William J. Knapp and Rosalea M. Knapp v. The Estate of Carl R. Wright and Joan M. Wright

FILED
May 04 2017, 8:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Nancy A. McCaslin Steven J. Olsen
McCaslin & McCaslin Yoder, Ainlay, Ulmer &
Elkhart, Indiana Buckingham, LLP
Goshen, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William J. Knapp and Rosalea May 4, 2017
M. Knapp, Court of Appeals Case No.
Appellants, 20A05-1610-PL-2344
Appeal from the Elkhart Superior
v. Court
The Honorable Stephen R.
The Estate of Carl R. Wright and Bowers, Judge
Joan M. Wright, Trial Court Cause No.
Appellees 20D02-1405-PL-131
Crone, Judge.
Court of Appeals of Indiana | Opinion 20A05-1610-PL-2344 | May 4, 2017 Page 1 of 21
Case Summary
[1] William J. Knapp and Rosalea M. Knapp appeal the trial court’s entry of
partial summary judgment and award of damages in favor of Carl R. Wright
and Joan M. Wright.1 The Knapps argue that the trial court erred in
concluding that a written contract for the sale of land was unenforceable
pursuant to the Statute of Frauds for lack of a reasonably certain description of
the land being sold. Determining that no genuine issue of material fact remains
on this issue, we conclude that the trial court properly entered partial summary
judgment in favor of the Wrights. The Knapps raise additional issues regarding
the trial court’s subsequent order awarding damages to the Wrights and its
order discharging the Knapps’ lis pendens notice regarding the subject real
estate. Finding no error or abuse of discretion, we affirm the trial court’s
judgments.
Facts and Procedural History
[2] The relevant material facts indicate that at all times relevant herein, the Wrights
owned a fifty-six-acre parcel of property (“the Property”), which included a
private lake, in Bristol. In 1993, the Wrights permitted the Knapps, the
Wrights’ daughter and son-in-law, to move into a residential dwelling located
1
Carl R. Wright is now deceased. On November 1, 2016, the trial court granted the Knapps’ motion to
substitute “The Estate of Carl Wright” as a party to this appeal. Therefore, the caption for this appeal reflects
that change. The Wrights briefly mention in a footnote that no estate has been opened and no personal
representative has been appointed for Carl R. Wright, and that perhaps the motions panel of this Court erred
in denying their motion to dismiss this appeal for lack of jurisdiction on that basis. The Wrights cite to no
authority or expand further on this assertion and, without more, we decline the invitation to reconsider the
issue.
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on a portion of the Property at no cost to the Knapps. On February 27, 1999,
the Wrights and the Knapps entered into a lease agreement and option to
purchase (“the Lease”). The Lease contained the following description of the
portion of the Property being leased:
certain real estate with an address of 51551 County Road 133,
Bristol, Indiana 46507 (along with an easement for ingress and
egress from County Road 133 to the property along the existing
pathway) but only that part of the real estate that has the
approximate boundary lines as shown on the attached Exhibit A,
but retaining 50 feet for the [Wrights] along the railroad tracks.
Appellants’ App. Vol. 2 at 37. However, no Exhibit A was attached to the
Lease to describe that part of the Property that was considered the leased
premises. The Lease was for a term of five years. The Lease provided an
option to purchase that stated in relevant part:
Provided [the Lease], or any renewal thereof, herein stated, is in
full force and effect (i.e. has not expired, been terminated or
otherwise rendered inapplicable), [the Knapps] [are] hereby
granted the option and right to purchase the leased premises,
listed items of personal property (if any), free and clear of any
liens or encumbrances, for the sum of Fifty Thousand Dollars
($50,000.00). Said option, if it is to be exercised, must be
exercised, in writing, prior to the termination of this Lease, or
any extension thereof.
Id. at 41.
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[3] Moreover, the Lease also provided that if the Knapps paid the full option price
within thirty days of exercising the option to purchase, the Knapps would have
also received a
right of first refusal to purchase additional acreage to the east of
the real estate, which additional real estate would include the
additional structures to the east, sufficient to allow [the Knapps]
to purchase a total of three (3) acres when combined with the real
estate being leased hereunder, but such legal description to be as
agreed by the parties with [the Wrights] retaining 50 feet along
the railroad tracks.
