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.
                                                                               FILED
                                                                          Sep 14 2017, 6:45 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
R. John Wray                                             Laura Boyer King
Wray Law Office                                          Scott & Aplin LLC
Fort Wayne, Indiana                                      Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Melton Ortiz,                                            September 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1704-SC-828
        v.                                               Appeal from the Allen Superior
                                                         Court
Jonathan’s Landing Community                             The Honorable Jennifer L.
Association, Inc.,                                       DeGroote, Magistrate
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         02D03-1610-SC-16915



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017           Page 1 of 16
                                          Case Summary
[1]   Appellant-Defendant Melton Ortiz appeals from the trial court’s order finding

      in favor of Appellee-Plaintiff Jonathan’s Landing Community Association, Inc.

      (“the Association”). The Association brought the underlying lawsuit after

      Ortiz, a resident of the Jonathan’s Landing subdivision and a member of the

      Association, refused to pay certain assessed association dues which he believed

      applied solely to membership at the Association’s community pool. Having

      determined that Ortiz was responsible for paying all assessed association dues,

      not just the portion he chooses to pay, the trial court entered judgment in favor

      of the Association. Ortiz challenges the trial court’s order on appeal, arguing

      that the trial court erred in finding that he failed to meet his burden of proving

      his alleged affirmative defenses. We affirm.



                            Facts and Procedural History
[2]   Ortiz owns a residence located within the Jonathan’s Landing subdivision in

      Allen County. As an owner of that property, Ortiz is automatically a member

      of the Association and is liable to the Association for maintenance and special

      assessments, commonly referred to as dues. The Association’s covenants

      expressly states that a portion of the assessed association dues should be used to

      promote recreation and provide recreational amenities to the Association’s

      members. One of the recreational amenities offered by the Association is an

      Association-owned-and-operated swimming pool.



      Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 2 of 16
[3]   It appears that the Association may have offered to allow Ortiz to make a

      partial payment of assessed association dues, excluding dues relating to

      membership at the Association’s pool, on at least one occasion. In 2012, the

      offer was allegedly made by the Association and accepted by Ortiz. In 2013,

      the offer was allegedly made by the Association, but Ortiz chose to pay the full

      amount, giving his family access to the pool.


[4]   In 2014, the Association refused to accept partial payment of the assessed

      association dues. After Ortiz failed to pay the full amount of dues owed, the

      Association filed a small claims court action against Ortiz and the parties

      litigated Ortiz’s obligation to pay association dues as assessed by the

      Association. At that time, the trial court found that Ortiz (1) failed to pay

      association dues in a timely manner despite being given various notices to pay

      and (2) did not deny that he owed the underlying dues “but contest[ed] various

      costs and the attorney fees.”1 Appellee’s App. Vol. II, p. 2. At the conclusion

      of the proceedings, the trial court entered a judgment against Ortiz in the

      amount of $667.66. This judgment included $138.21 in principal debt and

      $529.45 in attorney’s fees and costs. In imposing the judgment, the trial court

      noted that “[a]lthough the attorney fees are high for a principal debt of $138.21




      1
        Although the trial court’s 2014 order did not explicitly state that the contested dues were dues which Ortiz
      believed related to pool membership, in issuing the order that is at issue in the instant appeal, the trial court
      clarified that the nature of the dispute in the 2014 action revolved around whether Ortiz was required to pay
      the full assessed association dues, which included pool membership.

      Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017             Page 3 of 16
      the behavior of [Ortiz] caused [the Association] to incur the attorney fees and

      costs.” Appellee’s App. Vol. II, p. 2.


[5]   In 2015, Ortiz tendered a $275.00 check to the Association. After receiving

      Ortiz’s check, the Association sent Ortiz a letter stating that it had received his

      partial payment. The letter further advised Ortiz that the Association was “not

      accepting [the partial payment] as total payment of [Ortiz’s] dues as the full

      amount is $330 for every homeowner.” Plaintiff’s Ex. O. The letter informed

      Ortiz that if he failed to pay the remaining $55.00, he would “be subject to

      liens, late fees and other legal action to collect the full payment.” Plaintiff’s Ex.

      O. An invoice enclosed with the letter indicated that Ortiz owed an additional

      $55.00 to satisfy his 2015 assessed association dues. The Association

      subsequently filed a $55.00 lien against Ortiz’s property.


[6]   In 2016, Ortiz tendered a $275.00 check to the Association. Ortiz apparently

      included a handwritten note with the check indicating the following:

              To Whom:

              27500 for Assoc. Dues
              As we are all aware that I do not support or pay pool dues/fees.
              All contact of this issue is to go to my attorney.


