ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
RUSSELL T. CLARKE, JR.
Emswiller, Williams, Noland
& Clarke, P.C.
JOHN S. KEELER
DANA M. LENAHAN
Baker & Daniels
COURT OF APPEALS OF INDIANA
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary Miller, Judge
Cause No. 49D05-9509-CP-1404
July 14, 2005
OPINION - FOR PUBLICATION
Appellant-defendant Jay Lynn appeals the trial court’s order foreclosing on Jay’s
former condominium and ordering that it be sold. Specifically, Jay contends that another
mortgage is superior to the judgment lien of appellee-plaintiff Windridge Co-Owners
Association, Inc. (Windridge) and that Jay’s execution of a quitclaim deed extinguished
Windridge’s right to certain unpaid fees. Jay also argues that the trial court abused its
discretion in failing to rule on another party’s motion to set aside a default judgment.
Finding that the trial court acted properly and that Jay’s actions evince a scheme to avoid
obeying a judgment handed down by this court, we affirm the trial court and order Jay to
pay Windridge’s appellate attorneys’ fees.
The underlying facts in this case, as previously determined by this court, are as
the Windridge Horizontal Property Regime (Windridge) was
established in 1975 and includes 221 condominium units located on
the northeast side of Indianapolis. The Lynns own a condominium
unit at Windridge and have lived there since 1979. As owners of a
condominium unit, the Lynns are automatically members of the
Association, which is a mutual benefit corporation incorporated
pursuant to the Indiana Nonprofit Corporation Act (Act). The
Association is governed by a Board of Directors (Board) and is
responsible for maintaining the property and purchasing casualty
insurance for the exterior condominium structures.
Services provided by the Association to its condominium owners
are underwritten by assessments, which are levied fourteen times a
year. The amount of each owner’s assessment is based upon the
square footage of the owner’s condominium unit as a percentage of
the total square footage at Windridge.
According to the
Association’s Bylaws, the Board may levy a penalty of up to 25%
for late payment of assessments. Effective March 1, 1995, the Board
passed a motion to impose a late fee of $10.00 for payments more
than six days overdue.
Sometime in 1993 or 1994, the Lynns obtained permission from
the Association to add an extension to their condominium unit.
Construction of this extension was completed in late 1994 or early
1995. Subsequently, in April 1995, the Association sent the Lynns a
letter informing them that their condominium unit would need to be
re-measured in order to adjust their assessment and incorporate the
extension into Windridge. The letter also advised the Lynns that
they would be responsible for the $200 re-measurement cost. As a
result of the re-measurement, the Board advised the Lynns on May
5, 1995, that their assessment cost would be increased to reflect their
additional square footage.
The Lynns disputed the Association’s authority to increase their
assessment due to the extension of their condominium unit. They
also asserted that the Association was responsible for maintenance
costs for a sunroom they built in 1981. In addition, the Lynns
engaged in a dispute with the Board regarding their dissatisfaction
with certain maintenance services provided by the Association.
Consequently, in 1995 the Lynns began offsetting the cost of such
services from their assessment and paying late. They also refused to
pay the $200 re-measurement cost. In 1996, the Lynns missed
several installments and continued to refuse to pay the increased
assessment costs. From April 1997 until the date of trial, the Lynns
made no payments to the Association. Nevertheless, the Association
continued to provide the Lynns with maintenance services and
insurance coverage. In December 1997, the Board suspended the
Lynns’ voting rights for nonpayment of assessments. By the time of
trial in November 1999, the Lynns owed the Association a total of
$18,969.44, including $4,065 attributable to the increased square
In September 1995, a contractor brought suit against the Lynns
and Windridge to foreclose on a mechanic’s lien in connection with
improvements the contractor made on the Lynns’ condominium unit
in 1994. Windridge then filed a cross-claim against the Lynns
alleging that they were liable to it for assessments, re-measure
charges, late fees, and attorney fees. In response, the Lynns filed a
counterclaim against Windridge, which the trial court dismissed
before commencement of trial as sanctions for discovery violations.
Nevertheless, at the bench trial on Windridge’s cross-claim on
November 8, 1999, the trial court permitted the Lynns to testify
regarding their defenses for nonpayment, which included their
assertion that they had a right to damages and to offset amounts
owed to them by the Association for various maintenance, repair,
and replacement costs. Thereafter, the trial court issued special
findings of fact and conclusions of law, and entered judgment in
favor of the Association in the total amount of $26,859.44.
