MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                Oct 30 2017, 10:45 am
this Memorandum Decision shall not be
                                                                           CLERK
regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
court except for the purpose of establishing                                and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEES
John J. Schwarz, II                                      Ralph R. Huff
Schwarz Law Office, PC                                   Jones Huff Jones & Richeson, LLP
Hudson, Indiana                                          Plymouth, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Randy Glingle and Roberta                                October 30, 2017
Glingle,                                                 Court of Appeals Case No.
Appellants-Defendants,                                   50A05-1704-MI-723
                                                         Appeal from the Marshall Circuit
        v.                                               Court
                                                         The Honorable Curtis D. Palmer,
Ryan Glingle and Julie Glingle,                          Judge
Appellees-Plaintiffs.                                    Trial Court Cause No.
                                                         50C01-1509-MI-50



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017         Page 1 of 11
                                         Statement of the Case
[1]   Randy Glingle and Roberta Glingle appeal the trial court’s order granting Ryan

      Glingle and Julie Glingle’s1 motion to enforce the parties’ settlement agreement

      and impose sanctions. Randy presents the following issues for our review:


              1.       Whether the trial court erred when it denied Randy’s
                       motion to dismiss Ryan’s motion.

              2.       Whether the trial court erred when it imposed sanctions on
                       Randy.

              3.       Whether the trial court erred when it ordered Randy to
                       pay one-half of an auctioneer’s commission.


[2]   We affirm.


                                   Facts and Procedural History
[3]   Randy and Ryan each had an undivided one-half interest in an eighty-acre farm

      located in Marshall County (“the farm”). On September 30, 2015, Ryan filed a

      petition to compel partition of the real estate. On March 10, 2016, following

      mediation, the parties agreed to sell the farm and entered into a settlement

      agreement that provided in relevant part that: “[a]ll costs of sale or auction

      shall be paid one-half (1/2) by [Ryan] and one-half (1/2) by [Randy]”; if the

      property did not sell by October 1, 2016, the parties would enter into a contract




      1
        For ease of discussion, when we hereinafter refer to the appellants-defendants, we will name only Randy,
      and when we refer to the appellees-plaintiffs, we will name only Ryan.

      Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017          Page 2 of 11
      for the auction of the property; closing of any sale would be no longer than sixty

      days after the date of the sale; the auctioneer would be Phil Hahn & Associates

      (“Hahn”); upon the sale of the property the parties would “execute and

      exchange, by their attorneys, a stipulation for dismissal of the [partition

      action]”; and they would “execute any and all documents necessary to carry out

      the terms hereof[.]” Appellants’ App. Vol. 2 at 33-34.


[4]   On October 10, 2016, Randy and Ryan contracted with Hahn to sell the farm at

      auction, and they agreed to pay Hahn 3.5% of the “gross sale amount.” Id. at

      43. On December 6, Hahn sold the farm at auction to two buyers: Allen Motz

      bought forty acres for $312,500, to be paid in cash; and Glingle Farms

      Holdings, LLC (“Glingle Farms”), bought forty acres for $312,500. Randy, an

      authorized member of Glingle Farms, executed the purchase agreement, which

      included a provision stating that Randy agreed to “pay the proportionate share

      of expenses.” Id. at 45. Randy bought the forty acres with his equity in the

      farm.


[5]   The parties scheduled both closings for January 27, 2017, at Metropolitan Title

      of Indiana. At some point prior to that date, Tammy Borggren, Metropolitan’s

      branch manager, went to Randy’s house to get his signatures on the deed and

      an authorization for his son Rance “to sign everything else at closing” because

      Randy and Roberta were going to be out of town for the winter months. Tr. at

      27. Randy signed the documents as requested, but he told Tammy that he

      would not pay “any closing costs.” Id. at 28. Thereafter, on January 24,

      Tammy prepared the closing statements. The closing statement for the sale to

      Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017   Page 3 of 11
      Randy included the following costs to be paid by Randy: Hahn’s commission

      of $10,937.50, and “Title/Escrow Charges” and “Disbursements” totaling

      $1,299. Appellants’ App. Vol. 2 at 16. After Tammy sent the closing statement

      to Rance, Rance called Tammy and told her that Randy “would not pay any

      costs.” Tr. at 29. Accordingly, Hahn and Tammy “mutual[ly] agree[d]” to

      cancel both closings. Id. at 60.


