Erica L. Oleksak, Appellant-Third-Party Defendant v. EARNEST AND DOROTHY NOWOSTAWSKI REVOCABLE LIVING TRUST (2025)

MEMORANDUM DECISION

Case Summary

[1] In 2015, Erica L. Oleksak entered into a land contract with the Earnest S. and Dorothy A. Nowostawski Living Trust (“the Trust”) to purchase property owned by the Trust.¹ In 2024, Oleksak's mother, Ronda Chris, filed a complaint against the Trust alleging that she had been assigned Oleksak's interest in the land contract and seeking specific performance. The Trust filed its answers and counterclaims and named Oleksak as a third-party defendant. The Trust then filed a motion for summary judgment. After motions for extensions of time, Chris timely filed a response to the motion for summary judgment but Oleksak did not. The court entered summary judgment against Oleksak. Oleksak then sought to have the judgment set aside, which motion the court ultimately denied. Then, following the filing of additional pleadings and a hearing, the court entered summary judgment in favor of the Trust and against Chris. Oleksak and Chris now appeal. We affirm in part, reverse in part, and remand for further proceedings.

Issues

[2] Oleksak and Chris raise several issues, which we consolidate and restate as the following two issues:

1. Whether the trial court abused its discretion when it did not set aside the summary judgment order as it pertains to Oleksak.

2. Whether the court erred when it entered summary judgment in favor of the Trust and against Chris.

Facts and Procedural History

[3] On September 18, 2015, Oleksak entered into a contract for the conditional sale of real estate with the Trust (“the Land Contract”). Oleksak agreed to purchase from the Trust a property in South Bend for $25,000. Pursuant to the terms of the Land Contract, Oleksak agreed to make an initial payment of $740.44, followed by monthly payments of $400.00 from November 1, 2015, through October 1, 2018, at which point any remaining balance would come due. Oleksak also agreed to pay property taxes and to insure the property. A copy of the Land Contract was recorded in the St. Joseph County Recorder's Office on September 24, 2015.

[4] On March 11, 2024, Oleksak and Chris filed a complaint for specific performance against the Trust. Then, on March 18, Oleksak and Chris entered into a contract pursuant to which Oleksak assigned all of her rights under the Land Contract to Chris (“the Assignment Contract”). On March 19, Chris filed an amended complaint, removed Oleksak as a party, and again sought specific performance seeking to close on the purchase of the property by paying the remaining amount owed. Chris did not attach a copy of the Assignment Contract to either her original or amended complaints.

[5] The Trust then filed its answers, affirmative defenses, and counterclaims and named Oleksak as a third-party defendant. In its counterclaims, the Trust alleged that Oleksak had failed to make any payment following the initial down payment, failed to keep the property insured and pay property taxes, and abandoned the property. The Trust alleged that it had sent Oleksak a letter from its attorney stating that the Land Contract was “in default, terminated and forfeited.” Appellees’ App. Vol. 2 at 15. As such, the Trust sought to have any interest in the property by Oleksak or Chris be forfeited. The Trust attached to its answers and counterclaim the Land Contract, the letter of default to Oleksak, and a copy of a file-stamped default affidavit.

[6] On August 14, the Trust filed a motion for summary judgment, a supporting memorandum of law, and designation of evidence. In that motion, the Trust argued that Oleksak had: failed to make any payment on the Land Contract following the initial payment, abandoned the property in 2018, failed to pay taxes, failed to insure the property, and failed to maintain the property. As such, the Trust alleged that Oleksak had forfeited her rights under the Land Contract. The Trust also asserted that Chris was not a party to the Land Contract and that the Assignment Contract was not valid because it had never been recorded.

