Pursuant to Ind. Appellate Rule 65(D), this                Jul 23 2014, 6:31 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS:                             ATTORNEY FOR APPELLEE:

TIMOTHY J. LEMON                                     BARRY T. EMERSON
Knox, Indiana                                        Emerson & Manahan
                                                     Delphi, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

ADAM TRUSTY and                                      )
BRITTANY TRUSTY,                                     )
                                                     )
       Appellants-Defendants,                        )
                                                     )
               vs.                                   )       No. 08A05-1309-CC-466
                                                     )
DAVID L. HOOD,                                       )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE CARROLL CIRCUIT COURT
                         The Honorable Benjamin A. Diener, Judge
                             Cause No. 08C01-1206-CC-114



                                           July 23, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
        Adam and Brittany Trusty appeal from the trial court’s order in an action brought

against the Trustys by David L. Hood alleging breach of a contract to sell residential real

estate. They contend that the trial court erred by failing to treat the earnest money as

liquidated damages, that there was inadequate proof of repairs to support the judgment, and

that attorney fees should not have been awarded. Concluding that the Trustys have not

established that the trial court erred by enforcing the contract against them, we affirm the

trial court.

                       FACTS AND PROCEDURAL HISTORY

        Hood agreed to sell his residence at 12346 West Sleepy Hollow Road in Monticello,

Indiana, to the Trustys. After extensive negotiations, Hood and Adam entered into a

written purchase agreement for the sale of the real estate for the purchase price of

$113,000.00. In addition to the real estate, certain personal property was to remain. The

Trustys had the property inspected, and repairs were made to the property. The purchase

agreement was amended one last time, the closing date was set for October 7, 2011, and

the Trustys were to take possession of the property on October 8, 2011. The closing date

and the date of possession were adjusted to accommodate the Trustys.

        Hood’s realtor, Cindy Bland, received a telephone call from the Trustys’ realtor,

Joan Abbott, informing Bland that Adam’s father had passed away, and that the Trustys

were still planning on closing on the property, but needed to change the closing date. The

realtors agreed to move the closing date to October 11, 2011. In a subsequent telephone

call, Abbott told Bland that she was not sure the Trustys would be present for the closing.

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        A mutual release of purchase agreement signed by the Trustys and dated October

10, 2011, was sent to Bland. Hood rejected the release and hired an attorney to send a

notice of default of the purchase agreement to the Trustys. The Trustys did not respond to

the letter.

        The purchase agreement signed by the Trustys provided the following in the event

of a default:

        DEFAULT. In the event this Agreement is accepted and either party shall,
        without legal cause, fail or refuse to complete the transaction in accordance
        with the terms and conditions of this Agreement; the non-defaulting party
        may pursue all legal or equitable remedies available under the law, and shall
        be entitled to all court costs and reasonable attorney’s fees, and said Earnest
        Money Deposit shall be held, retained or released by Listing Broker under
        the listing contract with Seller and the Earnest Money Deposit paragraph of
        this Agreement.

Plaintiff’s Ex. 2 at 3. The purchase agreement also had an earnest money deposit provision,

which reads as follows:

        EARNEST MONEY DEPOSIT. As Earnest Money, Purchaser deposits
        herewith $500.00 with Selling Broker by check which shall be applied to the
        purchase price (or closing costs in the event of 100% financing) at closing.
        All money paid herewith shall be held by Selling Broker until the acceptance
        of this Agreement and shall be transmitted to Listing Broker immediately
        upon such acceptance. If Purchaser fails for any reason to submit earnest
        money, as agreed, Seller may terminate this Agreement. Earnest money shall
        be returned promptly in the event this offer is not accepted. The Broker
        holding any earnest money is absolved from any responsibility to make
        payment to the Seller or Purchaser unless the parties enter into a Mutual
        Release or a Court issues an Order for payment, except as permitted in 876
        IAC 1-1-23 (release of earnest money). Upon notification that Purchaser or
        Seller intends not to perform, Broker holding the earnest money may release
        the earnest money as provided in this Agreement. If no provision is made in
        this Agreement, Broker may send to Purchaser and Seller notice of the
        disbursement by certified mail. If neither Purchaser nor Seller enters into a
        mutual release or initiates litigation within sixty (60) days of the mailing date
        of the certified letter, Broker may release the earnest money to the party

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       identified in the certified letter. Purchaser and Seller agree to hold the Broker
       harmless from any liability, including attorney’s fees and costs, for good faith
       disbursement of earnest money in accordance with this Agreement and
       licensing regulations.

Id.

