Armando Perez Galiegos, et al., Appellants-Plaintiffs v. Rothasy Eshamlech, et al., Appellees-Defendants (2025)

MEMORANDUM DECISION

Case Summary

[1] This appeal arises from an action for breach of contract, fraud, and conversion, involving sixteen residential properties in Anderson. The properties are governed by separate sets of documents with each containing a lease, an option to purchase, and a lease addendum. Armando Perez Galiegos, Leonardo Martinez, and Marin Llanas (collectively, the Plaintiffs)—the tenants of the properties—appeal the trial court's judgment in favor of Rothasy Eshamlech and Rothasy Eshamlech, LLC (collectively, Eshamlech)—the landlord—claiming that the trial court erred in determining that the agreements were leases rather than contracts for the sale of land, and that they breached the leases and failed to exercise options to purchase the properties. The Plaintiffs further contend that the award of damages to Eshamlech was erroneous.

[2] We affirm in part, reverse in part, and remand this case with instructions that the trial court correct a scrivener's error, recalculate a portion of the damages owed by the Plaintiffs to Eshamlech, and enter a revised judgment order to reflect the same.

Facts and Procedural History

[3] Sroya London, the owner of the properties at issue, is the sole member of Eshamlech, LLC. Thomas Parkison, the manager of the properties, prepared agreements that related to each property, located future tenants, handled communications, and collected rent payments. Each agreement included the same material terms and breakdowns regarding monthly payments, interest, property taxes, and insurance. The contracts also stated a purchase price for each property if options to purchase were properly exercised, and they allowed for a reduced purchase price depending on the monthly lease payments that were made.

[4] The agreements listed the Plaintiffs as the sole tenants of the properties and subletting was prohibited without Eshamlech's express written permission. If Eshamelch approved the subletting, a surcharge of $50 per month would be assessed for each additional tenant. At some point, it was determined that the Plaintiffs sublet the properties with various individuals residing at the residences unbeknownst to Eshamlech.

[5] The option to purchase provision required each lessee to deliver notice of intent to exercise the option at least sixty days prior to its exercise. The addendum to each lease provided for a $150 per month discount on the monthly rental payments if made by the 10th of the month. The Plaintiffs admitted that even though many of the monthly payments were late and insufficient, they nonetheless paid the discounted amount. Until Parkison became ill in 2019, the Plaintiffs made the payments directly to Parkison. Thereafter, the Plaintiffs began depositing the payments directly into Eshamlech's bank account.

[6] London maintained that he never authorized Parkison to execute options to purchase the properties. He asserted, however, that Parkison presented him with deeds and stated that the Plaintiffs would sue him if he refused to sign. Thus, London signed several deeds on the condition that Parkison not execute any additional option to purchase agreements. The Plaintiffs notified Eshamlech in writing of their intent to exercise only a few of the options to purchase in a timely manner.

[7] The Plaintiffs maintained that they had complied with all terms of the agreements and demanded that Eshamlech issue deeds to the properties. When Eshamlech refused, the Plaintiffs filed an amended complaint ¹ against Eshamlech on August 15, 2022, seeking specific performance, damages, fraud, conversion, and attorney's fees. The Plaintiffs alleged that they had paid Eshamlech the entire purchase price for the properties, complied with all the terms of the leases and options, and that Eshamlech had wrongfully refused to convey the properties. The Plaintiffs also asserted that they were entitled to attorney's fees for bringing the action.

[8] Eshamlech denied the allegations and filed a counterclaim, seeking damages for breach of contract and nonpayment of rent. Eshamlech also advanced a third-party plaintiff claim against Parkison's estate for breach of fiduciary duty. Eshamlech maintained that Parkison breached his fiduciary duty because he signed the options to purchase the real estate without authority to do so. Eshamlech further claimed that Parkison, who was responsible for collecting rent from the tenants, failed to provide a full accounting of the amounts collected and did not remit the full sum of the rent received.

[9] Following a bench trial on March 6, 2024, the trial court ruled in favor of Eshamlech, rejected the Plaintiffs’ claims, and determined that the agreements were leases rather than land sale contracts and that Parkison lacked the authority to execute options to purchase. The trial court further found that the Plaintiffs breached the agreements by making late and insufficient rent payments and subletting the properties without Eshamlech's written permission to do so. The trial court entered extensive findings of facts and conclusions of law on October 11, 2024, providing in part as follows:

FINDINGS OF FACT

4. [Eshamlech] is listed as “Landlord” in each Lease․

5. [The Plaintiffs are] listed as “Tenant[s]” in [each Lease].

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10. The Leases have substantially and materially identical terms.