[7] In addition to other documents, the Trust designated as evidence the affidavit of Bradley Clear, a neighbor who lived close to the property, who stated that Oleksak had not lived in the house since 2018, that no one else had resided in the house, that he had mowed the lawn from 2018 through 2022, and that he had hired someone to mow the lawn in 2023. The Trust also designated the affidavit of Joshua Lugg, a neighbor who lived next door to the property, who similarly stated that the house “looked abandoned” and that he took actions to help maintain the property. Appellants’ App. Vol. 2 at 55. And the Trust designated the affidavit of Debra Guy, an attorney employed by Meridian Title Company (“Meridian”), who stated that she believed Meridian would not secure title insurance on the property or proceed to a closing with Chris because there was no recorded document reflecting that Oleksak had transferred her interest in the property to Chris. She also stated that there were “delinquent” taxes at some point in each year from 2015 through 2023, that no taxes were paid in 2016 or 2019, and that tax sales fees were assessed in 2015, 2017, and 2021, although the delinquent taxes were paid such that the property was never the subject of a tax sale. Id. at 62.

[8] Chris recorded the Assignment Contract on September 5. On September 8, Chris and Oleksak, who were represented by the same attorney, filed a joint motion for extension of time to respond to the motion for summary judgment. The court granted that motion and set a new due date of October 11. On October 1, Chris and Oleksak's counsel withdrew his appearance. On October 8, Chris filed an unsigned motion for another extension of time, which she purportedly filed on behalf of herself and Oleksak. See Appellees’ App. Vol. 2 at 94. On October 9, she filed a signed motion for extension of time on behalf of herself. See id. at 95-96. On October 11, an attorney filed his appearance on behalf of Chris. On October 16, the attorney filed a motion for extension of time on behalf of Chris and sought to “join the October 9, 2024[,] filing done by his client pro se.” Id. at 97. Then, on October 22, Chris’ counsel filed his appearance on behalf of Oleksak. The court granted Chris’ motion for extension of time and ordered that “[c]ounsel for Ronda A. Chris has until 11/04/2024 to serve a responsive pleading.” Appellants’ App. Vol. 2 at 14.

[9] On October 24, the trial court found that the deadline for Oleksak to respond to the Trust's motion for summary judgment had passed on October 11 and that she had “not filed a response” by that date. Id. at 22. The court then entered summary judgment against Oleksak and in favor of the Trust, finding that Oleksak “forfeited any right, title, or interest” she had in the real estate when she “failed to pay $24,259.56 through monthly payments due from November 1, 2015, through October 1, 2018[,]” which constituted a breach of “multiple provisions” of the Land Contract. Id. at 23.

[10] On November 4, Chris filed her response in opposition to the motion for summary judgment. In that response, Chris alleged that Oleksak had assigned her “all rights[,] title[,] and interest in the property[,]” and that Chris had paid property taxes totaling $22,203.68 “between September 18, 2015 and the present[.]” Id. at 64. She then alleged that summary judgment was improper because the Trust “failed to file a foreclosure action against” Oleksak and Chris. Id. at 66 (bold removed). Chris further alleged that the doctrine of laches precluded the entry of summary judgment because the “Trust did nothing to raise a breach of contract claim, collect monies owed, or otherwise” until she filed the complaint for specific performance. Id. at 69. In support of her response, Chris designated the Assignment Contract and an affidavit in which she stated that she had paid property taxes, that the property had not been abandoned, and that she and Oleksak had done “some work and improvements” to the property. Id. at 86. Along with her response to the motion for summary judgment, Chris filed a motion to strike the affidavits that the Trust had designated, alleging that the affidavits contained hearsay.

[11] On November 25, Oleksak filed a motion to set aside the court's judgment against her. Oleksak alleged that the judgment against her was based on “mistake, surprise or excusable neglect” because the October 8 and 9 motions for extensions of time were never ruled upon and because, “[w]hen counsel filed his requests for extension[,] he assumed he was filing them in addition to those previously filed by Chris and Oleksak both” and because counsel “did not recognize that Oleksak was not included” in the October 18 motion. Id. at 93-94 (emphasis in original). And Oleksak maintained that counsel, who had to wait for a waiver before he could file his appearance on her behalf, “believe[ed] that the extension also applied to her.” Id.

[12] The court held a hearing on both the motion for summary judgment and the motion to set aside the judgment as to Oleksak, at which the parties presented oral argument. Regarding the motion to set aside, the court again found that Oleksak had “failed to file a timely motion to extend the deadline” to respond to the motion for summary judgment. Id. at 25. The court also found that, while Chris filed a motion for extension of time on October 9, “Oleksak did not sign said motion.” Id. And the Court was “not persuaded by counsel's arguments that he assumed he was filing for both.” Id. Accordingly, the court denied Oleksak's motion to set aside the judgment against her.

