MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing May 23 2017, 6:22 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin G. Kerr Clay M. Patton Hoeppner Wagner & Evans LLP Osan & Patton, LLP Valparaiso, Indiana Valparaiso, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lori A. Devereaux, May 23, 2017 Appellant-Defendant, Court of Appeals Case No. 64A04-1612-CC-2956 v. Appeal from the Porter Superior Court Homeowners’ Association of The Honorable Roger V. Bradford, Hunters Ridge Estates, Inc., Judge Appellee-Plaintiff Trial Court Cause No. 64D01-1409-CC-8463
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 1 of 9 Case Summary [1] Lori Devereaux owned two lots in a subdivision that were subject to restrictive
covenants. After several years, she stopped mowing the grass and paying the
annual dues, and the homeowners association paid to have her grass mowed.
The homeowners association later sued her. When the homeowners
association sought to introduce evidence of the mowing fees at trial, Devereaux
objected on grounds that the homeowners association did not plead a claim for
mowing fees in the complaint. The trial court overruled her objection and
admitted the evidence. It later entered judgment in favor of the homeowners
association for both unpaid annual dues and mowing fees. Devereaux now
appeals. Because the complaint did not put Devereaux on notice that the
homeowners association was seeking mowing fees and Devereaux objected to
evidence of the mowing fees at trial, we reverse the portion of the trial court’s
judgment awarding mowing fees to the homeowners association.
Facts and Procedural History [2] Hunters Ridge Estates is a subdivision in Westville. Devereaux, a homebuilder,
purchased two lots in the subdivision—Lots 61 and 62—in 1999. The lots were
subject to restrictive covenants. Section IX, which governs landscaping,
provides that lawns are to be reasonably maintained and that grass is to be
mowed no higher than three inches. It also provides that “[w]ithin 5 days
notice to a lot owner of a vacant lot not being maintained the . . .
[Homeowners] Association shall employ a firm to mow &/or clear the lot and
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 2 of 9 the lot owner shall be responsible for the cost of same,” including collection
fees. Appellant’s App. Vol. II p. 72. In addition, Section XXV, which governs
the Homeowners Association, provides that the Association “shall impose and
collect annual assessments for the maintenance and improvements of park areas
and/or other ‘common areas’ and for the provision of any security services . . .
.” Id. at 73. Initially, the annual assessment was set at $125 per lot; however,
the restrictive covenants have been amended several times to increase this
amount. Failure to pay the annual assessment is considered a violation of the
restrictive covenants, subject to interest and attorney’s fees.
[3] Devereaux paid the annual assessments and maintained the lots until 2008. In
March 2012, the Association sent Devereaux a letter asking her to mow the
grass on Lots 61 and 62 on or before Friday, April 13, 2012, in accordance with
Section IX of the restrictive covenants. According to the letter, if Devereaux
did not mow the grass, then the Association would have the grass mowed at her
expense at a cost of “$100.00 for each individual mowing.” Id. at 92.
[4] In October 2014, the Homeowners Association filed suit against Devereaux.
The complaint contains the following allegations:
4. The primary purpose of the Association is to insure high standards of maintenance and operation of all property and real estate in the Subdivision and to maintain and promote the desired character of the Subdivision.
*****
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 3 of 9 8. Under its[] Restrictive Covenants, the Association has the power to impose and collect annual assessments on each lot within the Subdivision. . . .
9. Devereaux has not paid any assessments on Lot 61 or Lot 62 from 2008 thru 2014.
10. As of September 1, 2014, the total balance owed and past due to the Association from Devereaux for the unpaid assessments on Lot 61 and Lot 62 is [$15,581.90], not including interest, attorney’s fees and other costs of collection.
Id. at 14-15.
[5] A pretrial conference was held on August 11, 2016.1 At this conference, the
parties filed their witness lists, exhibit lists, and contentions. The Association’s
contentions included the following:
9. Under its[] Restrictive Covenants, the Association has the power to impose and collect annual assessments, late fees, mowing fees and interest on each lot within the Subdivision.
