Hemingway v. Scott
| Decision Date | 30 December 2016 |
| Docket Number | No. 39A04–1604–PL–957.,39A04–1604–PL–957. |
| Parties | Tina L. HEMINGWAY, Appellant–Petitioner/Counter–Respondent, v. John P. SCOTT, Appellee–Respondent/Counter–Petitioner. |
| Court | Indiana Appellate Court |
A. David Hutson, Hutson Legal, Jeffersonville, IN, for Attorney for Appellant.
Mark Wynn, Jenner, Pattison, Sutter & Wynn, LLP, Madison, IN, for Attorney for Appellee.
[1] John Scott conveyed his property to himself and his girlfriend Tina Hemingway. Earlier that day, Hemingway had signed a contract agreeing that if she cheated on Scott or failed to contribute to the property's maintenance and expenses, she would reconvey her interest in the property to him. Hemingway later filed a real property partition action against Scott, who filed a counterclaim for breach of contract and replevin. The trial court found Hemingway to be in breach of contract and ordered that she execute a quitclaim deed conveying to Scott all her rights, title, and interest in the property. Hemingway seeks review of the trial court's interlocutory order, arguing that the deed extinguished the contract pursuant to the doctrine of merger and that the contract was unenforceable as against public policy. Finding that the doctrine of merger does not apply and that the contract is not rendered unenforceable for public policy reasons, we affirm.
[2] In 2001, Scott inherited a ten-acre parcel of land ("the Property") from his father. In 2004, Hemingway and Scott began a relationship, and Hemingway moved in with Scott. The couple broke up for a time, and Hemingway moved out. On February 17, 2012, the couple executed a handwritten contract, penned by Hemingway and signed by both, pursuant to which Scott promised to convey the Property from himself to himself and Hemingway. The contract included a list of conditions that would constitute a breach, including "cheating" by either party. Appellant's App. at 35. The contract also required both parties to contribute to the care and upkeep of the Property, including the house, and the expenses attributable to it. The remedies clause stated that any breach by Hemingway would require her to reconvey her interest in the Property to Scott via quitclaim deed. According to the express language, the contract would "be attached to the property deed pertaining to [the] property at [the listed address]." Id. That same day, Scott executed a deed conveying the Property to himself and Hemingway as joint tenants. The contract was neither referenced in the deed nor filed with the deed for recording purposes.
[3] Hemingway resumed living with Scott. About two months after the contract and conveyance, Hemingway was impregnated by another man. She delivered the child on January 6, 2013, and the parties agree that Scott is not the child's father. Hemingway moved out in early June 2013, after which she no longer contributed financially or otherwise to the household or Property. On June 17, 2013, Scott sent Hemingway written notice that she was in breach of the contract and must convey her interest in the Property back to him pursuant to the terms of the contract.
[4] On September 17, 2015, Hemingway filed a petition for partition of the Property. Scott filed a counterclaim for breach of contract and replevin, seeking a court-ordered conveyance of the Property back to him by quitclaim deed. On March 28, 2016, the trial court conducted a hearing on Scott's counterclaim. On April 1, 2016, the trial court issued an order with findings in favor of Scott, concluding that Hemingway breached the contract and ordering her to convey her interest in the Property back to Scott by quitclaim deed.
[5] Upon Hemingway's request, the trial court certified the order for interlocutory appeal, and we accepted jurisdiction. Additional facts will be provided as necessary.
[6] Hemingway challenges the trial court's interlocutory order finding her in breach of contract and ordering her to reconvey her interest in the Property to Scott. Here, the trial court issued its order with findings of fact pursuant to Indiana Trial Rule 52(A). In such cases, we review for clear error, first determining whether the evidence supports the findings and then whether the findings support the judgment. Baird v. ASA Collections, 910 N.E.2d 780, 785 (Ind.Ct.App.2009), trans. denied (2010). We will reverse only if the trial court's findings are unsupported by any evidence or reasonable inferences drawn from the evidence or if the judgment is unsupported by the findings and conclusions.Id. In conducting our review, we neither reweigh evidence nor judge witness credibility; rather, we consider the evidence in the light most favorable to the judgment. Id. With respect to the trial court's findings of fact, we defer substantially; with respect to its conclusions of law, we apply a de novo standard. Id.
