WHITEMAN v. HERSHBERGER (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Leo Hershberger negotiated an oral agreement to buy land owned by Gregory and Rebecca Whiteman. Hershberger made improvements to the land, paid most of the purchase price in installments, and later lived on the land full-time.

[2] Years later, when the Whitemans were divorcing, they claimed that the land sale agreement was invalid. They sued Hershberger, requesting declaratory relief. He counterclaimed. The trial court determined that the Whitemans were estopped from refusing to transfer ownership of the property to Hershberger.

[3] Rebecca appeals. Concluding that she has waived many of her claims, and that the trial court's estoppel determination has ample evidentiary support, we affirm.

Facts and Procedural History

[4] On March 4, 2012, Hershberger and Gregory met at the Whitemans’ eighty-acre farm. Hershberger saw a “for sale” sign during the meeting. Tr. Vol. 2, p. 27. They discussed a 2.2-acre parcel of the farm (“the parcel”), which had several outbuildings, including a barn and a chicken coop. The Whitemans had received the parcel as a gift from Gregory's mother and stepfather. They then used the equity in the parcel to purchase the rest of the farm.

[5] Gregory agreed to sell the parcel to Hershberger for $20,000. Hershberger later said that they had agreed he would pay the purchase price in installments, with no set payment schedule and no end date. By contrast, Gregory later said that they had agreed Hershberger would pay the purchase price over a period of two years. They “shook hands” to seal the deal. Id. at 8. Gregory and Hershberger did not sign any written documents to memorialize the transaction.

[6] Gregory removed the “for sale” sign. He later testified that he told Rebecca about the agreement with Hershberger.

[7] In May 2012, Hershberger paid Gregory $5,000 in cash. From 2012 until 2017, Hershberger provided periodic cash payments, amounting to $18,000. When Hershberger asked Gregory about paying property taxes, Gregory told him not to worry about it.

[8] Hershberger intended to eventually build a home on the parcel. He repaired the water well and ran new water lines to several outbuildings. Hershberger also installed a sixty-gallon water tank. Next, he arranged for electrical service to the barn. In 2013, Hershberger parked a travel trailer on the property and periodically took his children there. He also stayed there overnight if he was working nearby. Hershberger stored a boat, a trailer, and several trucks there.

[9] Other people worked on the rest of the Whitemans’ farm. When Gregory and Hershberger negotiated the sale in 2012, Hershberger noted that stakes had been placed along the boundary between the 2.2-acre parcel and the rest of the farm. After the sale, Hershberger replaced the stakes with poles, but the farmers pulled them out several times. Hershberger spoke with Gregory, who said that he had forgotten to tell the farmers that he had sold the parcel.

[10] In 2018, Hershberger began living in the trailer full-time. That same year, Gregory filed for divorce. Hershberger learned that the Whitemans’ farm was being put up for auction and that the parcel was included in the offering. Gregory refused to accept a final payment of $2000 from Hershberger, saying that the parcel was community property in the divorce. Hershberger separately asked Rebecca to allow him to submit the final payment, but she refused. Eventually, Hershberger hired counsel, and the Whitemans sold the farm, minus the parcel.

[11] In April 2023, Gregory and Rebecca, who were still married, filed a Complaint for a Declaratory Judgment and for the Issuance of a Temporary Restraining Order. They claimed that the oral agreement to sell the parcel was invalid and asked the court to determine that they still owned the land. Hershberger filed a response, raising counterclaims of breach of contract and fraud.

[12] The trial court presided over a bench trial. The court concluded in sua sponte findings of fact and conclusions thereon that Hershberger was entitled to prevail under the doctrine of promissory estoppel and that the Whitemans had to honor the oral agreement. Accordingly, the court ordered the Whitemans to complete the land sale, subject to Hershberger paying them $2,000 within thirty days. Rebecca filed this appeal.¹

Issues

[13] Rebecca raises two issues, which we consolidate and restate as:

I. Whether the parties agreed to an oral contract that binds Rebecca.

II. Whether Rebecca is estopped from refusing to carry out the parties’ agreement.

Discussion and Decision

[14] Hershberger has not filed an appellee's brief. “Where an appellee fails to file a brief, we do not undertake to develop arguments on that party's behalf; rather, we may reverse upon a prima facie showing of reversible error by the appellant.” Ayers v. Stowers, 200 N.E.3d 480, 483 (Ind. Ct. App. 2022). “Prima facie error is error ‘at first sight, on first appearance, or on the face of it.’ ” Id. (quoting Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014)). We are obligated to correctly apply the law to the facts in the record in order to determine whether reversal is required. Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind. Ct. App. 2014). In addition, when we review sua sponte findings and conclusions, we “neither reweigh the evidence nor assess witness credibility.” Samples v. Wilson, 12 N.E.3d 946, 950 (Ind. Ct. App. 2014).

A. Contract Formation and Applicability to Rebecca

[15] Rebecca first argues that Hershberger's and Gregory's perceptions of the terms of their bargain were so different that they did not form a valid contract. We do not need to address Rebecca's argument because she fails to cite any authority to support it. See Bird v. Valley Acre Farms, Inc., 177 N.E.3d 459, 466 (Ind. Ct. App. 2021) (“When an appellant presents only argument, unaccompanied by citation to authority or record citation, the issue is waived for appellate review.”).²

[16] Next, she argues that even if Hershberger and Gregory formed an oral agreement, it cannot apply to her because she was not a party to it, and Gregory had no authority to enter into the agreement on her behalf. In support of this argument, Rebecca cites Indiana Code section 32-17-3-1 (2002), which states:

(a) This section applies to a written contract in which a husband and wife:

(1) purchase real estate; or

(2) lease real estate with an option to purchase.

