MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 25 2017, 8:52 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT, PRO SE ATTORNEY FOR APPELLEE
Brittany Coley Darren A. Craig
Indianapolis, Indiana Frost Brown Todd LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brittany Coley, May 25, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1608-CC-1780
v. Appeal from the Marion Superior
Court
Dayspring Center, The Honorable James B. Osborn,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49D14-1504-CC-10550
Pyle, Judge.
Statement of the Case
[1] Appellant/Defendant, Brittany Coley (“Coley”), appeals the trial court’s grant
of summary judgment in favor of Appellee/Plaintiff, Dayspring Center
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(“Dayspring”), on Dayspring’s breach of lease claim. She argues that there
were genuine issues of material fact regarding whether Dayspring had entered
into an oral agreement with her that provided that she could live in her
Dayspring-owned apartment rent-free for several months after her lease ended.
Dayspring cross-appeals, arguing that the affidavit Coley designated in her
response to its summary judgment motion was inadmissible. We agree with
Dayspring that Coley’s affidavit was inadmissible. Because Dayspring
presented prima facie evidence of a breach of lease in its summary judgment
motion and, absent the evidence presented in her affidavit, Coley did not
establish the existence of a genuine issue of material fact, we affirm the trial
court’s grant of summary judgment.
[2] We affirm.
Issues
APPEAL
Whether the trial court erred when it granted summary judgment
on Dayspring’s breach of lease claim in favor of Dayspring.
CROSS-APPEAL
Whether Coley’s designated affidavit was admissible in a
summary judgment proceeding.
Facts
[3] Dayspring is a nonprofit organization that provides transitional housing to
homeless families. On August 15, 2012, Coley executed a Program Agreement
(“First Agreement”) with Dayspring to receive transitional housing from
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August 13, 2012 to August 13, 2013, through Dayspring’s Wellspring
Transitional Housing Program. Under the terms of the First Agreement, Coley
was required to pay rent of $280 per month and to abide by program
“requirements, agreements, policies, rules, and regulations,” including a
requirement that she maintain at least part-time employment and attend
continuing education classes. (Coley’s App. 15). Audrey Nannenga (“CM
Nannenga”), a Case Manager with Dayspring, managed and signed Coley’s
First Agreement and tracked her participation in the Wellspring Transitional
Housing Program.
[4] Coley moved into Unit 3 (“Unit 3”) of Dayspring’s property during August of
2012, as provided in the First Agreement. She did not notify CM Nannenga of
any concerns regarding the condition of the unit at that time. Instead, she lived
in Unit 3 for a year and executed another one-year Program Agreement on July
10, 2013 (“Second Agreement”), effective from August 13, 2013 to August 13,
2014. In this Second Agreement, she agreed to pay rent of $106.00 per month
for Unit 3 and to abide by the same non-monetary program requirements to
which she had agreed in the First Agreement. Again, Coley did not inform CM
Nannenga of any concerns regarding Unit 3.
[5] When Coley’s Second Agreement term ended on August 13, 2014, she
requested an extension of time to live in Unit 3. CM Nannenga agreed on
behalf of Dayspring to extend the Second Agreement through September 1,
2014. However, after September 1, 2014, Coley refused to vacate the apartment
and failed to pay rent.
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[6] On November 19, 2014, CM Nannenga sent a letter to Coley requesting that
she vacate the property within thirty days. When Coley did not thereafter
vacate Unit 3, Dayspring filed a breach of lease complaint on April 27, 2015,
seeking to eject Coley from the apartment and to recover damages for her
occupation of the property past the term of the Second Agreement.
[7] In response, Coley filed a counter-claim asserting that CM Nannenga had
orally agreed that she could reside in Unit 3 until the end of her children’s
school term in May 2015 without paying rent. She contended that Dayspring
was attempting to evict her, in spite of this oral agreement, in retaliation for
calls she had made to the Marion County Public Health Department (“Health
Department”) regarding the condition of her apartment. In total, she raised
three counter-claims: (1) Dayspring had breached the First Agreement by
providing her with an apartment that violated housing and environmental
standards; (2) Dayspring had breached the Second Agreement when it had
continued to provide her with an apartment that violated housing and
environmental standards; and (3) Dayspring had, by evicting her, breached CM
Nannenga’s alleged oral agreement allowing her to remain in the apartment
until May 2015 without paying rent. She sought damages related to these
allegedly unlawful breaches.
[8] On March 31, 2016, Dayspring filed a motion for summary judgment on its
claim and Coley’s counter-claims. Attached to its motion, the Center
designated an affidavit by CM Nannenga as evidence. In the affidavit, CM
Nannenga averred that when Coley had moved into Unit 3 in 2012, the unit
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had been in good condition and that Coley had not notified her that she thought
the property was in poor condition. She also averred that:
On August 1, 2014, Ms. Coley reported an issue with pests in the
unit. Extermination was scheduled specifically for Ms. Coley’s
apartment for the week of August 4, 2014. In addition, on
August 8, 2014, the entire building, including Unit 3, was
treated. Pest control for the entire building is routinely
conducted on the second Friday of each month by a licensed Pest
Control Exterminator.