[6]   On February 7, Ryan filed a “Motion to Enter Judgment and Impose

      Sanctions, Including an Award of Costs and Fees.” Appellants’ App. Vol. 2 at

      35. In that motion, Ryan asked the trial court to: enforce the parties’

      settlement agreement; order Randy to proceed to closing on both sales; impose

      sanctions against Randy, including Ryan’s attorney’s fees; and order Randy to

      pay his share of Hahn’s commission and other closing costs. Randy filed a

      motion to dismiss Ryan’s motion. Following a hearing on March 15, the trial

      court entered an order, the same day, stating in relevant part as follows:


              After hearing evidence and argument, the Court Ordered that the
              auctioneer’s commission expense disputed by [Randy and
              Roberta] be paid by them at the real estate closing scheduled for
              March 16, 2017; but that those funds be held in trust by the title
              company until further order of the court. All parties were
              ordered to attend the real estate closing set for March 16, 2017.
              All remaining matters were taken under advisement.

                                                      ***

              Upon preparing the matter for a real estate closing, [Randy and
              Roberta] refused to pay any portion of the auctioneer
              commission attributable to the second parcel. Apparently,

      Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017   Page 4 of 11
        [Randy and Roberta’s] position is that they will not acquire any
        new property interest as a result of the auction that they did not
        already possess. The Court finds no legal support for [Randy and
        Roberta’s] position. [Randy and Roberta] initially held an
        undivided one-half interest in an 80[-]acre parcel; they now will
        own a 40[-]acre parcel in fee simple.

        Furthermore, [Randy and Roberta] had the ability to bargain for
        the elimination of any auction or realtor commission in the event
        they purchased the property in the mediation agreement, the
        auctioneer’s contract[,] and the purchase agreement. They failed
        to bargain for or include any such language in any of the
        numerous agreements they signed. The initial closing of the real
        estate matters was delayed because of [Randy and Roberta’s]
        refusal to pay any portion of the auctioneer’s commission on the
        parcel they purchased, thereby causing [Ryan and Julie] to incur
        additional attorney fees in the sum of $2,360.00.

        [Randy and Roberta’s] Motion to Dismiss asserts [Ryan and
        Julie] lack standing to attempt to enforce the Purchase
        Agreement and the auctioneer’s contract requiring the payment
        of a commission to the auctioneer. The court finds that, as
        parties to both contracts, [Ryan and Julie] have standing to
        enforce the contracts to obtain the benefits for which they
        bargained (auction services and closing of the real estate
        transactions).

        THEREFORE, THE COURT NOW ORDERS:

        l. A Judgment is entered enforcing the mediated agreement.

        2. [Randy and Roberta’s] Motion to Dismiss is DENIED.

        3. As a sanction for [Randy and Roberta’s] conduct they shall
        pay the sum of $2,360.00 to [Ryan and Julie] as a reimbursement
        for attorney fees.


Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017   Page 5 of 11
              4. Metropolitan Title of Indiana[,] LLC shall disburse the
              disputed commission fees held in trust to Hahn Auctioneers, Inc.


      Id. at 8-10. This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[7]   Because the court’s judgment follows an evidentiary hearing on Ryan’s motion

      to enforce the settlement agreement and Randy’s motion to dismiss, and

      because the court entered findings and conclusions based on the evidence

      presented at that hearing, we review the court’s judgment under our clearly

      erroneous standard of review. We review the issues covered by the findings

      with a two-tiered standard of review that asks whether the evidence supports

      the findings and whether the findings support the judgment. See Steele-Giri v.

