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Filed: October 29, 1987.


APPEAL FROM THE ST. JOSEPH SUPERIOR COURT, The Honorable Jeanne J. Swartz, Judge, Cause No. R-3306.

Garrard, P.j., Hoffman, J. and Conover, J. Concur.

Author: Garrard


Robert and Mary Rajski purchased a home in Meadowview Third Addition. The subdivision was subject to a number of restrictive covenants adopted in 1968 by the developers and original homeowners in Meadowview.

When Rajskis commenced construction of a detached two car garage in violation of the restrictions, neighbors advised them of their potential violation. The architectural committee of the Homeowners Association met to review Rajskis' plans and made suggestions to them to bring the building closer to conformity with the restrictions. At that time the only work completed was the concrete slab. Despite their failure to have approval, Rajskis told their contractor to go ahead with construction. He did so and the garage was completed.

On August 2, 1985, George Tezich, a homeowner in the addition and president of the Meadowview Third Addition homeowners Association, sent Rajskis a notice by certified mail demanding removal of the garage within thirty days an invoking penalty provisions provided in the subdivision restrictions.

Subsequently, Tezich commenced this action for injunction, attorneys fees an liquidated damages. Trial to the court resulted in an order that the garage be attached to the home or removed, an award of $3,750 attorneys fees and an award of liquidated damages in the amount of $2,930 to the date of judgment, together with ten dollars per day for each day the garage remained in violation of he restrictive covenants. Rajskis appeal.

They raise three contentions of error. First, they claim the notice they received was a condition precedent to liability for attorney fees and liquidated damages. They assert the notice was defective because it was given by Mr. Tezich exclusively in his capacity as president of the homeowners association.

The restrictive covenants applicable to the subdivision provide that the restrictions may be enforced by any property owner in the subdivision.[Footnote 1] In addition, they provide:

"In addition to the foregoing [right to sue for injunction] and not in limitation thereof, in the event that a violation of the restrictions and covenants contained herein occurs, and, in the event that the person or persons committed the violation fail to cure or terminate the violation within 30 days of notice to cure or terminate given by certified mail by any person having a right to enforce these covenants and restrictions, such person or persons committing such violation shall be liable for liquidated damages in the sum of $10.00 per day for each day during which the violation continue[s] together with attorney fees and court costs. Such liquidated damages shall be payable to the Meadowview Third Addition Home Owners Association but, in no event shall such damages exceed the total value of the real estate, together with improvements, upon which the violation occurs. This covenant to operate prospectively only and not to be applicable to improvements constructed prior to this date."

We agree with Rajskis' assertion that a right belonging to a person in his individual capacity may not be enforced by that person while acting exclusively in some representative capacity. On the other hand, where it appears that the person is seeking to act in both capacities, the requirements of standing are satisfied. Taylor v. Fickas (1878), 64 Ind. 167 (suit brought as administrator but recital in complaint that person was also the heir who had standing).

It is undisputed that Tezich was, in fact, one of the lot owners entitled to bring suit and to give notice. Rajskis assert that the notice was given exclusively in Tezich's capacity as an officer (agent) of the homeowners association because below his signature was his typed name followed by "President, Meadowview Third Addition Homeowners Association." Rajskis cite no authority for this proposition, and Tezich does not address it.

The question is whether a person's designation by his signature that he is an officer or agent of an organization, without more, as a matter of law limits his role concerning that document to a representative one. The traditional view, accepted in Indiana, is that it does not. Rather it is considered to be descriptio personae and does not prevent the inference that the person in question is acting in his individual capacity. Avery v. Dougherty (1885), 102 Ind. 443, 2 N.E. 123; Jackson School Twp. v. Farlow (1881), 75 Ind. 118, 123. Extrinsic evidence is admissible on the issue. Second Nat. Bank v. Midland Steel Co. (1900), 155 Ind. 581, 58 N.E. 833. Here the court concluded that Tezich was acting in both capacities and the evidence sustains that determination.

Rajskis' next assert that the provision for liquidated damages contained in the restrictions is a penalty and should therefore be declared ...

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