      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                           Sep 28 2015, 10:47 am
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      Donald E. Wertheimer
      South Bend, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jon A. Zima,                                             September 28, 2015
      Appellant,                                               Court of Appeals Case No.
                                                               71A04-1502-PL-71
              v.                                               Appeal from the St. Joseph
                                                               Superior Court
      Eric A. Kazmierzak,                                      The Honorable Michael G.
      Appellee                                                 Gotsch, Sr. Judge
                                                               Trial Court Cause No.
                                                               71C01-1402-PL-39



      Bailey, Judge.



                                          Case Summary
[1]   Jon Zima (“Zima”) appeals the denial of his motion to correct error, which

      challenged an order for damages and attorney’s fees entered upon forfeiture for


      Court of Appeals of Indiana | Memorandum Decision 71A04-1502-PL-71| September 28, 2015      Page 1 of 6
      the breach of a land sales contract between Zima, his then-wife Deanna Zima

      (collectively, “the Zimas”), 1 and vendor Eric Kazmierzak (“Kazmierzak”). He

      presents the sole, consolidated issue of whether the trial court erred in ordering

      him to pay damages and attorney’s fees in addition to the forfeiture judgment.

      We reverse and remand.



                                Facts and Procedural History
[2]   On July 28, 2011, the Zimas executed a Contract for Deed to purchase property

      on Third Street in Mishawaka from Kazmierzak for $97,000.00 (“the

      contract”). The Zimas paid $1,700.00 to Kazmierzak. They also agreed to pay

      $800.00 monthly installments, plus taxes and insurance, ending with a balloon

      payment of all remaining principal and interest on July 28, 2014. The contract

      provided that, in the event of default, the non-defaulting party could elect to

      cancel the contract if the default was not cured within thirty days after written

      notice was given.


[3]   On February 27, 2014, Kazmierzak filed a Complaint for Immediate Possession

      and Damages (“the complaint”). Therein, he alleged that the Zimas had failed

      to make monthly installment payments after November 2013 and had not

      properly insured the premises. The complaint sought $3,600.00 in back

      payments and “immediate possession of the subject premises, per diem




      1
          Deanna Zima is not an active party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1502-PL-71| September 28, 2015   Page 2 of 6
      damages at the rate of $26.30, damages for waste, the costs of this action and

      attorney’s fees.” (App. at 7.)


[4]   On June 10, 2014, Kazmierzak filed a “Motion for Summary Proceedings.”

      (App. at 16.) Kazmierzak’s motion stated that the trial court had granted a

      motion for immediate possession and had entered a prejudgment order of

      possession of real estate on March 18, 2014. It was further alleged that the date

      of surrender had been twice extended by the trial court, but the Zimas had not

      filed an answer to the complaint and were “subject to judgment by default.”

      (App. at 16.) In separate motions, the Zimas filed objections. On June 13,

      2014, the trial court granted the motion in part, apparently treating the motion

      as one for default judgment, and scheduled a hearing on damages.


[5]   On July 18, 2014, the parties appeared for a hearing on damages. On October

      29, 2014, the trial court awarded Kazmierzak $5,100.00 for unpaid monthly

      installment payments, $642.64 in unpaid property taxes, $349.00 for unpaid

      insurance, $49.34 in postage expenses, and $2,925.00 in attorney’s fees. Zima

      filed a motion to correct error, which was deemed denied. He now appeals.



                                  Discussion and Decision
[6]   Zima asserts that he was relieved of all future liability under the land contract

      because the contract was forfeited and Kazmierzak retained all payments that

      had been made. Zima concedes that a vendor would arguably be entitled to

      compensation for waste or to recover the fair rental value of the premises from a


      Court of Appeals of Indiana | Memorandum Decision 71A04-1502-PL-71| September 28, 2015   Page 3 of 6
      purchaser remaining in possession, 2 but claims that he personally abandoned

      the premises in July of 2012 when he separated from his wife. 3


[7]   A review of a damages award is limited. Hooker v. Norbu, 899 N.E.2d 655, 658

      (Ind. Ct. App. 2008). We do not reweigh the evidence nor judge the credibility

      of witnesses, and we will reverse an award only when it is not within the scope

      of the evidence before the factfinder. Id. However, we review questions of law

      de novo. Id.


