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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 24 2008, 9:02 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: SALLY S. STEWARD Howard & Lawson Danville, Indiana

ATTORNEYS FOR APPELLEES: JEFFREY M. BELLAMY Thrasher Buschmann Griffith & Voelkel Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KFT REALTY, LLC Appellant-Defendant, vs. PRESTWICK COMMUNITY SERVICES Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) )

No. 32A01-0802-CV-60

APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable David H. Coleman, Judge Cause No. 32D02-0611-SC-1690

September 24, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge

The Prestwick Planned Unit Development (Prestwick P.U.D.) consists of several separate residential subdivisions and a golf course in Hendricks County, Indiana. The appellees, Prestwick Community Services Association, Inc. (Prestwick CSA) is a corporation formed in 1975 for the purpose of managing and maintaining real estate and other assets in the Prestwick P.U.D. Prestwick CSA filed seventeen notices of claim in Hendricks Superior Court No. 2, Small Claims Division, against KFT Realty, Inc. (KFT). Each claim involved a separate lot owned by KFT in the residential subdivision Prestwick Villas and sought payment from KFT for Prestwick CSA regular and special assessments for the years 2005 and 2006. Those seventeen separate claims were consolidated into a single hearing and a single case-in-chief, as the claim relating to each lot was based upon the same theory. Following the hearing, the trial court found in favor of Prestwick CSA as to each separate claim. KFT appeals those decisions, which have been consolidated into a single appeal. KFT presents the following consolidated, restated issue: Did the trial court err in concluding that KFT's properties are subject to the assessments set out in Prestwick CSA's Declaration? We affirm. The facts are that Prestwick CSA was formed on February 5, 1975, by a Declaration recorded in the Hendricks County Recorder's Office, for the purpose of managing and maintaining real estate and other assets in the Prestwick P.U.D. In 1993, Forefront, Inc. began the process of gaining approval from the Hendricks County Plan Commission and the Hendricks County Commissioners to develop what was to be called Prestwick Villas, a residential real estate subdivision that would be a part of the Prestwick P.U.D. A preliminary plat of the proposed subdivision was submitted to Hendricks County. That plat indicated that

a homeowner's association would be created later, and did not mention Prestwick CSA or the Declaration. During negotiations between Hendricks County officials and Forefront, Hendricks County asked Forefront to either form its own homeowner's association or join Prestwick CSA in order to resolve maintenance responsibilities for the common areas, drainage, and streets in the subdivision. A Final Plat of Prestwick Villas (Final Plat) was recorded on December 13, 1995. The Final Plat divided the subject real estate into seventeen lots and included areas set aside for roads, drainage, and utilities. The Final Plat provided: The Prestwick Community Services Association shall be responsible for the maintenance of the Common Area designated hereon, as well as the storm water drainage facilities within the property and the pavement and sidewalks within the designated "Access Easement." Appellant's Appendix at 63. In 1999, Prestwick CSA established common area and road maintenance reserve funds for the benefit of Prestwick Villas. In 2000, Jay Speckman, an owner of Forefront, was elected to Prestwick CSA's Board of Directors as a representative of Prestwick Villas. On October 14, 2003, KFT purchased lots 1-17 in Prestwick Villas via a bankruptcy sale. KFT thereafter failed to pay 2005 and 2006 assessments billed by Prestwick CSA for the cost of its services. Those assessments were based upon a per-unit fee for the seventeen lots that comprised the Prestwick Villas subdivision. When KFT failed to pay the

assessments, Prestwick CSA filed a Notice of Claim for unpaid assessments relative to each of the units

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