ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
MAGGIE L. SMITH LARRY L. EATON
Sommer Barnard Ackerson Versailles, Indiana
COURT OF APPEALS OF INDIANA
FRANK WENNING, )
vs. ) No. 69A05-0401-CV-54
LOTTIE CALHOUN, )
APPEAL FROM THE RIPLEY SUPERIOR COURT
The Honorable James B. Morris, Judge
Cause No. 69D01-0210-SC-617
July 19, 2004
OPINION - FOR PUBLICATION
KIRSCH, Chief Judge
Frank Wenning appeals the trial court’s judgment ordering specific
performance of a land sale contract executed between Wenning and Lottie
Calhoun. He raises two issues for review, one of which we find
dispositive: whether a trial court may order specific performance of a
land contract where the contract does not specifically describe the land
that is the subject of the contract.
We reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY
Wenning owned acreage in Ripley County, Indiana. In 2001, he fell
behind on his mortgage payments and needed to raise cash. In December, he
entered into an oral agreement to sell three acres to Calhoun, the wife of
his nephew, for $9,000.00, which she was to pay the following month from a
settlement that she anticipated. Calhoun moved a mobile home onto the
property, arranged to have utilities connected, and built a driveway.
The following month, Calhoun learned that she would not be receiving
the settlement, so she agreed to get financing for the purchase price from
a bank. The parties therefore executed a written agreement (the
“Contract”) for the sale of the three acres on January 19, 2002. Like the
parties’ oral agreement, the Contract did not describe the land being
conveyed. It stated:
To Whom it May Concern!
I, Frank Wenning, am saleing[sic] 3 acres of 28 acres to Lottie
Calhoun with opion[sic] to buy more if desired.
I am saleing[sic] at $3,000 a[sic] acre for a total of $9,000.
She has made a payment of $1,200.00 for Dec. 1, 01 to March 15th 2002
at $350.00 a month untill[sic] paid in full or Settlement is received
then will pay off in full.
Lottie Calhoun has already had El, water, & phone services ran [sic]
to 5910 W. Fairground Rd. Osgood, Ind. 47037 & Lottie & Dewain Calhoun
are Living on the 3 acres at this time.
Appellant’s Appendix at 7.
Calhoun was unable to obtain a loan for the purchase price, but she
paid Wenning $500 in February 2002 and continued to make monthly payments
In October 2002, Wenning filed a complaint asking the trial court to
award him immediate possession of the land. Calhoun counterclaimed for
specific performance. In December 2002, the trial court conducted a bench
trial and thereafter entered its judgment ordering Wenning to specifically
perform the Contract. Wenning now appeals.
DISCUSSION AND DECISION
Wenning appeals the trial court’s grant of specific performance.
Specific performance is an equitable remedy that the trial court may grant
in its discretion. Salin Bank & Trust Co. v. Violet U. Peden Trust, 715
N.E.2d 1003, 1007 (Ind. Ct. App. 1999), trans. denied (2000). The grant of
specific performance directs the performance of a contract according to the
precise terms agreed upon, or substantially in accordance therewith. Id.
A trial court’s decision to grant specific performance is reviewed for an
abuse of discretion and, when conducting such review, we do not reweigh the
evidence. Id. at 1008.
Wenning contends that the description of the land in the Contract is
too indefinite to be specifically enforced. Generally, if any essential
elements are omitted or left obscure and undefined, so as to leave the
intention of the parties uncertain respecting any substantial terms of the
contract, the case is not one for specific performance. Johnson v.
Sprague, 614 N.E.2d 585, 588 (Ind. Ct. App. 1993). A contract to convey
real estate generally may not be enforced by specific performance unless
the evidence is such that the court may determine with reasonable certainty
what property the promisor agreed to convey. Larabee v. Booth, 463 N.E.2d
487, 491 (Ind. Ct. App. 1984). We applied this rule in Wilson v. Wilson,
134 Ind. App. 655, 660, 190 N.E.2d 667, 669 (1963), where we held that a
written contract for the sale of real estate that described the land at
issue as “137 acres” in a certain township in a particular county in
Indiana was not specifically enforceable because the description was too
By contrast, in Larabee, 463 N.E.2d at 491, another litigant argued
that the court erred in ordering specific performance of the contract
because the property to be conveyed was not described with sufficient
certainty. There, the parties stipulated that, before the suit was filed,
the grantor commissioned a surveyor to survey the land that she had given
to the grantees. We noted that this survey yielded a very precise metes
and bounds description of the parcel, on which the trial court was entitled
to base its order for specific performance. Therefore, we held that the
boundaries of the property conveyed were established with sufficient
certainty to justify the court’s order of specific performance. Id.
Here, the only designation in the Contract of the land at issue is
three acres of Wenning’s twenty-eight acres, plus the street address of
5910 W. Fairground Rd. There is simply no way for third parties to discern
from this description precisely which three acres Wenning intended to
convey. Accordingly, the contract is too indefinite to specifically
enforce because it is impossible to determine how to enforce it.
This conclusion, however, does not end the analysis. Although
Calhoun may not be entitled to specific performance, it does not follow
that she has no remedy. Another contract remedy is rescission. Rescission
of a contract is the annulling, abrogating, or unmaking of a contract. Van
Bibber Homes Sales v. Marlow, 778 N.E.2d 852, 857 (Ind. Ct. App. 2002),
trans. denied (2003). The remedy of contract rescission functions to
restore the parties to their precontract position, that is, the status quo.
Id.; A.J.’s Automotive Sales, Inc. v. Freet, 725 N.E.2d 955, 967-68 (Ind.
Ct. App. 2000), trans. denied. Upon the rescission of a contract, a party
must return the property received or the reasonable value thereof if return
of the property is impossible. Hart v. Steel Prods., Inc., 666 N.E.2d
1270, 1276 (Ind. Ct. App. 1996), trans. denied (1997).
Here, rescission of the contract is appropriate. Calhoun is entitled
to the return of all of the amounts she expended in reliance on the void
Contract. The evidence at trial showed that Calhoun made numerous payments
to Wenning and expended sums to have utilities connected and a driveway
constructed. We remand to the trial court for a determination and entry of
a judgment against Wenning in this amount.
Reversed and remanded with instructions.
NAJAM, J., and RILEY, J., concur.