Opinion
21A-PL-411
02-14-2022
Andrew M. Taylor, Appellant/Cross-Appellee-Defendant, v. Deer Path Homeowners Association, Inc., Joshua Flavin, Jeremy Sprouse, Dale Wayman, Bonnie Hostetler, and Kelly Smith, Appellees/Cross-Appellants-Plaintiffs.
ATTORNEY FOR APPELLANT/CROSS-APPELLEE Brian R. DeHem DeHem Law, LLC ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS Danford R. Due Christopher J. Appel Due Doyle Fanning & Alderfer, LLP
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.
Appeal from the Hamilton Circuit Court The Honorable Paul A. Felix, Judge Trial Court Cause No. 29C01-2005-PL-3220
ATTORNEY FOR APPELLANT/CROSS-APPELLEE Brian R. DeHem DeHem Law, LLC
ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS Danford R. Due Christopher J. Appel Due Doyle Fanning & Alderfer, LLP
MEMORANDUM DECISION
MOLTER, JUDGE
[¶1] Plaintiff Andrew Taylor is a homeowner in the Deer Path subdivision located in Noblesville, Indiana, which also makes him a member of the Deer Path Homeowners Association, Inc. ("the HOA"). Appellant's App. Vol. 2 at 145. He sued the HOA and five newly-elected board members (together, "Defendants"), claiming they breached the HOA's governing documents and their fiduciary duties by holding invalid elections, ratifying certain prior acts, refusing an audit, and improperly increasing assessments. Taylor appeals the trial court's order granting in part and denying in part his motion for summary judgment and granting in part and denying it in part Defendants' cross-motion for summary judgment. Defendants cross-appeal the trial court's order granting partial summary judgment to Taylor. Finding no error, we affirm.
Facts and Procedural History
[¶2] Because Taylor is a homeowner within the Deer Path Subdivision, he is a member of the HOA, which is a nonprofit corporation formed under Indiana law on October 8, 1999. Both Taylor and the HOA are parties to and bound by the Declarations of Covenants, Conditions, and Restrictions of Deer Path ("the Covenants"), which were established and recorded on November 16, 1999. Appellant's App. Vol. 6 at 49. The developer and Declarant of the Deer Path community was Cedar Path Development Company, LLC ("Cedar Path"). The Covenants, Article IV, Section 4.2 states in pertinent part:
Class A. Class A members shall be all Owners with the exception of [Cedar Path]. Class A members shall be entitled to one (1) vote for each Lot owned. . . .
Class B. The Class B member shall be [Cedar Path]. [Cedar Path] shall be entitled to three (3) votes for each Lot owned. . . .Appellant's App. Vol. 3 at 88.
[¶3] Article V, Section 5.3 of the Covenants sets out the "Maximum Yearly Assessments" for lot owners. Id. at 89. The original assessment for each lot when the neighborhood was formed was $150.00 per year. As to subsequent increases, Section 5.3(b) of the Covenants states as follows:
From and after January 1 of such year, the maximum Regular Yearly Assessment may be increased each calendar year not more than twenty percent (20%) above the maximum Regular Yearly Assessment for the previous year, without a vote of the membership.Id.
[¶4] Cedar Path controlled Deer Path until 2011, when the neighborhood was turned over to the HOA. The special turnover meeting took place on June 14, 2011, and 165 homes were represented in person or by proxy. Under the Bylaws of the HOA, Article III, Section 2 states the quorum requirement for meetings:
Written notice of any meeting called for the purpose of taking any action authorized under this Article shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting. At the first such meeting called, the presence of Members or of proxies entitled to cast sixty percent (60%) of the total number of votes entitled to be cast (Class A and Class B votes combined) shall constitute a quorum.
If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting.Appellant's App. Vol. 6 at 89. The 165 homes represented at the June 24, 2011 meeting constituted 30 percent of the neighborhood and a voting quorum because a prior meeting had failed to meet the 60 percent quorum. At the June 24, 2011 meeting, five homeowners were voted onto the board of directors.
[¶5] From 2011 through 2018, the HOA had problems with community involvement and participation in HOA meetings and elections. From 2011 through 2019, the HOA did not hold any annual or special meetings where a quorum of the members eligible to vote were present. When the neighborhood was turned over to the HOA in 2011, the annual assessment for the member of the HOA was $300.00 per year. Appellant's App. Vol. 4 at 172. Taylor became a homeowner and a member of the HOA in 2017. Id. at 101. The annual assessment has not increased since Taylor became an owner in 2017. Id. at 112-13.
