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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. ATTORNEY FOR APPELLANTS: DALE W. ARNETT Winchester, Indiana ATTORNEY FOR APPELLEES: JOHN W. MEAD Mead, Mead & Clark, P.C. Salem, Indiana

IN THE COURT OF APPEALS OF INDIANA
OLD PATHS BAPTIST CHURCH, an Unincorporated Association, and JOHN T. LEWIS, Appellants-Plaintiffs, vs. DAN YOUNG, DUANE CLEGHORN, BERT ENGLER, MELISSA LOWE, NORA SHEPHERD, and PHYLLIS CALVERT, Appellees-Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 88A01-0504-CV-177

APPEAL FROM THE WASHINGTON CIRCUIT COURT The Honorable Roger D. Davis, Special Judge Cause No. 88C01-9906-CP-123

October 30, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Old Paths Baptist Church, an independent unregistered church in Campbellsburg, Indiana ("Old Paths"), appeals from the trial court's judgment against it in its action against various individuals regarding a dispute over ownership of land. In addition, John Lewis, pastor of Old Paths, appeals from the trial court's judgment against him on Nora Shepherd's counterclaims against him. Old Paths and Lewis raise the following issues for our review: 1. Whether the trial court properly concluded that an oral contract existed regarding the purchase and ownership of the land and that the Statute of Frauds did not apply because of part performance; 2. Whether the trial court properly ordered the equitable relief of specific performance and imposition of a constructive trust; 3. Whether Findings 68, 70, and 71 are supported by the evidence. In addition, Lewis raises the following issues: 4. Whether Lewis was deprived of due process by the manner in which Nora's counterclaims against him were served; and 5. Whether the trial court properly ordered Lewis to pay Nora's attorney fees. 1 Concluding that the findings and evidence support the trial court's judgment and that the trial court did not err in any of the particulars alleged by Old Paths and Lewis, we affirm the judgment of the trial court. Facts and Procedural History Tom and Nora Shepherd moved to Indiana from Tennessee in 1996 at Lewis's

Lewis actually lists eight issues in his Statement of Issues. See Appellant's Brief of John T. Lewis at 1. However, several of those issues are identical to those raised by Old Paths and will be discussed in that context. The remainder of the issues Lewis purports to raise are not supported by cogent reasoning or citation to legal authorities and we therefore decline to address them.

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invitation. Prior to August 1997, the Shepherds operated a children's home ministry called Faith Ranch on land owned by Eric Wheeler. Correspondence from Faith Ranch indicated it was a "ministry of Old Paths." See Plaintiff's Exhibit 9 at page 2; Plaintiff's Exhibit 10. Faith Ranch made improvements upon Wheeler's land in lieu of paying rent for use of the property. In August 1997, Tom died, and soon thereafter, Eric Wheeler informed Nora that she had to move from his property. Lewis encouraged Nora to sue Wheeler, in part to delay the move and allow Nora to find new property on which to locate Faith Ranch. Wheeler responded by filing a counterclaim. In September 1997, Nora received $50,000 in life insurance proceeds because of Tom's death. In March 1998, Nora, Lewis, and Bob Patenaude, who attended Old Paths, decided to purchase approximately fifty-two acres in Washington County, Indiana, from Alma June O'Connor. They agreed that they would pay $1,000 per acre. Nora contributed

approximately $25,000, Patenaude approximately $3,000, and Lewis the remainder. 2 Although there was never a written agreement, Nora testified that it was her intent and understanding that she, Lewis, and Patenaude would all receive deeds in their individual names for their respective shares of the property. However, because of the pending Wheeler lawsuit, potential State interference with the children's home, and county subdivision laws, Nora accepted Lewis's decision that the entire property should initially be titled in the name of Old Paths and divided into individually-titled parcels later. To complete the purchase, Lewis directed Nora to take her cash to the realtor on three separate occasions in installments

O'Connor's property was fifty-six acres in total, but Mary Taylor purchased four acres on which a house was situated and received a deed for that parcel. Taylor is not a party to this litigation.

