We therefore remand with instructions to the trial court to

       conduct an evidentiary hearing on this issue.9


                                Claim to Lot 22/1030 High Street
[30]   Paragraphs 1 and 2 of the Mediated Settlement Agreement allocated the

       properties bordered by High Street. Elrod was to receive lots 1033, 1034, 1035,

       1037, 1039, 1041, 1045, 1047, 1049, and 1055. Bauman was to receive lots 330,

       332, 336, 340, 1042, 1046, 1047 and 1048. These were properties that were

       “titled either in the name of [Bauman] and/or [Elrod] and MAAC, Properties,

       Inc.” (Exhibit A, pg. 1.) Bauman was to “receive all shares equaling 100% of

       MAAC Properties, Inc.” See id.


[31]   After the Mediated Settlement Agreement was reached, Elrod requested that

       the Marion County Assessor designate certain property as a separate parcel for

       taxation. On July 26, 2018, Elrod paid $133.06 in real estate taxes for property

       identified as “Nobles Sub L22” or 1030 High Street. (Appellee’s App. Vol. II,

       pg. 42.) At the remand hearing, Elrod asserted that this parcel was his separate

       property, not distributed by the Mediated Settlement Agreement.




       8
        The trial court observed that Elrod claimed to have loaned $23,183.75 to Madison Avenue Athletic Club,
       but submitted a sole supporting document, one check in the amount of $6,000.00.
       9
         To the extent that Elrod suggests the trial court was required to conduct a hearing on the quantum meruit
       value of Elrod’s services, we disagree. The equitable theory of quantum meruit, or unjust enrichment, may
       be raised where a measurable benefit has been conferred upon a defendant under circumstances where
       retention of the benefit would be unjust. King v. Terry, 805 N.E.2d 397, 400 (Ind. Ct. App. 2004). Where, as
       here, there is a contract, the equitable remedy is inapplicable. See id.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019               Page 23 of 30
[32]   Bauman argued that this property had been part of a larger parcel obtained at a

       sheriff’s sale and the agreement had contemplated that Bauman receive the

       entirety of the sheriff’s sale property. The trial court observed that Paragraph 2

       of the Agreement granted Bauman property inclusive of lots 330, 332, 336, and

       340 on Prospect Street. Having examined the documentary evidence, the trial

       court entered findings in pertinent part as follows:


               167. The Sheriff’s Deed dated December 28, 2001 and recorded
               with the Marion County Recorder’s Office as instrument number
               2002-0093948 includes the entirety of Lot Numbered 22 in its
               legal description of the properties “more commonly known as
               330, 332, 336, & 340 Prospect.”


               168. The quitclaim deed recorded with the Marion County
               Recorder’s Office as instrument number A201700086957
               purporting to transfer real estate known as Lot 22 or 1030 High
               Street to Mr. Elrod was not executed until July 19, 2017, more
               than a year after the Agreement was signed.


               169. The quitclaim deed recorded with the Marion County
               Recorder’s Office as instrument number A201700086955
               purporting to transfer real estate known as 330 Prospect Street to
               Mr. Elrod was not executed until July 19, 2017, more than a year
               after the Agreement was signed.


               170. A property allegedly located at 1050 High Street does not
               appear anywhere in legal records until the Marion County
               Assessor’s Office was asked to split Parcel Number 1026014
               (1046 High Street) on July 8, 2016 by the owner of the property.
               Mr. Elrod is the purported owner who asked the Assessor’s
               Office to split the property without Mr. Bauman’s knowledge or
               consent.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 24 of 30
               171. The current titleholder of 1046 High Street is Mr. Elrod,
               though Paragraph 2 of the Agreement grants 1046 High Street to
               Mr. Bauman.


               172. Mr. Elrod never raised the contention that he was entitled
               to Lot 22 or the alleged properties at 1030 High Street or 1050
               High Street at the time of the Agreement, trial or appellate court
               level .. [or] contended that any portion or interest in the
               Apartment Land or Four-plex Land were to be reserved to him
               and has waived those claims.


       (Appealed Order at 19-20.) (Emphasis in original.)


[33]   The trial court concluded that Elrod had agreed to transfer to Bauman

       “Apartment Land and Four-plex Land” and Elrod’s post-agreement attempt to

       enlarge the property distributed to him was contrary to the parties’ agreement

       and Elrod’s claims were “denied.” Id. at 21. At the same time, however, the

       trial court ordered Bauman to procure a survey to “clearly define the

       modernized legal descriptions of the Apartment Land and the Four-plex Land

       as well as the street addresses to which they relate.” Id.


[34]   A survey describing metes and bounds may be utilized to settle boundary

       disputes. See, e.g., Lane Alan Schrader Trust v. Gilbert, 974 N.E.2d 516, 517 (Ind.

       Ct. App. 2012). Here, there is no boundary dispute; rather, there are competing

       claims of ownership of certain property. It appears that Elrod attempted to

       claim more property than the Mediated Settlement Agreement allowed but,

       absent additional factual development, we cannot determine as a matter of law




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 25 of 30
       the parties’ respective ownership rights. We remand for an evidentiary hearing

       on this issue.