[¶6] Sometime in 2012, the HOA established a Delinquency Policy Resolution ("the 2012 Delinquency Policy") to create orderly procedures for the collection of assessments which were delinquent and adopted procedures, rules, and regulations for the collection of the assessments. Appellant's App. Vol. 3 at 131. The 2012 Delinquency Policy established a due date when the annual assessments were to be paid, the procedure for what occurs when assessments were delinquent including sending two separate notices to homeowners, late charges that were to be paid if assessments are delinquent, the procedure of sending a demand letter before legal action could be taken, and the time frame that the HOA would follow before legal action was taken on delinquent assessments. In 2019, the HOA amended the Delinquency Policy ("the 2019 Delinquency Policy") and changed the date on which the annual assessments were to be due from a set date to due dates being set by the HOA, eliminated the time frames for sending out delinquency notices, and eliminated the requirement of sending a demand letter before taking legal action against the homeowner, among other changes. Id. at 129.
[¶7] Kirkpatrick Management Company ("Kirkpatrick") became the property Management Company for Deer Path on July 26, 2012 and has continued in that role from 2012 to the present. From 2013 to the present, Kirkpatrick would prepare a yearly financial report for Deer Path. The Covenants and Bylaws require that the books and records of the HOA be audited annually by qualified auditors, but from 2012 to 2019, the HOA did not obtain or maintain any such audits. An audit was performed by Comer Nowling for 2019, and it indicated that the HOA's operations and cash flow for that year conformed with generally accepted accounting principles.
[¶8] On October 9, 2019, an annual meeting was held at which an election for the board of directors was held. After this October 2019 meeting, several homeowners, including Taylor's attorney, Brian DeHem ("DeHem"), raised concerns questioning the validity of the October 9, 2019 annual meeting and the election of the board of directors of the HOA. A grievance letter was sent by DeHem to the HOA regarding a wide variety of issues, and on November 22, 2019, the HOA board members conducted a settlement conference with DeHem concerning the grievances.
[¶9] After this settlement meeting, the parties agreed that a new meeting would be scheduled in mid-January 2020 to elect a new board of directors for the HOA. The parties agreed that notice for the meeting would not only set the date, time, and location for this meeting but also include the date, time, and location of subsequent reconvened meetings that would occur minutes later, if necessary to achieve quorum. This rolling meeting concept was recommended by and agreed to by the parties at the settlement meeting as a suggestion to reduce costs. After consulting HOA attorney Stephen Donham ("Donham"), the HOA approved and sent a notice of the meeting to the homeowners.
[¶10] On December 5, 2019, the HOA sent a notice to the homeowners entitled
"Special Meeting Notice/Annual Meeting Notice" ("the December 5 Notice"), informing the homeowners that a special meeting was scheduled for January 16, 2020 at 6:30 p.m., and that:
If the required 60% quorum is not present at the foregoing combined Special & Annual meeting set for January 16, 2020, commencing at 6:30 P.M., then the combined meeting shall reconvene on January 16, 2020 at the same location, commencing at 6:50 P.M.
If the required 30% quorum is not present at the first reconvened meeting set for January 16, 2020, commencing at 6:50 P.M., then the meeting shall reconvene on January 16, 2020, at the same location, commencing at 7:10 P.M.
If the required 15% quorum is not present at the second reconvened meeting set for January 16, 2020, commencing at 7:10 P.M., then the meeting shall reconvene on January 16, 2020, at the same location, commencing at 7:30 P.M.Id. at 97--99.
[¶11] The December 5 Notice included the scheduling of consecutive meetings as contemplated in the November 22, 2019 settlement meeting with DeHem. Id. at 125, 132-133. The December 5 Notice stated that the purpose of the special meeting was to (1) ratify, approve, and retroactively nominate and elect the current acting board members as the legally constituted Board of Directors, (2) ratify all prior acts of the HOA, including ratification of vendor contracts, insurance policies, nomination of board members and grants received, and to amend the HOA's bylaws to reduce the initial quorum requirement for meetings from 60 percent of the total number of votes entitled to be cast to 20 percent; and (3) authorize enforcement and retroactively approve enforcement by the HOA of all covenants for violations of the governing documents. Id. at 97.
