159 N.E.3d 634
Ind. Ct. App.2020Background
- Tabscott and Stephens had an oral agreement (2017) for Stephens to buy Tabscott’s Morgan County property for $16,000; Stephens moved in, paid utilities and maintained the house but never paid purchase price.
- Tabscott executed and notarized a warranty deed (Aug. 22, 2018) reciting “for valuable consideration $16,000, the receipt of which is hereby acknowledged,” which Stephens recorded (Sept. 21, 2018) despite never paying.
- Tabscott sued (Feb. 2019) for breach, fraud, theft, and conversion seeking the purchase price, treble damages, and attorney’s fees.
- The bench trial found Stephens never intended to pay, had fraudulently induced transfer, and committed theft and conversion; judgment entered for $16,000 plus $4,000 attorney’s fees (total $20,000) and a conditional reformation remedy if payment not made within 90 days.
- On appeal Stephens argued the Statute of Frauds barred enforcement of the oral sale and challenged the attorney-fee award.
Issues
| Issue | Tabscott's Argument | Stephens' Argument | Held |
|---|---|---|---|
| Statute of Frauds: Can seller recover purchase price despite oral sale? | Deed execution and purchaser’s possession/acceptance amount to part performance; seller may recover the purchase price though the oral contract would otherwise be within the Statute of Frauds. | The oral contract for sale of land is unenforceable under the Statute of Frauds; consideration was inconsistent and not in writing. | Affirmed for Tabscott: execution of deed and acceptance/possession (part performance) allow recovery of the $16,000 purchase price despite lack of a written contract. |
| Theft/Conversion (mens rea) | Stephens knowingly induced transfer with no intent to pay, satisfying the criminal-intent element required for civil recovery under the theft/conversion statute. | At most a breach of contract; Stephens believed he provided consideration (found documents) and lacked criminal intent. | Affirmed for Tabscott: trial court’s credibility findings supported that Stephens intentionally exerted unauthorized control and had no intention to pay; theft and conversion proven. |
| Attorney’s fees under I.C. §34‑24‑3‑1 | Prevailing on theft/conversion entitles Tabscott to reasonable attorney’s fees and up to treble damages; fees requested. | Challenges the sufficiency of proof for the fee amount. | Award of fees is authorized, but record contains no evidence of the reasonable fee amount; remanded for a hearing to determine reasonable attorney’s fees. |
| Reformation remedy | If Stephens fails to pay within 90 days, reformation/transfer back was requested as equitable relief. | Challenges to reformation authority. | Not decided on appeal: trial court has not yet issued reformation; issue not ripe. |
Key Cases Cited
- Powell v. Nusbaum, 136 N.E. 571 (Ind. 1922) (seller may recover purchase price after deed executed and possession taken despite Statute of Frauds)
- Summerlot v. Summerlot, 408 N.E.2d 820 (Ind. Ct. App. 1980) (doctrine of part performance permits enforcement of oral land contracts in equity)
- Banks v. Jamison, 12 N.E.3d 968 (Ind. Ct. App. 2014) (civil recovery under theft/conversion statute allows costs, reasonable attorney’s fees, and up to treble damages)
- Bowden v. Agnew, 2 N.E.3d 743 (Ind. Ct. App. 2014) (refusal to pay a debt generally does not support conversion absent criminal intent)
- Patricia Ann Brown, C.P.A. v. Brown, 776 N.E.2d 394 (Ind. Ct. App. 2002) (award of attorney's fees under the theft/conversion statute is mandatory once actual damages and fees are proven)