                            Easement to Alley at Prospect Street
[35]   Elrod owned a vacant alley on the east side of the gym. Regarding this alley,

       Paragraph 3 of the Mediated Settlement Agreement provides:


               The vacated alley that is due west of lot 330 shall remain in
               [Elrod]’s name unless it is purchased by the purchaser of the gym
               in which case [Elrod] will transfer his interest at no additional
               cost to Madison Avenue Athletic Club, Inc. If the gym purchaser
               does not purchase the vacated alley, upon closing of that sale,
               [Elrod] will deed the vacated alley to [Bauman] so long as
               [Bauman] remains the owner of the parcels 336 and 340 Prospect
               set over to him in paragraph 2 above.


       (Exhibit A at 1-2.) To effectuate the sale of the gym, Elrod deeded the alley to

       the gym purchaser. In turn, the gym purchaser granted M.A.A.C. and Elrod a

       written easement to use the alley. According to Bauman, Elrod was likely

       granted an easement because he was at the time exercising management duties

       on behalf of M.A.A.C.


[36]   The trial court concluded that the Mediated Settlement Agreement reserved to

       Elrod no interest in the alley and ordered that Elrod execute a deed transferring

       his interest in the easement to Bauman or M.A.A.C., as owner of the dominant

       land. Elrod argues that he should not have been required to relinquish an

       easement granted to him by the purchasers of the gym.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 26 of 30
[37]   Paragraph 3 sets forth alternatives, but neither scenario contemplates that Elrod

       would have an interest in the alley after consummation of the gym sale. Either

       the gym purchaser could purchase the vacated alley or, if the gym purchase did

       not include the alley, Elrod would execute a deed so that ownership of the alley

       would correspond to ownership of certain parcels retained by Bauman. A third

       scenario actually transpired – the gym buyer purchased the alley and granted

       Elrod an easement. The gym buyer was not a party to the Mediated Settlement

       Agreement and could grant an interest not contemplated therein. The trial

       court’s order that Elrod relinquish a property interest granted to him by a third

       party is not an order in enforcement of the Mediated Settlement Agreement.


                            Purported Dismissal of SEND Claim
[38]   Finally, Elrod argues that the trial court erred by purportedly dismissing with

       prejudice any claim with respect to SEND. In 2008, SEND and M.A.A.C.

       executed two leases with options to purchase related to portions of Prospect

       Street. Contingent upon M.A.A.C. making improvements to a parking lot,

       Madison Avenue Athletic Club would have the right to use the parking spaces.

       The specified time passed without improvements being made and, by the time

       of the remand hearing, there was no active agreement between SEND and

       Bauman, Elrod, Madison Avenue Athletic Club, or M.A.A.C. Despite the

       failure of the contingency, Elrod may have engaged in negotiations or provided

       other management services with respect to parking availability.


[39]   The trial court made the following entry denominated as finding of fact 142:


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 27 of 30
                The court dismisses with prejudice any claims that either party
                might raise regarding the SEND property. The issues with them
                are moot and the parties no longer have a colorable claim to the
                SEND property or lease options.


       (Appealed Order at 16.) The trial court need only have enforced the Mediated

       Settlement Agreement on remand. Regardless of whether Elrod negotiated

       with SEND representatives or expended other efforts to obtain parking near the

       gym, the Mediated Settlement Agreement does not provide for payment for his

       management services.10 The trial court could provide the parties with no relief

       on a SEND related claim. The order purportedly dismissing a moot claim is

       superfluous.


                                  Order to Davis to Execute Deed
[40]   Davis was named as a defendant to answer as to any interest she might have in

       1041 High Street. Bauman asserted, and Elrod has not disputed, that

       $16,500.00 of venture funds were provided to Davis to purchase that property at

       a tax sale in 2013. Apparently, Davis resided in and had improved the

       property, and no deed had ever issued to Bauman, Elrod, or either of the

       companies in which they were shareholders. However, 1041 High Street was a

       property included within the Mediated Settlement Agreement, thereby

       excluding a future equitable claim by either party to the agreement.




       10
         As the trial court observed, Elrod was paid for his services via his receipt of a share in the profits. Bauman
       had provided capital for his 50% share and Elrod had provided services for his 50% share. At times, despite
       the contributions of the parties, there had been shared losses.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019                   Page 28 of 30
[41]   On remand, the trial court was tasked with enforcing the Mediated Settlement

       Agreement, to which Davis is not a party. Elrod was given that which he

       bargained for – Bauman will make no claim that he holds an equitable interest

       in 1041 High Street or that he is entitled to reimbursement of any portion of

       venture funds expended to acquire that property. Elrod’s subjective expectation

       that his sister would later relinquish a claim to that property, or Davis’s

       expectation that she would retain the property free and clear, is irrelevant to

       enforcement of the Mediated Settlement Agreement. Davis simply is not

       bound by an agreement to which she was not a party. The trial court’s order to

       Davis that she execute a quitclaim deed to Elrod goes beyond enforcement of

       the Mediated Settlement Agreement and is thus clearly erroneous.



                                                 Conclusion
[42]   Elrod has not established that he was denied due process under the United

       States Constitution or the Indiana Constitution. We affirm the order that

       Bauman execute a quitclaim deed for 1041 High Street and the order regarding

       mortgage assumption. We reverse the orders that are not enforcing the

       Mediated Settlement Agreement, specifically, the order that Davis execute a

       quitclaim deed to 1041 High Street, the order that Elrod execute a quitclaim

       deed to an easement pertaining to an alley, and an order purportedly dismissing

       a potential SEND claim. We remand for an evidentiary hearing upon the

       remaining issues.


[43]   Affirmed in part, reversed in part, and remanded for an evidentiary hearing.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 29 of 30
Najam, J., and May, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-3020 | October 31, 2019   Page 30 of 30