[¶12] On January 16, 2020, Taylor arrived at the meeting location at approximately 5:45 p.m. Because the process to check-in and verify member eligibility to vote and determine whether a quorum was present lasted beyond the set meeting times, the meetings scheduled for 6:30 p.m., 6:50 p.m., and 7:10 p.m. did not commence until 7:45 p.m. No business was conducted at the meetings originally scheduled for 6:30 p.m. and 6:50 p.m. due to the lack of a quorum of 60 percent or 30 percent being present. The meeting scheduled for 7:10 p.m. was called to order at approximately 7:45 p.m. due to delays in the check-in process and the large number of attendees. Approximately 362 members were in attendance in person or by proxy. The 362 members surpassed the quorum of 15 percent for the meeting that was scheduled at 7:10 p.m.
[¶13] At 7:45 p.m., Donham convened the meeting by stating as follows:
The initial attempt at a quorum of 60% was set for 6:30 tonight. We did not meet that. We move on to the second attempt, or subsequent meeting to try to meet quorum at 30%, we did not meet that. We then move on to the . . . uh . . . subsequent meeting, which is a 15% quorum requirement, we have met that, and so, I can . . . I'm happy to announce that we have quorum and we can have our combined meeting tonight.Appellant's App. Vol. 3 at 168. The business conducted at the meeting included voting on whether to amend the bylaws to lower the initial quorum threshold for meetings, nominate and vote on electing directors for all positions on the board, voting on whether to approve the proposed budget, and voting on whether to ratify prior HOA business. Id. at 203. The meeting scheduled for 7:30 p.m. was not needed because quorum was obtained for the scheduled 7:10 p.m. meeting. Id.
[¶14] Taylor attended the January 16, 2020 meetings, accepted a nomination to run for the board, gave a speech indicating his desire to serve on the board, and voted in the election that was held that day. Appellant's App. Vol. 4 at 109-10. He made no objection to the meeting procedure at any point on January 16, 2020. Id. at 109. During his speech for his candidacy on the board, Taylor did not voice any objection to the rolling meeting concept, the procedure used during the January 16, 2020 meetings, the ratification motion, or the lack of a quorum present. Id. Taylor was given a ballot to ratify prior acts of the HOA and to reduce the quorum from 60 percent to 20 percent. Id. at 109-10. None of the homeowners present at the January 16, 2020 meetings objected to any of the voting that occurred because of a lack of a quorum or the procedure utilized. Id. at 111. During the January 16, 2020 meetings, neither Taylor nor any other homeowner objected to the quorum requirements nor the validity of the various subjects that were voted on. Id. at 117.
[¶15] After the votes were counted, Taylor did not receive sufficient votes to be elected to the board, and Jeremy Sprouse, Dale Wayman, Joshua Flavin, Kelley Smith, and Bonnie Hostetler were voted to the board of directors at the January 16, 2020 meetings. The ratification of prior board acts passed by a vote of 160 to 149, and the amendment to lower the initial quorum from 60 percent to 20 percent passed by 199 to 84. After the January 16, 2020 meeting, the other board members sought a second legal opinion from another attorney, who advised the board that the December 5 Notice and procedures for the January 16, 2020 meetings and election complied with the HOA's Covenants and Bylaws.
[¶16] Kelley Smith, Bonnie Hostetler, and Dale Weyman did not serve on the board of directors of the HOA before January 2020. Joshua Flavin did not serve on the board of directors of the HOA before January 2019. Jeremy Sprouse did not serve on the board of directors of the HOA before 2018.
[¶17] On May 5, 2020, Taylor filed this action, and on August 13, 2020, he filed his Verified Second Amended Complaint for Declaratory and Injunctive Relief, alleging that Defendants breached the covenants by: Count I, failing to obtain a quorum at the October 9, 2019 annual meeting; Count II, failing to obtain a quorum at the January 16, 2020 annual meeting; Count III, failing to hold the required meetings to establish a quorum for the January 16, 2020 annual meeting; Count IV, failing to hold an election of the board of directors for at least eight years; Count V, failing to permit contractually required annual audits of the HOA's finances; and Count VI, charging an annual assessment of double the maximum amount allowed in the Covenants. Taylor's complaint further alleged under Count VII that Defendants breached their fiduciary duty by failing to act where they otherwise had a duty to do so and intentional disparate treatment of the members of the HOA.