Lynn v. Windridge Co-Owners Ass’n, Inc., 743 N.E.2d 305, 308-09 (Ind. Ct. App. 2001),
trans. denied (footnotes and citation omitted) (Lynn I). We affirmed the trial court’s
ruling, and remanded the case to the trial court solely so that the trial court could correct
its damages calculation with respect to two months of compounded late fees.
After we remanded the case, Windridge learned that Sandra Lynn’s father, Herbert
A. Louis, and KeyBank National Association (KeyBank) held mortgages on the Lynns’
condominium that were recorded after Windridge filed its cross-claim. On June 3, 2002,
Windridge filed a motion to determine the final judgment amount and for leave to amend
its cross-claim to add Louis and KeyBank as junior lienholders so that the relative
priorities of all interested parties could be determined. On August 23, 2002, the trial
court entered an order correcting its initial damages calculation and reiterating that
Windridge’s lien is foreclosed as a first and prior lien. The Lynns did not appeal.
On May 30, 2003, Windridge amended its cross-claim to add Louis and KeyBank
as defendants. Windridge’s attempt to serve Louis at the address that he provided to the
Marion County Recorder failed; therefore, Louis was served by publication. Louis failed
to respond to the cross-claim, so on August 19, 2003, Windridge filed a motion for
default judgment that the trial court granted on August 21, 2003. On August 18, 2003,
KeyBank released the Lynns from its mortgage, and on August 31, 2003, Louis released
the Lynns from his. On September 1, 2003, the Lynns granted a mortgage lien in favor of
On September 25, 2003, Louis filed a motion to set aside default judgment.
Windridge objected, and, in responding to the objection, the Lynns revealed that on
January 1, 2004, they executed a quitclaim deed in lieu of foreclosure to HAL,2 and Louis
accordingly admitted that “the interest of Herbert Louis is now moot.” Appellant’s App.
p. 75-79. The Lynns later admitted that neither Louis nor KeyBank had an interest in the
condominium. Appellant’s App. p. 92-93.
On May 24, 2004, the trial court entered its amended order in favor of Windridge
in the amount of $29,949.44.
The order also provided that Windridge’s lien was
foreclosed as a first and prior lien. Jay filed a motion to reconsider on June 2, 2004,
which the trial court denied on June 28, 2004. The trial court never ruled on Louis’s
motion to set aside the default judgment. Jay now appeals. 3
DISCUSSION AND DECISION
Jay argues that the trial court erred in awarding damages to Windridge.
Specifically, Jay contends that Louis’s mortgage—although recorded after Windridge
The record does not reveal, and Windridge notes that it is unaware of, the identity of HAL. Windridge
further notes that “H-A-L are Louis’s initials.” Appellee’s Br. p. 5 n.5.
Interestingly, we note that although the Lynns executed a quitclaim deed in lieu of foreclosure to HAL,
they have continued to live in the condominium. Along the same lines, we agree with Windridge that
Lynn appears to have no further interest in this litigation other than that the condominium in which he
resides is to be foreclosed upon and sold. We will address the substance of Lynn’s argument, but note our
substantial skepticism as to the propriety of this appeal.
Neither Louis nor HAL has appeared or intervened in this appeal. Additionally, on June 17, 2003,
Sandra Lynn filed for personal bankruptcy, and as a result, any personal liability she had for Windridge’s
judgment has since been discharged.
assessed its fees and filed its cross-claim—is superior to Windridge’s judgment lien and
that the execution of the quitclaim deed in favor of HAL extinguished Windridge’s right
to the unpaid fees. Jay also argues that the trial court abused its discretion in failing to
rule on Louis’s motion to set aside the default judgment.
We note initially that any argument that Jay does not owe Windridge for the
association dues is governed by the law of the case doctrine. This doctrine provides that
an appellate court in a subsequent appeal is bound by the previous appellate tribunal’s
determination of a legal issue in the same case, given substantially the same facts. In re
Change to Established Water Level of Lake of Woods in Marshall County, 822 N.E.2d
1032, 1042 (Ind. Ct. App. 2005). Thus, relitigation is barred for all issues decided
directly, indirectly, or by implication in a prior decision. Id.
Additionally, we will affirm a general judgment upon any legal theory consistent
with the evidence. Sizemore v. H & R Farms, Inc., 638 N.E.2d 455, 457 (Ind. Ct. App.
