                                                                      May 28 2015, 7:22 am




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      James E. Ayers                                            Gregory H. Miller
      Wernle, Ristine & Ayers                                   Crawfordsville, Indiana
      Crawfordsville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Terry Huber,                                              May 28, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                54A01-1404-PL-154
              v.                                                Appeal from the Montgomery Circuit
                                                                Court
      Roger Hamilton,                                           The Honorable Harry A. Siamas,
                                                                Judge
      Appellee-Plaintiff.
                                                                Case No. 54C01-1309-PL-709




      Vaidik, Chief Judge.



                                           Case Summary
[1]   Two parties executed a land contract for the sale of commercial real estate in

      Crawfordsville, Indiana. The Statute of Frauds requires land contracts to be in

      writing. The written land contract called for monthly payments, with a balloon

      payment to be made at the end of the term. When the buyer was not able to

      make the balloon payment at the end of the term, he approached the seller

      Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015                 Page 1 of 17
      about extending the due date for the balloon payment. Although the parties

      made an oral agreement about extending the due date for the balloon payment,

      each side presented a different version of that agreement.


[2]   The trial court, which could not determine the details of the parties’ agreement

      because it found that the evidence was unpersuasive both ways, concluded that

      the oral agreement was unenforceable because it was not in writing. Therefore,

      the trial court concluded that the buyer breached the land contract when he

      failed to make the balloon payment when it was originally due.


[3]   We agree with the trial court that the Statute of Frauds applies to the parties’

      oral agreement to modify the written land contract and, therefore, the oral

      agreement is unenforceable because it was not reduced to writing.

      Furthermore, we find that neither party has met its heavy burden of removing

      the oral agreement from the Statute of Frauds based on the equitable doctrine of

      promissory estoppel. Finally, because the oral agreement is unenforceable, we

      agree with the trial court that the buyer breached the written land contract by

      failing to make the balloon payment when it was originally due.



                             Facts and Procedural History
[4]   On November 15, 2007, Roger Hamilton sold commercial real estate located at

      111, 113-115, and 127 West Market Street in Crawfordsville to Terry Huber.

      Huber operated Old Town Pizzeria at 127 West Market Street, and there were

      tenants—Moore’s Jewelry and Digger’s Café—in the other buildings.


      Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015    Page 2 of 17
      According to the terms of the parties’ contract,1 the purchase price was

      $150,000, with a down payment of $20,000. Ex. 1. The balance of $130,000

      was payable in monthly installments of $1132.44 with 6.5% interest from

      January 2, 2008, to November 30, 2010, at which point “the then unpaid

      balance shall be payable in full unless renegotiated . . . .” Id.


[5]   The contract also provides that Huber would receive title to the properties

      “upon the payment of the money and interest at the time and in the manner

      [specified in the contract], and the prompt and full performance by [Huber] of

      all his covenants and agreements [specified in the contract] . . . .” Id. The

      contract states the following regarding breach of the contract:

                 In the event [Huber] shall, for any reason, fail or refuse to make any
                 payment due under this contract, including annual payment, taxes,
                 assessments or insurance premiums for a period of thirty (30) days
                 after the same become due, and upon an additional thirty days’ written
                 notice, [Huber] shall then be deemed to be in default of the contract.
                 In that event, the entire balance of principal and interest due shall
                 become due and payable at the option of [Hamilton]. No delay on the
                 part of [Hamilton] in exercising this option shall operate as a waiver or
                 preclude the exercise of such option at any time during the
                 continuance of such default or upon the occasion of any subsequent
                 default. [Hamilton] shall be entitled to recover judgment against
                 [Huber] for such sum without relief from valuation, appraisement laws
                 together with Court costs, attorney’s fees and any other damages
                 which may have been caused by [Huber’s] breach of this contract.
                 [Hamilton] shall also have the right to recover the judgment in whole
                 or in part by foreclosure of [Huber’s] interest hereunder and the sale of
                 the real estate, and shall have the right to have a receiver appointed to