[13] In a separate order, the court denied Chris’ motion to strike, finding that the “affidavits were proper and do not constitute hearsay.” Id. at 27. As for the motion for summary judgment, the court found that the property “was not properly transferred to any other party, including” Chris, because there was “no recorded written assignment” reflecting that any interest in the Land Contract was transferred. Id. The court further found that Oleksak had “materially breached” the Land Contract and forfeited the property when she failed to make payments or maintain insurance. Id. The court found that Chris had “failed to make any showing of a genuine issue of material fact” and entered summary judgment in favor of the Trust. Id. This appeal ensued.

Discussion and Decision

Issue One: Motion to Set Aside

[14] Oleksak first contends that the trial court abused its discretion when it denied her motion to set aside the judgment against her. Oleksak alleges that the judgment against her should be set aside under Indiana Trial Rule 60(B)(1), which provides that the court may relieve a party from an entry of a final order for “mistake, surprise, or excusable neglect.” We review the grant or denial of a Trial Rule 60(B) motion for relief from judgment under an abuse of discretion standard. Ross v. Bachkurinskiy, 770 N.E.2d 389, 392 (Ind. Ct. App. 2002).

[15] Oleksak seems to acknowledge that she did not timely respond to the motion for summary judgment. But she contends that it was excusable neglect for her to fail to timely respond to the motion because “a unique set of events occurred” that created “a strange backdrop to counsel's appearance on October 14.” Appellants’ Br. at 10-11.

[16] However, the “law on summary judgment is well established.” Miller v. Yedlowski, 916 N.E.2d 246, 249 (Ind. Ct. App. 2009), trans. denied. When a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response, requesting a continuance under Trial Rule 56(I), or filing an affidavit under Trial Rule 56(F), the “trial court cannot consider summary judgment filings of that party subsequent to the 30-day period.” HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008) (quoting Borsuk v. Town of St. John, 820 N.E.2d 118, 124 n.5 (Ind. 2005)) (emphasis added). And our Supreme Court has held that that is a “bright line rule.” Id.

[17] Here, while they are mother and daughter, Chris and Oleksak are two separate parties. Chris is the plaintiff, and Oleksak is the third-party defendant. The Trust filed its motion for summary judgment against both parties on August 13, 2024. Chris and Oleksak, while jointly represented by their first counsel, timely filed a motion for extension of time on September 8. The court granted that motion and gave both parties a new deadline of October 11. On October 2, Chris and Oleksak's attorney withdrew his appearance. On October 8, Chris, pro se, filed another motion for extension of time on behalf of herself and Oleksak. However, neither party signed that motion. Then, on October 9, Chris filed another motion for extension of time. But Chris did not identify Oleksak as a party to the motion or purport to file the motion jointly, and Oleksak did not sign the motion. As such, that motion applied only to Chris, not to Oleksak. And the trial court granted that motion and specifically ordered that “[c]ounsel for Ronda A. Chris has until 11/04/2024 to serve a responsive pleading.” Appellants’ App. Vol. 2 at 14. The court never extended the deadline as to Oleksak.

[18] The October 11 deadline passed without Oleksak filing a response or another motion for extension of time. It was not until October 22, eleven days after the deadline had passed, that the new attorney filed his appearance on behalf of Oleksak. Because Oleksak did not file a response or request a continuance before the October 11 deadline, the court was not able to consider any further summary judgment filing by her.

[19] We acknowledge that there was likely some level of confusion on Oleksak's part, given that her mother filed the pro se motions for extension of time. But Oleksak, as a party separate from her mother, had a duty to ensure that she followed the “bright line rule,” either by filing her own response to the motion for summary judgment or filing her own motion for extension of time. Because she did not, the court did not abuse its discretion when it denied Oleksak's motion to set aside the judgment against her.

