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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS: JACK C. BIRCH RANDALL L. MORGAN Snyder Birch & Morgan Syracuse, Indiana

ATTORNEY FOR APPELLEES: JAMES S. BUTTS Law Office of James S. Butts, P.C. Warsaw, Indiana

IN THE COURT OF APPEALS OF INDIANA
FLORENCE A. HORN, individually, and ) FLORENCE A. HORN as Trustee of the ) FLORENCE A. HORN REVOCABLE TRUST,) ) Appellants-Defendants, ) ) vs. ) ) CARL D. OUSLEY and JANET OUSLEY, ) ) Appellees-Plaintiffs. )

No. 43A05-0512-CV-751

APPEAL FROM THE KOSCIUSKO CIRCUIT COURT The Honorable Rex L. Reed, Judge Cause No. 43C01-0412-PL-915

October 18, 2006

MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Florence A. Horn, individually and as Trustee of the Florence A. Horn Revocable Trust, (Horn) appeals a judgment for specific performance in favor of Carl and Janet Ousley, regarding the sale of eighty-six acres of real estate owned by Horn. Horn presents the following restated issues for review: 1. Did the trial court err in determining that an enforceable contract existed and that specific performance of said contract was appropriate? Did the trial court err in adding terms to the contract?

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We affirm. The facts most favorable to the judgment reveal that in 1978, Horn and her nowdeceased husband, Owen Horn, owned a 101-acre tract of real estate in Kosciusko County, Indiana. On August 8, 1978, the Horns entered into a Conditional Sales Contract for Sale of Real Estate (the 1978 Contract) with the Ousleys, pursuant to which they sold fifteen acres of their real estate to the Ousleys on contract. On April 17, 1979, the Ousleys satisfied their payment obligations under the 1978 Contract, and the Horns conveyed title to the fifteen acres to the Ousleys by warranty deed. Owen Horn died on November 26, 1989. Thereafter, Horn conveyed title to the remaining eighty-six acres of real estate, as well as additional real estate, to herself as trustee of a revocable trust.

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The eighty-six acres of adjacent real estate retained by the Horns (the Real Estate) is the subject matter of the current dispute. 1 Paragraph 12 of the 1978 Contract provided: 12. RIGHT TO PURCHASE It is agreed that the [Ousleys] shall have the first right to purchase any part of the balance of the real estate owned by the [Horns] and lying adjacent to the above described premises at some future time in the event it should be for sale. Appellant's Appendix at 136. On several occasions since Owen's death, Horn considered selling the Real Estate. In 1997 and then again in 2002, Horn entered into negotiations with the Ousleys in an attempt to sell the Real Estate or a portion thereof. The parties, however, could not reach an agreement on price. On September 24, 2004, Horn's attorney, Vern Landis, sent a letter to the Ousleys by certified mail. The letter, which was signed by Landis, provided in relevant part as follows: Dear Mr. and Mrs. Ousley: Please be advised that this firm represents Florence A. Horn. Our client has asked us to contact you regarding the Contract for Sale of Real Estate between you and Mrs. Horn and her deceased husband dated August 8, 1978. That contract contains a provision that appears to give you the first right of refusal to purchase the balance of the real estate owned by Mrs. Horn and lying adjacent to the property you have already purchased from our client. While we believe that first right of refusal expired when your contract with Mrs. Horn was paid off, the purpose of this letter is to advise you that Mrs. Horn does now intend to sell the property lying adjacent to the property you purchased from our client pursuant to the Contract for Sale of Real Estate dated August 8, 1978. The sale price for this property will be $2,500.00 per acre for 86 acres for a total price of $215,000.00, which would be payable in full at closing.
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The eighty-six-acre tract is contiguous on three sides to the fifteen-acre tract previously purchased by the Ousleys.

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Please be advised that you have 20 days from the date of this letter to advise the undersigned whether you will exercise your first right of refusal. If you do not do so, our client will proceed to sell the real estate as she sees fit. Please direct any correspondence regarding this matter to the attention of the undersigned, and do not contact Mrs. Horn directly regarding this matter. Id. at 41-42. The Ousleys discussed the letter and thought about it for a few days. Carl then called Horn and asked if she was serious about selling this time. Horn responded affirmatively but directed him to contact Landis, not her. Carl informed her that he would "proceed and get the money." Transcript at 15. After obtaining a loan

commitment from Farm Credit Services for the amount of money he needed to purchase the Real Estate, Carl contacted Landis and scheduled an appointment to meet with him. The Ousleys met with Landis in his office on October 11, 2004, informed him that they had secured loan approval, and provided him with said documentation. Landis and Carl agreed that it would be a "fairly simple, straight forward, real estate transfer." Id. at 18. Landis told the Ousleys that he would prepare the final paperwork so that they could take it to their lender. Although still awaiting a formalized contract from Landis, the Ousleys left the meeting believing that an agreement had been reached regarding the sale of the Real Estate. By letter dated October 19, 2004, however, Landis advised the Ousleys: "Mrs. Horn has decided that she does not want to sell the subject property at this time." Appellant's Appendix at 45. Claiming that the September 24, 2004 letter constituted an 4

offer to sell the Real Estate and that said offer was accepted at the meeting with Landis on October 11, the Ousleys demanded that Horn sell the Real Estate to them for $215,000.00 pursuant to the terms of her offer. 2 When Horn failed or refused to proceed with the sale, the Ousleys filed a complaint on December 2, 2004, seeking specific performance of the contract. 3 Following a bench trial, the trial court entered its Judgment for Specific Performance on November 30, 2005. Upon the Ousleys' tender of the purchase price, the trial court specifically ordered Horn to deliver at closing "a proof of merchantable title and a good and sufficient Trustee's Deed" conveying the Real Estate to the Ousleys. Id. at 8. The trial court further ordered Horn to pay "the normal sellers' expenses in connection with the conveyance of the above-described real estate, including therein expenses for title insurance, real estate taxes prorated to the date of closing, and other normal and customary expenses paid by sellers in this community in connection with the sale of real estate." Id. at 10. Horn now appeals.