11. Devereaux has not paid any assessments, late fees, mowing fees or interest on Lot 61 or Lot 62 from 2008 through the present.
1 At this time, Devereaux was no longer the owner of the lots, as they were sold at a tax sale in 2015.
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 4 of 9 12. Anticipating no payments prior to the Bench Trial, as of September 1, 2016, the total balance owed and past due to the Association from Devereaux on Lot 61 and Lot 62 for unpaid assessments, late fees, mowing fees and interest will be [$20,825.62], not including attorney’s fees and other costs of collection.
Id. at 39-40 (emphases added). The Association’s exhibits included two
documents titled “Outstanding Dues & Assessments,” one for each lot. These
documents listed the unpaid annual assessments/late fees and mowing
fees/interest from 2008 to 2016.
[6] The next month, a bench trial was held. When the Association moved to admit
the “Outstanding Dues & Assessments”—Exhibits 10 and 11—defense counsel
objected as follows:
Your Honor, we object to the issues of the mowing costs and expenses. The complaint in this matter alleges unpaid assessments and dues in paragraph 8 arising out of Article 25 of the covenants. Mowing fees . . . arise out of Article 9, and there was no claim for any mowing fees that were owed in the complaint. And as this matter has not been properly pled, we would object to consideration of any evidence for mowing fees.
Tr. p. 14. The trial court admitted Exhibits 10 and 11 over objection. During
closing argument, defense counsel briefly reiterated his argument that “there
was no claim in the complaint arising from mowing fees.” Id. at 45. The court
took the case under advisement and later issued a written order entering
judgment in favor of the Association for $17,882.56—$10,605.80 of which was
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 5 of 9 for mowing fees/interest from 2012 to 2015—plus $6,434.00 in attorney’s fees,
for a total judgment of $24,316.56.
[7] Devereaux now appeals.
Discussion and Decision [8] Devereaux raises two issues concerning mowing fees, one of which we find
dispositive. That is, she argues that the trial court abused its discretion in
admitting evidence of the mowing fees because the Association did not plead a
claim for mowing fees in its complaint.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing May 23 2017, 6:22 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin G. Kerr Clay M. Patton Hoeppner Wagner & Evans LLP Osan & Patton, LLP Valparaiso, Indiana Valparaiso, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lori A. Devereaux, May 23, 2017 Appellant-Defendant, Court of Appeals Case No. 64A04-1612-CC-2956 v. Appeal from the Porter Superior Court Homeowners’ Association of The Honorable Roger V. Bradford, Hunters Ridge Estates, Inc., Judge Appellee-Plaintiff Trial Court Cause No. 64D01-1409-CC-8463
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 1 of 9 Case Summary [1] Lori Devereaux owned two lots in a subdivision that were subject to restrictive
covenants. After several years, she stopped mowing the grass and paying the
annual dues, and the homeowners association paid to have her grass mowed.
The homeowners association later sued her. When the homeowners
association sought to introduce evidence of the mowing fees at trial, Devereaux
objected on grounds that the homeowners association did not plead a claim for
mowing fees in the complaint. The trial court overruled her objection and
admitted the evidence. It later entered judgment in favor of the homeowners
association for both unpaid annual dues and mowing fees. Devereaux now
appeals. Because the complaint did not put Devereaux on notice that the
homeowners association was seeking mowing fees and Devereaux objected to
evidence of the mowing fees at trial, we reverse the portion of the trial court’s
judgment awarding mowing fees to the homeowners association.
Facts and Procedural History [2] Hunters Ridge Estates is a subdivision in Westville. Devereaux, a homebuilder,
purchased two lots in the subdivision—Lots 61 and 62—in 1999. The lots were
subject to restrictive covenants. Section IX, which governs landscaping,
provides that lawns are to be reasonably maintained and that grass is to be
mowed no higher than three inches. It also provides that “[w]ithin 5 days
notice to a lot owner of a vacant lot not being maintained the . . .