(b) Except as provided in subsection (d), a contract described in subsection (a) creates an estate by the entireties in the husband and wife. The interest of neither party is severable during the marriage.

(c) Upon the death of either party to the marriage, the survivor is considered to have owned the whole of all rights under the contract from its inception.

(d) If:

(1) a contract described in subsection (a) expressly creates a tenancy in common; or

(2) it appears from the tenor of a contract described in subsection (a) that the contract was intended to create a tenancy in common;

the contract shall be construed to create a tenancy in common.

[17] Rebecca argues that she and Gregory co-owned the parcel as tenants in the entireties. It is unclear that Indiana Code section 32-17-3-1 compels that conclusion here because Gregory and Rebecca neither purchased nor leased the parcel. Instead, they received it as a gift from Gregory's mother and stepfather to allow them to develop the equity to purchase the rest of the farm.

[18] In any event, assuming without deciding that Rebecca and Gregory were co-tenants in the entireties as to the parcel, she fails to cite to any authorities to discuss the second part of her claim: that Gregory had no power to include her in his agreement with Hershberger. Marriage or co-tenancy alone does not establish an agency relationship, but under certain circumstances “a husband may act as an agent for his wife.” Downham v. Wagner, 408 N.E.2d 606, 613 (Ind. Ct. App. 1980). Based on her failure to cite any authorities, we need not address this claim further.

B. Estoppel

[19] For her final claim of error, Rebecca argues that the trial court erred in determining she was estopped from refusing to complete the agreement with Hershberger. In general, a party may not file a complaint in connection with a contract for the sale of land unless the contract is in writing and is signed by the party against whom the lawsuit is brought. Ind. Code § 32-21-1-1(b)(4) (2002) (also known as the Statute of Frauds). But oral contracts for the sale of land are not void, merely voidable. Stephens v. Tabscott, 159 N.E.3d. 634, 639 (Ind. Ct. App. 2020). A litigant may raise the equitable doctrine of promissory estoppel to preclude the application of the Statute of Frauds in a land sale case. See Spring Hill Devs. v. Arthur, 879 N.E.2d 1095, 1099 (Ind. Ct. App. 2008) (discussing estoppel). Promissory estoppel arises from the rationale “that a person whose conduct has induced another to act in a certain manner should not be permitted to adopt a position inconsistent with such conduct so as to cause injury to the other.” Id. at 1100.

[20] A party seeking to raise the doctrine of promissory estoppel to defeat the Statute of Frauds “carries a heavy burden of establishing its applicability.” Huber v. Hamilton, 33 N.E.3d 1116, 1124 (Ind. Ct. App. 2015), trans. denied. Promissory estoppel has the following elements: “(1) a promise by the promissor; (2) made with the expectation that the promisee will rely thereon; (3) which induces reasonable reliance by the promisee; (4) of a definite and substantial nature; and (5) injustice can be avoided only by enforcement of the promise.” Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001).

[21] Rebecca focuses on the element of reliance, arguing that Hershberger “made up” his claims of time and money expended to improve the property in reliance on the oral agreement. Appellant's Br. p. 9. Definite and substantial reliance means more than “merely [ ] a denial of the rights that the agreement was intended to confer[.]” Huber, 33 N.E.3d at 1124. Instead, a plaintiff must show “the infliction of an unjust and unconscionable injury and loss.” Id.

[22] If the trial court had not enforced the oral land sale agreement, Hershberger would have been deprived of his $18,000 in payments to Gregory. In addition, Hershberger repaired the water well on the parcel, which cost $1,000 to $1,500, and ran new water lines to several outbuildings. He also arranged for electrical service to the parcel in 2012 and installed a new electrical box in the barn. Hershberger installed a sixty-gallon water tank on the parcel. Finally, he parked a travel trailer there and began living on the parcel full-time in 2018. As a result, failing to complete the bargain would have deprived Hershberger of the benefit of the time and money he expended over six years to improve the parcel. These losses are inconsistent with a mere lease of the parcel and are independent of the denial of Hershberger's property rights under the agreement. See Gamble v. McQueary, 255 N.E.3d 477, 490 (Ind. Ct. App. 2025) (evidence sufficient to establish purchaser of land detrimentally relied on oral modification of contract; among other evidence, purchaser made numerous improvements to the property inconsistent with merely renting it), trans. denied.

[23] Rebecca also argues that Hershberger should have paid property taxes if he was truly purchasing the parcel, but Hershberger testified that Gregory told him not to worry about the property taxes. Rebecca's argument amounts to a request to reweigh the evidence, which our standard of review forbids. See id. at 488 (refusing to reconsider trial court's evidentiary determinations as to whether parties orally modified written contract). There is sufficient evidence that Hershberger substantially and detrimentally relied upon the oral agreement, and the trial court did not err in concluding that Rebecca was estopped from refusing to complete the transaction.

Conclusion

[24] For the reasons stated above, we affirm the judgment of the trial court.

[25] Affirmed.

FOOTNOTES

1.   Gregory is not participating in this appeal. He is named in the caption because a party of record in the trial court remains a party on appeal. Ind. Appellate Rule 17(A).

2.   Similarly, Rebecca claims, without citation to authority, that Hershberger cannot seek to enforce the agreement because he breached it by failing to finish making installment payments within two years. We need not address this claim in the absence of any reference to statutes or caselaw. But we note that Hershberger testified he and Gregory did not negotiate an end date for the installment payments, and Rebecca is in substance asking us to second-guess the trial court's credibility determination on this point.

Baker, Senior Judge.

Vaidik, J., and Altice, J., concur.