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of less than $10,000 and ask for receipts in the name of Old Paths. At Lewis's request, on May 6, 1998, a deed was prepared and delivered in the name of Old Paths. In the summer of 1998, construction began on the building that would house Nora and Faith Ranch. Members of Old Paths and of other unregistered Baptist churches helped with construction. Nora purchased some materials and others were donated. By winter, the building was complete enough for Nora and the children to reside there. In addition, Nora invited the congregation of Old Paths to meet in the building during the winter months. In May 1999, Nora resigned from the ministry, stating her intention to sell her land and move to Louisiana to care for her mother. Nora approached Lewis about obtaining a deed to what she believed to be her portion of the property, and offered Old Paths the first option to purchase the land for $65,000. In the event Old Paths declined to purchase the land and Nora sold it on the open market, she agreed to first swap some of her pasture land for the sink hole ground on Lewis's portion of the property. At a church service on May 12, 1999, Nora told the church of her and Lewis's agreement. Lewis stated that the church would pray about the offer to buy the property. In June 1999, the church offered Nora $37,000 to "fully reimburse" her for her contributions toward the purchase price of the land and construction of the building. Lewis Exhibit 5. Repeated attempts by Nora to obtain a deed from Lewis proved fruitless. Duane Cleghorn, Dan Young, and Bert Engler, members of Old Paths who believed Lewis was taking advantage of Nora, sought legal advice on how to protect Nora's interests. On June 3, 1999, they filed papers incorporating Old Paths as Old Paths Baptist Church, Inc., a not-for-profit corporation. The corporation then executed a Corporate Warranty Deed 4

transferring the entire fifty-two acres from the corporation to Melissa Lowe, Nora's adopted daughter. 3 Melissa then sent a note to Lewis informing him that the church could no longer meet in the Faith Ranch building. Cleghorn, Young, and Engler intended to have the land surveyed and deeds drawn up for each of the three purchasers. Because of this litigation, the survey was never completed. On June 21, 1999, Old Paths filed an Action for Ejectment against Nora, Melissa, and Phyllis Calvert. 4 Old Paths also filed on that date an Action for Recovery of Possession of Property and to Quiet Title against Cleghorn, Young, Engler, and Lowe; and a Petition for Injunctive Relief and Complaint for Fraud against Cleghorn, Young, and Engler. The petition was later amended to allege conversion, forgery, and theft. Old Paths also filed a Complaint for Conversion against the corporation. 5 Nora filed a counterclaim against Lewis for specific performance, alleging that, by threats, intimidation, coercion, and undue influence, he caused the purchase agreement and warranty deed to be issued to Old Paths instead of to Lewis, Nora, and Patenaude. The counterclaim was later amended to add additional counts alleging that Nora was entitled to an equitable mortgage and requesting that Lewis be declared a constructive trustee of certain

It appears that Nora never officially adopted Melissa through legal proceedings. Nonetheless, she considers Melissa to be her daughter and intends for her property to pass to Melissa upon her death.
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Phyllis Calvert lived on the Faith Ranch property and helped Nora with the children's ministry.

Old Paths also filed a small claims action against Cleghorn, Young, Nora, Melissa, Phyllis, Kirk Park, Martin Engineering Services, and Jerry Martin for allegedly trespassing on and damaging the land in question when trying to conduct a survey. The small claims action was consolidated with the other pending actions. Jerry Martin and Martin Engineering Services were dismissed as defendants prior to trial, and the claim was dismissed altogether during the trial. See Joint Appendix of the Appellants at 409. In addition, it appears various protective orders were sought and granted in separate proceedings while this litigation was pending.

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funds and silver bars that had been entrusted to him by Nora; and was amended later still to add counts alleging that Lewis had converted Nora's property by failing to return silver bars and coins entrusted to him and had breached fiduciary duties to Nora under a Power of Attorney. The defendants also sought and were granted permission to add Lewis as a necessary party to the action. All actions were consolidated into one for trial. Prior to trial, Old Paths filed a motion for partial summary judgment, requesting that the trial court determine as a matter of law that it owns the real estate in question, quiet title in the real estate, and eject the defendants from the property. The trial court granted the motion in part, finding that the purported conveyance from the corporation to Melissa by corporate warranty deed was invalid, and denied the request to quiet title and to eject the defendants from the property, finding there was a genuine issue of material fact as to whether Old Paths is the rightful owner of the real estate. Old Paths appealed to this court, which held that the trial court did not err in denying Old Paths's motion for partial summary judgment. Old Paths Baptist Church v. Young, No. 88A05-0107-CV-289, slip op. at 10-11 (Ind. Ct. App., Feb. 12, 2002). Trial commenced on September 22, 2003, and was originally scheduled to last for five days. Instead, it continued for nineteen days thereafter over a nearly one-year period, finally concluding on September 16, 2004. Old Paths was represented by Dale Arnett, Lewis represented himself, and John Mead represented the corporation and the individual defendants. Given the length of the trial and the extended period of time over which it was held, the contentious relationship between the parties, and the oftentimes repetitious or irrelevant testimony elicited by Lewis and counsel from numerous witnesses, Special Judge 6

