ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JAMES T. ROBERTS THOMAS M. BARR
Nashville, Indiana Nashville, Indiana
SUPREME COURT OF INDIANA
CLIFFORD BROWN, )
Appellant-Defendant, ) Supreme Court Cause Number
) Court of Appeals Cause Number
RHONDA BRANCH, ) 07A04-9907-CV-339
APPEAL FROM THE BROWN CIRCUIT COURT
The Honorable Heather M. Mollo, Judge
Cause No. 07C01-9704-CP-0130
ON PETITION TO TRANSFER
November 16, 2001
Clifford Brown reneged on a promise to give a house to his girlfriend
Rhonda Branch. She sued, and the parties debated whether Browns oral promise
was subject to the Statute of Frauds. After a bench trial, the
trial court awarded the house to Branch under the theory of promissory estoppel.
The Court of Appeals affirmed on that theory and also determined that
Browns promise was not within the Statute of Frauds. We grant transfer
and hold that an oral promise to give another person real property falls
within the Statute of Frauds. We also hold that although the doctrine
of promissory estoppel may remove an oral promise from the statutes operation, in
this case Branch failed in her burden of proving that the doctrine applies.
Rhonda Branch and Clifford Brown were engaged in a ten-year on-again, off-again relationship.
Sometime during that ten-year period, Brown purchased a home on State Road
135 in southern Indiana that the parties referred to as the 135 house.
The couple lived in the home for one year early in their
relationship. In 1995, Branch moved to Missouri, found a job, and enrolled
in a business school program. Shortly thereafter, Brown telephoned her and said
that if she moved back to Indiana, Branch would always have the 135
house and that she wont be stuck on the street. You will
have a roof over your head. R. at 476. Brown also
proposed marriage, and Branch accepted. Branch quit her job, dropped out of
school after finishing the semester, and moved back to Indiana. Branch and
Brown then lived together for two brief periods before the relationship eventually ended.
Thereafter, Branch sued Brown when he failed to convey the 135 house.
Following a bench trial, the trial court awarded the house to Branch.
On review, the Court of Appeals affirmed the trial courts judgment ruling:
(i) Browns oral promise to give Branch the 135 house was not a
sale within the meaning of the Statute of Frauds and therefore did not
need to be in writing in order to be enforced; and (ii) the
oral promise was enforceable under the doctrine of promissory estoppel. Brown v.
Branch, 733 N.E.2d 17, 25 (Ind. Ct. App. 2000). We accept transfer
and reverse the trial court.
The Statute of Frauds provides in pertinent part that [n]o action shall be
brought . . . [u]pon any contract for the sale of lands .
. . [u]nless the promise, contract or agreement upon which such action shall
be brought . . . shall be in writing . . . .
Ind. Code § 32-2-1-1. Although not conceding that he made a
promise at all, Brown seems to say that even if he did, the
promise of the 135 house was an oral contract for the sale of
lands, and thus to be enforceable it had to be in writing.
Branch counters that Brown made a promise, and that the promise was to
give the land and not to sell the land. Appellees Br. in
Oppn to Pet. for Transfer at 3. According to Branch, The Statute
of Frauds applies only to promises to sell land, and thus Browns agreement
does not have to be in writing to be enforceable. Id.
Relying on Blacks Law Dictionary 1337 (6th ed. 1990), both parties point to
varying definitions of sale to support their positions.
The Statute of Frauds does not define the term sale. However, the
law is settled that a right to the possession of real estate is
an interest therein, and any contract which seeks to convey an interest in
land is required to be in writing. Guckenberger v. Shank, 110 Ind.
App. 442, 37 N.E.2d 708, 713 (1941) (emphasis added). Although not often
articulating it as such, our courts have long applied the principle that an
agreement to convey land is subject to the Statute of Frauds writing requirement.
And this is so whether there is actually a sale as the
term is commonly used. See, e.g., Hensley v. Hilton, 191 Ind. 309,
131 N.E. 38, 40 (1921) (contract to devise real estate required to be
in writing); Fuelling v. Fuesse, 43 Ind. App. 441, 87 N.E. 700, 701
(1909) (mutual agreement concerning a boundary line between parties required to be in
writing); McCoy v. McCoy, 32 Ind. App. 38, 69 N.E. 193, 195 (1903)
(contract for the exchange of real estate required to be in writing).