      Plaintiff’s Ex. H. After receiving Ortiz’s check, the Association sent Ortiz a

      letter stating that it had received his partial payment. The letter further advised

      Ortiz that the Association was “not accepting [the partial payment] as total

      payment of [Ortiz’s] dues as the full amount is $330 for every homeowner.”


      Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 4 of 16
      Plaintiff’s Ex. I. The letter indicated that in accordance with the Association’s

      past practice, (1) $55.00 would be applied to satisfy Ortiz’s 2015 indebtedness;

      and (2) $220.00 applied to 2016 dues, leaving $110.00 due and owning for his

      2016 dues. The letter informed Ortiz that if he failed to pay the remaining

      $110.00, he would “be subject to liens, late fees and other legal action to collect

      the full payment.” Plaintiff’s Ex. I. An invoice enclosed with the letter

      indicated that Ortiz owed an additional $110.00 to satisfy his 2016 assessed

      association dues. The Association subsequently filed a $110.00 lien against

      Ortiz’s property.


[7]   In 2017, Ortiz tendered a $275.00 check to the Association. Ortiz wrote on the

      bottom of this check that the funds applied only to his 2017 dues. After

      receiving Ortiz’s check, the Association sent Ortiz a letter stating that it had

      received his partial payment. The letter further advised Ortiz that the

      Association was “not accepting [the partial payment] as total payment of

      [Ortiz’s] dues as the full amount is $330 for every homeowner.” Plaintiff’s Ex.

      L. The letter informed Ortiz that if he failed to pay the remaining $55.00, he

      would “be subject to liens, late fees and other legal action to collect the full

      payment.” Plaintiff’s Ex. L. An invoice enclosed with the letter indicated that

      Ortiz owed an additional $55.00 to satisfy his 2017 assessed association dues.


[8]   The Association subsequently filed a small claims court action against Ortiz to

      recover the outstanding dues. On March 14, 2017, the trial court issued an

      order which provided as follows:



      Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 5 of 16
                       1. [Ortiz] is a resident of Johnathan’s Landing
                       Neighborhood Association.

                       2. [Ortiz] has tried to establish a pattern of paying
                       dues claiming he does not have a pool membership
                       and only requested a membership in 2012.

                       3. Evidence presented seems to contradict [Ortiz’s]
                       testimony in that he was asked in 2012 if he wanted
                       “access to the pool again this year?” which would
                       reflect a membership in 2011. It is unclear whether
                       he actually paid for the membership he received in
                       2012 yet a key fob was issued for his use in 2012
                       which was subsequently deactivated for lack of
                       payment.

                       4. This Court has previously held [Ortiz] is liable for
                       the full amount of the dues being billed to [him]
                       annually. [Ortiz] failed to establish any exception to
                       this by conduct of the neighborhood association.

                       5. [Ortiz] is also liable for reasonable attorney fees
                       which the court calculated to be $250.00.

              Judgment for [the Association] against [Ortiz] for $415.00. Costs
              to [Ortiz].


      Appellant’s App. Vol. II, p. 2. This appeal follows.



                                 Discussion and Decision
[9]   At the outset, we note that the trial court’s order indicates that the trial court

      previously held that Ortiz is liable for the full amount of assessed association

      dues. The Association has provided us with a copy of a 2014 order issued by

      the trial court relating to a dispute between the parties as to the payment of

      Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 6 of 16
       assessed association dues. Given that the trial court’s 2014 order, like the

       instant matter, appears to have concerned the parties’ long-term dispute over

       whether Ortiz was responsible for paying the portion of fees he claims relate to

       pool memberships, Ortiz’s claims in this appeal are arguably barred by the

       doctrine of res judicata.2 However, given that the language of the trial court’s

       2014 order does not explicitly state that the challenged assessed association fees

       related to pool membership, we will address the merits of the contentions levied

       by Ortiz in the instant appeal.


[10]   Ortiz contends that the trial court erred in finding that he was required to pay

       the full amount of assessed association dues.

                Judgments in small claims actions are “subject to review as
                prescribed by relevant Indiana rules and statutes.” Ind. Small
                Claims Rule 11(A). Under Indiana Trial Rule 52(A), the clearly
                erroneous standard applies to appellate review of facts
                determined in a bench trial with due regard given to the
                opportunity of the trial court to assess witness credibility. This
                “deferential standard of review is particularly important in small
                claims actions, where trials are ‘informal, with the sole objective
                of dispensing speedy justice between the parties according to the
                rules of substantive law.’” City of Dunkirk Water & Sewage Dep’t v.
                Hall, 657 N.E.2d 115, 116 (Ind. 1995) (quoting S.C.R. 8(A)). But
                this deferential standard does not apply to the substantive rules of
                law, which are reviewed de novo just as they are in appeals from




       2
         “The doctrine of res judicata bars the litigation of a claim after a final judgment has been rendered in a
       prior action involving the same claim between the same parties or their privies.” MicroVote General Corp. v.
       Ind. Election Com’n, 924 N.E.2d 184, 191 (Ind. Ct. App. 2010) (citing Small v. Centocor, Inc., 731 N.E.2d 22, 26
       (Ind. Ct. App. 2000), trans. denied).