      Steele, 51 N.E.3d 119, 123 (Ind. 2016).


                                      Issue One: Motion to Dismiss

[8]   Randy first contends that the trial court erred when it denied his motion to

      dismiss, in which he ostensibly alleged both a lack of standing and a “failure to

      state a claim upon which relief [can] be granted.” Appellants’ App. Vol. 2 at

      53. However, we note that Randy’s motion to dismiss does not refer to Trial

      Rule 12(B)(6), and, on appeal, he does not cite to Trial Rule 12(B)(6) in support

      of any of his contentions. Neither does Randy cite to any case law that

      addresses the issue of standing. Rather, Randy now asserts, generally, that

      Ryan “lacked authority to request the trial court [to] impose commission fees

      Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017   Page 6 of 11
      on [Randy]” because “Hahn was not a party to the partition action” and the

      “dispute of the commission fee was a matter between Hahn and [Randy].”

      Appellants’ Br. at 11. Randy also maintains that the trial court should have

      granted his motion to dismiss because Ryan had “failed to comply with the

      terms of the mediation agreement when [he] refused to file the stipulation of

      dismissal.” Id. We address each contention in turn.


                            Ryan’s “Authority” to Enforce Settlement Agreement


[9]   First, Randy does not cite to any relevant statutory or case law to support his

      contentions regarding Ryan’s authority, or lack thereof, to enforce the

      settlement agreement. Second, to the extent Randy claims that Ryan did not

      have the “authority” to ask the trial court to enforce a provision of the parties’

      settlement agreement,2 we cannot agree. Ryan, as a party to the agreement, had

      a right to seek its enforcement. See Flaherty & Collins, Inc. v. BBR-Vision I, L.P.,

      990 N.E.2d 958, 971 (Ind. Ct. App. 2013), trans. denied. And finally, to the

      extent Randy claims that Hahn was a necessary party, Randy made no

      contention to the trial court, and makes no contention on appeal under Trial

      Rule 12(B)(7) or supporting case law, that Ryan had failed to join “a party

      needed for just adjudication under [Trial] Rule 19[.]” Randy’s contentions on

      this issue are without merit.




      2
        The agreement provided in relevant part that “[a]ll costs of sale or auction shall be paid one-half (1/2) by
      [Ryan] and one-half (1/2) by [Randy].” Appellants’ App. Vol. 2 at 41.

      Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017              Page 7 of 11
                                             Stipulation of Dismissal


[10]   Randy next contends that Ryan “failed to provide evidence that supports [his]

       allegations that [Randy] refused to pay costs pursuant to the mediation

       agreement and, therefore, delayed the closing beyond the terms and conditions

       of the mediation agreement.” Appellants’ Br. at 12. Further, Randy maintains

       that, in any event, it was not him but Ryan who caused the delay in the closings

       because Ryan “refused to comply with the terms of the mediation agreement

       and the title company testified [sic] that it would not close the land sale with

       pending litigation.” Appellants’ Br. at 13. We cannot agree.


[11]   First, Borggren unequivocally testified that Randy and Rance had both told her

       prior to the scheduled closings that Randy refused to pay “any closing costs.”

       Tr. at 28. Thus, the evidence supports the trial court’s finding that Randy

       caused the delay in the closing on that basis. Indeed, Randy’s declaration prior

       to closing that he would not pay the closing costs was, in effect, an anticipatory

       breach. See, e.g., Ralph E. Koressel Premier Elec., Inc. v. Forster, 838 N.E.2d 1037,

       1045 (Ind. Ct. App. 2005) (holding that prospective seller of business

       anticipatorily breached listing agreement with broker where seller notified

       broker that he did not intend to pay broker any commission on the sale because

       he believed that broker had not done enough work to justify payment of the

       commission). Second, Randy does not direct us to any part of the record on

       appeal to show that he argued to the trial court that Ryan’s “failure” to file the

       parties’ stipulation of dismissal caused the delay, and our review of the

       transcript and appendices does not indicate that he made that argument below.

       Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017   Page 8 of 11
       In any event, the parties’ settlement agreement required only that the parties

       “execute and exchange” the stipulation for dismissal “upon the sale of the real

       estate” and is silent as to when it had to be filed with the trial court.

       Appellants’ App. Vol. 2 at 42. Randy has not shown that the trial court’s

       conclusion that he caused the delay in closing was clearly erroneous.


                                            Issue Two: Sanctions

[12]   Alternative Dispute Resolution Rule 2.7(E)(3) applies to mediation and

       provides that, in the event of any breach or failure to perform under a mediation

       agreement, upon motion, and after hearing, the court may impose sanctions,

       including entry of judgment on the agreement. Here, the trial court found that

       the closing was delayed “because of [Randy’s] refusal to pay any portion of the

       auctioneer’s commission on the parcel [he had] purchased, thereby causing

       [Ryan] to incur additional attorney fees in the sum of $2,360.00.” Appellants’

       App. Vol. 2 at 9. Accordingly, the court imposed sanctions against Randy in

       the amount of $2,360.


[13]   Again, Randy asserts that he “did not refuse to cooperate” and “met the terms

       of the mediation agreement” because he “did not refuse to pay any costs related

       to the closing.” Appellants’ Br. at 15. But Borggren’s testimony that Randy

       and Rance told her that Randy would not pay “any closing costs” supports the

       trial court’s finding that Randy caused the delay. Tr. at 28. And we reject

       Randy’s contention that Ryan caused the delay when he did not file the




       Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017   Page 9 of 11
       stipulation of dismissal with the trial court prior to closing.3 The trial court did

       not err when it imposed sanctions on Randy for violating the terms of the

       settlement agreement, which required that the parties close the sales within

       sixty days of the date of the auction.4


                                   Issue Three: Auctioneer’s Commission

[14]   Finally, Randy contends that the trial court erred when it ordered him to pay

       one-half of Hahn’s commission for the sale of the farm at auction. Randy

       maintains that, because the Indiana statute “regarding auctioneer expenses and

       fee states that the subsection does not apply to a partition action,” see Ind. Code

       § 34-55-6-5 (2017), and because Randy “retained one-half of the land that was

       partitioned following the auction[,]” he was not responsible to pay for any

       portion of Hahn’s commission. Appellants’ Br. at 18. Again, we cannot agree.


[15]   Randy signed the contract with Hahn, which provided in relevant part that

       Randy and Ryan agreed to pay Hahn 3.5% of the “gross sale amount” after

       auction. Appellants’ App. Vol. 2 at 43. Randy also signed the parties’

       settlement agreement, which provided in relevant part that “[a]ll costs of sale or

       auction shall be paid one-half (1/2) by [Ryan] and one-half (1/2) by [Randy].”




       3
         Randy contends that Ryan “refused” to sign the stipulation of dismissal, but he does not support that
       contention with any evidence. Appellants’ Br. at 16. On the other hand, Ryan directs us to evidence that
       shows that the parties intended to present the stipulation of dismissal to the title company at closing and that
       he intended to file it with the trial court thereafter.
       4
         Randy’s contention that the trial court erred when it awarded attorney’s fees pursuant to Indiana Code
       Section 34-52-1-1 is misplaced. The trial court awarded sanctions under ADR Rule 2.7(E)(3).

       Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017             Page 10 of 11
       Id. at 41. The gross sale amount of the farm at auction was $625,000. Thus,

       Randy was responsible to pay 1.75% of that sum to Hahn. The trial court did

       not err when it ordered Randy to pay one-half of Hahn’s commission.


[16]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 50A05-1704-MI-723 | October 30, 2017   Page 11 of 11
