Feather Trace Homeowners Association, Inc., Appellant-Plaintiff,
Donald R. Luster, Appellee-Defendant
Attorney for Appellant David E. Jacuk Tanner Law Group
from the Marion Small Claims Court The Honorable John A.
Kitley, Judge Trial Court Cause No. 49K09-1807-SC-741
Donald Luster is a homeowner in the Feather Trace
neighborhood. He refused to pay his annual assessment to the
Feather Trace Homeowners Association (HOA) after the HOA
stopped maintaining the public areas in the neighborhood. The
HOA sued Luster for the unpaid assessment plus costs and
attorney fees, and the trial court entered judgment in favor
of Luster. The HOA appeals, arguing that the trial court
erred as a matter of law. We agree. Therefore, we reverse and
remand with instructions to enter judgment in favor of the
HOA and to calculate the amount owed by Luster.
In August 2002, Luster and his wife purchased a home in the
Feather Trace neighborhood. Their deed was subject to Feather
Trace's covenants, conditions, and restrictions,
including a requirement that they pay annual fees of $200 to
cover maintenance, repairs, and ordinary operating expenses
of the HOA. If owners fail to pay the assessment, the HOA has
a continuing lien on their property for the unpaid
assessment, late fees, collections costs, and attorney fees.
The Feather Trace neighborhood is comprised of fifty-two
residences; it also includes a pond. At some point, Luster
noticed that the neighborhood was not being maintained
properly. Specifically, he raises the following shortcomings
(and provided photos as proof of his allegations):
• The roads in the neighborhood were not maintained
properly. Specifically, there were holes on the street and
• The pond was not being maintained. Specifically, there
was "scum" and "filth" on and around the
pond, causing it to stink. Tr. p. 28. Luster stated that all
year long, "all you smell is the stink coming from this
pond." Id. Luster offered photos showing many
dead fish in and around the pond and he testified that there
were about 200 or 300 fish that were killed. The pond was not
aerated with a fountain, nor was the water treated by an
aquatic services company. At some point in the past, the pond
tested positive for E. coli bacteria.
• The drainage holes around the pond, which are
approximately three feet across, did not have grates. As a
result, children frequently crawled inside the holes.
• The common areas were not being maintained.
Specifically, they were not being mowed, edged, or mulched.
The areas around the pond were eroding to such an extent that
it was impossible to walk in those areas without
"end[ing] up in the pond." Id. at 25.
• There was only one streetlight in the neighborhood.
• Homeowners were not properly maintaining their own
properties. For example, some homeowners were letting weeds
overgrow their fences.
• It is not permitted to have people renting the homes
in the neighborhood, but multiple units housed, or ...