Indeed, over three quarters of a century ago, our courts implicitly acknowledged that
a gift of land was subject to the operation of the Statute of
Frauds. Osterhaus v. Creviston, 62 Ind. App. 382, 111 N.E. 634, 636-37 (1916)
(concerning the allegation that one party gave thirty acres of land to another,
the court observed that a parol gift, or a verbal contract for the
sale of land, may be taken out of the operation of the statute
of frauds . . . . ).
Requiring a writing for transactions concerning the conveyance of real estate, regardless of
whether a sale has occurred within the dictionary definition of the term, is
consistent with the underlying purposes of the Statute of Frauds, namely: to preclude
fraudulent claims that would likely arise when the word of one person is
pitted against the word of another, Summerlot v. Summerlot, 408 N.E.2d 820, 828
(Ind. Ct. App. 1980), and to remove the temptation of perjury by preventing
the rights of litigants from resting wholly on the precarious foundation of memory,
Ohio Valley Plastics, Inc. v. National City Bank, 687 N.E.2d 260, 263 (Ind.
Ct. App. 1997), trans. denied. These purposes are underscored in this case.
The record shows the parties vigorously disputed the content and meaning of
the conversation preceding Branchs move back to Indiana.
See footnote In any event, the
Statute of Frauds is unambiguous and provides a bright line rule that is
applicable here. Despite Browns protest to the contrary, there was sufficient evidence
before the trial court to show that he made a promise to Branch
to convey real estate. However, that promise falls within the Statute of
Frauds, and because it was not in writing it generally would be unenforceable.
Nonetheless, even when oral promises fall within the Statute of Frauds, they
may be enforced under the doctrine of promissory estoppel.
Tincher v. Greencastle
Fed. Sav. Bank, 580 N.E.2d 268, 272 (Ind. Ct. App. 1991); Tipton County
Farm Bureau Coop. Assn, Inc. v. Hoover, 475 N.E.2d 38, 41 (Ind. Ct.
App. 1985), trans. denied. We next examine whether the doctrine is applicable
Estoppel is a judicial doctrine sounding in equity. Although variously defined, it
is a concept by which ones own acts or conduct prevents the claiming
of a right to the detriment of another party who was entitled to
and did rely on the conduct. In re Edwards, 694 N.E.2d 701,
715 (Ind. 1998). There are a variety of estoppel doctrines including: estoppel
by record, estoppel by deed, collateral estoppel, equitable estoppel - also referred to
as estoppel in pais, promissory estoppel, and judicial estoppel. 28 Am. Jur.
2d Estoppel and Waiver § 2 (2000). All, however, are based on
the same underlying principle: one who by deed or conduct has induced
another to act in a particular manner will not be permitted to adopt
an inconsistent position, attitude, or course of conduct that causes injury to such
other. 31 C.J.S. Estoppel and Waiver § 2 (1996).
In this case, Branch pursued her claim against Brown asserting a number of
theories including the doctrine of promissory estoppel. It was upon this theory
the trial court granted Branch relief and upon which the Court of Appeals
See footnote This species of estoppel encompasses 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.
First Natl Bank of Logansport v. Logan Mfg.
Co., Inc., 577 N.E.2d 949, 954 (Ind. 1991). However, regardless of the
type of estoppel asserted, as our Court of Appeals has observed:
[I]n order to establish an estoppel to remove the case from the operation
of the Statute of Frauds, the party must show  that the other
partys refusal to carry out the terms of the agreement has resulted not
merely in a denial of the rights which the agreement was intended to
confer, but the infliction of an unjust and unconscionable injury and loss.
In other words, neither the benefit of the bargain itself, nor mere inconvenience,
incidental expenses, etc. short of a reliance injury so substantial and independent as
to constitute an unjust and unconscionable injury and loss are sufficient to remove
the claim from the operation of the Statute of Frauds.