      1
          Huber’s attorney prepared the “Installment Purchase Agreement” that the parties signed.



      Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015                        Page 3 of 17
              take charge of, rent, manage and conserve the real estate herein
              described during the pendency of any foreclosure action.
      Id.
[6]   As the due date for the balloon payment approached in late 2010, Huber talked

      to Hamilton about extending the contract.2 According to Huber, Hamilton told

      him that he could pay an additional $300 per month, in cash, in order to “keep

      the contract going”; Huber said there was no discussion on the timeline or how

      the $300 would be applied. Tr. p. 9-10, 22. According to Hamilton, however,

      he “agreed . . . [to] go another year [in order to] give [Huber] time to find the

      financing.” Id. at 69. In addition, Hamilton said he told Huber that the

      additional $300 per month would not be applied to principal but rather was a

      penalty for not paying the balloon payment on time. Id. at 70. Hamilton

      submitted his tax returns showing that he reported the additional $300 per

      month. In any event, the agreement to extend the contract was oral and never

      reduced to writing.


[7]   Huber continued to make the monthly contract payments plus the additional

      $300 per month. He made thirty-four additional payments of $300—for a total

      of $10,200—between December 2010 and September 2013. In December 2011




      2
        Huber claims that he could not get financing because underground storage tanks were below the pizza shop,
      and Hamilton did not tell him about the tanks when they executed the land contract. According to
      Hamilton, however, he told Huber about the underground storage tanks (all but one of which had been
      removed) and did not believe there were any environmental issues with the property. The court noted these
      conflicting versions in its findings. See Appellant’s App. p. 30 (Finding No. 5).

      Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015                         Page 4 of 17
      Hamilton asked Huber about making the balloon payment; Huber said he

      would but never did.


[8]   In August 2013 Hamilton’s attorney sent Huber a written notice of default and

      demanded payoff within thirty days:

              Mr. Hamilton advises that you were to have paid the balance of the
              purchase price . . . by November 30, 2010. As a result of your failure
              to pay the balance of the purchase price by November 30, 2010, you
              are in default of your Installment Purchase Agreement.
                                                      *****
              Your failure to pay the [balance] within thirty (30) days of the date of
              this letter will result in Mr. Hamilton re-taking the subject real estate
              and directing any and all rent payments from any and all tenants to
              him. In addition, Mr. Hamilton will have the right to file a lawsuit
              against you to collect any monies remaining owing to him under the
              Installment Purchase Agreement.
      Ex. D.


[9]   Huber filed a complaint for declaratory judgment against Hamilton on

      September 13, 2013. Huber alleged that the written contract provided that the

      unpaid balance would be “due and payable at the end of November 2010,

      unless renegotiated”; however, the parties renegotiated the contract “to provide

      that the balance[-]due provision was declared void and the periodic[-]payments

      provision extended indefinitely until payment in full.” 3 Appellant’s App. p. 8,

      9. Huber alleged that for consideration of the modification, he agreed to pay an




      3
       According to Huber’s amortization calculation, the contract would be paid off in July 2019. See Appellant’s
      Br. p. 11 (citing Appellant’s App. p. 19, 39).

      Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015                          Page 5 of 17
       additional $300 per month, which was to be applied to principal. Accordingly,

       Huber asked the trial court for a judgment “declaring and adjudicating the

       respective rights and duties of [Huber] and [Hamilton] under the contract as

       modified and further declaring that [Hamilton] does not have the right to

       declare [Huber] in default so long as payments of $1,432.44 [($1132.44 plus

       $300)] per month are made timely.” Id. at 9. At Hamilton’s request, the trial

       court ordered that beginning October 1, 2013, the tenants at 111 and 113-115

       West Market Street “shall direct their monthly rent payments to the Clerk of the

       Montgomery Circuit Court who shall hold those rent payments in escrow until

       further order of the Court.” Id. at 13.