15. For each Lease, the only Tenant or occupant listed was the respective plaintiff; no additional tenants or occupants were listed.

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17. Section 6 of each Lease states [that] “Tenant agrees not to sublet any portion of the property, nor to allow any other person to live therein other as named above without first obtaining written permission from Landlord and paying the appropriate surcharge.”

18. Plaintiffs admit to having subleased the Properties, in contravention of the express terms of ․ the Leases.

19. [Eshamlech] has never given written permission to allow any person other than Plaintiffs to reside at any of the Properties.

20. Plaintiffs offered no testimony or evidence to show that they ever received permission, written or otherwise, to sublease the properties or permit additional persons to reside there.

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22. [Eshamlech] has never given Plaintiffs written permission to sub-lease any of the Properties.

23. Section 6 of each Lease further states: “[I]t is agreed that covenants contained in this Lease, once breached, cannot afterward be performed.”

24. Section 13 of each Lease states, inter alia: “To further clarify the terms of the lease, the Tenant shall make certain that rent is received by the Landlord by the 10th of the month.”

25. Section 20 of each Lease states, inter alia: “Any exercise or failure to exercise by Landlord of any right shall not act as a waiver of any other rights. No statement or promise of Landlord or his agent as to tenancy, repairs, alterations, or other terms or conditions shall be binding unless reduced to writing and signed by the Landlord.”

26. Section 22 of each Lease states, inter alia: “All notices required by this agreement shall be sent to the other party in writing.”

27. [Most of the leases] included an alleged “Addendum”, which listed the rent shown in the lease, and provided “when rent is paid by the 10th of the month that a $150 portion will be forgiven, and the unchanged schedule of payments will prevail.”

28. Each Lease included an alleged “Option to Purchase Agreement” (the “Options”), with Plaintiffs as “Optionee” and [Eshamlech] as “Optionor.”

29. [Eshamlech] has maintained from the beginning of this litigation, and continues to maintain, that [Eshamlech] has never authorized anyone to provide any options for the Properties, has never executed any of the Options, nor has [Eshamlech] ever authorized anyone to execute any Options on its behalf.

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31. Each alleged Option contains the following term: “This option will expire without notice and shall be of no further effect if not exercised on or before [applicable date].”

32. Each alleged Option contains the following term: “Optionee has paid the sum of $0.00 as non-refundable option consideration which will be applied toward the purchase price of the property if, and only if, Optionee exercises this option to purchase.”

33. Each alleged Option contains the following term: “In the event Optionee fails to exercise the option or defaults under any terms of the attached lease, this option will be void and all monies will be retained by Optionor as liquidated damages and not as penalty.”

34. Each alleged Option contains the following term: “This option, or any interest therein can only be exercised by the individuals signing this option acting in unison for Optionee's principal residence.”

35. Each alleged Option contains the following term: “In the event Optionee is in possession of the property described above under a valid lease agreement at the time of exercise of this option, $ (see Amortization Schedule and Addendum) of each monthly rent payment received on or before the 10th day of the month under said lease will be applied as additional Option consideration if, and only if, tenant exercises this option to purchase.”

36. Each alleged Option contains the following term: “All covenants of said lease agreement must have been faithfully performed in order for this option to be valid and enforceable, including, but not limited to, the repairs, maintenance and upkeep of said property.”

37. Each alleged Option contains the following term: “Notice must be delivered to the Optionor in writing of Optionee's intention to exercise this option at least sixty ․ days prior to exercise.”

38. Each alleged Option contains the following term: “Optionee understands that time is of the essence for this agreement, and that Optionee's failure to purchase the property before the expiration of the option, for any reason (or if Optionee defaults any terms of a lease agreement for the above stated property), all monies paid by Optionee will be retained by Optionor.”

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139. London testified that the payments he received from Rey Llanas were the largest payments he was expecting every month; because of this, London would contact Parkison and ask that these payments be deposited as soon as Parkison received them.

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148. London testified that he had not been paid in full for any of the Properties.

149. London testified that he had not been paid the surcharge for additional tenants for any of the Properties.

150. London submitted his own calculations of rent payments owed to him.

151. On April 13, 2022, this Court, upon motion by Plaintiffs, permitted and directed Plaintiffs that “the monies paid under the Leases and Options to Purchase attached to Plaintiffs’ Complaint be paid into the Clerk of Madison County, Indiana.”

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154. Instead of obeying the court's order, ․ Plaintiffs’ counsel indicated that there had been a “mistake” and that the payments made by Plaintiffs to the clerk were intended for the Eviction Properties, which were not part of the original complaint.

155. Plaintiffs thus effectively admitted that they had been disobeying the court's ․ order.

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160. Plaintiffs offered no testimony or evidence as to the property-by-property breakdown of the monthly payments to the clerk.