Whiteco Indus., Inc. v. Kopani, 514 N.E.2d 840, 845 (Ind. Ct. App. 1987)
(citations omitted), trans. denied; accord Ohio Valley Plastics, Inc., 687 N.E.2d at 264
(holding that Banks damages were benefit of the bargain type damages that fail
to constitute a substantial and independent injury sufficient to remove Borrowers claim from
the operation of the Statute of Frauds.); Wabash Grain, Inc. v. Bank One,
713 N.E.2d 323, 326-27 (Ind. Ct. App. 1999) (concluding that in a summary
judgment action, Wabash Grain designate[d] no evidence demonstrating how its reliance upon the
oral agreement to extend the loan caused it an injury so substantial and
independent as to constitute an unjust and unconscionable injury.). Thus, while it
is true that the doctrine of promissory estoppel may remove an oral agreement
from the operation of the Statute of Frauds, it is also true that
the party asserting the doctrine carries a heavy burden establishing its applicability.
In the case before us, assuming without deciding there was sufficient evidence before
the trial court to support the elements of promissory estoppel, the question remains
whether there was sufficient evidence before the trial court to show that Branch
suffered an unjust and unconscionable injury and loss as a result of her
reliance on Browns oral promise. See Whiteco, 514 N.E.2d at 845.
In reaching that determination, we are guided by cases that examine the degree
of consideration given in reliance on an oral promise. If what the
party gave up in reliance on an oral promise was no greater than
what the party would have given up in any event, then the consideration
is deemed insufficient to remove the oral promise from the operation of the
Statute of Frauds. For example, in Whiteco, relying on an employers oral
promise of employment, a theatre producer and other employees: (i) gave up
their existing employment to accept the jobs; (ii) moved to Indiana from other
states; and (iii) two of the employees purchased homes in Indiana. Rejecting
the employees claim that the employers oral representation should be removed from the
operation of the Statute of Frauds on grounds of promissory estoppel or constructive
fraud, our Court of Appeals determined that the foregoing factors do not possess
the quality of those which courts have found sufficient to constitute an independent
consideration. Id. at 843. According to the court neither the actions
involved in moving ones household to a new location nor the mere relinquishment
of an existing employment are sufficient to constitute independent consideration. Id. at
843-44. Endorsing this approach, we have observed:
The reason for this view is that in moving and/or giving up her
prior job, the employee is merely placing herself in a position to accept
the new employment. There is no independent detriment to the employee because
she would have had to do the same things in order to accept
the job on any basis, and there is no independent benefit bestowed upon
Wior v. Anchor Indus., Inc., 669 N.E.2d 172, 176 (Ind. 1996) (quoting Ohio
Table Pad Co. of Ind., Inc. v. Hogan, 424 N.E.2d 144, 146 (Ind.
Ct. App. 1981)); see also Bee Window, Inc. v. Turman, 716 N.E.2d 498,
501 (Ind. Ct. App. 1999) (discussing independent consideration in the context of the
employment at will doctrine, the Court of Appeals held that simply surrendering another
job or moving to another location, standing alone, does not constitute adequate independent
In the case before us, the record shows that in order to accept
Browns oral promise of the 135 house, Branch quit her modest job, dropped
out of college at the end of the semester, and moved back to
Indiana from Missouri where she had been living with her parents. R.
at 398, 463, 593. For sure Branch was inconvenienced as well as
denied the benefit that Browns promise was intended to confer. However, Branch
has not shown that her reliance on Browns oral promise resulted in the
infliction of an unjust and unconscionable injury and loss that would remove the
promise from the operation of the Statute of Frauds. We are therefore
constrained to reverse the judgment of the trial court.
The judgment of the trial court is reversed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
For example, there was testimony that Brown never intended to give
Branch the 135 house but rather to allow her to live there indefinitely.
R. at 574. According to Brown, that was the reason he
did not promise to deed the house to Branch. R. at 706.
On another point, Branch testified that the promise of the 135 house
was a major factor in her decision to move back to Indiana and
give the relationship another try. R. at 554. Brown testified there
was evidence to show that Branch had made up her mind to come
back to Indiana before the purported promise was ever made. R. at
Footnote: In addition to various forms of estoppel, there are a number
of equitable doctrines that also may provide a basis for avoidance of the
Statute of Frauds, including quantum meruit,
see Galanis v. Lyons & Truitt, 715
N.E.2d 858, 861 (Ind. 1999); part performance, see Marathon Oil Co. v. Collins,
744 N.E.2d 474, 478 (Ind. Ct. App. 2001); and constructive fraud, see id.
at 480. None of these alternative grounds are at issue in this