Id. at 43. The Knapps did not exercise their option to purchase by paying the
full purchase price within the time allotted pursuant to the Lease, and the Lease
terminated on December 31, 2003.
[4] Thereafter, on November 1, 2004, the Wrights and the Knapps entered into a
contract for sale of real estate (“the Real Estate Contract”). Like the Lease, the
Real Estate Contract described the portion of the property being sold as:
certain real estate with an address of 51551 County Road 133,
Bristol, Indiana 46507 (along with an easement for ingress and
egress from County Road 133 to the property along the existing
pathway) but only that part of the real estate that has the
approximate boundary lines as shown on the attached Exhibit A,
but retaining fifty (50) feet for the [Wrights] along the railroad
tracks. Upon payoff of this land contract, the parties shall have
the property surveyed to provide a legal description of the
property being purchased by [the Knapps].
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Id. at 48. No Exhibit A was attached to the Real Estate Contract to describe
that part of the Property being sold. The Real Estate Contract further provided
that the Lease was now void and of no further force and effect. After entering
into the Real Estate Contract, the Knapps made monthly payments to the
Wrights. The Knapps never paid any real estate taxes on any portion of the
Property.
[5] In May 2013, believing that they had “paid off the land contract,”2 the Knapps
sought a warranty deed from the Wrights as to a three-acre portion of the
Property, which included a residential dwelling, a pony barn, a shop building,
and water rights to the private lake, that the Knapps assumed that they had
been purchasing pursuant to the Real Estate Contract. Appellants’ Br. at 31.
The Wrights, however, believed that they had been selling only approximately
one acre of land that included the residential dwelling and no water rights to the
private lake. It was the Wrights’ understanding that the one acre portion of the
Property was identified on a hand-drawing. The Knapps learned that the
Wrights’ attorney, who drafted both the Lease and the Real Estate Contract,
possessed in his files a loose, undated, and unmarked drawing, not attached to
any document, that depicted the boundaries of approximately one acre of the
Property. Thereafter, the Wrights commissioned a survey of the approximate
one acre of land that they considered to be the subject of the Real Estate
2
The Real Estate Contract required the Knapps to pay for real estate taxes and insurance on the portion of
the property covered by the contract. See Appellants’ App. Vol. 2 at 50-51. The record reflects, and the
Knapps admit, that they did not pay such amounts as required.
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Contract, and had the survey recorded. The familial relationship between the
parties quickly deteriorated, and beginning in June 2013, the Knapps occupied
a one-acre portion of the Property and used the private lake without making
any further payments to the Wrights.
[6] In May 2014, the Knapps filed a complaint against the Wrights alleging that
they are entitled to three specific acres of the Property, as well as a legal right to
use the private lake adjacent to the three acres, pursuant to the Real Estate
Contract. The Wrights filed their answer, as well as counterclaims for
foreclosure, injunctive relief, assault and battery, and trespass. The Knapps
subsequently filed an amended complaint to quiet title and for specific
performance, injunctive relief, and trespass, alleging that, in addition to being
the rightful owners of three specific acres of the Property or such acreage that
the Wrights acquiesced to by their actions, they are entitled to an easement for a
drainage field.
[7] The Wrights replied with an amended answer asserting, among other things,
the Statute of Frauds as an affirmative defense. The Wrights also filed an
amended counterclaim requesting a judgment declaring the Real Estate
Contract unenforceable and ordering the Knapps to forgo any claim and
interest in the Property. To avoid the unjust enrichment of any party, the
Wrights requested a quasi-contract remedy of ordering the Knapps to pay the
Wrights the fair market rental value for a portion of the Property for the period
during which they occupied the Property, and ordering the Wrights to pay the
Knapps any amounts the Knapps had already paid in connection with the
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unenforceable Real Estate Contract to the extent those amounts exceeded the
fair market rental value.