[10]   Hamilton filed a counterclaim against Huber to foreclose the land contract. Id.

       at 20. Specifically, Hamilton alleged that he agreed to a one-year extension of

       the contract—from November 30, 2010, to November 30, 2011—and because

       Huber failed to make the balloon payment on November 30, 2011, he was “in

       default.” Id. at 23. Hamilton asked for a money judgment for the balance as

       well as a decree “foreclosing Huber’s interest in [the] real estate by reason of the

       parties’ land contract and is entitled to an order requiring the Sheriff of

       Montgomery County to sell said real estate at public sale in the same manner as

       prescribed for foreclosed mortgage loans.” Id. at 24. Hamilton also requested

       attorney’s fees.


[11]   A bench trial was held. In February 2014 the trial court entered extensive

       findings and conclusions that (1) the Statute of Frauds applied and therefore the

       oral modification to the written contract had no effect; (2) Huber was in default

       Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015        Page 6 of 17
of the written contract because he failed to make the balloon payment when

due; (3) the additional payments of $300 per month reduced principal and were

not a penalty; (4) Hamilton was entitled to a judgment of $83,477.20 plus $4075

in attorney fees; and (5) the written contract should be foreclosed and the

property sold at a Sheriff’s sale. The conclusions provide, in relevant part:

         11. Huber argues for declaratory judgment in that there was an
         enforceable modification of the contract in December 2010 and that
         the contract extends until the balance of the purchase price is paid off
         at the rate of $1,432.44 per month at 6 ½ % interest. Hamilton argues
         that the contract is in default and that he has the right to acceleration
         and foreclosure of the contract with the 34 extra $300 monthly
         payments forfeited as a penalty.
         12. The Court finds that the evidence is conflicting as to the intention of each
         party. While there was an agreement to extend the contract beyond the
         December 2010 balloon[-]payment deadline Hamilton testified the
         parties agreed to a one[-]year extension while Huber testified there was
         no extension time limit. The evidence is not persuasive one way or the other.
         Therefore the issue for the court is did Hamilton and Huber enter into an
         enforceable modification of the written contract?
         13. The Indiana Statute of Frauds applies. [Text of statute, Indiana
         Code section 32-21-1-1, omitted]. A modification of a land contract is
         subject to the requirements of the Statute of Frauds. The evidence is not
         persuasive enough to support that any oral agreement of the parties should be
         removed from the requirements of the Statute of Frauds.
         14. [The court finds that Huber failed to prove that Hamilton was
         “guilty of conduct that would constitute laches . . . .”][4]




4
 The doctrine of laches is well established and long recognized: “Independently of any statute of limitation,
courts of equity uniformly decline to assist a person who has slept upon his rights and shows no excuse for
his laches in asserting them.” SMDfund, Inc. v. Fort Wayne-Allen Cnty. Airport Auth., 831 N.E.2d 725, 729 (Ind.
2005). Laches requires: (1) inexcusable delay in asserting a known right; (2) an implied waiver arising from
knowing acquiescence in existing conditions; and (3) a change in circumstances causing prejudice to the
adverse party. Id. Huber does not make a cogent argument concerning laches on appeal.

Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015                            Page 7 of 17
               15. Based on the foregoing the Court finds that Huber is in default on the
               written contract between the parties because he failed to pay off the
               accelerated balance of all payments due. The Court finds that the
               additional $300 per month payments made by Huber beginning December
               2010 reduced principal and are not penalty payments. Therefore the Court
               finds that as of October 1, 2013 the amount Huber owes to Hamilton
               under the contract is $83,477.20 with interest at the rate of 6 ½ % until
               the date of this judgment. In addition pursuant to the written contract
               Hamilton is entitled to recover reasonable attorney fees in the amount
               of $4,075.00.
               16. The Court finds that the written contract should be foreclosed and
               the Sheriff of Montgomery County, Indiana shall sell the property at
               Sheriff’s sale and the proceeds thereof shall be applied to the judgment
               in the same manner under the laws governing foreclosure sales of
               mortgaged property. Hamilton may also bid for the property with the
               judgment due to him. . . .
       Id. at 30-32 (emphases added, citations omitted).
[12]   Huber filed a motion to correct errors, which the trial court denied. The court’s

       order provides, in pertinent part:

               1. [Huber’s] first argument is that I.C. 26-2-9-4 applies to the facts of
               this case instead of I.C. 32-21-1-1 [Statute of Frauds]. [Huber] is
               mistaken. I.C. 26-2-9-4 applies to credit agreements. . . . A land
               contract is not a credit agreement and Hamilton was not Huber’s
               creditor as [Huber] asserts in the Motion. . . . I.C. 26-2-9-4 has no
               application to the facts of this case.
               2. The remainder of [Huber’s] arguments invites the Court to reweigh
               the facts of the case and to reconsider the credibility of testimony. The
               Court finds none of [Huber’s] assertions leads the Court to a different
               result.
               3. The Court found that Huber breached his contract with Hamilton
               because Huber failed to make the required balloon payment to
               Hamilton. This breach of the contract entitled Hamilton to be
               awarded attorney fees pursuant to the specific terms of the contract.
               Huber’s arguments as to the award of attorney fees ignore that the
               Court found Huber defaulted on the contract.


       Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015              Page 8 of 17
               4. Huber’s argument regarding remedy is that Huber is entitled to the
               balance of any Sheriff’s sale proceeds after payment of costs, taxes and
               Hamilton’s judgment. The Court found that the land contract must be
               foreclosed and that the Sheriff must proceed in the same manner as he
               would in a mortgage[-]foreclosure sale. The Court recognized that
               Huber has equity in the contract and that is why the Court ordered the
               contract foreclosed instead of ordering a forfeiture of Huber’s
               payments made under the contract. Huber will be entitled to any
               balance of sheriff[-]sale proceeds left after payment of real[-]estate
               taxes due, costs of sale, and payment of any amount due to Hamilton
               under the judgment. The normal procedure is for the sheriff to pay the
               balance left to the clerk of the court and Huber may claim these
               proceeds. To the extent the Court’s judgment is not clear on this point
               it is hereby clarified.[5]
       Id. at 46-47.
[13]   Huber appeals, and Hamilton cross-appeals.



                                   Discussion and Decision
[14]   Huber raises numerous issues on appeal, which we restate as one: is the parties’

       oral agreement to extend the due date for the balloon payment as set forth in

       the written land contract enforceable pursuant to the Statute of Frauds?6


[15]   At Huber’s request, the trial court entered finding and conclusions pursuant to

       Indiana Trial Rule 52. Where, as here, the court enters findings and




       5
         The Indiana Supreme Court has determined that a land-sales contract is akin to a mortgage and, therefore,
       the remedy of foreclosure—as opposed to forfeiture—is more consonant with notions of fairness and justice.
       Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641, 650 (1973). Because Huber paid more than a minimal
       amount of the contract price, the trial court properly ordered foreclosure in this case.
       6
         To the extent that Huber’s numerous other arguments are not included in this issue, we find them waived
       for failure to develop them. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015                          Page 9 of 17
       conclusions upon a party’s written request, we apply a two-step review. In re

       Riddle, 946 N.E.2d 61, 66 (Ind. Ct. App. 2011). First, we consider whether the

       evidence supports the findings, and second, whether the findings support the

       judgment. Id. We neither reweigh the evidence nor assess witness credibility,

       and we consider only the evidence most favorable to the judgment. Id. We will

       set aside the trial court’s findings and conclusions only if they are clearly

       erroneous, that is, if the record contains no facts or inferences supporting them.

       Id. We review conclusions of law de novo. Id.


[16]   Huber contends that the Statute of Frauds, Indiana Code section 32-21-1-1,

       does not apply to this case.7 This case involves a land contract. See Ex. 1.