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164. Monthly payments made by Plaintiffs to the clerk were insufficient to cover the amounts due by Plaintiffs to Eshamlech.

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167. For the Properties at issue in this lawsuit, payments made on and after September 2017 and/or June 2020, where applicable, were reduced from payments for previous months, and were lower than the base rent with $150 discount. Plaintiffs offered no testimony or evidence as to the reasons for these shortfalls.

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171. Plaintiffs offered no testimony or evidence as to any additional payments made on the Properties during the pendency of this lawsuit.

172. Pursuant to the Leases, section 13, acceptance of partial payment of rent by Eshamlech does not work as a waiver of the remaining rent. Pursuant to section 18, any payments received by Eshamlech shall be applied first toward fees and surcharges, and then to rent.

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174. Every late payment by Plaintiffs, according to Plaintiffs’ own records, was not increased by $150, as it should have been per addenda to the Leases. Plaintiffs thus continued in arrears.

175. Even payments made on time, because they were insufficient to cover the arrears, were not full payments of rent on or before the 10th as required by the Lease.

176. Eshamlech's Exhibit F tabulates the arrears in payment of rent, taking into account that the payments were late from the start, and thus that each payment was for the full rent amount, without regard to the $150 discount, broken down by each property.

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184. Plaintiffs offered no evidence or testimony that Parkison had ever claimed, or exercised, any authority to execute deeds as agent on behalf of Eshamlech.

CONCLUSIONS OF LAW

1. This lawsuit raises the following legal questions: (i) was Parkison a general agent or a special agent of ․ Eshamlech (ii) were options on the Properties validly executed, (iii) did Plaintiffs breach the Leases on the Properties, (iv) were the agreements among Plaintiffs and [Eshamlech] leases with options to purchase or land contracts, and (v) are attorney's fees owed to [Eshamlech].

3. Sroya London testified that Thomas Parkison was never authorized to sell the properties at issue.

4. The course of dealing among the parties, where London, rather than Parkison, was always the person signing any deeds that had been previously delivered to Plaintiffs, also indicates that Parkison did not have a general authority to do everything the principal could do. Plaintiffs adduced no testimony or evidence to demonstrate that Parkison had the authority to conduct “all business” of [Eshamlech].

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6 Plaintiffs introduced no evidence of any representations made by [Eshamlech], as principal, to Plaintiffs, as to the authority of Parkison. On the contrary, it was apparent from [Eshamlech's] actions that only Sroya London had the authority to convey title.

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9. Plaintiffs, who had previously received deeds signed by Sroya London, but who had never received deeds signed by Parkison, were on notice that Parkison was not the general agent for London or [Eshamlech].

10. Because Parkison was a special agent, and Plaintiffs should have known this from previous dealings, Plaintiffs had a duty to ascertain the extent of his authority, or lack thereof; to sell the properties.

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14. As a matter of law, Parkison had no actual or apparent authority to execute the options.

15. The options were not validly executed.

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29. Plaintiffs materially breached the Leases by making numerous late payments to [Eshamlech].

30. Plaintiffs materially breached the Leases by making insufficient payments to [Eshamlech].

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42. The agreements among Plaintiffs and [Eshamlech] were leases with option to purchase and not land purchase contracts; as already concluded, the options were not valid ab initio.

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47. Plaintiffs have not tendered adequate probative evidence to warrant specific performance. In fact, the evidence in the record is wholly inadequate to permit the Court to fashion a coherent order of specific performance that would effect an equitable result among the parties.

48. Specific performance sounds in equity. A party seeking equitable relief must come to court with clean hands.

49. Plaintiffs do not come to court with clean hands, due to [the] serial and material breaches of the Leases.

50. Plaintiffs have benefited from illegally subleasing the Properties to tenants․ On balance of equities, Plaintiffs, by permitting tenants to reside in the Properties without permission, [has] already financially benefited from the Properties, while underpaying [Eshamlech]. Plaintiffs, to all appearances, had no financial excuse to not be paying [Eshamlech] timely, and in full.

51. Balance of equities favors [Eshamlech] receiving the unpaid, past due rent ․ due from Plaintiffs.

52. Plaintiffs shall take nothing by way of the amended complaint.

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59. In Indiana, each party bears its own attorney's fees, except as defined by statute or agreed by contract.

60. The Leases executed among the parties, in Section 18, specified that the tenant would reimburse landlord for all actual and reasonable expenses, including attorney's fees, in the event of breach of the Leases by tenant.

