Brittany Coley v. Dayspring Center (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 25, 2017
• Docket: 49A04-1608-CC-1780
• Status: Published

Opinion

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

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CC-1780 | May 25, 2017 Page 1 of 11 (“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

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CC-1780 | May 25, 2017 Page 2 of 11 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.

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CC-1780 | May 25, 2017 Page 3 of 11 [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

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CC-1780 | May 25, 2017 Page 4 of 11 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

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CC-1780 | May 25, 2017 Page 5 of 11 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

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CC-1780 | May 25, 2017 Page 6 of 11 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.

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CC-1780 | May 25, 2017 Page 7 of 11 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

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CC-1780 | May 25, 2017 Page 8 of 11 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

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CC-1780 | May 25, 2017 Page 9 of 11 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.

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CC-1780 | May 25, 2017 Page 10 of 11 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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