[Homeowners] Association shall employ a firm to mow &/or clear the lot and
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 2 of 9 the lot owner shall be responsible for the cost of same,” including collection
fees. Appellant’s App. Vol. II p. 72. In addition, Section XXV, which governs
the Homeowners Association, provides that the Association “shall impose and
collect annual assessments for the maintenance and improvements of park areas
and/or other ‘common areas’ and for the provision of any security services . . .
.” Id. at 73. Initially, the annual assessment was set at $125 per lot; however,
the restrictive covenants have been amended several times to increase this
amount. Failure to pay the annual assessment is considered a violation of the
restrictive covenants, subject to interest and attorney’s fees.
[3] Devereaux paid the annual assessments and maintained the lots until 2008. In
March 2012, the Association sent Devereaux a letter asking her to mow the
grass on Lots 61 and 62 on or before Friday, April 13, 2012, in accordance with
Section IX of the restrictive covenants. According to the letter, if Devereaux
did not mow the grass, then the Association would have the grass mowed at her
expense at a cost of “$100.00 for each individual mowing.” Id. at 92.
[4] In October 2014, the Homeowners Association filed suit against Devereaux.
The complaint contains the following allegations:
4. The primary purpose of the Association is to insure high standards of maintenance and operation of all property and real estate in the Subdivision and to maintain and promote the desired character of the Subdivision.
*****
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 3 of 9 8. Under its[] Restrictive Covenants, the Association has the power to impose and collect annual assessments on each lot within the Subdivision. . . .
9. Devereaux has not paid any assessments on Lot 61 or Lot 62 from 2008 thru 2014.
10. As of September 1, 2014, the total balance owed and past due to the Association from Devereaux for the unpaid assessments on Lot 61 and Lot 62 is [$15,581.90], not including interest, attorney’s fees and other costs of collection.
Id. at 14-15.
[5] A pretrial conference was held on August 11, 2016.1 At this conference, the
parties filed their witness lists, exhibit lists, and contentions. The Association’s
contentions included the following:
9. Under its[] Restrictive Covenants, the Association has the power to impose and collect annual assessments, late fees, mowing fees and interest on each lot within the Subdivision.
11. Devereaux has not paid any assessments, late fees, mowing fees or interest on Lot 61 or Lot 62 from 2008 through the present.
1 At this time, Devereaux was no longer the owner of the lots, as they were sold at a tax sale in 2015.
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 4 of 9 12. Anticipating no payments prior to the Bench Trial, as of September 1, 2016, the total balance owed and past due to the Association from Devereaux on Lot 61 and Lot 62 for unpaid assessments, late fees, mowing fees and interest will be [$20,825.62], not including attorney’s fees and other costs of collection.
Id. at 39-40 (emphases added). The Association’s exhibits included two
documents titled “Outstanding Dues & Assessments,” one for each lot. These
documents listed the unpaid annual assessments/late fees and mowing
fees/interest from 2008 to 2016.
[6] The next month, a bench trial was held. When the Association moved to admit
the “Outstanding Dues & Assessments”—Exhibits 10 and 11—defense counsel
objected as follows:
Your Honor, we object to the issues of the mowing costs and expenses. The complaint in this matter alleges unpaid assessments and dues in paragraph 8 arising out of Article 25 of the covenants. Mowing fees . . . arise out of Article 9, and there was no claim for any mowing fees that were owed in the complaint. And as this matter has not been properly pled, we would object to consideration of any evidence for mowing fees.
Tr. p. 14. The trial court admitted Exhibits 10 and 11 over objection. During
closing argument, defense counsel briefly reiterated his argument that “there
was no claim in the complaint arising from mowing fees.” Id. at 45. The court
took the case under advisement and later issued a written order entering
judgment in favor of the Association for $17,882.56—$10,605.80 of which was
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 5 of 9 for mowing fees/interest from 2012 to 2015—plus $6,434.00 in attorney’s fees,
for a total judgment of $24,316.56.
[7] Devereaux now appeals.
Discussion and Decision [8] Devereaux raises two issues concerning mowing fees, one of which we find
dispositive. That is, she argues that the trial court abused its discretion in
admitting evidence of the mowing fees because the Association did not plead a
claim for mowing fees in its complaint. As a notice-pleading state, Indiana
requires that pleadings contain (1) “a short and plain statement of the claim
showing that the pleader is entitled to relief” and (2) “a demand for relief.” Ind.