61. Plaintiffs have materially breached the leases and the options thereon, by serially making late and insufficient payments and by subleasing without permission, and as such, will reimburse [Eshamlech] for all reasonable expenses.

62. Plaintiffs have further brought and maintained this litigation to enforce options despite the fact that Plaintiffs never ascertained Parkison's authority to execute said options, despite having notice that Parkison was not a general agent for London, despite repeatedly violating the underlying leases, which Plaintiffs knew would void the options, and despite attempting to exercise options that were expired, all of which are groundless actions, independently warranting award of attorney's fees.

63. [Eshamlech's] counsel, within ten ․ days of this order shall show, by affidavit, the reasonable expenses incurred by [Eshamlech] in defending this action, pro-rated among the several Plaintiffs in proportion to each Plaintiff's share of total damages awarded in this judgment.

64. Plaintiffs shall have ten ․ days from the filing of [Eshamlech's] counsel's affidavit to challenge the reasonableness thereof.

Appellants’ Appendix Vol. II at 144-67 (emphases added).

[10] The trial court awarded damages in favor of Eshamlech and against each plaintiff as follows: Galiegos: $88,000; Llanas: $83,700; and Martinez: $12,000. Thereafter, the trial court issued a supplemental order awarding Eshamlech $50,638.50 in attorney's fees.

[11] The Plaintiffs now appeal. Additional information will be provided where necessary.

Discussion and Decision

I. Standard of Review

[12] When, as here, the trial court issues special findings of fact pursuant to Ind. Trial Rule 52(A), the findings and conclusions will be set aside only if they are clearly erroneous, that is, when the record contains no facts or inferences supporting them. F.M. v. K.F., 42 N.E.3d 572, 576 (Ind. Ct. App. 2015). Moreover, we will only consider the evidence that supports the trial court's findings, conclusions, and judgment and any reasonable inferences therefrom. Id. We will decline a request to reweigh the evidence or judge the credibility of witnesses. Miller v. Carpenter, 965 N.E.2d 104, 108 (Ind. Ct. App. 2012).

[13] When reviewing the trial court's findings and conclusions, we apply the following two-tier standard of review: whether the evidence supports the findings, and whether the findings support the judgment. Kishpaugh v. Odegard, 17 N.E.3d 363, 370 (Ind. Ct. App. 2014). We construe the trial court's findings liberally in a light most favorable to the judgment, finding error only when a review of the record leaves us firmly convinced that a mistake has been made. Id. We also note that because the Plaintiffs had the burden of proof at trial and did not prevail, they are appealing from a negative judgment and will succeed on appeal only if the judgment is contrary to law. See Logan v. Evans, 230 N.E.3d 371, 377 (Ind. Ct. App. 2024).

II. The Plaintiffs’ Contentions

A. Construing the Agreements

[14] The Plaintiffs argue that the judgment must be set aside because the trial court erred in determining that the agreements were leases rather than contracts for the sale of land. The Plaintiffs maintain that because the agreements included amortized payments that required them, as tenants, to pay taxes and maintenance on the properties, the agreements were necessarily land sale contracts.

[15] The interpretation of a contract is a question of law. Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839 (Ind. Ct. App. 2017), trans. denied. In interpreting an unambiguous contract, we will give effect to the intentions of the parties as expressed in the four corners of the contract. Art Country Squire, LLC v. Inland Mort. Co., 745 N.E.2d 885, 889 (Ind. Ct. App. 2001). Clear and unambiguous terms are conclusive of that intent. We will refrain from construing unambiguous provisions or adding provisions not agreed upon by the parties. Id. And even when analyzing an unambiguous contract, its meaning is to be determined from an examination of all of its provisions, not from a consideration of individual words, phrases, or even paragraphs read alone. Evan v. Poe & Assocs., Inc., 873 N.E.2d 92, 98 (Ind. Ct. App. 2007). Indeed, we are obliged to read the agreement in a manner that harmonizes its provisions as a whole and gives effect to the parties’ expressed intent. Kelly v. Smith, 611 N.E.2d 118, 121 (Ind. 1993). Writings executed at the same time and relating to the same transaction or subject matter will be construed together in determining the intent underlying the contracts. Noble Roman's, Inc. v. Ward, 760 N.E.2d 1132, 1138 (Ind. Ct. App. 2002). When there is no inconsistency in the two contracts, they may both stand without in any way interfering with each other. Whitaker v. Brunner, 814 N.E.2d 288, 294 (Ind. Ct. App. 2004), trans. denied.

