Randy Glingle and Roberta Glingle v. Ryan Glingle and Julie Glingle (mem. dec.)

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.
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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.
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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
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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,
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[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.
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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
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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.
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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.
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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
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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).
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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.
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