       Hood continued to list his property for sale through a real estate network. The listing

price was reduced from $129,000.00 to $119,000.00. Bart Hickman assumed realtor duties

for Hood and actively marketed the property. In March 2012, Hood received the only offer

to purchase his property for $98,000.00. In the course of maintaining the property for this

subsequent sale, Hood incurred additional expenses, including tasks that were FHA

requirements, an inspection required by the buyer, and upkeep expenses. Hood also

incurred legal costs and attorney fees due to the default of the purchase agreement with the

Trustys. Hood testified about the efforts made by his attorney in handling the matter and

his attorney submitted an affidavit attesting to the time and effort spent earning the fee.

       The $500.00 earnest money was transferred from the Trustys’ realtor, Abbott, to

Hood’s realtor, Real Estate Network, pursuant to the terms of the purchase agreement. At

the time of trial, Real Estate Network retained the earnest money.

       Hood filed a complaint for damages alleging breach of contract to sell residential

real estate against the Trustys. The trial began on July 26, 2013, after which the trial court

took the matter under advisement, allowing the parties to file proposed findings of fact and

conclusions thereon. After considering the parties’ submissions and arguments, the trial

court entered detailed findings of fact and conclusions thereon, entering judgment in favor

of Hood. The Trustys now appeal.


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                            DISCUSSION AND DECISION

       In this case, the trial court asked the parties to submit proposed findings and then

entered findings of fact and conclusions thereon on its own motion. When a trial court

enters such findings, sua sponte, under Indiana Trial Rule 52, the specific findings control

only as to the issues they cover, and a general judgment standard applies to any issue upon

which the trial court has made no findings. Apter v. Ross, 781 N.E.2d 744, 751 (Ind. Ct.

App. 2003). The trial court’s specific findings will not be set aside unless they are clearly

erroneous, and we will affirm the trial court’s general judgment on any legal theory

supported by the evidence. Id. A finding is clearly erroneous when no facts or inferences

drawn therefrom support the finding. Id. On review, we neither reweigh the evidence nor

reassess the credibility of witnesses. Id. Instead, we consider only the evidence and

reasonable inferences from the evidence that support the finding. Id. “We owe no

deference to a trial court, however, on matters of law, reviewing these de novo.” Argonaut

Ins. Co. v. Jones, 953 N.E.2d 608, 614 (Ind. Ct. App. 2011).

       Generally, the construction of a written contract is a question of law for the trial

court, whose decision we review de novo. Jenkins v. South Bend Cmty. Sch. Corp., 982

N.E.2d 343, 347 (Ind. Ct. App. 2013). “A long-standing principle of contract interpretation

is that a court on review must accept an interpretation of a contract that harmonizes all the

various parts, so that no provision conflicts with, is repugnant to, or neutralizes any other

contractual provision.” Id. at 348.

       We are asked to review the trial court’s finding and conclusion that the residential

purchase agreement contained a penalty provision and not a liquidated damages clause.

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“The distinction between a penalty provision and one for liquidated damages is that a

penalty is imposed to secure performance of the contract and liquidated damages are to be

paid in lieu of performance.” Dean V. Kruse Found., Inc. v. Gates, 973 N.E.2d 583, 591

(Ind. Ct. App. 2012). Liquidated damages clauses provide for the forfeiture of a stated sum

of money upon a breach of contract without proof of damages and are generally enforceable

where the nature of the agreement is such that damages for breach would be uncertain,

difficult, or impossible to ascertain. Id.

       The Trustys contend that Hood kept the earnest money. However, the evidence

presented at trial established that the earnest money was retained by Hood’s realtor. The

residential purchase agreement provided that the seller’s realtor was to hold the earnest

money unless the parties entered into a mutual release or the trial court issued an order for

payment. At the conclusion of the trial, the trial court ordered the transfer of the earnest

money, which was held in escrow, to Hood’s attorney.

       The Trustys also contend that the earnest money constituted liquidated damages

such that Hood could not recover damages beyond the $500.00 earnest money paid by

them. In Dean v. Kruse, we set forth certain factors for consideration in determining

whether a provision constitutes a penalty or a liquidated damages clause, including how

the provision is labeled, but acknowledged that there “are no hard and fast guidelines to

follow.” 973 N.E.2d at 591-92. Those factors include a consideration of whether there is

an intent to penalize the purchaser for a breach or if there is an intent to compromise, the

proportion of the amount claimed as liquidated damages with the amount of the loss likely



                                             6
to occur if there is a breach of the agreement, and whether the damages are ascertainable

or certain in the event of a breach. Id. at 591-93.