[¶18] The parties filed cross-motions for summary judgment, and the trial court held a hearing and heard argument on those motions. It then granted Taylor's motion for summary judgment on Count V regarding the HOA's failure to obtain and maintain annual audits of the HOA's finances. The trial court partially granted Taylor's motion for summary judgment as to Counts I and IV as they related to the ratification of the 2019 Delinquency Policy. The trial court denied Taylor's motion for summary judgment and granted cross-motion for summary judgment in part as to Counts I and IV and in full on Counts II, III, VI, and VII. Taylor now appeals, and Defendants cross-appeal.
Discussion and Decision
[¶19] Taylor's appeal and Defendants' cross-appeal seek review of an order on cross-motions for summary judgment. "Summary judgment is appropriate when there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law." Clark Cnty. REMC v. Reis, 178 N.E.3d 315, 318 (Ind. 2021). Both sides agree there is no factual dispute, and their only disagreement is over the legal consequences of the undisputed facts. They therefore also agree this is a case that should be resolved through summary judgment.
[¶20] A trial court's grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous. Henderson v. Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 315 (Ind.Ct.App. 2014), trans. denied. Our review of a summary judgment is de novo, so we decide the legal issues without deference to the trial court's order. Anonymous Dr. A v. Foreman, 127 N.E.3d 1273, 1276 (Ind.Ct.App. 2019). We will affirm upon any theory or basis supported by the designated materials. Henderson, 17 N.E.3d at 315.
I. Taylor's Appeal
A. Standing
[¶21] Taylor explains in his appellant's brief that he is "seek[ing]to remedy illegal conduct that has plagued his community since 2011." Appellant's Br. at 19-20. As the trial court and Defendants correctly note, most of that time was before Taylor moved into the community in August 2017, and he does not claim any injury from most of that conduct. For example, Taylor challenges the validity or lack of board elections before he moved into the community without connecting those elections to any harm he claims to have suffered.
[¶22] As another example, he seeks to invalidate every payment the HOA has made and every contract into which it has entered wherever the authority for the payment or contract derives from the October 19, 2019 meeting. Appellant's App. Vol. 2 at 96 ("Therefore, after October 9, 2019, any actions taken by individuals on behalf of the Board of Directors of Deer Path were taken without authority of Deer Path Homeowners Association, Inc., including payments, contracts, the 2019 Delinquency Policy, and any other incumbrances."). He seeks "an order compelling Deer Path to rescind, undo, or otherwise unwind all invalid actions taken pursuant to the October 9, 2019 invalid election." Id. at 97. Yet, he does not claim he has been injured or has an interest in all of those contracts, payments, and other actions.
[¶23] Our court is not a general oversight commission for HOAs, so we cannot provide the sort of broad advisory opinion Taylor seeks. See Saylor v. State, 81 N.E.3d 228, 232 (Ind.Ct.App. 2017) (explaining that under the Declaratory Judgments Act courts cannot issue "advisory opinions," and "[a]n opinion is 'advisory' when it would not change or affect legal relations between the parties"), trans. denied. Instead, declaratory judgments and other relief must be limited to claims where the plaintiff has "a substantial present interest in the relief sought." Hibler v. Conseco, Inc., 744 N.E.2d 1012, 1023 (Ind.Ct.App. 2001). As the trial court noted, for legal questions where Taylor does not have a substantial present interest in the relief he seeks, he lacks standing to litigate the claims. See Smith v. Brendonwood Common, Inc., 949 N.E.2d 422, 424 (Ind.Ct.App. 2011) ("To have standing to bring a claim, a person must demonstrate a personal stake in the outcome of the lawsuit and must show, at a minimum, it was in immediate danger of sustaining some direct injury as a result of the conduct at issue." (quotations omitted)).
[¶24] But that is not to say Taylor lacks standing to pursue any of his claims; to the contrary, he has standing to pursue several. The legal disputes Taylor identifies that relate to an injury or other personal stake he claims are: (1) the legality of the annual assessments he pays; (2) whether he is entitled to participate in a new board election; (3) whether Defendants are liable for breaching fiduciary duties; (4) the legality of the 2019 Delinquency Policy to which he is subject; (5) and whether he has a right to access independent audits of the HOA's records. For some of these, the trial court correctly concluded Taylor's claims failed, and for others the trial court correctly concluded Taylor was entitled to relief. We analyze each in turn below.