(Dayspring’s App. 46). According to CM Nannenga, she had conducted unit
inspections “at least monthly.” (Dayspring’s App. 46).
[9] Subsequently, Coley filed a response to Dayspring’s motion for summary
judgment, arguing that there were still genuine issues of material fact. She
designated an affidavit detailing her experiences with the apartment. In the
affidavit, she claimed that “[t]hroughout August and September” of 2014, prior
to her September 1, 2014 deadline, she had “provided [CM Nannenga] with
daily updates” regarding her efforts to find employment and housing and had
requested to stay in Unit 3 until she could find employment and save enough
money to move. According to Coley, CM Nannenga had agreed to this
request. Coley also averred that she had had an issue with cockroaches in her
apartment and that CM Nannenga had ignored that issue and several other
maintenance requests. As a result, she averred that she had complained to the
Health Department and the Department for Housing and Urban Development.
[10] In response, Dayspring argued that Coley’s designated affidavit was
inadmissible because it was not made under penalty of perjury, did not provide
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that Coley had personal knowledge of the allegations in the affidavit, and did
not show that she was competent to testify on the matters stated therein.
Dayspring also noted that the affidavit was not sworn and did not contain an
affirmation that its contents were true.
[11] On June 13, 2016, the trial court held a hearing on Dayspring’s motion. At the
hearing, Coley testified to additional facts regarding the condition of Unit 3
while she had lived there, as well as about her alleged oral agreement with CM
Nannenga that she could live in the apartment past the expiration of the Second
Agreement. Dayspring also reiterated its objection to Coley’s designated
affidavit. The trial court did not rule on Dayspring’s objection and instead took
the matter under advisement. Subsequently, the trial court entered a general
grant of summary judgment in favor of Dayspring on its claim and Coley’s
counterclaims. The order did not address Dayspring’s objection to Coley’s
designated Affidavit. Coley now appeals and Dayspring cross-appeals.
Decision
[12] On appeal, Coley argues that the trial court erred when it granted summary
judgment in favor of Dayspring on its breach of lease claim. She contends that
there were still genuine issues of material fact regarding whether she had an oral
agreement with Dayspring to live in Unit 3 without paying rent after the Second
Agreement lease ended.1 In response, Dayspring argues that it presented
1
Although Coley reiterates that Unit 3 was not in compliance with the Indiana Housing Code when it was
leased to her, she does not challenge the trial court’s ruling on her breach of contract counterclaims regarding
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undisputed evidence that there was not an oral agreement. Dayspring also
cross-appeals, reiterating its argument that we should not consider the affidavit
Coley designated below because it was inadmissible.
[13] When reviewing the grant of a summary judgment motion, we apply the same
standard applicable to the trial court. Wagner v. Yates, 912 N.E.2d 805, 808
(Ind. 2009). Summary judgment is proper only when there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter
of law. Id. The party moving for summary judgment has the burden of making
a prima facie showing that there is no genuine issue of material fact and that it
is entitled to judgment as a matter of law. Goodwin v. Yeakle’s Sports Bar & Grill,
Inc., 62 N.E.3d 384, 386 (Ind. 2016). Once these two requirements are met by
the moving party, the burden then shifts to the non-moving party to show the
existence of a genuine issue by setting forth specifically designated facts. Id.
Any doubt as to any facts or inferences to be drawn therefrom must be resolved
in favor of the non-moving party. Id.
[14] Preliminarily, we must note that Coley represented herself at trial and
represents herself again on appeal. Although individuals have a right to
represent themselves in legal proceedings, a pro se litigant is held to the same
standards as a trained attorney and is afforded no inherent leniency simply by
virtue of being self-represented. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind.
the condition of the apartment. Instead, she cites her testimony regarding the condition of Unit 3 in support
of her argument that Dayspring evicted her in retaliation for her complaints to the Health Department.
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2014). This means that pro se litigants are bound to follow the established rules
of procedure and must be prepared to accept the consequences of their failure to
do so. Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016), reh’g denied.
These consequences may include waiver for failure to present cogent argument
on appeal. Id. at 984. We will not become an “‘advocate for a party, or address
arguments that are inappropriate or too poorly developed or expressed to be
understood.’” Id. (quoting Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105
n.1 (Ind. Ct. App. 2014), trans. denied, cert denied).
[15] As the moving party, Dayspring had the burden of making a prima facie
showing that Coley breached the terms of her lease. See Goodwin, 62 N.E.3d at
386. A lease is a type of contract. Ind. Bureau of Motor Vehicles v. Ash, Inc., 895
N.E.2d 359, 365 (Ind. Ct. App. 2008), reh’g denied. “‘The essential elements of
a breach of contract action are the existence of a contract, the defendant’s
breach thereof, and damages.’” Id. (quoting Berkel & Co. Contractors, Inc. v. Palm
& Assoc., Inc., 814 N.E.2d 649, 655 (Ind. Ct. App. 2004)). Here, Dayspring
produced evidence of the contract (the Second Agreement), as well as evidence
that Coley had breached the contract. The terms of the Second Agreement
specified that Coley could live in Unit 3 until August 13, 2014. Then,
according to CM Nannenga’s designated affidavit, CM Nannenga orally agreed
to extend the Second Agreement through September 1, 2014. She averred that,
after September 1, 2014, she did not consent to Coley’s failure to pay rent or
failure to evacuate the apartment. As further evidence that she did not consent
to a further extension of the Second Agreement, she sent a letter to Coley on
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November 19, 2014, requesting that Coley vacate the property within thirty
days. It is undisputed that Coley did not vacate the property as requested.