Section 1—The doctrine of merger does not extinguish the contract or its express provisions concerning acts constituting breach and effects of breach.
[7] Hemingway maintains that the contract merged into the deed and therefore was extinguished by the express terms of the deed.
BLACK'S LAW DICTIONARY 1009 (10th ed.2014) (emphases omitted) (quoting WILLIAM R. ANSON, PRINCIPLES OF THE LAW OF CONTRACT 85 (Arthur L. Corbin ed., 3d Am. ed.1919)).1
[8] According to the doctrine of merger by deed, "[i]n the absence of fraud or mistake, all prior or contemporaneous negotiations or executory agreements, written or oral, leading up to the execution of a deed are merged therein by the grantee's acceptance of the conveyance in performance thereof." Link v. Breen, 649 N.E.2d 126, 128 (Ind.Ct.App.1995) (citing Thompson v. Reising, 114 Ind.App. 456, 462, 51 N.E.2d 488, 491 (1943) ), trans. denied. Collateral and independent rights or obligations are allowed to survive the deed because their performance is not necessary to the conveyance of the real estate and, as such, there is no need to merge them. Id. The test of merger is the express or implied intention of the parties. Id. To ascertain the parties' intent, words and phrases of the contract cannot be read in isolation but must be read in conjunction with other language contained in the contract. Id. at 128–29.
[9] In finding in favor of Scott on his counterclaim for breach of contract, the trial court issued findings of fact, which read as follows:
Appellant's App. at 6–7. The trial court ordered that Hemingway sign and deliver to Scott a quitclaim deed conveying all of her rights, title, and interest in the Property.Id. at 7.
[10] Here, the parties executed the contract just hours before the deed, and that contract was indisputably breached by Hemingway. The contract's specific language that it "be attached to the property deed" indicates the clear intent of the parties that the contract survive the deed.2 Id. at 35. The contractual obligations of fidelity and shared expenses and labor, taken on just hours before the conveyance of the Property, were not obligations whose performance was necessary to the completion of the conveyance. Rather, those obligations were prospective in nature and addressed conduct that would trigger the operation of the remedies clause, specifically here, a reconveyance to Scott. Because the obligations in the contract were not necessary to the conveyance of the Property, they are not merged into the deed. See Link, 649 N.E.2d at 128. As such, we find no error in the trial court's conclusion that the contract survived the deed and the doctrine of merger does not apply.
Section 2—The contract is not rendered unenforceable as against public policy prohibiting contracts in consideration of meretricious sexual services.
[11] Hemingway also contends that the contract is unenforceable based on public policy that prohibits contracts in consideration of meretricious sexual services.3
Indiana courts have long recognized and respected the freedom to contract. We recognize a "very strong presumption of enforceability of contracts that represent the freely bargained agreement of the parties." As a general rule, the law allows persons of full age and competent understanding the utmost liberty of contracting, and their contracts, when entered into freely and voluntarily, are enforced by the courts. It is in the best interest of the public that persons should not be unnecessarily restricted in their freedom of contract. However, in certain circumstances a court may declare an otherwise...
To continue reading
Request your trial
-
Smith v. Progressive Se. Ins. Co.
...the public in some way; or (3) agreements that are otherwise contrary to the declared public policy of Indiana." Hemingway v. Scott , 66 N.E.3d 998, 1002 (Ind. Ct. App. 2016). [28] The Smiths argue that the Policy is void as against public policy and unenforceable because the Policy provide......
-
Foertsch v. Foertsch (In re Estate of Foertsch)
...first considering whether the evidence supports the findings and then whether the findings support the judgment. Hemingway v. Scott, 66 N.E.3d 998, 1000 (Ind. Ct. App. 2016). We will reverse only if the trial court's findings are unsupported by the evidence or if the judgment is unsupported......
-
Nonmarital Contracts.
...Oral & Written Pennsylvania No. 1022 MDA 2013, 2014 WL 10965437 (Pa. Super. Ct. Mar. 10,2014) Elemingway v. Written Indiana Scott, 66 N.E.3d 998,1003 (Ind. Ct. App. 2016) Gilroy v. Gilroy, Oral California No. B271759, 2018 WL 992010, at *5 (Cal. Ct. App. Feb. 21,2018) Case Outcome Truta......