MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                            Jan 23 2017, 7:01 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Scott T. McClelland                                      Chad L. Rayle
Butcher, Ball, Lowry, McMahan &                          Thompson Smith
McClelland                                               Smith, Smith & Rayle, P.C.
Kokomo, Indiana                                          Auburn, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Keith Krzeminski,                                        January 23, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         76A03-1603-MI-716
        v.                                               Appeal from the Steuben Superior
                                                         Court
James Carr and Renee Carr,                               The Honorable William C. Fee,
Appellees-Plaintiffs.                                    Judge
                                                         Trial Court Cause No.
                                                         76D01-1411-MI-383



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 76A03-1603-MI-716| January 23, 2017    Page 1 of 10
                                Case Summary and Issue
[1]   James and Renee Carr owned property on part of which they operated a

      campground. In 2014, they sold the property in two parcels at public auction.

      Keith Krzeminski made the highest bid for the larger parcel that included the

      campground. Closing was to occur on or before June 27, 2014. Closing did not

      take place by that date, and the Carrs sued Krzeminski for breach of contract.

      The trial court entered summary judgment for the Carrs in the amount of

      $75,000. Krzeminski now appeals, raising one issue for our review: whether

      the trial court erred in granting summary judgment to the Carrs because

      genuine issues of material fact remain. Concluding there is a genuine issue of

      material fact to be resolved at trial, we reverse and remand.



                            Facts and Procedural History
[2]   In 1998, the Carrs purchased approximately 100 acres of land in Steuben

      County, Indiana, and operated a campground on part of the land thereafter. In

      early 2014, they decided to sell the campground via public auction and offered

      the property as an on-going business with the buyer to receive prorated rental

      income from the 2014 season. The auction company offered alternatives for the

      bidders in an effort to maximize the amount of money the Carrs would receive

      from the sale: the property was offered as a whole, or as two separate tracts

      with Tract 1 being approximately fifty-nine acres including the campground,

      and Tract 2 being approximately forty-four acres of wooded ground. At the

      auction on May 29, 2014, the bids on Tracts 1 and 2 separately totaled more

      Court of Appeals of Indiana | Memorandum Decision 76A03-1603-MI-716| January 23, 2017   Page 2 of 10
      than the bids on the property as a whole, so the Carrs accepted the two separate

      bids. Krzeminski was the top bidder for Tract 1, offering $325,000. Doug

      Hawkins was the top bidder for Tract 2, bidding $80,000. Krzeminski and

      Hawkins each deposited ten percent of their purchase price as earnest money

      with Lakeview Title, LLC. This sales arrangement required an easement across

      Tract 1 for the benefit of Tract 2 to be settled upon prior to closing.


[3]   The Purchase Agreement between the Carrs and Krzeminski specified that

      closing would occur on or before June 27, 2014. That date came and went

      without closing on the transaction, however. At some point thereafter, both

      Krzeminski and Hawkins backed out of the transaction. Lakeview Title

      returned Hawkins’ earnest money to him, but retained Krzeminski’s. In early

      2015, the Carrs sold both tracts for $330,000 to Liberty Land Holdings, LLC.


[4]   In late 2014, Lakeview Title filed a complaint for interpleader against the Carrs,

      Krzeminski, and several other entities, seeking a determination regarding the

      disposition of Krzeminski’s earnest money. Lakeview Title also deposited the

      earnest money with the clerk’s office. On December 11, 2014, the Carrs filed a

      cross-claim against Krzeminski, alleging breach of contract. By the time

      Krzeminski filed a motion for summary judgment in September 2015, and the

      Carrs filed their own motion for summary judgment in October 2015, all other

      parties had been dismissed from the litigation. The trial court ultimately

      granted summary judgment to the Carrs, issuing a lengthy order that was taken

      verbatim from the Carrs’ motion for summary judgment and cites only to the

      Carrs’ designated evidence. Compare Appellant’s Appendix 10-19 (trial court’s

      Court of Appeals of Indiana | Memorandum Decision 76A03-1603-MI-716| January 23, 2017   Page 3 of 10
summary judgment order) with Appellees’ Appendix at 5-12 (the Carrs’ motion

for summary judgment).1 The order concludes:

         It is clear that there are no genuine issues of material fact, and
         that Mr. and Mrs. Carr are entitled to judgment as a matter of
         law.


