from the Hendricks Circuit Court The Honorable Daniel F.
Zielinski, Judge Trial Court Cause No. 32C01-1606-PL-69.
ATTORNEYS FOR APPELLANT Bryan L. Ciyou Darlene R. Seymour
Ciyou & Dixon, P.C. Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Gregory E. Steuerwald Graham T. Youngs
Steuerwald, Hannon & Witham, LLP Danville, Indiana
Robin King appeals from an order of the trial court which
denied her motion for eviction of Rebecca Conley and granted
Conley's request for specific performance. King raises
one issue which we revise and restate as whether the trial
court's order is clearly erroneous. Conley requests
appellate attorney fees. We affirm and remand for
determination of appellate attorney fees.
and Procedural History
In the summer of 2015, Vince Wall, a real estate broker,
assisted Conley in
finding a home and located the residential property owned by
King. King and Conley entered into two agreements dated
December 16, 2015, specifically, a lease agreement (the
"Lease") and an Option to Purchase Real Estate (the
"Option Agreement") pursuant to which King granted
Conley an exclusive and irrevocable option (the
"Option") to purchase the residential home and real
estate. Conley paid King $13, 000 pursuant to the
The Lease provided that Conley, as the tenant, agreed to
lease the residential property from King, as the landlord,
for a term commencing on December 19, 2015, ending on
December 18, 2016. Paragraph 4 of the Lease, which was titled
"alterations and maintenance of lease premises, "
provided in part:
Tenant shall not cause or permit any alterations, additions
or changes to the Leased Premises without first obtaining the
written consent of Landlord. All approved alterations,
additions or changes to the Leased Premises shall be made by
Tenant in accordance with all applicable laws and shall
become the property of Landlord. Tenant shall be responsible
for maintaining the interior and exterior of the house, and
the ground of the premises, including minor and routine
repairs. . . .
Exhibit A. Paragraph 11 of the Lease defined Events of
Default. Paragraph 15 of the Lease provided in part that King
and her agents would be permitted to inspect and examine the
leased premises "at all reasonable times" and that
King would have the right to make any repairs to the premises
she may deem necessary. Id.
The Option Agreement provided, "[i]n consideration of
the non-refundable payment of Thirteen Thousand dollars ($13,
000) (the 'Option Money'), and for other good and
valuable consideration, [King] does hereby grant to [Conley]
the exclusive and irrevocable option [(the 'Option')]
to purchase the residential home and real estate . . .
." Defendant's Exhibit B. Conley's right to
exercise the Option commenced on December 19, 2015, and
terminated on December 18, 2016. The Lease and Option
Agreement provided that, if Conley was in default under the
Lease, King could terminate the Option Agreement. Both the
Lease and Option Agreement provided for attorney fees.
On March 17, 2016, Conley reported a leak to King and
provided the code to the garage so that King could access the
house, and King noticed water in the sump was gone. King made
a statement to Wall that the problem might have been caused
by Conley, the statement concerned Conley, and Conley decided
that King was not permitted to enter the house unless another
person was present. Ultimately, King or contractors were
given access on March 18th and 22nd and the sump pump was
replaced. Conley changed the lock on the front door on or
after March 20th.
In a letter dated March 25, 2016, Conley notified King that
she was exercising her Option to purchase the property
pursuant to the Option Agreement. In a letter to Conley dated
March 30, 2016, King stated that Conley had painted the
majority of the ground level interior walls, replaced door
lock(s) on the house, and removed at least three hosta plants
from the yard without written consent in violation of
Paragraph 4 of the Lease, and denied King access to the
property on several dates from March 18 to 25, 2016, in
violation of Paragraph 15 of the Lease. The letter stated
that Conley was required to correct the violations within
fifteen days and also offered to waive the violation
corrections if Conley agreed to exercise the Option on or
before the deadline for the corrections, the closing would
occur within thirty days, and the property would be sold in
an "as is" condition and that no repairs would be
made to the property.
In June 2016, King filed a complaint alleging that Conley was
in breach of the Lease and had painted certain interior
walls, changed the door locks, and denied King access. On
August 15, 2016, Wall and King walked through the rooms of
the house together so that King could inspect the home and
take photographs. When they had finished, Wall asked King if
she was satisfied with the property, King replied
affirmatively, Wall then asked if the visit resolved her
request to have access, and King again replied affirmatively
and stated "well I guess I can go ahead and drop
everything, uh because I have been granted access."
Transcript at 29.
On August 19, 2016, King filed a motion for eviction which
alleged that Conley was in breach of the Lease and requested
a hearing. Conley filed an answer, affirmative defenses, and
a counterclaim for specific performance of the Option. In her
counterclaim, Conley alleged that she had exercised the
Option, that she had applied for and obtained the financing
necessary to close as shown in an attached exhibit, and
requested specific performance requiring King to close the
transaction and attorney fees.
On November 9, 2016, the court held a hearing and heard the
testimony of King, Conley, and Wall and admitted the
parties' agreements and letters to each other as well as
text messages between King and Conley. King testified that
Conley continued to pay rent and had never missed a monthly
payment. On November 30, 2016, the court issued its Findings
of Fact, Conclusions of Law, and Order. It found:
2. The parties entered into a written Lease Agreement on
December 16, 2015, wherein [King] leased to [Conley] certain
real estate and improvements . . . (herein
"Property"), for a term commencing on December 19,
2015 and ending on December 18, 2016.
3. At the same time, the parties executed an [Option
Agreement] in which [Conley] made a non-refundable payment of
$13, 000 for the option to purchase the Property subject to
certain written terms and conditions. The Lease and ...