       7
        Rather, Huber contends that the Indiana Lender Liability Act, Indiana Code chapter 26-2-9, applies to this
       case because our Supreme Court held in Skendzel that land contracts are akin to mortgages. See 301 N.E.2d at
       646 (“Realistically, vendor-vendee should be viewed as mortgagee-mortgagor.”). The Indiana Lender
       Liability Act applies to “credit agreements,” “creditors,” and “debtors.” A “credit agreement” is an
       agreement to:
               (1) lend or forbear repayment of money, goods, or things in action;
               (2) otherwise extend credit; or
               (3) make any other financial accommodation.
       Ind. Code § 26-2-9-1(a). A “creditor” means:
               (1) a bank, a savings bank, a trust company, a savings association, a credit union, an
               industrial loan and investment company, or any other financial institution regulated by
               any agency of the United States or any state, including a consumer finance institution
               licensed to make supervised or regulated loans under IC 24-4.5;
               (2) a person authorized to sell and service loans for the Federal National Mortgage
               Association or the Federal Home Loan Mortgage Corporation, issue securities backed by
               the Government National Mortgage Association, make loans insured by the United
               States Department of Housing and Urban Development, make loans guaranteed by the
               United States Department of Veterans Affairs, or act as a correspondent of loans insured
               by the United States Department of Housing and Urban Development or guaranteed by
               the United States Department of Veterans Affairs; or



       Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015                            Page 10 of 17
Under a typical land contract, the seller retains legal title until the total contract

price is paid by the buyer.8 Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641,

646 (1973). Payments are generally made in periodic installments. Id. Legal

title does not vest in the buyer until the contract terms are satisfied, but

equitable title vests in the buyer when the contract is executed. Id. The Statute

of Frauds provides, in relevant part:

          (b) A person may not bring any of the following actions unless the
          promise, contract, or agreement on which the action is based, or a
          memorandum or note describing the promise, contract, or agreement
          on which the action is based, is in writing and signed by the party
          against whom the action is brought or by the party’s authorized agent:
                                                      *****
                    (4) An action involving any contract for the sale of land.
Ind. Code § 32-21-1-1. The law is settled that “any contract which seeks to

convey an interest in land is required to be in writing.” Brown v. Branch, 758




          (3) an insurance company or its affiliates that extend credit under a credit agreement with
          a debtor.
Ind. Code § 26-2-9-2. Finally, a “debtor” means a person who:
          (1) obtains credit under a credit agreement with a creditor;
          (2) seeks a credit agreement with a creditor; or
          (3) owes money to a creditor.
Ind. Code § 26-2-9-3. Because “creditor” has a specific definition that does not apply to Hamilton,
the Indiana Lender Liability Act does not apply to this case. Accordingly, Sees v. Bank One,
Indiana, N.A., upon which Huber relies, does not apply either. See 839 N.E.2d 154 (Ind. 2005)
(noting that the Bank, a creditor, loaned Sees money).

8
  Although located in a different part of the Indiana Code, a “land contract” is defined as “a contract for the
sale of real estate in which the seller of the real estate retains legal title to the real estate until the total contract
price is paid by the buyer.” Ind. Code § 24-4.4-1-301(36).

Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015                                     Page 11 of 17
       N.E.2d 48, 51 (Ind. 2001) (emphasis omitted). That is, Indiana courts have

       long applied the principle that an agreement to convey land is subject to the

       Statute of Frauds’ writing requirement. Id.; see also Johnson v. Sprague, 614

       N.E.2d 585, 588 (Ind. Ct. App. 1993) (holding that “an enforceable contract for

       the sale of land must be evidenced by some writing: (1) which has been signed

       by the party against whom the contract is to be enforced or his authorized

       agent; (2) which describes with reasonable certainty each party and the land;

       and, (3) which states with reasonable certainty the terms and conditions of the

       promises and by whom and to whom the promises were made.”). Furthermore,

       where a contract is required by law to be in writing, it can only be modified by a

       written instrument. Maglaris v. Claude Neon Fed. Co., 101 Ind. App. 156, 198

       N.E. 462, 463 (1935); 6 Ind. Law Encyclopedia Contracts § 103 (2008).