       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017           Page 7 of 16
               a court of general jurisdiction. Lae v. Householder, 789 N.E.2d
               481, 483 (Ind. 2003).


       Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067-68 (Ind. 2006).


                                     I. Affirmative Defenses
[11]   In challenging the trial court’s order, Ortiz argues that the trial court erred in

       finding that he failed to prove three alleged affirmative defenses: (1) promissory

       estoppel, (2) accord and satisfaction, and (3) abandonment. The party asserting

       the affirmative defense bears the burden of proving said defense. See generally,

       Alkhalidi v. Ind. Dept. of Corr., 42 N.E.3d 562, 566 (Ind. Ct. App. 2015)

       (providing that the Department of Correction, as the party asserting the

       affirmative defense, had the burden of proving said defense). When the party

       asserting the affirmative defense appeals from a determination that he failed to

       prove the alleged affirmative defense, he appeals from a negative judgment.

       Mominee v. King, 629 N.E.2d 1280, 1282 (Ind. Ct. App. 1994).


               When a party appeals from a negative judgment, he must
               demonstrate that the evidence points unerringly to a conclusion
               different from that reached by the trial court. Communications
               Workers of America, Locals 5800, 5714 v. Beckman (1989), Ind. App.,
               540 N.E.2d 117, 127. We will reverse a negative judgment only
               if the decision of the trial court is contrary to law. Aetna Casualty
               & Sur. Co. v. Crafton (1990), Ind. App., 551 N.E.2d 893, 894. In
               determining whether a trial court’s decision is contrary to law,
               we must determine if the undisputed evidence and all reasonable
               inferences to be drawn therefrom lead to but one conclusion and
               the trial court has reached a different one. Id.



       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 8 of 16
       Id.


                                      A. Promissory Estoppel
[12]   Ortiz first claims that the Association could not prevail against him because it

       was barred from seeking the funds associated with a pool membership under

       the doctrine of promissory estoppel.

               Estoppel is a judicial doctrine sounding in equity. Although
               variously defined, it is a concept by which one’s own acts or
               conduct prevents the claiming of a right to the detriment of
               another party who was entitled to and did rely on the conduct.
               In re Edwards, 694 N.E.2d 701, 715 (Ind. 1998). There are a
               variety of estoppel doctrines including: estoppel by record,
               estoppel by deed, collateral estoppel, equitable estoppel-also
               referred to as estoppel in pais, promissory estoppel, and judicial
               estoppel. 28 Am. Jur. 2d Estoppel and Waiver § 2 (2000). All,
               however, are based on the same underlying principle: one who
               by deed or conduct has induced another to act in a particular
               manner will not be permitted to adopt an inconsistent position,
               attitude, or course of conduct that causes injury to such other. 31
               C.J.S. Estoppel and Waiver § 2 (1996).


       Brown v. Branch, 758 N.E.2d 48, 51-52 (Ind. 2001). Promissory estoppel

       “encompasses the following elements: (1) a promise by the promissor; (2) made

       with the expectation that the promisee will rely thereon; (3) which induces

       reasonable reliance by the promisee; (4) of a definite and substantial nature; and

       (5) injustice can be avoided only by enforcement of the promise.” Id. at 52

       (citing First Nat’l Bank of Logansport v. Logan Mfg. Co., Inc., 577 N.E.2d 949, 954

       (Ind. 1991)).



       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 9 of 16
[13]   Ortiz submitted evidence to the trial court which seems to indicate that in 2012,

       Ortiz was granted the option of paying only partial dues, i.e., an amount

       excluding fees relating to pool membership. Defendant’s Ex. 1. The record

       contains no indication of the circumstances under which such an option was

       presented to Ortiz. It appears that this offer may have again been extended to

       Ortiz in 2013, but that Ortiz elected to have a pool membership in 2013.

