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FOR PUBLICATION

ATTORNEY FOR APPELLANT: MICHAEL L. ROGERS Rogers & Belding North Vernon, Indiana

ATTORNEY FOR APPELLEE: CHRISTOPHER M. TEBBE Hamilton & Tebbe Law Office, P.C. Greensburg, Indiana

IN THE COURT OF APPEALS OF INDIANA
DAVID STAINBROOK, As Personal Representative of the Estate of Howard W. Stainbrook, Deceased, Appellant-Defendant, vs. TRENT LOW, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) ) )

No. 40A05-0505-CV-257

APPEAL FROM THE JENNINGS CIRCUIT COURT The Honorable Jon W. Webster, Judge Cause No. 40C01-0406-ES-035

February 13, 2006 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary David Stainbrook, as personal representative of the Estate of Howard W. Stainbrook, appeals the trial court's grant of specific performance of a real estate agreement to Trent Low. We find (1) that the trial court properly denied the Estate's motion to dismiss for lack of verification because the Estate failed to bring their motion until the start of trial, and the claimant was available and prepared to testify at that time, and (2) that specific performance was an appropriate remedy in this case. Therefore, we affirm. Facts and Procedural History The dispute before us arises from an Offer to Purchase Real Estate ("the Agreement") entered into by Trent Low and the deceased, Howard Stainbrook, on or about April 7, 2004. See Appellee's App. p. 1. The Agreement provides for the sale to Low of approximately forty acres of land in Jennings County owned by Stainbrook with a purchase price of $45,000.00. Id. Of the forty acres, approximately thirty-two acres are wooded and eight acres tillable. Under the Agreement, Low was to pay the taxes on the property beginning with the installment due and payable in November 2004. Id. After receiving the Agreement as signed by Low but before signing the Agreement himself, Stainbrook consulted with a local attorney and added handwritten terms providing that Low would pay for a survey of the property and for all closing costs. See id.; Appellee's Br. p. 3; Tr. p. 44-45. Both parties initialed these changes, 1 Appellee's App. p. 1, and Low tendered a check dated
1

The Estate suggests that Low may not have initialed these handwritten amendments before Stainbrook's death, stating, "there is no evidence when Trent Low approved those handwritten changes."

2

April 3, 2004, to Mr. Stainbrook for the sum of $1000.00 as earnest money. A closing was scheduled for May 11, 2004, and Low made financial arrangements to allow him to meet his obligations under the Agreement. On May 8, 2004, Mr. Stainbrook died

tragically and unexpectedly when a tractor rolled over on him. Following Stainbrook's death, Low still wished to close on the real estate transaction. David Stainbrook ("the Executor"), Howard Stainbrook's son and the

executor of his Estate, contacted Low and requested that Low withdraw his offer to purchase the property. Low declined and on September 9, 2004, filed a timely Claim Against Estate ("the Petition") with the probate court requesting enforcement of the Agreement on the terms agreed to by him and Stainbrook. Appellant's App. p. 14. The Petition contained no form of verification on its face. Id. The Executor disallowed this claim on September 16, 2004. The parties eventually submitted their dispute to

mediation but were unable to reach an agreement. A trial was held on March 9, 2005. At the start of the proceedings, the Estate moved to dismiss Low's Petition, arguing that it had not been properly verified as required by statute and so must fail. Tr. p. 3; see Ind. Code

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