[17]   Requiring a writing for transactions concerning the conveyance of real estate is

       consistent with the underlying purposes of the Statute of Frauds, namely: (1) to

       preclude fraudulent claims that would likely arise when the word of one person

       is pitted against the word of another and (2) to remove the temptation of perjury

       by preventing the rights of litigants from resting wholly on the precarious

       foundation of memory. Brown, 758 N.E.2d at 51; see also Coca-Cola Co. v.

       Babyback’s Int’l, Inc., 841 N.E.2d 557, 567 (Ind. 2006). These purposes are

       underscored in this case because although the parties had an agreement to

       extend the balloon payment, the trial court found that it could not determine

       the details of that agreement. See Appellant’s App. p. 30-31 (Conclusion No.

       12).


       Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015   Page 12 of 17
[18]   We find that the Statute of Frauds is unambiguous and provides a bright-line

       rule that applies to the parties’ November 2007 written land contract and

       December 2010 oral agreement to extend the due date for the balloon payment

       as set forth in the written land contract. See Brown, 758 N.E.2d at 51. That is,

       because the land contract was required to be in writing, any modification to it

       also had to be in writing. Accordingly, the parties’ oral agreement is not

       enforceable because it was not in writing.


[19]   Nevertheless, even when oral agreements fall within the Statute of Frauds, they

       may still be enforced under the equitable doctrine of promissory estoppel. Id.

       Both Huber and Hamilton rely on this doctrine.


[20]   The estoppel doctrine is based on the rationale that a person whose conduct has

       induced another to act in a certain manner should not be permitted to adopt a

       position inconsistent with such conduct so as to cause injury to the other.

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

       (citing 31 C.J.S. Estoppel and Waiver § 2 (1996)). Coupled with the Statute of

       Frauds, the two represent alternative and sometimes competing means to

       achieve the same ends of avoiding injustice:

               The statute of frauds was designed as the weapon of the written law to
               prevent fraud, while the doctrine of estoppel is that of the unwritten
               law to prevent like evil. Each is effective in its appropriate field; both
               are essential to prevent and redress wrongs, and neither should be
               allowed to dominate the other.




       Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015          Page 13 of 17
       Id. (quoting Columbus Trade Exch., Inc. v. AMCA Int’l Corp., 763 F. Supp. 946,

       952 (S.D. Ohio 1991)). Consistent with these observations, a party seeking to

       preclude application of the Statute of Frauds based on promissory estoppel

       must establish the following elements: (1) a promise by the promisor; (2) made

       with the expectation that the promisee will rely thereon; (3) which induces

       reasonable reliance by the promisee; (4) of a definite and substantial nature; and

       (5) injustice can be avoided only by enforcement of the promise. Id. (citing First

       Nat’l Bank of Logansport v. Logan Mfg. Co., 577 N.E.2d 949, 954 (Ind. 1991)). In

       order to establish an estoppel to remove the case from the operation of the

       Statute of Frauds, the party must show that the other party’s refusal to carry out

       the terms of the agreement has resulted not merely in a denial of the rights that

       the agreement was intended to confer, but the infliction of an unjust and

       unconscionable injury and loss. Brown, 758 N.E.2d at 52. Thus, while it is true

       that the doctrine of promissory estoppel may remove an oral agreement from

       the operation of the Statute of Frauds, it is also true that the party asserting the

       doctrine carries a heavy burden of establishing its applicability. Id.


[21]   As for the parties’ promissory-estoppel arguments, Huber claims that he made

       the thirty-four additional payments of $300 in reliance on Hamilton’s promise

       to extend the balloon payment until July 2019 and not seek foreclosure.