By letter dated November 2, 2004, the Ousleys' attorney notified Landis in part: Mr. and Mrs. Ousley are now making demand that Mrs. Horn proceed forward with the sale of the real estate to them. They are ready, willing, and able to purchase the real estate pursuant to the terms of Mrs. Horn's offer and are prepared to close upon reasonable notice. If I have not received a response to this offer agreeing to scheduling (sic) a closing date on or before November 15, 2004, my clients have instructed me to file a complaint for specific performance of this contract. Id. at 48. We note that Horn filed a counterclaim, which the trial court decided adversely to her. The trial court's ruling in this regard is not challenged on appeal.
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We initially observe that the trial court entered findings of fact and conclusions thereon pursuant Horn's request and Ind. Trial Rule 52(A). Our two-tiered standard of review of such an order is well settled. We may not set aside the findings or judgment unless they are clearly erroneous. In our review, we first consider whether the evidence supports the factual findings. Second, we consider whether the findings support the judgment. "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it relies on an incorrect legal standard. We give due regard to the trial court's ability to assess the credibility of witnesses. While we defer substantially to findings of fact, we do not do so to conclusions of law. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Gabriel v. Windsor, Inc., 843 N.E.2d 29, 44 (Ind. Ct. App. 2006) (some citations omitted). 1. Horn contends that the trial court erred in determining that a valid and enforceable contract existed and in ordering specific performance of the alleged contract. Horn argues that even assuming the September 24, 2004 letter constituted a valid offer, the Ousleys failed to establish "a proper and complete acceptance of all of the terms of such letter by the October 14, 2004 deadline imposed therein." Appellant's Brief at 15. Horn further contends that the trial court erred in ordering specific performance because the letter was merely a "solicitation of an offer as part of a process to negotiate an actual contract". Id. at 12. In this regard, she asserts that "[i]n addition to several negotiated provisions that the parties would have expected in any true contract for the sale of the

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Real Estate, the [letter] failed to include as an essential contract term any closing date to consummate the potential sale of the Real Estate." Id. at 15. We turn first to the issue of acceptance. Horn claims that the Ousleys failed to offer sufficient evidence that they "expressly advised [Landis] that the terms of the September 24, 2004 letter were accepted without any modification." Appellant's Brief at 14. In this regard, she notes that the Ousleys had only secured financing for $208,075.00. We reject Horn's invitation to reweigh the evidence or judge witness credibility. The evidence favorable to the judgment, as well as the reasonable inferences drawn therefrom, supports the trial court's finding that the Ousleys verbally communicated their acceptance to Landis (Horn's authorized agent) during their meeting on October 11, 2004. 4 While it is true that the Ousleys expected Landis to prepare a formal written contract, this does not establish that a binding agreement had not already been reached. See Wolvos v. Meyer, 668 N.E.2d 671 (Ind. 1996) (reference to the future execution of a more formalized real estate contract does not void a presently existing agreement made by the exercise of a real estate option); see also Epperly v. Johnson, 734 N.E.2d 1066, 1071 (Ind. Ct. App. 2000) ("parties may make an enforceable contract that binds them to prepare and execute a final subsequent agreement"). In fact, upon leaving the meeting with Landis, Janet had no question that an agreement had been reached regarding this simple real estate transaction. The trial court's finding regarding the Ousleys' acceptance is supported by the evidence and is not clearly erroneous.

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There is simply no merit to Horn's implied assertion that the Ousleys may have offered only $208,075.00 for the Real Estate.

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Now to the heart of Horn's appeal. That is, she claims that the trial court erred in granting specific performance because the contract as expressed in the letter was so incomplete with respect to essential terms that it was unenforceable. Specific performance is an equitable remedy that the trial court may grant in its sound discretion. Gabriel v. Windsor, Inc., 843 N.E.2d 29. The grant of specific

performance directs the performance of a contract according to the terms agreed upon. Id. Therefore, to be specifically enforced, the terms of the contract should be precise so that neither party could reasonably misunderstand them. Wolvos v. Meyer, 668 N.E.2d 671. "Enforcement of a writing which is incomplete or ambiguous creates the substantial danger that the court will enforce something neither party intended." Id. at 675. Only essential terms, however, need be included in order to render a contract enforceable. Wolvos v. Meyer, 668 N.E.2d 671; Illiana Surgery & Med. Ctr., LLC. v. STG Funding, Inc., 824 N.E.2d 388 (Ind. Ct. App. 2005). All that is required is reasonable certainty in the terms and conditions of the promises made, including by whom and to whom. Wolvos v. Meyer, 668 N.E.2d 671; Johnson v. Sprague, 614 N.E.2d 585 (Ind. Ct. App. 1993). While absolute certainty in all terms is not required, courts cannot supply

missing, essential terms. 5 Johnson v. Sprague, 614 N.E.2d 585.

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Pursuant to the Statute of Frauds, Ind. Code Ann.

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