Court of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 1 of 9 

### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
A TTORNEY FOR A PPELLANT Kevin G. Kerr Hoeppner Wagner & Evans LLP Valparaiso, Indiana A TTORNEYS FOR A PPELLEE Clay M. Patton Osan & Patton, LLP Valparaiso, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA
Lori A. Devereaux, A

ppellan t -Defendant,

v. 

### Homeowners’ Association of Hunters Ridge Estates, Inc., A

ppelle e -Plaintiff May 23, 2017 Court of Appeals Case No. 64A04-1612-CC-2956 Appeal from the Porter Superior Court The Honorable Roger V. Bradford, Judge 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 2 of 9 

# Case Summary
[1] Lori Devereaux owned two lots in a subdiv ision that were subject to restrictive covenants. After several years, she st opped mowing the grass and paying the annual dues, and the homeowners associat ion paid to have her grass mowed. The homeowners association later su ed her. When the homeowners association sought to introd uce evidence of the mowing fees at trial, Devereaux objected on grounds that the homeowners association did no t plead a claim for mowing fees in the compla int. The trial court ov erruled her objection and admitted the evidence. It later entered judgment in favor of the homeowners association for both unpaid annual du es and mowing fees. Devereaux now appeals. Because the complaint did no t put Devereaux on notice that the homeowners association was seeking mo wing fees and Devereaux objected to evidence of the mowing fees at trial, we reverse the portion of the trial court’s judgment awarding mowing f ees to the homeowners associ ation. 

# 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. Se ction IX, which governs landscaping, provides that lawns are to be reasonably maintained and that grass is to be mowed no higher than thr ee inches. It also provid es 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 andCourt of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 3 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 Asso ciation “shall impose and collect annual assessments for the mainte nance and improvemen ts of park areas and/or other ‘common areas’ and for the pr ovision of any security services . . . .” Id. at 73. Initially, the annual assessment was set at $125 per lot; however, the restrictive covenants have been amended severa l times to increase this amount. Failure to pay the annual assess ment 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 Deve reaux a letter asking her to mow the grass on Lots 61 and 62 on or before Fr iday, 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 Associ ation filed suit against Devereaux. The complaint contains th e following allegations: 4. The primary purpose of the As sociation is to insure high standards of maintenance and oper ation 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 4 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 Devereau x for the unpaid assessments on Lot 61 and Lot 62 is [$15,581.90], not including interest, attorney’s fees and othe r 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 li sts, 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 5 of 9 12. Anticipating no payments pr ior to the Bench Trial, as of September 1, 2016, the total bala nce 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 attorn ey’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 paragrap h 8 arising out of Article 25 of the covenants. Mowing fees . . . arise out of Article 9, and there was no claim for any mowing f ees 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 Exhibi ts 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 la ter issued a written order entering judgment in favor of the Association for $17,882.56—$10,605.80 of which wasCourt of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 6 of 9 for mowing fees/interest fr om 2012 to 2015—plus $6,4 34.00 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 As sociation 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 en titled to relief” and (2) “a demand for relief.” Ind. Trial Rule 8(A). In practice, this li beral standard merely requires that a “complaint . . . put the defendant on no tice 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 omi tted). 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 Devereau x’s claim that it did not expressly set forth a claim for mowing fees in its co mplaint. 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 fromCourt of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 7 of 9 2008 thru 2014.” There is no mention of mowing fees or Section IX, which allows the Association to recover mowi ng 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 reason s: (1) it attached the restrictive covenants to the complaint, an d 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; an d (3) its contentions and exhibits, filed about a month before trial, list mowing fees . We reject each of these reasons.

[11] First, the Association argu es that attaching the rest rictive covenants to the complaint put Devereaux on notice that it was seekin g mowing fees. Notably, the covenants and their amendments are si xteen pages long, and Section IX is a mere paragraph long. Devereaux was not required to sift through all the covenants to hypothesize every po ssible claim she might be liable for.

[12] Second, the Association argues that Devereaux, “a builder and former attorney,” should have known that its re quest 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 ar gument highlights the flaw in the Association’s complaint. Just because $1 6,000 might be larger than the unpaid dues does not mean that mo wing fees are necessarily included, as opposed to something else. As Dever eaux points out, “The fact that a complaint seeksCourt of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 8 of 9 excessive damages does not mean that there are numerous unpled claims which the defendant must figure out.” Appellant’s Repl y Br. p. 8.

[13] Last, the Association argues that its contentions and exhibits, filed about a month before trial, allege that Deve reaux owes mowing fees. But these documents cannot, after the fact, correct an y deficiencies in the complaint. If the Association wanted to add a claim fo r 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 so ught 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 addr essing whether a party has impliedly consented to a non-pleaded issue at trial. The firs t is whether the opposing party had notice of the issue; the seco nd, 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 obj ection, no attempt was made at this point to amend the complaint. Becaus e 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 judgmentCourt of Appeals of Indiana | Memorandum Decision 64A04-1612-CC-2956 | May 23, 2017 Page 9 of 9 awarding mowing fees/inter est 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 shou ld 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.