       Hamilton cross-appeals arguing that he agreed to postpone the balloon payment

       in reliance on Huber’s promise that the additional payments of approximately

       $10,000 were a penalty and therefore would not be applied to principal. We

       find, however, that each party has failed to meet its heavy burden of proving


       Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015     Page 14 of 17
that promissory estoppel applies. This is because the trial court could not

determine whom to believe. The trial court concluded:

         11. Huber argues for declaratory judgment in that there was an
         enforceable modification of the contract in December 2010 and that
         the contract extends until the balance of the purchase price is paid off
         at the rate of $1,432.44 per month at 6 ½ % interest. Hamilton argues
         that the contract is in default and that he has the right to acceleration
         and foreclosure of the contract with the 34 extra $300 monthly
         payments forfeited as a penalty.
         12. The Court finds that the evidence is conflicting as to the intention of each
         party. While there was an agreement to extend the contract beyond the
         December 2010 balloon[-]payment deadline Hamilton testified the
         parties agreed to a one[-]year extension while Huber testified there was
         no extension time limit. The evidence is not persuasive one way or the other.
         ...
Appellant’s App. p. 30-31 (emphases added). Because the trial court could not

determine the details of the parties’ agreement, neither party can prove that

promissory estoppel applies because there is no “promise” to enforce.9

Furthermore, although Huber asks us to believe his version of the parties’




9
  Huber raised as an affirmative defense that Hamilton “accepted an additional $300.00 monthly payment
toward the principal and did so for a period of three (3) years without question or objection, while
encouraging Terry Huber to make capital improvements to the property.” Appellant’s App. p. 27. Huber
also argues on appeal that Hamilton “acquiesced and made no declaration of breach for the period of a
second and then a third year and accepted the increased payment each month.” Appellant’s Br. p. 11. The
trial court found:
         In addition the written contract states in the default and acceleration clause that . . . “No
         delay on the part of [Hamilton] in exercising this option shall operate as a waiver or
         preclude the exercise of such option at any time during the continuance of such default or
         upon the occasion of any subsequent default.” This anti-waiver provision is enforceable and
         certainly applies to the facts of this case.
Appellant’s App. p. 32 (emphasis added). To the extent that Huber argues that Hamilton waived the
anti-waiver provision in the parties’ contract by accepting the additional $300 per month for a couple of
years before declaring a breach, Huber cannot meet this burden because, as the trial court found, he
failed to prove how long the parties agreed to extend the due date for the balloon payment.

Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015                             Page 15 of 17
       agreement as opposed to Hamilton’s, we do not determine the credibility of the

       witnesses on appeal. See, e.g., Appellant’s Br. p. 10 (“Hamilton’s own

       testimony would not support [the trial court’s judgment] even if he were to be

       believed.”), 13 (“The Court may choose to believe Hamilton and find it a one-

       year contract, or may choose to believe Huber and find it extended to pay-off”

       & “Huber’s credibility is bolstered and Hamilton’s impugned . . . .”), 19

       (“Credibility of Hamilton is an issue.”).


[22]   Because neither party can meet its burden of taking the oral agreement outside

       the Statute of Frauds, the Statute of Frauds applies; therefore, the oral

       agreement is unenforceable, and the parties’ rights and obligations are governed

       by the written land contract. As such, the trial court properly concluded that

       Huber breached the written land contract when he failed to make the balloon

       payment by November 30, 2010. In addition, because the oral agreement is

       unenforceable, the trial court properly determined that Huber’s additional

       payments of $300 per month beginning in December 2010 reduced principal

       and were not a penalty.


[23]   Finally, Huber argues that the trial court erred in ordering him to pay $4075 in

       attorney’s fees. The written land contract provides for the payment of

       attorney’s fees in the event of a breach. See Ex. 1 (“[Hamilton] shall be entitled

       to recover judgment against [Huber] for such sum without relief from valuation,

       appraisement laws together with Court costs, attorney’s fees and any other

       damages which may have been caused by [Huber’s] breach of this contract.”



       Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015      Page 16 of 17
(emphasis added)). We therefore affirm the trial court’s award of attorney’s

fees to Hamilton.


Affirmed.

Baker, J., and Riley, J., concur.




Court of Appeals of Indiana | Opinion 54A01-1404-PL-154 | May 28, 2015   Page 17 of 17