Accordingly, Dayspring presented prima facie evidence that Coley breached the
Second Agreement.
[16] Subsequently, the burden shifted to Coley to establish the existence of a genuine
issue of material fact. See Goodwin, 62 N.E.3d at 386. Coley argued that she
had an oral agreement with Dayspring that she could continue to live in Unit 3
after September 1, 2014 without paying rent. She supported this argument by
designating an affidavit in which she averred that she had requested to stay until
she had secured employment and saved enough money to move and that CM
Nannenga had agreed with her request. However, in its cross-appeal,
Dayspring asserts that we should not consider Coley’s affidavit because it is
unsworn and, therefore, inadmissible. We agree.
[17] In the determination of whether a genuine issue of material fact is present in a
summary judgment proceeding, the trial court is “necessarily concerned about
matters which may serve as evidence, that is, matters which may be taken as
true if the case goes to trial.” Tannehill by Podgorski v. Reddy, 633 N.E.2d 318,
321 (Ind. Ct. App. 1994), reh’g denied, trans. denied. Affidavits used for summary
judgment purposes “are evidential in nature.” Id. Accordingly, we have held
that they must be subject to the penalties for perjury. Id.; Jordan v. Deery, 609
N.E.2d 1104, 1110 (Ind. 1993) (“there is no singular statutory rule regarding
proper verification of an affidavit filed in connection with summary judgment
proceedings. . . . The chief test of the sufficiency of an affidavit is its ability to
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serve as a predicate for a perjury prosecution.”). In order for an affiant to be
subject to the penalties for perjury, the affiant must make the affidavit under
“oath or affirmation.” See I.C. § 35-44.1-2-1 (providing that a person commits
Level 6 felony perjury if he or she “makes a false, material statement under oath
or affirmation, knowing the statement to be false or not believing it to be true”).
Accordingly, we conclude that an affidavit provided in support of, or in
objection to, a motion for summary judgment must be verified by an oath or
affirmation.2 See id.; Tannehill by Podgorski, 633 N.E.2d at 321-22 (holding that
an affidavit was inadmissible because it was not verified by an oath or
affirmation).
[18] Coley’s affidavit here did not contain an affirmation or any indication that it
was verified by oath. Accordingly, we conclude that it was inadmissible and
that we may not consider it as evidence supporting Coley’s arguments. See T.R.
56(E) (“Supporting and opposing affidavits . . . shall set forth such facts as
would be admissible in evidence . . . .”) Other than her inadmissible affidavit,
Coley did not designate any evidence to establish the existence of a genuine
issue of material fact regarding whether she breached the Second Agreement.
Her other designated evidence, such as evidence of the Health Department’s
2
Notably, Indiana Trial Rule 11(B) provides that an affidavit may alternatively be verified by a
“representation.” In Tannehill by Podgorski, however, we concluded that “[a]n affirmation . . . is the keystone
of the verification under T.R. 11(B) as it relates to perjury prosecution” because Trial Rule 11(B) states that
the affiant may “‘simply affirm [. . . ] by representation . . . .” Tannehill by Podgorski, 633 N.E.2d at 322
(quoting T.R. 11(B)). In other words, Trial Rule 11(B)’s reference to representation is couched in terms of an
affirmation.
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evaluation of Unit 3,3 related to the condition of the unit, which is not relevant
to Dayspring’s breach of lease claim.4 Because Coley failed to establish the
existence of a genuine issue of material fact regarding Dayspring’s breach of
lease claim, we conclude that the trial court properly granted summary
judgment on Dayspring’s claim in favor of Dayspring.5
[19] Affirmed
May, J., and Brown, J., concur.
3
Dayspring has not challenged the admission of Coley’s other designated exhibits.
4
Coley seems to argue that Dayspring evicted her in retaliation for her Health Department complaints and
that this alleged retaliation is an affirmative defense to Dayspring’s breach of lease claim. However, she has
not provided any legal authority for her implication that retaliation may qualify as an affirmative defense to a
breach of lease claim; all the cases that Coley cites relate to retaliation in the employment, retaliatory-
discharge context. Accordingly, we will not address this argument any further.
5
Coley argues that we should consider the additional evidence she presented in her testimony at the
summary judgment hearing. However, in the summary judgment context, we may consider only those
portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the
parties for purposes of the motion for summary judgment. Kashman v. Haas, 766 N.E.2d 417, 420 (Ind. Ct.
App. 2002).
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