Issue Two: Summary Judgment

[20] Chris next contends that the court erred when it entered summary judgment in favor of the Trust on her complaint. The Indiana Supreme Court has explained that

[w]e review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in favor of ․ the non-moving parties, summary judgment is appropriate ‘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.’ ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “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.” Id. (internal citations omitted).

The initial burden is on the summary-judgment movant to “demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue,” at which point the burden shifts to the non-movant to “come forward with contrary evidence” showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted). And “[a]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some alterations original to Hughley). We may affirm an entry of summary judgment “if it can be sustained on any theory or basis in the record.” DiMaggio v. Rosario, 52 N.E.3d 896, 904 (Ind. Ct. App. 2016).

[21] On appeal, Chris contends that the court erred when it entered summary judgment in favor of the Trust for several reasons: namely, that the court erred when it determined that the Assignment Contract was invalid for not having been attached to the complaint and for not having been recorded at the time the complaint was filed, that the court abused its discretion when it did not strike the affidavits designated by the Trust, that the court erred when it granted the remedy of forfeiture, and that the doctrine of laches barred the Trust's claims. We address each argument in turn.

Validity of Assignment

Failure to Attach Assignment Contract

[22] The trial court entered summary judgment in favor of the Trust, in part, because Chris failed to attach a copy of the Assignment Contract to her complaint against the Trust. To support that finding, the court relied on Indiana Trial Rule 9.2(A), which provides that, “when any pleading allowed under these rules is founded on a written instrument, the original, or a copy thereof, shall be included in or filed with the pleading.”² However, “it is well established that non-compliance with Rule 9.2(A) is not a per se bar to the action.” Brown v. Guinn, 970 N.E.2d 192, 195 (Ind. Ct. App. 2012). Rather, Trial Rule 9.2(F) plainly states that a trial court faced with non-compliance with 9.2(A), “in its sound discretion, may order compliance, the reasons for non-compliance to be added to the pleadings, or allow the action to continue without further pleading.”

[23] While there is no dispute that Chris did not attach a copy of the Assignment Contract to the original complaint or any amended complaint thereafter, she attached the Assignment Contract to her motion in opposition to summary judgment and, by doing so, presented the trial court with the Assignment Contract and informed the court of the specific material upon which she relied in support of her motion. As such, Chris's failure to attach the Assignment Contract was not a bar to Chris's complaint, and summary judgment on this ground was not proper.

Unrecorded Assignment

[24] Chris next contends that the trial court erred when it determined that the Assignment Contract was not valid because it had not been recorded. Indiana Code Section 32-21-3-3 provides that a conveyance of any real estate in fee simple or for life, a conveyance of any future estate, or a lease for more than three years “is not valid and effectual against any person” other than the grantor, the grantor's heirs and devisees, and persons having notice of the conveyance “unless the conveyance or lease is made by a deed recorded[.]”

[25] On appeal, Chris's only argument on this issue is that the Assignment Contract “did not in any way constitute a conveyance of real estate.” Appellants’ Br. at 13. She maintains that, while the Land Contract “would ultimately result in conveyance of real estate from Trust to Chris via assignment,” at the time of assignment, “it had not yet been conveyed.” Id. at 13-14. However, Chris cites no authority for her proposition. And she ignores the fact that a “conveyance” is defined as “an instrument of writing concerning land or an interest in land[.]” Ind. Code § 32-21-3-1(1) (emphasis added). And, here, the Assignment Contract was an instrument of writing concerning Oleksak's interest in the property. As such, it was a “conveyance,” and it was required to be recorded to be valid and effectual against the Trust.

[26] However, Chris designated a copy of the Assignment Contract showing that it had been recorded on September 5, 2024, as evidence in support of her motion in opposition to summary judgment. Thus, while we acknowledge that the Assignment Contract had not been recorded at the time Chris filed her amended complaint against the Trust, it had been recorded before she filed her opposition to summary judgment and before the court held its hearing. Thus, the court had the recorded contract in front of it before it ruled on the motion for summary judgment. Stated differently, the designated evidence showed that the Assignment Contract was recorded and valid as to the Trust before the court's hearing on the motion for summary judgment. The court erred when it found the unrecorded contract to be a basis for summary judgment.