Roger Davis entered remarkably lucid and thorough findings and conclusions in reaching the following judgment: 1. Shepherd is entitled to specific performance of her contract. 2. Shepherd shall receive a Deed to that portion of the O'Connor farm, which she purchased, namely the land described in paragraph 68 of the Court's General Findings and Conclusions, together with the easement described in paragraph 73. 3. Lewis is individually the owner of the real estate specifically described in paragraph 71. 4. Robert Patenaude, in his individual capacity, is the owner of the real estate described in paragraph 70. 5. Shepherd shall have a permanent easement which shall be a covenant running with the land over and along the existing roadway from the county road to Shepherd's land. The easement shall be Forty (40) feet in width. 6. Shepherd shall have and recover judgment against Lewis in the sum of Three Hundred Dollars ($300) for her silver (actual damages). 7. Lewis, having converted the silver, Shepherd shall also have judgment against Lewis for three times her actual damages ($900.00) plus attorney's fees. The Court finds that reasonable attorneys [sic] fee with respect to the silver, is Three Hundred Dollars ($300). The total judgment concerning the silver is $1,500.00 consisting of $300.00 for actual damages, $900.00 for treble damages, and $300.00 for attorneys [sic] fees. 8. Shepherd shall have and recover judgment against Lewis for her attorney's fees. 9. The attorney's fees and expenses are fair, just and reasonable and therefore judgment is entered in the sum of Forty One Thousand Nine Hundred Ninety Six Dollars, Fifty Cents ($41,996.50) plus expenses of One Thousand Eight Hundred Thirty Eight Dollars, Ninety Eight Cents ($1,838.98) against Lewis. The Court recognizes that additional legal services have been provided to Shepherd by her counsel subsequent to the period of time covered by defendant's exhibit UU. Once the remainder of the Court's judgment is carried out, Shepherd's counsel may file a petition with the Court for consideration of the approval of additional attorney's fees. Judgment is now granted against Lewis in favor of Shepherd for attorneys fees in the amount of $41,996.50 and expenses of $1,838.98. 10. John W. Mead is appointed commissioner of this Court for the purpose of executing a Deed from Old Paths Baptist Church, an 7

unincorporated association, to Nora Shepherd, to carry out the judgment of this Court. 11. Lewis is legally entitled to enter upon the land of Shepherd for the sole purpose of removing fence posts and wire constructed entirely within the boundaries of Shepherd's property during a ninety day time period beginning with the date of this Judgment. 12. Shepherd shall have a right to hire a surveyor and the surveyor shall have a right to enter upon the land of Lewis, if necessary, to complete a survey of Shepherd's land and easement at any time within two years of the date of this Judgment. Joint App. at 640-42. Old Paths and Lewis now appeal. Additional facts will be provided as necessary. Discussion and Decision I. Standard of Review The trial court entered findings of fact and conclusions thereon pursuant to Trial Rule 52. Although the trial court mentioned at the close of the trial that "you all said something about proposed findings and conclusions," transcript at 3814, we can find nothing in the record to indicate that any party filed a written request for the entry of findings and conclusions. 6 We will therefore proceed to review the trial court's findings and conclusions as if they were entered sua sponte. On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Ind. Trial Rule 52(A). Findings are clearly erroneous only when the record contains no facts

Although the Appellees cite a case in their brief standing for the proposition that "[w]here a Trial Court has made special findings, pursuant to a party's request, under Ind. Trial Rule 52(A), the reviewing Court may affirm the judgment on any legal theory supported by the findings," Appellees' Consolidated Brief at 16 (citing Mitchell v. Mitchell, 695 N.E.2d 920, 923-24 (Ind. 1998)), none of the parties' briefs indicate that such a request was made.

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to support them either directly or by inference. Family Video Movie Club, Inc. v. Home Folks, Inc., 827 N.E.2d 582, 585 (Ind. Ct. App. 2005). A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. II. Oral Contract and the Statute of Frauds The trial court concluded that an oral contract existed among Nora, Lewis, and Patenaude to purchase the O'Connor farm and that proof of part performance removed the oral contract from the Statute of Frauds. See Joint App. of Appellants at 636, Conclusions 1

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