       Further, Ortiz has presented no evidence supporting his claim that he had

       entered into an agreement by which he would, in perpetuity, be granted the

       opportunity to pay only partial dues. The record also contains a significant

       amount of evidence indicating that the Association has not permitted or

       accepted partial payment since 2013, much less on a regular basis. The trial

       court found that the evidence submitted by the parties “seems to contradict

       [Ortiz’s] testimony” regarding the alleged promise.3 Appellant’s App. Vol. II,

       p. 2. Finding that there was no evidence that the claimed promise existed, the

       trial court found that Ortiz had failed to meet his burden of proof relating to this

       alleged affirmative defense. This finding is supported by the record presented

       on appeal. As such, we are unpersuaded that the trial court erred in this regard.




       3
         To the extent that Ortiz points to a 2001 lien against his property in the amount of $900.00 as proof of an
       agreement that he would not have to pay dues associated with pool membership, nothing in the record
       indicates that the lien had any connection or relation to the payment of the portion of the assessed
       association dues which were assessed in relation to one’s pool membership.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017          Page 10 of 16
                                    B. Accord and Satisfaction
[14]   Ortiz also claims that he sufficiently proved the affirmative defense of accord

       and satisfaction.

               “Accord and satisfaction is a method of discharging a contract,
               or settling a cause of action by substituting for such contract or
               dispute an agreement for satisfaction.” Daube and Cord v. LaPorte
               County Farm Bureau (1983), Ind. App., 454 N.E.2d 891, 894. The
               term “accord” denotes an express contract between two parties
               by means of which the parties agree to settle some dispute on
               terms other than those originally contemplated, and the term
               “satisfaction” denotes performance of the contract. Reed v. Dillon
               (1991), Ind. App., 566 N.E.2d 585, 590. As a contract, accord
               and satisfaction requires a meeting of the minds or evidence that
               the parties intended to agree to an accord and satisfaction. See
               Erie Co. v. Callahan Co. (1933), 204 Ind. 580, 585, 184 N.E. 264,
               266. Under Indiana Trial Rule 8(C), accord and satisfaction is an
               affirmative defense which must be specifically pleaded and
               proven by the party raising it. The question of whether the party
               making the defense has met its burden is ordinarily a question of
               fact but becomes a question of law if the requisite controlling
               facts are undisputed and clear. See Rauch v. Shots (1989), Ind.
               App., 533 N.E.2d 193, 194, trans. denied.


       Mominee, 629 N.E.2d at 1282. “[U]nder Indiana law, a check tendered in

       satisfaction of a claim must be accompanied by an express condition that the

       acceptance is in full satisfaction of the claim and that the creditor takes the

       check subject to that condition.” Id. (citing Rauch, 533 N.E.2d at 194).

       “Further, and most importantly, the creditor must positively understand the

       condition upon which the check is tendered.” Id. (citing Rauch, 533 N.E.2d at

       194).

       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 11 of 16
[15]   With respect to the 2015 assessed association dues, Ortiz tendered a $275.00

       check to the Association. After receiving Ortiz’s check, the Association sent a

       letter indicating the following to Ortiz via email and U.S. Mail:


               Dear Mr. Ortiz,

               We are in receipt of your partial payment of $275 for your 2015
               JLCA dues dated April 22, 2015. Please be advised, we are not
               accepting this as total payment of your dues as the full amount is
               $330 for every homeowner. If you do not remit payment
               immediately for the remaining $55 you will be subject to liens,
               late fees and other legal action to collect the full payment.

               I have enclosed a new invoice showing the remaining balance
               due for your 2015 dues.


       Plaintiff’s Ex. O. The enclosed invoice indicated that Ortiz owed an additional

       $55.00 to satisfy his 2016 assessed association dues. The Association

       subsequently filed a $55.00 lien against Ortiz’s property.


[16]   With respect to the 2016 assessed association dues, Ortiz tendered a $275.00

       check to the Association. Ortiz apparently included a handwritten note

       indicating the following with the check:


               To Whom:

               27500 for Assoc. Dues
               As we are all aware that I do not support or pay pool dues/fees.
               All contact of this issue is to go to my attorney.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 12 of 16
       Plaintiff’s Ex. H. After receiving Ortiz’s check, the Association sent a letter

       indicating the following to Ortiz via email and U.S. Mail:


               Dear Mr. Ortiz,

               We are in receipt of your partial payment of $275 on February 4,
               2016. Please be advised, we are not accepting this as total
               payment of your dues as the full amount is $330 for every
               homeowner. In addition, in accordance with our past practice,
               any payment received is first applied to prior outstanding
               indebtedness first and then applied to the current dues. In you
               case, you had an arrearage of $55 from the 2015 dues. Therefore,
               your $275 payment is being applied as follows:

                        1) $55 applied to satisfy 2015 indebtedness; and
                        2) $220 applied to 2016 dues, leaving $110 due and
                        owning for your 2016 dues.