[16] Here, the Plaintiffs rely on this court's opinion in Vic's Antiques & Uniques, Inc. v. J. Elra Holdingz, LLC, 143 N.E.3d 300 (Ind. Ct. App. 2020), trans. denied, in support of their contention that the agreements were land sale contracts rather than leases. In Vic's, the defendant antique store (Vic's) agreed to pay the plaintiff property owner—J. Elra Holdingz— $1,265.30 per month for a term of twenty years. Id. The agreement further provided Vic's with an option to purchase the property and an additional six acres for a purchase price of $1.00 upon the successful completion of the agreement. Id. Less than a year into the agreement, J. Elra Holdingz sued to evict Vic's from the property, claiming that it had breached various terms of the agreement. Id. at 303. Vic's argued that the agreement was not a lease, but instead a land sale contract that was styled a lease. Id. The trial court determined that the agreement was a lease and ordered Vic's to vacate the premises. Id.

[17] Vic's appealed and argued that the agreement was a land sale contract because it provided “for an amortized payment schedule,” and required it to pay real estate taxes. Id. 304. J. Elra Holdingz pointed to various provisions in the agreement, asserting that it did not transfer all incidents of ownership to Vic's, thus resulting only in a landlord-tenant relationship. Id. at 304-05. J. Elra Holdingz also directed the court to certain clauses in the agreement found only in leases, including: (1) limiting Vic's use of the real estate for the operation of an antique store; (2) requiring Vic's to obtain its written approval before constructing improvements on the real estate; (3) permitting J. Elra Holdingz to enter the property upon the termination of the agreement; (4) allowing J. Elra Holdingz to enter the real estate at any time in order to inspect the property; and (7) requiring Vic's to surrender the property at the expiration of the term. Id.

[18] In reversing the trial court, a panel of this court cited our Supreme Court's decision in Rainbow Realty Group, Inc. v. Carter, 131 N.E.3d 168, 173 (Ind. 2019), which determined that a “transaction's purported form and assigned label do not control its legal status.” Id. The Vic's court acknowledged that the provisions of the agreement relied on by J. Elra Holdingz are often included in lease agreements but noted that those provisions are not incompatible with a land sale contract:

[T]o determine whether the agreement is a lease or a land sale contract, we must look beneath the surface of the agreement and, instead, consider the substance of the agreement to determine the intent of the parties. We hold that, on the facts of this case, the agreement speaks for itself. As such, we need not look to extrinsic evidence to interpret the agreement. See Layne, 77 N.E.3d at 1265. Rather, the substance of the agreement is found in the economics of the transaction. And the economics of the transaction demonstrate that the agreement is unambiguous and is a land sale contract rather than a lease.

Id. at 306 (emphasis added).

[19] The court further examined the financial aspects of the agreement, comparing the stated purchase price with the total amount to be paid, and identified an unexplained discrepancy that exceeded $100,000, which it determined represented interest on the purchase price. Id. Also, because the agreement only required Vic's to pay a nominal amount at the end of the term in order to own the property, the Vic's court concluded that the agreement was a land sale contract rather than a lease. Id.

[20] We note that while the lease addenda in the properties here included an amortization schedule, the options to purchase provisions make clear—and the trial court found—that the payment structure did not become effective until the options were exercised. Specifically, the options incorporate the lease addenda and reference that the “rent payments” will reduce the purchase price “if and only if” the tenant first exercises the option to purchase. Exhibits at 33, 38, 46, 52, 58, 64, 70 (emphases added). Moreover, unlike the circumstances in Vic's, the options to purchase here set a purchase price that was not merely nominal. Thus, the documents here—unlike those in Vic's—operate to create a lease that can be transformed into a land contract only when an option to purchase is validly executed.

[21] In addition, just above the signature line at the end of the option, the parties specifically agreed that “this agreement is not an installment land contract, contract-for-deed or equitable mortgage, but merely Optionee's right to purchase the above-referenced property under the terms stated above.” Exhibits at 33, 39, 46, 52, 58, 64, 70, 76, 82, 88, 94, 100, 106, 111, 117, 131 (emphasis added). In light of these provisions, the trial court correctly determined that the agreements were leases and not contracts for the purchase of real property.

B. Parkison's Authority

[22] The Plaintiffs contend that the trial court erred in determining that Parkison lacked the authority to execute the option to purchase agreements. The Plaintiffs maintain that Eshamlech's prior course of conduct, including executing deeds after Parkison signed agreements and failing to communicate otherwise, “led [it] to reasonably believe [that Parkison] had such authority.” Appellants’ Brief at 16.