[8]   At the outset, we note that Kazmierzak has failed to file an appellee’s brief.

      When the appellee fails to submit a brief, we need not undertake the appellee’s

      burden of responding to arguments that are advanced for reversal by the

      appellant. Hamiter v. Torrence, 717 N.E.2d 1249, 1252 (Ind. Ct. App. 1999).

      Rather, we may reverse the trial court if the appellant makes a prima facie case

      of error. Id. “Prima facie” is defined as “at first sight, on first appearance, or

      on the face of it.” Id. Still, we are obligated to correctly apply the law to the

      facts in the record in order to determine whether reversal is required. Mikel v.

      Johnston, 907 N.E.2d 547, 550 n.3 (Ind. Ct. App. 2009).


[9]   In Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641 (1973), our supreme court

      held that in all but a few specific instances, the proper relief to be granted a




      2
        See Reynolds v. Milford, 176 Ind. Ct. App. 336, 341, 375 N.E.2d 265, 269 (1978) (measure of damages for
      unlawful detention is the fair rental value and includes period of time after vendor declared a forfeiture by
      filing the complaint up to vacation of the premises).
      3
          He apparently continued to make payments for some time thereafter pursuant to a dissolution court order.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1502-PL-71| September 28, 2015               Page 4 of 6
       vendor upon the vendee’s material breach of a land sale contract is a judgment

       of foreclosure pursuant to Indiana Trial Rule 69(C). Based upon the limited

       record before us, it appears that the trial court found the Zimas breached the

       land sales contract, and forfeiture rather than foreclosure was the appropriate

       remedy for the breach. 4 Forfeiture divests property without compensation; in

       other words, forfeiture terminates an existing contract without restitution.

       Hooker, 899 N.E.2d at 658. A vendor who has obtained the remedy of forfeiture

       may cancel the contract, retain the payments made, retain the real estate, and

       recoup actual damages sustained as a result of the transaction. Id. at 659.


[10]   Forfeiture may be considered an appropriate remedy in limited circumstances,

       that is, (1) an abandoning or absconding vendee or (2) where the vendee has

       paid a minimal amount and the vendor’s security interest in the property has

       been jeopardized by the acts or omissions of the vendee. McLemore v. McLemore,

       827 N.E.2d 1135, 1140 (Ind. Ct. App. 2005). Zima does not challenge the

       finding of breach or the type of remedy granted by the trial court.


[11]   In contesting the damages award, Zima directs our attention to Powers v. Ford,

       415 N.E.2d 734, 737 (Ind. Ct. App. 1981), wherein a panel of this Court

       reiterated the general rule, “one may not forfeit a contract and thereafter expect

       to enforce it.” Accordingly, once a land contract seller has taken possession of




       4
        The Zimas agreed to pay $97,000.00 for the subject property, apparently without obtaining an appraisal.
       Deanna Zima testified that other properties “in the area” were worth “around $70,000.” (Tr. at 74.) In any
       event, the Zimas did not claim to have any equity, that is, “an amount by which the value of the property
       exceeds the liens and charges against it.” Huber v. Sering, 867 N.E.2d 698, 705 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 71A04-1502-PL-71| September 28, 2015          Page 5 of 6
       the subject property pursuant to a forfeiture, he has elected his remedy and is no

       longer entitled to seek foreclosure and a deficiency judgment. Id. at 737.


[12]   Kazmierzak did not obtain a deficiency judgment for the unpaid principal.

       However, the order for “unpaid monthly installment payments, property taxes,

       insurance, postage, and attorney fees” holds Zima liable on the same contract

       forfeited. (App. at 5.) Zima has shown prima facie error in this regard.

       Kazmierzak is not entitled to enforce the contract; rather, his entitlement is to

       retain the payments made by the Zimas, retain the real estate, and recoup “any

       actual damages he sustained as a result of the transaction.” Hooker, 899 N.E.2d

       at 659.



                                               Conclusion
[13]   We reverse the order for damages and remand for the trial court’s consideration

       of the evidence of actual damages to include fair market value incurred by

       Kazmierzak.


[14]   Reversed and remanded.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1502-PL-71| September 28, 2015   Page 6 of 6