1994), trans. denied. In making that determination, we will neither reweigh the evidence
nor judge the credibility of witnesses. In re Trust Created Under the Last Will and
Testament of Mitchell, 788 N.E.2d 433, 435 (Ind. Ct. App. 2003). When reviewing a
general judgment, we presume that the trial court correctly followed the law, and this
presumption is one of the strongest presumptions applicable to our consideration of a
case on appeal. Sizemore, 638 N.E.2d at 467.
Jay argues that certain provisions of the bylaws governing the relationship
between Windridge and its residents render Windridge’s judgment lien against Jay
subordinate to the first mortgage held by Louis. Jay attempts to frame his argument in a
way that avoids a problem with the law of the case doctrine: he “acknowledges his
individual liability, but seeks to have the provisions of the bylaws regarding mortgage
foreclosures be enforced.” Reply Br. p. 1.
In essence, however, Jay’s individual liability is precisely what he is contesting.
Jay argues that the deed in lieu of foreclosure that the Lynns executed in favor of HAL
extinguished Windridge’s lien—and, conveniently, Jay’s liability to Windridge—for the
fees at issue. We note that HAL did not acquire his mortgage lien on the condominium
until three years after the trial court’s judgment was entered—two years after our
decision in Lynn I—and HAL did not acquire the condominium by quitclaim deed until
nearly four years after the trial court entered its judgment. We agree with Windridge that
Jay’s “argument that a quitclaim deed in lieu of foreclosure executed nearly four years
after Windridge acquired a judgment lien on the Real Property acts to extinguish
Windridge’s lien rights is simply untenable.” Appellee’s Br. p. 12.
We determined over four years ago that Jay is liable to Windridge for the unpaid
association fees. Although Jay tries to frame his argument creatively, in truth he is
contesting the precise issue that we already resolved in Lynn I. Accordingly, the law of
the case doctrine prevents Jay from contesting that liability.
Jay also argues that the trial court’s order is improper because it fails to include
HAL, who Jay contends is a necessary party. According to Jay, because HAL has not
intervened in the action, the trial court’s judgment may not stand. But HAL’s interest in
the condominium arose three years after the trial court entered its judgment ordering the
foreclosure on the property. HAL had constructive—if not actual—knowledge of the
judgment lien and these proceedings, and could have intervened below. He did not do so,
and his identity has not even been revealed to Windridge. The failure to include an
unidentified party whose alleged interest did not arise until years after Windridge
obtained a judgment lien simply cannot be the basis for overturning the trial court’s
Jay next argues that the trial court erred in failing to rule on Louis’s motion to set
aside the default judgment against him. Putting aside the question of whether Jay has
standing to raise this argument, we note that the record clearly reveals that both Jay and
Louis have admitted that Louis no longer has any interest in the property at issue.
Indeed, Louis released the Lynns from his mortgage almost a year before the trial court
issued its amended order. Although the trial court was somewhat remiss in not ruling on
Louis’s motion, any error was completely harmless because the issue “could not be more
moot.” Appellee’s Br. p. 14. Accordingly, we decline to set aside the underlying order
as a result of the trial court’s failure to rule on Louis’s motion.
It is apparent to us that Jay, Louis, and HAL have attempted to make an end-run
around the trial court’s original order and our opinion affirming it in Lynn I, even as they
try to obfuscate their intentions with a series of arguments that amount to nothing more
than smoke and mirrors. Such a legerdemain will not prevail. Moreover, in considering
Jay’s actions it is similarly apparent to us that he has attempted to pull the proverbial
wool over the eyes of the judicial system: following Lynn I and the trial court’s default
judgment against Louis, Jay was released by Louis from his mortgage, granted a
mortgage lien in favor of HAL, executed a quitclaim deed in lieu of foreclosure to HAL,
and then continued to live in the condominium even as all three parties insisted that they
were not responsible for paying the fees. After failing to prevail—again—in the trial
court, Jay then appealed the judgment—again—to us. As a result of the nature of Jay’s
actions and refusal to comply with the rule of law, we direct the trial court to award
appellate attorneys’ fees for this subsequent litigation to Windridge.
The judgment of the trial court is affirmed and remanded solely for the calculation
of appellate attorneys’ fees to be awarded to Windridge.
KIRSCH, C.J., and BARNES, J., concur.