Affidavits

[27] As it impacts our analysis on Chris's claim that the court erred when it granted summary judgment and granted the Trust the remedy of forfeiture, we next address her claim that the court abused its discretion when it did not strike the three affidavits the Trust had designated as evidence. A trial court has broad discretion in refusing to grant a motion to strike. In re Estate of Meyer, 747 N.E.2d 1159, 1164 (Ind. Ct. App. 2001), trans. denied. The trial court's decision will not be reversed unless prejudicial error is clearly shown. Id.

[28] As this Court has observed,

[a]ffidavits in support of or in opposition to a motion for summary judgment are governed by Indiana Trial Rule 56(E), which provides, in relevant part, as follows: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” “ ‘Mere assertions in an affidavit or conclusions of law or opinions will not suffice.’ ” Dedelow v. Rudd Equip. Corp., 469 N.E.2d 1206, 1209 (Ind. Ct. App. 1984), (quoted in City of Gary v. McCrady, 851 N.E.2d 359, 364 (Ind. Ct. App. 2006)). The requirements of Trial Rule 56(E) are mandatory; hence, a court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits. Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct. App. 2005). Further, the party offering the affidavit into evidence bears the burden of establishing its admissibility. Duncan v. Duncan, 764 N.E.2d 763, 766 (Ind. Ct. App. 2002), trans. denied.

City of Indianapolis v. Duffitt, 929 N.E.2d 231, 239 (Ind. Ct. App. 2010) (emphasis added).

[29] Here, Chris contends that Clear's, Lugg's, and Guy's affidavits contained “inadmissible hearsay” and were therefore improperly before the court. Appellants’ Br. at 18. Hearsay is not admissible except as provided by law or by other court rules. Ind. Evidence Rule 802. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Evid. R. 801(c). Evidence Rule 602 further provides that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

[30] Regarding Clear's and Lugg's affidavits, Chris contends that they are “not confined to the events of which the affiants have personal knowledge.” Appellants’ Br. at 18. But contrary to that argument, it is apparent that Clear's and Lugg's affidavits are based on personal knowledge. Indeed, in Clear's affidavit, he stated that he lives “two lots down” from the property and has lived there for thirty-five years. Appellants’ App. Vol. 2 at 51. He further stated that Oleksak had not lived in the house since 2018, that the property is an “eyesore,” that the grass was often overgrown, and that he either mowed the grass or hired someone to mow the grass from 2018 through 2023. Id. Similarly, Lugg stated, in relevant part, that he lives next door to the property, that he has “never seen” anyone live in the house, that an LLC for which he is the manager paid property taxes on the property in 2024, and that he helped maintain the property by doing yard work. Id. at 55. Those are all statements within their personal knowledge as neighbors and are not hearsay.

[31] As for Guy's affidavit, Chris contends that there “is no indication that Ms. Guy is in any way an expert providing expert opinions” but that she “is simply a conduit to provide additional hearsay evidence including her analysis of what may be, potentially, business records.” Appellants’ Br. at 19. But Chris does not point to any specific statement in Guy's affidavit that she contends is hearsay. Nor does she make any argument as to how she was prejudiced by that affidavit. As such, Chris has failed to meet her burden on appeal to show any prejudicial error as it relates to Guy's affidavit. The court did not abuse its discretion when it denied Chris's motion to strike the affidavits.

Forfeiture

[32] Finally, Chris challenges the court's remedy following its finding that Oleksak had breached the Land Contract. Chris does not challenge the court's finding or entry of summary judgment on the question of breach. Rather, she only contends that the trial court erred when it granted the Trust the remedy of forfeiture. Forfeiture provisions in a land sales contract are not per se to be deemed unenforceable. Morris v. Weigle, 383 N.E.2d 341, 344 (Ind. 1978). But, under certain circumstances, they may become unenforceable because of the equity underlying the contract at issue. Id. “The court, in the exercise of its equitable powers, does not infringe upon the rights of citizens to freely contract, but the court does refuse, upon equitable grounds, to enforce the contract because of the actual circumstances at the time the court is called upon to enforce it.” Id.