[8] Thereafter, the Wrights filed a motion for partial summary judgment as to their
amended counterclaim alleging that the Real Estate Contract lacked an
essential term, i.e., a sufficient description of the property being sold, such that
the contract is unenforceable pursuant to the Statute of Frauds. The Knapps
responded and agreed that a sufficient description of the property being sold
was not contained in the Real Estate Contract and that no exhibit otherwise
describing the property being sold was attached to the contract. The Knapps
further stated that the loose, undated, and unmarked drawing found by the
Wrights’ attorney in 2013 was not attached to the Real Estate Contract when
they signed it, nor was there any evidence that it was intended to be the
description of the portion of the Property being conveyed. Instead, the Knapps
maintained that the doctrines of acquiescence and estoppel were “exceptions”
to the Statute of Frauds that were applicable to defeat the Wrights’ motion for
partial summary judgment. Appellants’ App. Vol. 5 at 61. The Knapps also
filed a cross-motion for summary judgment alleging that the Wrights’
foreclosure claim based on unpaid taxes and insurance was barred by the
doctrine of accord and satisfaction, and the Knapps further requested dismissal
of the Wrights’ counterclaims premised on the Knapps’ alleged lack of riparian
rights.
[9] On October 22, 2015, the trial court entered an amended order granting partial
summary judgment in favor of the Wrights and denying the Knapps’ cross-
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motion for summary judgment as moot. Specifically, the trial court determined
as a matter of law that the Real Estate Contract was unenforceable and that the
Knapps do not have an ownership interest, equitable or otherwise, in any
portion of the Property, and thus partial summary judgment in favor of the
Wrights was warranted. The court further determined that the Knapps’ cross-
motion for summary judgment was moot because the issues raised therein
presupposed the enforceability of the Real Estate Contract, which had now
been deemed unenforceable.
[10] On November 18, 2015, the Knapps filed their first notice of appeal, which was
subsequently dismissed without prejudice.3 On November 20, 2015, the
Knapps also filed a motion to stay execution of the trial court’s amended order.
The Wrights filed their objection to a stay and, in July 2016, also filed a motion
for immediate possession of real property from the Knapps and requested the
trial court to enter an order denying the Knapps’ motion to stay execution of
the trial court’s amended order.
[11] The trial court heard argument on the motion for stay in July 2016, and set
bond at $90,000 to be paid by the Knapps within seven days. The Knapps did
not post the bond and requested an extension of time to do so. Following a
3
Concluding that the partial summary judgment order that the Knapps were attempting to appeal was not
eligible for an interlocutory appeal as of right under Indiana Appellate Rule 14(A), and had not been certified
for discretionary interlocutory appeal under Indiana Appellate Rule 14(B), this Court dismissed the appeal
without prejudice and remanded to the trial court for further proceedings. We specifically ordered that the
Knapps, after filing a new notice of appeal, were permitted to raise the issues that they would have raised,
along with any new issues created by the trial court’s ruling on remand.
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hearing, the trial court denied the extension and entered an order of immediate
possession in favor of the Wrights. On September 12, 2016, the Knapps filed a
notice of lis pendens claiming an ownership interest in a portion of the Property
arising out of the Real Estate Contract. The Wrights then filed an emergency
motion for discharge and release of lis pendens stating that the lis pendens was
based upon a contract that had been declared unenforceable by the trial court.
[12] On September 21, 2016, the trial court held an evidentiary hearing on the issue
of damages. Thereafter, on September 23, 2016, the trial court awarded the
Wrights $24,000 in damages and entered a final appealable order stating, “This
is a final appealable judgment as all issues relating to title to the real estate and
damages [have] been resolved.” Appellants’ App. Vol. 2 at 19. The court
further noted that the “parties are in agreement that this should be an
appealable judgment.” Id. Later that same day, the trial court granted the
Wrights’ emergency motion for discharge and release of the Knapps’ lis
pendens notice, expressly authorizing the Wrights to sell the subject property
free of any claim listed in the notice. Three days later, the Wrights sold the
subject property to a third party at auction. This appeal ensued. We will state
additional facts in our discussion as necessary.