[23] Generally, a principal will be bound by a contract entered into by the principal's agent on his behalf only if the agent had authority to bind him. Gallant Ins. Co. v. Isaac, 751 N.E.2d 672, 675 (Ind. 2001). The agent's authority to enter into a contract on his principal's behalf will typically be either actual or apparent. Id. Actual authority exists when the principal has, by words or conduct, authorized the agent to enter into a contract for the principal. Id. Apparent authority exists when the principal's actions give the contracting party the reasonable impression that the agent is authorized to enter into an agreement on behalf of the principal. Menard Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210) (Ind. 2000). The question of whether an agency relationship exists and of the agent's authority is generally a question of fact. Demming v. Underwood, 943 N.E.2d 878, 884 (Ind. Ct. App. 2011), trans. denied.

[24] In this case, the trial court made the following findings with regard to Parkison's alleged authority:

6. Plaintiffs introduced no evidence of any representations made by [Eshamlech], as principal, to Plaintiffs, as to the authority of Parkison. On the contrary, it was apparent from [Eshamlech's] actions that only Sroya London had the authority to convey title.

7. Parkison was not a president or manager of [Eshamlech], and thus had no inherent authority to act for [Eshamlech].

8. As a matter of Indiana law, Parkison was only a special agent of [Eshamlech].

9. Plaintiffs, who had previously received deeds signed by Sroya London, but who had never received deeds signed by Parkison, were on notice that Parkison was not the general agent ․

10. Because Parkison was a special agent, and Plaintiffs should have known this from previous dealings, Plaintiffs had a duty to ascertain the extent of his authority, or lack thereof, to sell the properties.

11. Plaintiffs also had their own, independent transactions with Parkison, where he served as either intermediary or agent for Plaintiffs.

12. Plaintiffs thus could not reasonably view Parkison as the agent only of London or [Eshamlech].

13. Plaintiffs failed to ascertain the scope of Parkison's authority.

13. As a matter of law, Parkison had no actual or apparent authority to execute the options.

Appellants’ Appendix Vol. II at 163.

[25] The evidence at trial showed that Parkison handled all money transactions for the Plaintiffs. And it was demonstrated that that the Plaintiffs and Parkison had business dealings in other real estate deals, and Parkison acted on their behalf in those transactions. While the Plaintiffs maintain that London's signing of deeds issued pursuant to options signed by Parkison showed that London acquiesced to Parkison's authority to execute such documents, the trial court concluded that Parkison acted as the Plaintiffs’ agent in prior dealings. One of the prior dealings addressed in this case occurred when Parkison approached London and demanded his signature on deeds. Reasonable inferences from the record and the trial court's findings are that Parkison was acting as the Plaintiffs’ agent in this situation. Indeed, the evidence showed that Parkison pressured London under duress to sign the deeds for the Plaintiffs, threatening him with a lawsuit if he refused. Although London acquiesced, he warned Parkison that he was not to execute any additional option to purchase agreements. Hence, London's warning to Parkison put the Plaintiffs on notice that no further options signed by Parkison would be valid or honored.

[26] The Plaintiffs also failed to present any evidence that they received representations directly from London that Parkison had authority to negotiate option to purchase agreements. Indeed, the Plaintiffs admitted that they neither contacted London directly nor ascertained the extent of Parkison's authority. The trial court determined that Parkison was only London's special agent.² In Bay v. Pulliam, 872 N.E.2d 666, 668 (Ind. Ct. App. 2007) a panel of this court held that when dealing with a special agent, it is the duty of others “to ascertain the extent of the agent's authority before dealing with him. If this is neglected, such person will deal at his peril, and the principal will not be bound by any act which exceeds the particular authority given.”

[27] Here, just because London authorized Parkison to manage properties and approve leases, that authority did not afford him—as a special agent—the authority to sell property by means of options to purchase. See id. at 669 (holding that the plaintiff's attorney did not have authority to authorize a settlement agreement simply because the attorney had been granted the authority to enter into settlement negotiations). There is no evidence showing that the Plaintiffs inquired about the extent of Parkison's authority and they never received representations from London that Parkison was authorized to execute options to purchase.

[28] In sum, the Plaintiffs’ claims that the trial court erroneously determined that Parkison lacked the authority to execute the options to purchase, fail. Their arguments to the contrary are invitations for us to disregard the trial court's findings and reweigh the evidence which we will not do. See Miller, 965 N.E.2d at 108.

C. Late and Insufficient Payments

[29] The Plaintiffs argue that the judgment cannot stand because the trial court erred in finding that they made “numerous late and insufficient payments” on the leases. Appellants’ Brief at 31, 36. The Plaintiffs contend that because Eshamlech did not provide them with notice of the late payments, Eshamlech “waived late fees by [his] conduct.” Appellants’ Brief at 34. The Plaintiffs further maintain that the evidence failed to establish when the payments were actually received.