[33] Our Supreme Court addressed the equity of forfeiture as a remedy in land contracts in Skendzel v. Marshall, 301 N.E.2d 641 (Ind. 1973). The court initially observed that forfeitures are generally disfavored by law because a significant injustice results where the vendee has a substantial interest in the property. Id. at 645-46. The court determined that a land sales contract is akin to a mortgage and, therefore, the remedy of foreclosure is more consonant with notions of fairness and justice:

[J]udicial foreclosure of a land sale contract is in consonance with the notions of equity developed in American jurisprudence. A forfeiture—a strict foreclosure at common law—is often offensive to our concepts of justice and inimical to the principles of equity․ [A] court of equity must always approach forfeitures with great caution, being forever aware of the possibility of inequitable dispossession of property and exorbitant monetary loss. We are persuaded that forfeiture may only be appropriate under circumstances in which it is found to be consonant with notions of fairness and justice under the law.

Id. at 650.

[34] Forfeiture may be considered an appropriate remedy only in the limited circumstances of: (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).

[35] Here, again, Chris does not dispute that the Land Contract was breached and, accordingly, does not challenge the court's entry of summary judgment in favor of the Trust on the question of breach. Rather, she contends that the court erred when it decided that, as a matter of law, the Trust was entitled to an order for forfeiture. Thus, the relevant question is whether there are genuine issues of material fact regarding whether Chris and Oleksak abandoned or absconded or whether they paid a minimal amount toward the contract and jeopardized the Trust's security interest.

Abandonment Exception

[36] “[F]or there to be an abandonment of a conditional land sales contract one must actually and intentionally relinquish possession of the land and act in a manner which is unequivocally inconsistent with the existence of a contract.” McLendon v. Safe Realty Corp., 401 N.E.2d 80, 83 (Ind. Ct. App. 1980). On this issue, Chris argues that the designated evidence demonstrates that there is a genuine issue of material fact regarding whether the property was abandoned because she “paid the taxes and maintained the property for over eight years[.]” Appellants’ Br. at 16.

[37] In its motion for summary judgment, the Trust alleged that Oleksak had abandoned the property because she “moved out” no later than 2018 and because the house had not had utilities since October 2023. Appellants’ App. Vol. 2 at 37. The Trust also alleged that Oleksak had failed to pay taxes, failed to insure the house, and failed to maintain the property. In support of its motion, the Trust designated as evidence the affidavit of Clear, who affirmed that Oleksak had not lived in the house “since at least 2018,” that he mowed the yard from 2018 through 2022 then hired someone, and that bushes and trees “were overgrown” from May 2018 through May 17, 2024. Id. at 51. The Trust also designated as evidence Lugg's affidavit, who affirmed that the property has not had utilities since at least the time he moved in next door in October 2023, that he maintained the grass and other vegetation, and that there was “debris on the front porch” of the house in August 2024. Id. at 57. In addition, the Trust designated Guy's affidavit, in which she stated that there were “delinquent taxes” on the real estate at some point in each year from 2015 through 2023. Id. at 62. That designated evidence demonstrated that Oleksak had abandoned the property.

[38] At that point, the burden shifted to Chris to designate contrary evidence. And in support of her motion to oppose summary judgment, Chris designated her own affidavit, in which she stated that “the property has never been abandoned” because she and Oleksak both paid over $22,000 in property taxes and “maintained the property by doing some work and improvements.” Id. at 86. Chris’ designated evidence created a genuine issue of fact for the trier of fact regarding whether Chris and Oleksak had actually and intentionally relinquished possession of the property.

Minimal Payment and Jeopardy Exception

[39] We next turn to the second Skendzel exception, which applies if the purchaser paid only a minimal amount toward the contract price and the seller's security interest has been jeopardized. McLemore, 827 N.E.2d at 1140. Here, the undisputed designated evidence shows that Oleksak only paid $744 toward the total $25,000 purchase price. There is no question that that is only a minimal amount toward the price.