Trial Rule 8(A). In practice, this liberal standard merely requires that a
“complaint . . . put the defendant on notice concerning why it is potentially
liable and what it stands to lose.” KS&E Sports v. Runnels, 2017 WL 1435907, at
*5 (Ind. Apr. 24, 2017) (quotation omitted). Although the complaint does not
need to state all elements of a cause of action, it must set forth the operative
facts necessary to set forth an actionable claim. State v. Am. Family Voices, Inc.,
898 N.E.2d 293, 296 (Ind. 2008), reh’g denied.
[9] The Association does not dispute Devereaux’s claim that it did not expressly set
forth a claim for mowing fees in its complaint. Indeed, the complaint alleges
that the Association has the power to impose and collect “annual assessments”
and that Devereaux has not “paid any assessments on Lot 61 or Lot 62 from
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 6 of 9 2008 thru 2014.” There is no mention of mowing fees or Section IX, which
allows the Association to recover mowing fees, in the complaint.
[10] Nevertheless, the Association claims that it put Devereaux on notice that it was
seeking mowing fees for the following three reasons: (1) it attached the
restrictive covenants to the complaint, and Section IX allows the Association to
recover mowing fees; (2) the amount of damages requested in the complaint—
nearly $16,000—should have tipped off Devereaux that it was seeking more
than just unpaid annual assessments; and (3) its contentions and exhibits, filed
about a month before trial, list mowing fees. We reject each of these reasons.
[11] First, the Association argues that attaching the restrictive covenants to the
complaint put Devereaux on notice that it was seeking mowing fees. Notably,
the covenants and their amendments are sixteen pages long, and Section IX is a
mere paragraph long. Devereaux was not required to sift through all the
covenants to hypothesize every possible claim she might be liable for.
[12] Second, the Association argues that Devereaux, “a builder and former
attorney,” should have known that its request for nearly $16,000 (not including
interest and attorney’s fees) included “fees for more than the annual dues.”
Appellee’s Br. pp. 12-13. But this argument highlights the flaw in the
Association’s complaint. Just because $16,000 might be larger than the unpaid
dues does not mean that mowing fees are necessarily included, as opposed to
something else. As Devereaux points out, “The fact that a complaint seeks
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 7 of 9 excessive damages does not mean that there are numerous unpled claims which
the defendant must figure out.” Appellant’s Reply Br. p. 8.
[13] Last, the Association argues that its contentions and exhibits, filed about a
month before trial, allege that Devereaux owes mowing fees. But these
documents cannot, after the fact, correct any deficiencies in the complaint. If
the Association wanted to add a claim for mowing fees, then it should have
sought to amend the complaint. See Ind. Trial Rule 15(A). But it did not do
this. Instead, when the Association sought to introduce evidence of the
mowing fees at trial, Devereaux properly objected on grounds that the mowing
fees were not pled in the complaint. See Mercantile Nat’l Bank of Ind. v. First
Builders of Ind., Inc., 774 N.E.2d 488, 492 (Ind. 2002) (“There are generally two
factors to be considered when addressing whether a party has impliedly
consented to a non-pleaded issue at trial. The first is whether the opposing
party had notice of the issue; the second, whether the opposing party objected
to the issue being litigated at trial.”), reh’g denied; see also T.R. 15(B). Although
the trial court overruled Devereaux’s objection, no attempt was made at this
point to amend the complaint. Because the Association did not plead a claim
for mowing fees in its complaint and Devereaux objected to evidence of the
mowing fees at trial, we reverse the portion of the trial court’s judgment
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 8 of 9 awarding mowing fees/interest to the Association ($10,605.80) and remand for
entry of a revised judgment.2
[14] Reversed in part and remanded.
Bailey, J., and Robb, J., concur.
2 Devereaux argues that the award of attorney’s fee should be reduced to reflect only work that was done on the claim for unpaid annual assessments. The trial court should address this issue on remand.
Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 9 of 9