[30] We initially observe that the Plaintiffs did not raise the issue of Eshamlech's failure to give notice of the late payments or the waiver of alleged late fees by accepting payment at the trial level. Thus, those contentions are waived. See, e.g., Five Star Roofing Sys., Inc. v. Armored Guard Window & Door Grp., Inc., 191 N.E.3d 224, 239 (Ind. Ct. App. 2022) (holding that an argument presented for the first time on appeal in a breach of contract action was waived).

[31] Waiver notwithstanding, section 13 of the leases provided that

The acceptance by Landlord of partial payments of rent due shall not, under any circumstances, constitute a waiver of Landlord, nor affect any notice or legal proceeding in unlawful detainer theretofore give or commenced under state law. If Tenant defaults on any other provisions of the Lease, including, but not limited to any misrepresentations on Tenant's application, Landlord, at his option, can elect to continue the Lease or terminate the Lease and take possession by any lawful means. Landlord is not required to give any notice to cure a violation of the Lease other than as required by law.

Exhibits at 29, 35, 42, 48, 54, 60, 66, 72, 78, 84, 90, 96, 102, 108, 113 (emphases added). The above provision of the leases resolves the notice issue adversely to the Plaintiffs, even had they properly preserved the argument on appeal.

[32] As for the Plaintiffs’ contention that the evidence failed to demonstrate that they made late and insufficient payments, they note that Llanas testified at trial that he made timely payments to Parkison. Although the Plaintiffs acknowledge London's unequivocal testimony to the contrary—that the lease payments were late from the beginning and he never received the correct amount of payments pursuant to the lease—they contend that London would not have known when the payments were made to Parkison. The Plaintiffs further assert that we should disregard their admission that some of the payments were late as well as bank statements establishing that the payments were deposited after the due date. The Plaintiffs claim that such evidence “only shows when the payments were deposited, it is not evidence of when they were received.” Appellants’ Brief at 32.

[33] In light of the evidence presented at trial, the Plaintiffs are inviting us to reweigh the evidence and draw inferences on conflicting testimony in their favor. We reject that invitation and conclude that the evidence was more than sufficient for the trial court to conclude that the Plaintiffs’ payments were late and insufficient.

D. Improper Subletting and Payment of Surcharges

[34] The Plaintiffs argue that the trial court erred in determining that they improperly sublet the premises and failed to pay applicable surcharges therefor. The Plaintiffs assert that because there were “blanks” in the leases with regard to the occupants who would be residing on the premises, such omissions created an ambiguity regarding enforcement of the sublease and surcharge provisions of the leases. Id. at 42.

[35] Under section 4 of the leases, the lessee is given the opportunity to fill in the blanks in that section and indicate who will be residing on the premises. And those listed residents under the primary lease would not be subject to a $50 surcharge for additional tenants. Thus, at best, the “blank” on the lease regarding the number of occupants at the properties renders only the number of occupants who will live on the premises under the lease ambiguous. The language of the lease, however, clearly prohibits subletting without Eshamlech's permission and contains the surcharge application to those subject to the sublease. Also, section 6 of the leases prohibits subletting without the owner's written permission, and any subsequently approved sublease subjects the tenants to a $50 per month per tenant surcharge. Therefore, the omitted information in section 4 of the leases is irrelevant because that item pertains only to those individuals occupying the residences under the primary lease. To be sure, the trial court did not award any damages or surcharges for persons occupying the residences under the primary leases. Rather, it imposed the $50 per month per tenant surcharge for those occupying the residences under subleases. Therefore, the trial court's findings and conclusions that the Plaintiffs breached the leases and owed a $50 per tenant surcharge under the subleases are not clearly erroneous.

E. Damages

[36] The Plaintiffs contend that the award of damages to Eshlamech was improper. Specifically, the Plaintiffs argue that the trial court miscalculated the amount of surcharges that each of the tenants—Galiegos, Llanas, and Martinez—owed for additional occupants who resided on the properties pursuant to the improper subleases.

[37] “A damage award must be based upon some fairly defined standard, such as cost of repair, market value, established experience, rental value, loss of use, loss of profits, or direct inference from known circumstances.” Hi-Tec Properties, LLC v. Murphy, 14 N.E.3d 767, 776 (Ind. Ct. App. 2014), trans. denied. The damages must be the natural, foreseeable, and proximate consequence of the breach. L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1053 (Ind. Ct. App. 2012). When reviewing a damages award, this court will not reweigh the evidence or judge witness credibility. Id. When a party asserts that the damages awarded under breach of contract are in error, we will affirm if the award is within the scope of the evidence. Tomahawk Vill. Apartments v. Farren, 571 N.E.2d 1286, 1295 (Ind. Ct. App. 1991).