[40] However, the second exception also requires the seller's security interest to have been jeopardized. And, in support of its motion for summary judgment, the Trust designated as evidence Clear's affidavit, which stated that the property was “an eyesore” and that the grass was “overgrown.” Appellants’ App. Vol. 2 at 51. The Trust also designated Lugg's affidavit, in which he stated that the house lacked utilities, that vegetation was overgrown, and there was debris on the porch. However, the Trust did not designate any evidence to show that the value of the property had decreased because of any act or omission of Oleksak or Chris. See McLemore, 827 N.E.2d at 1142-43 (finding that nothing in the record suggested that foreclosure on the property would not have satisfactorily protected the interests of both parties in part because the property owner testified that the property was probably worth the same amount).

[41] To the extent Clear's and Lugg's affidavits demonstrate that the Trust's security interest had been jeopardized to some extent, Chris designated her own affidavit, in which she affirmed that she had “maintained” the property by “doing some work” and making “improvements” from September 2015 to the present. Id. at 86. Chris also stated in her affidavit that she had paid over $22,000 in property taxes. That affidavit creates a genuine issue of material fact as to whether there had been any reduction to the property value or any payment of taxes, which in turn creates a genuine issue of material fact as to whether there had been any jeopardization of the Trust's security interest.

[42] There are genuine issues of material fact as to whether Oleksak and Chris abandoned the property and whether the Trust's security interest had been jeopardized. As such, while the court's entry of summary judgment on the question of breach was not challenged, the court erred when it granted summary judgment in favor of the Trust and ordered the remedy of forfeiture as a matter of law. We therefore reverse the court's grant of summary judgment only as it relates to the remedy and remand for further proceedings.

Laches

[43] Finally, Chris contends that the doctrine of laches bars any claims by the Trust against them. As this Court has stated:

Laches is an equitable defense that may be raised to stop a person from asserting a claim that he would normally be entitled to assert. The rationale behind the doctrine of laches is that a person who, for an unreasonable length of time, has neglected to assert a claim against another waives the right to assert his claim when this delay prejudices the person against whom he would assert it.

Ind. Real Estate Comm'n v. Ackman, 766 N.E.2d 1269, 1273 (Ind. Ct. App. 2002) (citation omitted). The doctrine of laches consists of three elements: (1) inexcusable delay in asserting a known right; (2) an implied waiver arising from knowing acquiescence in existing conditions; and (3) a change in circumstances resulting in prejudice to the adverse party. Id. at 1274.

[44] Further, laches is an “equitable doctrine[.]” Gleeson v. Preferred Sourcing, LLC, 883 N.E.2d 164, 179 (Ind. Ct. App. 2008). And one of the rules of equity is that “he who comes into equity must come with clean hands.” Wedgewood Cmty. Ass'n. v. Nash, 781 N.E.2d 1172, 1178 (Ind. Ct. App. 2003), clarified on reh'g, 789 N.E.2d 495. Here, the designated evidence is clear that Chris and Oleksak do not have clean hands. Rather, Oleksak materially breached the Land Contract when she paid only $744 toward the $25,000 purchase price. Thus, Chris and Oleksak do not have clean hands and cannot now invoke an equitable doctrine to bar the Trust's claims.

Conclusion

[45] The trial court did not abuse its discretion when it denied Oleksak's motion to set aside the summary judgment order against her. As for Chris, the procedural irregularities, including Chris’ failure to attach the Assignment Contract to her complaint and the recording of the Assignment Contract after the filing of the complaint, were not grounds for summary judgment against her. The court did not abuse its discretion when it denied the motion to strike the affidavits designated by the Trust. Further, Chris cannot now invoke an equitable doctrine to bar the Trust's claims. However, there are genuine issues of material fact regarding whether forfeiture is an appropriate remedy. We therefore affirm the court's order in part, reverse the court's order as to the Trust's remedy, and remand for further proceedings.

[46] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Renee F. Hensley executed the land contract on behalf of the Trust.

2.   The court also relied on Indiana Code Section 32-21-1-1(b), otherwise known as the Statute of Frauds, which provides that a person may not bring an action involving any contract for the sale of land unless the contract on which the action is based is in writing and signed by the party against whom the action is brought. While that statute requires that the contract be in writing, there is no requirement within that statute to attach a copy of the writing to the complaint.

Bailey, Judge.

Tavitas, J., and Kenworthy, J., concur.