B. Taylor's Remaining Unsuccessful Claims
1. Annual Assessments
[¶25] Taylor argues the trial court erred in denying his motion for summary judgment and granting Defendants' motion for summary judgment as to Count VI, which alleged an increase to the annual assessments violated the governing documents. In particular, Article V, Section 5.3 of the Covenants established an original $150.00 annual assessment for each lot and provided "the maximum Regular Yearly Assessment may be increased each calendar year not more than . . . [20%] above the maximum Regular Yearly Assessment for the previous year without a vote of the membership." Appellant's App. Vol. 3 at 89. The yearly assessments could be increased by more than 20% by a vote of two-thirds of the homeowners eligible to vote. Id. at 89-90. Subsection (d) also states that "[t]he Board of Directors from time to time may fix the Regular Yearly Assessment, without any vote of the membership, at any amount not in excess of the maximum." Id. at 90.
[¶26] When Taylor purchased the home in 2017, his assessment was $300.00, and it has never been raised since. He does not designate any evidence that the HOA ever increased the fee by more than 20 percent. To the contrary, the fee was $300.00 at least as far back as 2011 when the community was turned over to the HOA, and it is undisputed no increases have occurred since then.
[¶27] Rather than designating evidence that the HOA ever increased the assessment by more than 20 percent in any one year, Taylor points to a lack of recordkeeping recording the occasions when the assessment was raised and by how much. Because the HOA does not have those records, Taylor assumes any increase must have been illegal, and he seeks summary judgment on that basis. But Taylor overlooks that as the plaintiff suing for breach of contract, it is his burden to prove the HOA increased the assessment illegally, and he does not designate any evidence it did. See Kishpaugh v. Odegard, 17 N.E.3d 363, 374-75 (Ind.Ct.App. 2014) ("In a breach of contract claim, the plaintiff bears the burden of proving (1) that a contract existed; (2) that the defendant breached said contract; and (3) that the plaintiff sustained damages as a result of the breach.").
[¶28] To be sure, Taylor can avoid Defendants' cross-motion for summary judgment on this claim if there are reasonable inferences from the evidence which can be drawn in his favor. But there are not. What Taylor relies on is pure speculation that the fee might have been increased illegally at some point, and speculation is not enough to avoid summary judgment. See Biedron v. Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind.Ct.App. 2018) ("Mere speculation is insufficient to create a genuine issue of material fact to defeat summary judgment."), trans. denied.
[¶29] Moreover, any inferences must be reasonable. See Staat v. Ind. Dep't of Transp., 177 N.E.3d 427, 432 (Ind. 2021) ("While our summary-judgment standard requires us to make inferences in favor of the nonmoving party, those inferences must be reasonable, not mere conjecture or speculation." (quotations omitted)). There is no evidence from which a reasonable inference can be drawn that there was an improper increase in the assessment. Again, it is undisputed the fee was never increased at least since 2011, and the trial court also outlined how the fee could have easily increased from the original $150.00 to $300.00 without ever increasing more than 20 percent in any given year. Appellant's App. Vol. 2 at 22.
[¶30] Taylor also relies heavily on what he claims is Defendants' admission that the HOA never approved an increase in the assessment. Appellant's Br. at 23. But that is not what Defendants said. The discovery response stated the assessment has not been increased since 2011, not that it was never properly increased before then. Appellant's App. Vol 4 at 153 ("To the best of Defendant's knowledge, the regular annual assessment fee has been $300[.00] since the community was turned over to the Deer Path HOA in 2011 . . . . The current Board does not have knowledge of what specific actions were taken by the developer prior to 2011 with regard to the assessment fee.").
[¶31] In sum, Taylor failed to designate any evidence from which a reasonable inference could be drawn that the assessment amount increased in violation of the Bylaws, and there are no genuine issues of material fact as to the validity of the $300.00 assessment. The trial court therefore properly granted summary judgment to Defendants and against Taylor on this claim.
2. Legality of January 16, 2020 Meeting
[¶32] At the January 16, 2020 meeting, Taylor was nominated to serve on the board of directors. After accepting the nomination and giving a speech in support of his candidacy, he lost the election. Counts II and III of his complaint allege that meeting was not properly convened because the rolling meeting format outlined in the December 5 Notice-where a meeting lacking a 60 percent quorum would be immediately followed by another meeting halving the quorum requirement with sequential meetings further reducing the requirement by half until the point when the requirement could be met-was improper under the Bylaws, and, even if it was proper, the precursor meetings were not convened to establish an insufficient quorum.