[38] In this case, the trial court ordered the respective plaintiffs to pay the following to Eshamlech in damages: Galiegos $88,000, Llanas $83,700, and Martinez: $12,000. Eshamlech concedes—and we agree—that a portion of the judgment was erroneous because the amounts calculated by the trial court were not supported by the evidence.

[39] With respect to Galiegos, the trial court's finding 54 concluded that a portion of the surcharge is “$20,200.00 calculated at $250 per month from October 2015 through May 2024 (104 months total), inclusive.” Appellant's Appendix Vol. II at 149. This was error, in that the trial court should have calculated the amount at $200 per month for 104 months for a total of $20,800, because four individuals were found to reside at a particular property in violation of the sublease requirement. Such was likely a scrivener's error, however, inasmuch as the corrected amount along with the other calculated amount of Galiegos's damages responsibility totals $88,000, which coincides with the trial court's final entry of surcharges.

[40] As for Llanas, the trial court concluded that he owed $83,700 in total surcharges. In its findings, the trial court identified each property, and calculated the amount owed by determining the number of occupants that resided at each residence for each reported period of time that they lived there. Although Llanas asserts that the award was error because the only evidence of occupancy under the illegal subleases was set forth in an exhibit, trial testimony established that there were occupants living on the premises in addition to those listed in the exhibit. As the trial court properly considered this testimony in determining the number of residents on the property in determining the amount of surcharges that were owed, there was no error in calculating the amount of damages that Llanas was obligated to pay.

[41] With regard to the damages assessed against Martinez, the record shows that the lease on one of the properties afforded him rights to the premises from October 2017 through September 2021, for a total of 48 months. As the Plaintiffs point out, the trial court calculated damages with three tenants based upon an end date of May 2024, for a total of 80 months. In light of the September 2021 lease expiration, the damages should have been calculated based upon 48 months. Therefore, the surcharges should be $150 per month for subleasing to three tenants for a total of $7,200.

[42] The record also reflects that Martinez owed past due rent in the amount of $20,436.88, yet that amount was also based upon the incorrect May 2024 lease expiration date. The amount charged from October 2021 through March 2024 was $447.30 per month. That amount is for a period of 30 months, for a total of $13,419 that should not have been added to the damages. Thus, when considering a proper adjustment, Martinez's arrearage should total $7,017.88 ($20,436.88-$13,419.00). And when that amount is added to the surcharges for additional tenants, the damages assessed against Martinez totals $14,217.88.

[43] Finally, we note that $24,500 in payments that London received from the Anderson Housing Authority (Anderson) for one of the properties also warrants a revision to the judgment. More particularly, Martinez's lease with Eshamlech ended in September 2021, and the record reflects that London subsequently received payments from Anderson on behalf of the tenants still residing there. Hence, there was an overlap of one month between the time that Martinez was under the lease and when Anderson made a one-month payment of $780. A credit should be issued to Martinez for that amount that would reduce his total damage responsibility to $13,437.88.

[44] But for these few erroneous calculations, we affirm the trial court's damage award and reject the Plaintiffs’ assertion that the award was merely “speculative and an abuse of discretion.” Appellants’ Reply Brief at 10. Thus, on remand, the trial court is ordered to make the adjustments set forth above and issue a revised judgment order reflecting the same.

Conclusion

[45] In light of our discussion above, we affirm the trial court's determination that the agreements between the Plaintiffs and Eshamlech were leases rather than land sale contracts. We conclude that the trial court correctly found that Parkison lacked the authority to execute option to purchase agreements, that the evidence supported the trial court's determination that the Plaintiffs’ rental payments were late and insufficient, that the Plaintiffs improperly sublet the properties, and that they were liable for surcharge payments. Finally, but for the scrivener's error that related to Galiegos's liability for damages and the erroneous calculation of a portion of Martinez's share of the damages, we affirm the trial court's damage award.

[46] Affirmed in part, reversed in part, and remanded.³

FOOTNOTES

1.   The Plaintiffs filed their original complaint on December 30, 2021.

2.   A special agent is one “who is authorized to do one or more specific acts, in pursuance of particular instructions or within restrictions necessarily implied for the act to be done.” Michigan Mut. Ins. Co. v. Sports, Inc., 698 N.E.2d 834, 840 (Ind. Ct. App. 1998), trans. denied.

3.   On August 13, 2025, Eshamlech filed an “Amended Notice Of Additional Authority,” to which the Plaintiffs objected and moved to strike that notice. We grant the motion to strike contemporaneously with the issuance of this opinion.

Altice, Chief Judge.

Judges Pyle and DeBoer concur. Pyle, J. and DeBoer, J., concur.