       Applying those factors to the provision here, the trial court correctly found that the

earnest money was to serve as a penalty in the event of a breach. The earnest money

amount was grossly disproportionate to the actual damages, which were certain and

ascertainable. “[I]n most real estate purchase agreements, a measure of damages should

be readily ascertainable.” Id. at 594 (quoting Rogers v. Lockard, 767 N.E.2d 982, 990 n.6

(Ind. Ct. App. 2002)). “The measure of damages in a breach of real estate contract is the

difference between the sale price of the property to be sold and the fair market value of the

property at the time of breach.” Id. “The price paid by a subsequent purchaser following

the breach may also be admissible as evidence of the property’s fair market value.” Id.

The contract price for the property was $113,000.00 and the subsequent purchase price was

$98,000.00. Hood also submitted evidence of the cost to maintain the property in the

interim. Thus, the damages were readily ascertainable, and the earnest money, $500.00,

was grossly disproportionate to the actual damages. The trial court’s decision is not clearly

erroneous.

       The Trustys also argue that they were not in breach of the residential purchase

agreement because there was no evidence that Hood corrected the unacceptable items after

the property was inspected. The evidence adduced at trial established that Hood agreed to

correct all items on the unacceptable summary report from the inspection except one item.

The Trustys agreed in writing with Hood’s proposal for the corrections. Bland testified

that all the repairs were completed, and the property was ready for the October 11, 2011,

                                              7
closing date.   The Trustys’ realtor testified that to her knowledge the repairs were

completed and that the repairs would have been easy to confirm during a walk through.

The walk through was never completed, however, because the Trustys were not present for

the closing.

       There is no evidence in the record to establish that an alleged failure to complete the

repairs was the cause of the breakdown in the real estate purchase agreement. Instead, the

evidence reflects that the Trustys failed to close on the property because Adam’s father

passed away suddenly, and they did not wish to leave Adam’s mother alone. To that end,

they instructed Abbott to forward a mutual termination of the purchase agreement to Bland.

Therefore, the trial court’s conclusion that the Trustys were in breach of the real estate

purchase agreement is not clearly erroneous and is supported by the evidence.

       Although the Trustys contend that Adam’s father’s death should excuse their breach

of the agreement, and allow for equitable principles to apply, such does not constitute a

“legal cause” to terminate the contract. The Trustys entered into a contract, the terms of

which proved more onerous than they anticipated. However, the parties were bound by the

contract, and the trial court did not err in enforcing the terms of the contract.

       The Trustys assert that the costs and attorney fees assessed against them were not

reasonable. In particular, the Trustys argue that an award of $6,597.00 in attorney fees and

costs was excessive given the fact that the matter was tried to the bench and took only a

little more than two hours to complete. The Trustys, however, offer no evidence as to what

constitutes a reasonable fee.



                                               8
       Here, the unambiguous language of the residential purchase agreement provided

that “the non-defaulting party may pursue all legal or equitable remedies available under

the law, and shall be entitled to all court costs and reasonable attorney fees, and said Earnest

Money Deposit shall be held, retained or released by Listing Broker under the listing

contract. . . .” Plaintiff’s Ex. 2 at 4. The evidence reflects that the Trustys defaulted on the

residential purchase agreement, and Hood rejected entering into a mutual release. Hood

testified that he worked with his attorney on most of the forty hours billed at a rate of

$150.00 per hour. That amount was supported by an affidavit signed by Hood’s counsel

attesting to the amount and reasonableness of the fee.

       “It is well established that parties are permitted to enter into agreements containing

fee-shifting provisions as long as the provision does not violate public policy.” Gerstbauer

v. Styers, 898 N.E.2d 369, 379 (Ind. Ct. App. 2008) (quoting Walton v. Claybridge

Homeowners Ass’n, Inc., 825 N.E.2d 818, 824-25 (Ind. Ct. App. 2005)). The trial court

has broad discretion in assessing attorney fees, and that decision will be reversed only if

the award is clearly against the logic and effect of the facts and circumstances before the

trial court. Id. at 378. An abuse of discretion also occurs if the trial court misapplies the

law. Id.

       Here, the contract contemplated an award of attorney fees if one of the parties was

required to enforce legal rights. An award of attorney fees pursuant to an agreement

between the parties accomplishes the goal of more fully compensating a party who has

successfully enforced his or her legal rights in court. Id. at 379. The Trustys defaulted on

the purchase agreement in October of 2011, and Hood’s complaint was filed on June 21,

                                               9
2012. The matter continued through a bench trial held on July 26, 2013. In preparation

for that trial, Hood’s attorney was required to review the purchase agreement, interview

the witnesses, document the evidence, and research the legal issues in preparation for trial.

The attorney billed Hood for forty hours at a rate of $150.00 an hour. That attorney had

thirty-five years of experience. In light of the time and effort required, the value of the

interests involved, and the experience, reputation, and ability of the attorney performing

the services, the trial court did not abuse its discretion in making the award of attorney fees

and costs.

       Affirmed.

BAILEY, J., and CRONE, J., concur.




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