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Discussion and Decision
Section 1 – Partial summary judgment in favor of the Wrights
is appropriate.
[13] An appellate court reviews summary judgment using the same standard as the
trial court. Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016). Summary
judgment is appropriate only when the designated evidence shows no genuine
issue of material fact and the moving party is entitled to judgment as a matter of
law. Id. (citing Ind. Trial Rule 56(C) and Hughley v. State, 15 N.E.3d 1000, 1003
(Ind. 2014)). “We construe all factual inferences in the nonmoving party’s
favor and resolve all doubts as to the existence of a material issue against the
moving party.” McCullough v. CitiMortgage, Inc., 70 N.E.3d 820, 824 (Ind. 2017)
(citation omitted). Although our review is de novo, a trial court’s judgment
comes to the appellate court clothed with a presumption of validity, and the
appellant bears the burden of proving that the trial court erred. Schwartz v.
Heeter, 994 N.E.2d 1102, 1105 (Ind. 2013).
[14] In support of their motion for partial summary judgment, the Wrights asserted
that the Real Estate Contract was unenforceable as a matter of law.
Specifically, they claimed that the Real Estate Contract does not include a
reasonably certain description of the land being conveyed as required for a
contract regarding the sale of land, and thus the Knapps cannot maintain an
action for specific performance. The Indiana Statute of Frauds provides in
relevant part:
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(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 Statute is intended to preclude fraudulent claims
that would probably arise when one person’s word is pitted against another’s
and that would open wide the floodgates of litigation.” Jernas v. Gumz, 53
N.E.3d 434, 446 (Ind. Ct. App. 2016), trans. denied. The Statute does not
govern the formation of a contract but only the enforceability of contracts that
have been formed. Fox Dev., Inc. v. England, 837 N.E.2d 161, 165 (Ind. Ct. App.
2005).
[15] An agreement required to be in writing must completely contain the essential
terms without resort to parol evidence in order to be enforceable. Coca-Cola Co.
v. Babyback’s Int’l, Inc., 841 N.E.2d 557, 565 (Ind. 2006). This Court has stated,
Under the Statute, 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 the
promises were made.
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Schuler v. Graf, 862 N.E.2d 708, 713 (Ind. Ct. App. 2007) (quoting Johnson v.
Sprague, 614 N.E.2d 585, 588 (Ind. Ct. App. 1993)) (emphasis in Schuler). We
have further explained regarding whether the land is described with reasonable
certainty that
it is not essential that the description have such particulars and
tokens of identification as to render a resort to extrinsic aid
entirely needless when the writing comes to be applied to the
subject matter. The terms may be abstract and of a general
nature, if with the assistance of external evidence the description,
without being contradicted or added to, can be connected with
and applied to the very property intended, to the exclusion of all
other property.
Id. (quoting Cripe v. Coates, 124 Ind. App. 246, 250-51, 116 N.E.2d 642, 644-45
(1954) (citation omitted)). “Thus, it is a familiar rule that it is not the office of a
description to identify lands, but simply to furnish the means of identification.”
Id. (citation and quotation marks omitted). In addition,
[i]f the premises bargained for are a part of a larger tract owned
by the vendor the question whether or not the writing satisfies the
statute as to description will depend upon whether within itself or by
references made it does or it does not in practical effect describe or
designate the part covered by the contract.
Cripe, 124 Ind. App. at 251, 116 N.E.2d at 645 (citation omitted). Where the
contract “merely describes the area or dimensions of the land sold, but not
fixing the boundary between the land sold and the seller’s remaining lands, it is
insufficient to meet the requirements of the [S]tatue of [F]rauds.” Id. (citations
omitted).
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[16] Moreover, it is well settled that in order to be enforceable, a contract must be
reasonably definite and certain in its material terms so that the intention of the
parties may be ascertained. Wenning v. Calhoun, 827 N.E.2d 627, 629 (Ind. Ct.