         ***


         . . . For whatever reason, Mr. Krzeminski decided that he no
         longer wanted to purchase the campground when his attorney
         sent a letter to Lakeview Title on August 28, 2014, indicating that
         Mr. Krzeminski had “decided to terminate” the Purchase
         Agreement. He can do this but he cannot do this without
         consequence. The law requires what is also fair and just and that
         is that Mr. Krzeminski forfeit his earnest money and make Mr.
         and Mrs. Carr whole again by paying them the difference in what
         they had from Mr. Krzeminski and Mr. Hawkins versus what
         they were able to get from Liberty Land Holdings, LLC. That
         difference is $75,000 and should be paid by the $32,500 earnest
         money being set over to Mr. and Mrs. Carr and a judgment in
         favor of Mr. and Mrs. Carr and against [Mr.] Krzeminski in the
         amount of $42,500.




1
  Krzeminski does not raise the issue, but we must note that although it is not error for the trial court to adopt
one parties’ proposed order verbatim, this practice is not encouraged and weakens our confidence that the
findings are the result of the considered judgment of the trial court. Chubb Custom Ins. Co. v. Standard Fusee
Corp., 2 N.E.3d 752, 758 n.2 (Ind. Ct. App. 2014). As noted below, however, findings are neither required
nor binding in a summary judgment order and we have considered the trial court’s order accordingly.

Court of Appeals of Indiana | Memorandum Decision 76A03-1603-MI-716| January 23, 2017                Page 4 of 10
      Appellant’s App. at 16-19 (citation omitted). The court clerk was ordered to

      release the earnest money to the Carrs’ attorney in partial satisfaction of the

      judgment. Krzeminski now appeals the entry of summary judgment.



                                 Discussion and Decision
                                     I. Standard of Review
[5]   “Summary judgment is a desirable tool to allow the trial court to dispose of

      cases where only legal issues exist.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

      2014) (emphasis added) (quotation omitted). On review of a motion for

      summary judgment, our standard is the same as that of the trial court: relying

      only on the evidence designated by the parties and construing all facts and

      reasonable inferences in favor of the non-moving party, we will affirm the grant

      of summary judgment only “if the designated evidentiary matter shows that

      there is no genuine issue as to any material fact and that the moving party is

      entitled to judgment as a matter of law.” Ind. Trial Rule 56(C); City of Beech

      Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). “A fact is ‘material’ if its

      resolution would affect the outcome of the case, and an issue is ‘genuine’ if a

      trier of fact is required to resolve the parties’ differing accounts of the truth . . .

      or if the undisputed material facts support conflicting reasonable inferences.”

      Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 253 (Ind. 2015) (citation

      omitted).


[6]   The party moving for summary judgment has the initial burden to show the

      absence of any genuine issue of material fact as to a determinative issue.
      Court of Appeals of Indiana | Memorandum Decision 76A03-1603-MI-716| January 23, 2017   Page 5 of 10
      Hughley, 15 N.E.3d at 1003. If the movant does so, the burden shifts to the non-

      moving party to come forward with contrary evidence showing an issue to be

      determined by the trier of fact. Id. Summary judgment may be precluded by as

      little as a non-movant’s designation of a self-serving affidavit. Id. However,

      summary judgment may not be defeated by an affidavit which creates only an

      issue of law – the non-movant must establish that material facts are in dispute.

      AM Gen. LLC v. Armour, 46 N.E.3d 436, 441-42 (Ind. 2015). On appeal from

      the grant of summary judgment, the non-moving party has the burden of

      persuading us that the trial court’s ruling was erroneous, but we carefully assess

      the trial court’s decision because Indiana’s onerous and distinctive summary

      judgment burden is aimed at protecting a party’s day in court. Hughley, 15

      N.E.3d at 1003.


[7]   We make two final observations about the standard of review: first, the fact

      that both parties filed a motion for summary judgment does not alter our

      standard of review. Fishburn v. Ind. Pub. Ret. Sys., 2 N.E.3d 814, 822 (Ind. Ct.

      App. 2014), trans denied. And second, although findings may in some cases

      offer valuable insight into the trial court’s rationale, they are not required in

      summary judgment proceedings and are not binding on appeal. Smith v. Dunn

      Hosp. Grp. Manager, Inc., 61 N.E.3d 1271, 1273 (Ind. Ct. App. 2016).


