      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).

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