               If you do not remit payment immediately for the remaining $110
               you will be subject to liens, late fees and other legal action to
               collect the full payment.

               I have enclosed a new invoice showing the balance for your 2016
               dues.


       Plaintiff’s Ex. I. The enclosed invoice indicated that Ortiz owed an additional

       $110.00 to satisfy his 2015 assessed association dues. The Association

       subsequently filed a $110.00 lien against Ortiz’s property.


[17]   With respect to the 2017 assessed association dues, Ortiz tendered a $275.00

       check to the Association. Ortiz wrote on the bottom of this check that the

       funds applied only to his 2017 dues. After receiving Ortiz’s check, the



       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 13 of 16
       Association sent a letter indicating the following to Ortiz via email and U.S.

       Mail:


               Dear Mr. Ortiz,

               We are in receipt of your partial payment of the 2017 dues of
               $275 on January 31, 2017. Please be advised, we are not
               accepting this as total payment of your dues as the full amount is
               $330 for every homeowner. If you do not remit payment
               immediately for the remaining $55 you will be subject to liens,
               late fees and other legal action to collect the full payment.

               I have enclosed a new invoice showing the remaining balance
               due for your 2017 dues.


       Plaintiff’s Ex. L. The enclosed invoice indicated that Ortiz owed an additional

       $55.00 to satisfy his 2017 assessed association dues.


[18]   The above-quoted exhibits demonstrate that Ortiz’s tendered payments did not

       include the express condition that acceptance of the tendered partial payment

       resulted in full satisfaction of the dues owed. The exhibits also demonstrate

       that the Association did not agree to accept a partial payment of the dues owed

       as full satisfaction of Ortiz’s obligation. Instead, the Association’s actions make

       it clear that it was not accepting the funds tendered as payment in full. The trial

       court found that Ortiz had failed to meet his burden of proof relating to this

       alleged affirmative defense. This finding is supported by the record presented

       on appeal. As such, we are unpersuaded that the trial court erred in this regard.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 14 of 16
                                            C. Abandonment
[19]   Ortiz also claims that he sufficiently proved the affirmative defense of

       abandonment.

               We have previously observed that the abandonment of a contract
               is a matter of intention to be ascertained from the facts and
               circumstances surrounding the transaction. Estate of Kappel v.
               Kappel, 979 N.E.2d 642, 652 (Ind. Ct. App. 2012).
               “Abandonment may be inferred from the conduct of the parties,
               and a contract will be treated as abandoned when one party acts
               inconsistently with the existence of the contract, and the other
               party acquiesces.” Id. “Abandonment of a contract is a mixed
               question of law and fact; that is, what constitutes abandonment is
               a question of law and whether there has been abandonment is a
               question of fact.” Id.


       Turner v. Nationstar Mortg., LLC, 45 N.E.3d 1257, 1263-64 (Ind. Ct. App. 2015).


[20]   While Ortiz claims that the Association repeatedly allowed him to pay only

       partial dues, the evidence which he submitted to the trial court at most indicates

       that the Association did so on possibly two occasions. On one of these two

       occasions, Ortiz indicated that he wished to have the pool membership. As is

       stated above, the record is silent as to the circumstances surrounding the

       Association’s alleged decision to accept partial payment on these occasions.

       Contrary to Ortiz’s claim, the evidence overwhelmingly demonstrates that the

       Association did not abandon its right to enforce the terms of the its covenants

       and bylaws which give the Association the right to set the amount, terms, and

       conditions of assessed association dues. The trial court found that Ortiz had

       failed to meet his burden of proof relating to this alleged affirmative defense.
       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 15 of 16
       This finding is supported by the record presented on appeal. As such, we are

       unpersuaded that the trial court erred in this regard.



                                               Conclusion
[21]   In sum, the trial court did not err in finding that Ortiz had failed to meet his

       burden of proof as it relates to the three alleged affirmative defenses. As such,

       we affirm the judgment of the trial court. In doing so, we note that Ortiz has

       now unsuccessfully challenged his obligation to pay the full assessed association

       dues on two occasions. While we believe the trial court’s rulings on this issue

       have been clear, to the extent that one could find such rulings to be ambiguous,

       our decision should be interpreted by the parties as making it explicitly clear

       that Ortiz, as a member of the Association, has an obligation to pay all assessed

       association dues and may not satisfy this obligation by tendering partial

       payment.


[22]   The judgment of the trial court is affirmed.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-SC-828 | September 14, 2017   Page 16 of 16