[¶33] By participating in the meeting without objecting, Taylor waived his objection to the rolling meeting format. Under Indiana Code section 23-17-10-6(b), "[a] member's attendance at a meeting . . . waives objection to lack of notice or defective notice of the meeting, unless the member at the beginning of the meeting objects to holding the meeting or transacting business at the meeting." Taylor received the December 5 Notice and did not object to the format of the rolling meetings, either before the meeting or on January 16, 2020 when he attended the meeting. Appellant's App. Vol. 4 at 107, 109. Therefore, Taylor's attendance and failure to object to the alleged defective notice of the subsequent meetings waived any challenge to the rolling meeting format in the December 5 Notice.
[¶34] Taylor tries to avoid waiver by arguing his objection is not to a lack of notice but rather to an insufficient quorum. That argument fails because it is undisputed that first there was no 60 percent quorum, then there was no 30 percent quorum, and then there was a 15 percent quorum. It is also undisputed that the Bylaws permitted a meeting with a 15 percent quorum as long as there was previously an attempt at 60 percent and 30 percent quorums. Taylor's complaint is that there needed to be separate notice with a sufficient notice period between meetings, which is to say Taylor objects to what he believes was insufficient notice, not that a 15 percent quorum was not reached.
[¶35] Taylor also argues the HOA breached the Bylaws because it did not follow the proper procedure when only a single meeting was convened at 7:45 p.m. without first calling the precursor meetings scheduled for 6:30 p.m. and 6:50 p.m., and 7:10 p.m. Again, it is undisputed there was an insufficient quorum to meet at 6:30 p.m. and 6:50 p.m. and that at 7:10 p.m., the process of determining attendance was still ongoing. If Taylor is arguing that Robert's Rules of Order or some other sort of governing procedure needed to be followed more strictly when calling and adjourning the precursor meetings, he does not cite to any such requirement in the governing documents. He also does not explain how the failure to convene these meetings when it is undisputed there was no quorum constitutes a material breach of the parties' contract. See King v. Conley, 87 N.E.3d 1146, 1153 (Ind.Ct.App. 2017) (recognizing that plaintiff's burden includes showing that a contract breach is material), trans. denied.
[¶36] The trial court therefore properly granted summary judgment to Defendants on this claim.
3. Breach of Fiduciary Duties
[¶37] Count VII alleges nineteen breaches of fiduciary duty. Again, the parties agree there are no disputed issues of fact, and the trial court granted summary judgment to Defendants on this claim because Taylor did not designate any evidence that any of Defendants' conduct constituted willful misconduct or recklessness. We find no error here.
[¶38] A claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary relationship; (2) breach of the duty owed by the fiduciary to the beneficiary; and (3) harm to the beneficiary. Farmers Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 79 (Ind.Ct.App. 2010), trans. denied. The HOA is a not-for-profit corporation formed pursuant to Indiana Code article 23-17 et seq. Pursuant to Indiana Code section 23-17-13-1(a),
A director shall, based on facts then known to the director, discharge duties as a director, including the director's duties as a member of a committee, as follows:
(1) In good faith.
(2) With the care an ordinarily prudent person in a like position would exercise under similar circumstances.
(3) In a manner the director reasonably believes to be in the best interests of the corporation.
Additionally, under subsection (d), "[a] director is not liable for an action taken as a director, or failure to take an action, unless the: (1) director has breached or failed to perform the duties of the director's office in compliance with this section; and (2) breach or failure to perform constitutes willful misconduct or recklessness." Ind. Code § 23-17-13-1(d).
[¶39] Taylor points to no evidence of wrongdoing on behalf of the individual board members. There is also no evidence designated of any willful misconduct or recklessness on behalf of any of the board members. While Count VII makes allegations dating back to 2011, none of the individual defendants even served on the board before January 2018. Defendants Kelley Smith, Bonnie Hostetler, and Dale Wayman were not members of the board of directors prior to January 2020. Joshua Flavin did not serve on the board of directors until 2019, and Jeremy Sprouse did not serve on the board of directors before January 2018.