App. 2005), opinion on reh’g, trans denied. The contracting parties “have the right
to define their mutual rights and obligations, and a court may not make a new
contract or supply omitted terms while professing to construe the contract.”
Johnson v. Sprague, 614 N.E.2d 585, 588 (Ind. Ct. App. 1993). “Absolute
certainty in all terms is not required, but if any essential elements are omitted or
left obscure and undefined, so as to leave the intention of the parties uncertain
respecting any substantial terms of the contract, the case is not one for specific
performance.” Id.[17] Here, during the summary judgment proceedings, both parties agreed that the
Real Estate Contract does not adequately describe the portion of the Property
being conveyed as required by the Statute of Frauds. Indeed, it was undisputed
that while the Real Estate Contract was intended to provide for the sale of land
that was part of a larger tract owned by the Wrights, the Real Estate Contract
does not within itself or by references made, describe or designate the part,
whether it be one acre, three acres, or some other acreage, or the boundaries
thereof, covered by the contract. Although the Real Estate Contract notes that
the approximate boundary lines of the land being conveyed were referenced in
“Exhibit A,” the Knapps clearly conceded to the trial court that no Exhibit A
was attached to the contract. The Knapps further maintained that there was no
evidence that the loose, undated, and unmarked drawing found by the Wrights’
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attorney in 2013 existed at the time the Real Estate Contract was entered into,
was intended to be Exhibit A, or in any way described or designated the portion
of the Property, or the boundaries thereof, covered by the contract.
[18] The Knapps attempt to change their position on appeal. They now assert that
the Real Estate Contract contains a sufficient description of the land being
conveyed based upon its reference to Exhibit A, and they claim that the
drawing provides the requisite description of the portion of the Property that
they are entitled to. However, it is well settled that a party may not change his
or her theory on appeal and present arguments that are different from those
raised in the trial court. See Kentucky Nat’l Ins. Co. v. Empire Fire & Marine Ins.
Co., 919 N.E.2d 565, 597 n.34 (Ind. Ct. App. 2010); see also Dunaway v. Allstate
Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004) (“Issues not raised before the
trial court on summary judgment cannot be argued for the first time on appeal
and are waived.”). The Knapps cannot now dispute material facts that were
undisputed below, and they cannot now argue that the designated evidence
supports a position opposite that which they maintained to the trial court.
[19] Based upon the undisputed evidence presented and relied upon by the parties
during the summary judgment proceedings, we agree with the trial court that
the Real Estate Contract does not satisfy the Statute of Frauds because it lacks a
reasonably certain description of the land being conveyed. As the Knapps do
not assert that a genuine issue of material fact exists regarding an exception to
the Statute, we conclude that the Real Estate Contract is unenforceable as a
matter of law and the Knapps cannot maintain an action for specific
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performance. 4 Accordingly, the trial court properly entered partial summary
judgment in favor of the Wrights.5
Section 2 – The trial court’s award of damages is within the
scope of the evidence.
[20] We next address the Knapps’ contention that the trial court abused its
discretion when it awarded the Wrights $24,000 in damages based on the fair
market rental value of the subject property for the time that the Knapps
occupied the subject property without making any payment to the Wrights.
The Knapps argue that the award is speculative and not within the scope of the
evidence. We disagree.
[21] The computation of damages is a matter within the trial court’s sound
discretion. Fischer v. Heymann, 12 N.E.3d 867, 870 (Ind. 2014). We will not
reverse a damage award on appeal unless it is based on insufficient evidence or
is contrary to law. City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000,
4
Although the Knapps argued to the trial court that the doctrines of “acquiescence” and “estoppel” applied
as “exceptions” to the Statute of Frauds, see Appellants’ App. Vol. 5 at 61, they appear to have abandoned
those arguments and do not raise them on appeal, so we need not address them. See Appellants’ Amended
Br. at 49 (“The only dispute of facts, which would defeat summary judgment, is the precise description of the
real estate.”). Additionally, the Knapps assert for the first time in their reply brief that a genuine issue of
material fact remains as to whether the doctrine of part performance applies as an exception to the Statute of
Frauds. Not only did the Knapps fail to specifically raise this claim before the trial court, but they also failed
to raise this claim in their amended appellants’ brief. Accordingly, the issue is waived. See Monroe Guar. Ins.
Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (noting that issues raised for first time in a reply brief
are deemed waived on appeal).
5
We similarly conclude that the trial court properly denied the Knapps’ cross-motion for summary judgment
as moot because the issues raised by the Knapps therein presuppose the enforceability of the Real Estate
Contract, which is no longer a matter of controversy between these parties. See Rainbow Cmty., Inc. v. Town of
Burns Harbor, 880 N.E.2d 1254, 1261 (Ind. Ct. App. 2011) (an issue is moot when it has ceased to be a matter
of real controversy between the parties).
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1015 (Ind. Ct. App. 2011). “In determining whether an award is within the
scope of the evidence, we may not reweigh the evidence or judge the credibility
of witnesses.” Id.[22] During the evidentiary hearing on damages, licensed real estate appraiser
Robert Dorsam testified that he inspected the Property on January 8, 2016. He
computed the current average fair market rental value for one acre of the
Property with water rights ($700), one acre of the Property without water rights
($650), three acres of the Property with water rights ($1050), and three acres of
the Property without water rights ($1000). Admitting that the assigned rental
values were based on his current inspection of the Property and that he could
not opine as to the fair market rental value for any time prior to his inspection,
he did confirm that while “rental rates fluctuate … it did not appear that rental
rates changed much” over the last several years. Tr. Vol 2. at 49. Based upon
the evidence presented, the trial court concluded that the fair market rental
value of the one-acre portion of the property with water rights occupied by the
Knapps from June 2013 through June 2014 was $600 per month, and that for
the period from July 2014 through July 2016, it was $700 per month. The sum
of the rent for those periods was $24,000. Accordingly, the trial court awarded
the Wrights damages in that amount.
[23] The Knapps complain that the fair market rental values presented by the
appraiser established the rental values only for the single day he inspected the
Property, and therefore the trial court’s determination of a rental value for any
other time was outside the scope of the evidence. However, the trial court
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specifically noted that based upon the testimony presented, it was “reasonable
to assume that the rental value was roughly the same in the year and a half
preceding the time period identified by the appraiser” and that the value in 2013
“was presumably somewhat less because of additional improvements claimed
to have been performed” by the Knapps as well as changes to the economy.
Appellants’ App. Vol. 2 at 17-18. We conclude that the trial court’s
determination in this regard was patently reasonable based on the evidence
before it and that the court’s award of $24,000 to the Wrights was well within
the scope of the evidence. The Knapps have shown no abuse of discretion.
Section 3 – The trial court did not err when it ordered the
Knapps’ lis pendens notice removed.
[24] Finally, we address the Knapps’ assertion that the trial court erred when it
ordered their lis pendens notice removed. Specifically, the Knapps argue that
the trial court’s removal of their notice and the discharge of their claim to the
subject property was premature because any determination by the trial court
regarding their ownership rights or lack thereof to the subject property “was not
final until there was an appeal and a final decision was rendered.” Appellants’
Amended Br. at 57. Again, we disagree with the Knapps.
[25] Our supreme court has explained lis pendens generally as follows:
The doctrine of lis pendens is fundamentally about notice. The
term lis pendens itself means “pending suit,” and it refers
specifically to “the jurisdiction, power, or control which a court
acquires over property” involved in a pending real estate action.
Any successor in interest to real estate is deemed to take notice of
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a pending action involving title to that real estate and is subject to
its outcome. The judgment in the pending lawsuit binds all
successors in interest, regardless of whether a successor was a
party to the litigation. The doctrine’s purpose is to protect the
finality of court judgments by discouraging purchases of
contested real estate.
JPMorgan Chase Bank, N.A. v. Claybridge Homeowners Ass’n, 39 N.E.3d 666, 670-
71 (Ind. 2015).