                                    II. Summary Judgment
[8]   Krzeminski argues the trial court erred in granting summary judgment to the

      Carrs on their breach of contract claim. The essential elements of a breach of


      Court of Appeals of Indiana | Memorandum Decision 76A03-1603-MI-716| January 23, 2017   Page 6 of 10
      contract claim are the existence of a contract, the defendant’s breach of the

      contract, and damages. Murat Temple Ass’n, Inc. v. Live Nation Worldwide, Inc.,

      953 N.E.2d 1125, 1128-29 (Ind. Ct. App. 2011), trans. denied. It is undisputed

      the parties signed a purchase agreement for the sale of Tract 1 and that

      agreement required closing on the sale by June 27, 2014. The purchase

      agreement also required the Carrs to execute and deliver a warranty deed

      conveying marketable title to the premises at the closing. Outstanding issues

      regarding an easement for the benefit of Tract 2 and the proration of rent from

      the campground were also left to be resolved after the auction. It is also

      undisputed the transaction did not close by the date stated in the purchase

      agreement.


[9]   The Carrs contend there is no genuine issue of material fact as to Krzeminski’s

      breach of the contract, because “[a]t all times relevant after the sale of real

      estate . . ., [they] were ready, willing and able to close as agreed[,]” but

      Krzeminski failed and refused to close “without reason or justification.”

      Appellant’s App. at 22. Krzeminski, on the other hand, designated his own

      affidavit in which he avers:

              7. That at the time of the auction, there was no listed or legally
              described easement for Tract 2 over Tract 1.


              ***


              15. That the Carrs did not have a warranty deed ready for the
              real estate in Tract 1 and were not ready for closing on or before
              June 27, 2014.

      Court of Appeals of Indiana | Memorandum Decision 76A03-1603-MI-716| January 23, 2017   Page 7 of 10
        ***


        17. That by June 27, 2014, the Carrs did not have a final legal
        description with proposed easement ready for the Closing.


        ***


        22. That the Carrs did not provide me with proposed easement
        language until the Closing date had passed.


        23. I decided not to close due to the breach of the Real Estate
        Purchase and Sale Agreement. The Carrs breached the
        agreement by not being ready to close on or before June 27,
        2014, deadline for closing.


Id. at 35-36. He also designated a second affidavit in which he elaborated:


        7. That at no time before the date of June 27, 2015, was a
        properly worded set of closing documents with a proper
        easement language given to me or provided to my attorney. . . .


        ***


        9. That the fact that the Carrs and/or Doug Hawkins included
        language involving utilities in the easement [provided after the
        closing date had passed] changed the nature and extent and scope
        of the easement for me. . . .


        10. In addition to the easement language being different than
        originally stated at the auction, the Carrs began to change the
        amount of money from the rents and lease money coming in
        from the campground for my share of the pro-rated amounts. . . .



Court of Appeals of Indiana | Memorandum Decision 76A03-1603-MI-716| January 23, 2017   Page 8 of 10
               ***


               14. That the amount of rents from the campground that the
               Carrs were to pay me was material to this transaction.


       Id. at 39-41.


[10]   For the Carrs to prevail on summary judgment, there must be no genuine issue

       of material fact with respect to any elements of their claim. As for Krzeminski’s

       alleged breach of the contract, the Carrs’ materials may have made a prima

       facie showing that Krzeminski breached the contract by failing to close on the

       transaction on June 27, 2014. However, Krzeminski’s designated evidence,

       viewed in the light most favorable to him as non-movant, raises a genuine issue

       of material fact as to whether the Carrs first breached the contract. In general,

       “[a] party first guilty of a material breach of contract may not maintain an

       action against the other party or seek to enforce the contract against the other

       party should that party subsequently breach the contract.” Williamson v. U.S.

       Bank Nat’l Ass’n, 55 N.E.3d 906, 914 (Ind. Ct. App. 2016) (quotation omitted),

       trans. denied. Whether Krzeminski breached the contract without justification

       or whether the Carrs first breached the contract and gave him a valid reason to

       back out of the transaction is a question of material fact to be decided at trial.


[11]   “[C]ases hinging on disputed material facts are by definition inappropriate for

       summary judgment, because weighing evidence is a matter for trial . . . .” Siner

       v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1188 (Ind. 2016) (quotation

       omitted). In entering summary judgment for the Carrs, however, it appears the

       Court of Appeals of Indiana | Memorandum Decision 76A03-1603-MI-716| January 23, 2017   Page 9 of 10
       trial court weighed and accepted the Carrs’ version of events over Krzeminski’s

       competing version. Entry of judgment for the Carrs was therefore inappropriate

       at this stage of the proceedings.



                                               Conclusion
[12]   Because Krzeminski’s designated evidence raised a genuine issue of material

       fact with respect to the Carrs’ claim that should be determined at trial, the trial

       court erred in granting summary judgment to the Carrs. We therefore reverse

       and remand for further proceedings.


[13]   Reversed and remanded.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 76A03-1603-MI-716| January 23, 2017   Page 10 of 10