[26] Here, the Knapps filed their lis pendens notice on September 12, 2016, claiming
an interest in a three-acre portion of the Property pursuant to the Real Estate
Contract, and giving notice to any successor in interest that they intended to
appeal any decision by the trial court determining ownership rights and
damages. The Wrights filed an emergency motion for discharge and removal of
the notice stating that the lis pendens was based upon a contract that had been
declared unenforceable by the trial court’s entry of partial summary judgment.
On September 23, 2016, having already determined that the Real Estate
Contract was unenforceable and that the Knapps had no ownership rights to the
subject property, the trial court entered its order awarding damages to the
Wrights, stating that the order was a “final and appealable judgment as all
issues relating to title to the real estate and damages [have] been resolved” and
that “[t]he parties are in agreement that this should be an appealable
judgment.” Appellants’ App. Vol. 2 at 19. That same day, the trial court
granted the Wrights’ emergency motion for discharge and removal of lis
pendens, determining that “there has been a final determination rendered in this
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case” and ordering the clerk of the Elkhart Circuit and Superior Courts to
remove the lis pendens notice filed in this case. Id. at 21.
[27] Regarding lis pendens, Indiana Code Chapter 32-30-11-7 provides in relevant
part,
Upon the final determination of any suit brought:
(1) for the purposes described in section 2 or 3 of this chapter;
and
(2) adversely to the party seeking to enforce a lien upon, right to,
or interest in the real estate;
the court rendering the judgment shall order the proper clerk to
enter in the lis pendens record a satisfaction of the lien, right, or
interest sought to be enforced against the real estate. When the
entry is made, the real estate is forever discharged from the lien,
right, or interest.
[28] We agree with the trial court that the final appealable judgment it entered on
September 23, 2016, which disposed of all issues relating to title to the subject
property and damages, constituted a “final determination” within the meaning
of the statute, thus mandating the trial court to order the clerk of the Elkhart
Circuit and Superior Courts to enter in the lis pendens record a satisfaction of
the Knapps’ lien, right, or interest sought to be enforced against the subject
property. See UFG, LLC v. Southwest Corp., 784 N.E.2d 536, 546 (Ind. Ct. App.
2003) (holding that plain and ordinary meaning of words “final determination”
in Ind. Code § 32-30-11-7 includes a final appealable judgment entered by the
trial court in the underlying action regardless of pending appellate rights), trans.
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denied. Contrary to the Knapps’ assertion, the fact that they intended to appeal
the trial court’s entry of partial summary judgment and award of damages did
not render the trial court’s entry of a final appealable judgment any less of a
“final determination” of their suit within the meaning of the statute. Id.6 The
trial court did not err when it ordered the Knapps’ lis pendens notice removed
as required by statute.
Conclusion
[29] In sum, the trial court properly entered partial summary judgment in favor of
the Wrights declaring the Real Estate Contract unenforceable as a matter of
law, and the court’s subsequent award of $24,000 in damages to the Wrights
was within the scope of the evidence presented. Moreover, the trial court did
not err when it ordered the Knapps’ lis pendens notice removed. Accordingly,
we affirm the judgments of the trial court.7
6
The Wrights rely on Farmer’s Bank of Frankfort v. First National Bank, 30 Ind. App. 520, 66 N.E. 503 (1903),
for the proposition that the trial court’s entry of a final appealable judgment was not a “final determination”
of their claims because they intended to appeal the trial court’s decision. See id. at 506 (stating that one
purchasing real estate after judgment rendered in trial court becomes purchaser pendente lite, and takes
chances incident to appeal since appeal is not commencement of new action but prosecution of same action
in higher court). We agree with the trial court that Indiana Code Section 32-30-11-7, enacted in 2002, and
our much more recent decision in UFG interpreting the relevant statutory language, are the more accurate
statements of the current state of the law regarding lis pendens.
7
The Knapps raise additional issues in their reply brief that they did not raise in their amended appellants’
brief. As we have already noted, issues raised for the first time in a reply brief are deemed waived on appeal.
See Monroe Guar. Ins. Co., 829 N.E.2d at 977.
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[30] Affirmed.
Riley, J., and Altice, J., concur.
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