[¶40] The trial court also correctly concluded the individual defendants are protected from personal liability because of the business judgment rule. The business judgment rule generally describes judicial reluctance to interfere in corporate decision making. TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985, 990 (Ind. 2014). "[I]n order to promote and protect the full and free exercise of the power of management, the business judgment rule bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes." Id. (quotations omitted). A court will not substitute its judgment for that of the board if the board's decision can be attributed to any rational business purpose because "in order for the corporation to be managed properly and efficiently, directors must be given wide latitude in their handling of corporate affairs." Id.
[¶41] Because the rule presumes that directors exercised sound business judgment, the party challenging the directors' decision has the burden of establishing the facts necessary to rebut this presumption. Id. at 991. Taylor has provided no evidence to rebut the presumption that the current board, as well as prior boards, used sound judgment or that any of their actions were taken without a rational business purpose.
[¶42] Therefore, based on the protections of board members of not-for-profit organizations found in Indiana Code section 23-17-13-1 and the business judgment rule, the individual Defendants bear no liability, and the trial court did not err when it granted summary judgment in favor of them on Count VII. Further, to prove the breach of fiduciary duty, Taylor was required to prove that he was harmed by the alleged breach. However, he has not designated any evidence to establish that he suffered any actual harm by the alleged breach of fiduciary duty.
[¶43] We, therefore, conclude that the trial court did not err when it denied Taylor's motion for summary judgment as to Counts I, II, III, IV, and VI and when it granted Defendants' cross-motion for summary judgment on Counts I, II, III, IV, VI, and VII.
II. Defendants' Cross-Appeal
Taylor prevailed on some of his claims. The trial court agreed with him that the homeowners did not properly ratify the 2019 Delinquency Policy (Counts I and IV) or the failure to conduct annual audits (Count V). Defendants cross-appeal these aspects of the trial court's order, but finding no error, we affirm.
A. 2019 Delinquency Policy
[¶44] The 2019 Delinquency Policy changed the due date for annual assessments, eliminated the timeframes for sending out delinquency notices, changed the penalties for nonpayment, and eliminated the requirement of sending a demand letter before taking legal action against the homeowner. Appellant's App. Vol. 3 at 129. Defendants contend the homeowners ratified this policy at the January 16, 2020 meeting when they voted to ratify "all prior acts of the Association." Appellant's App. Vol. 4 at 97. But the trial court correctly agreed with Taylor that the homeowners' vote did not ratify the 2019 Delinquency Policy.
[¶45] Ratification is the adoption of acts done for and in the name of another without authority; in other words, it is a cure for lack of authorization. Guideone Ins. Co. v. U.S. Water Systs. Inc., 950 N.E.2d 1236, 1242 (Ind.Ct.App. 2011). When ratification takes place, the act stands as an authorized one and makes the whole act, transaction, or contract good from the beginning. Id. An agency relationship is not a prerequisite for ratification. Id. Critical here, knowledge of all the material facts by the person to be charged with the unauthorized acts of another is an indispensable element of ratification. Id.
[¶46] Before the homeowners voted on ratification, a member of the management company represented there were no changes to the delinquency policy. Appellant's App. Vol. 3 at 194. But now, it is undisputed that is not correct; the 2019 Delinquency Policy made the changes described above. So, because the homeowners were unaware of these changes before the ratification vote, they did not have the "[k]nowledge of all the material facts" necessary for ratification to be accomplished. See Guideone Ins., 950 N.E.2d at 1242.
[¶47] Accordingly, the trial court correctly concluded the homeowners did not ratify the 2019 Delinquency Policy, and it properly granted partial summary judgment in favor of Taylor in Counts I and IV as those counts pertain to the ratification of the 2019 Delinquency Policy.
B. Audits
[¶48] Lastly, Taylor prevailed on his breach of contract claim based on the failure to conduct annual audits (Count V). We conclude the trial court properly granted summary judgment to Taylor on this claim.
[¶49] Article VIII, Section 1 of the Bylaws, states that the HOA "shall keep detailed books of account" which "shall be audited annually by qualified auditors." Appellant's App. Vol. 3 at 127. It is undisputed that the HOA failed to do so. Nonetheless, Defendants argue summary judgment for Taylor was improper because the homeowners also ratified the failure to have the records audited when the homeowners agreed at the January 16, 2020 meeting to ratify "all prior acts" of the HOA, Appellant's App. Vol. 4 at 97, which Defendants interpret as a ratification of "any acts or inaction prior to the 2020 election." Appellees' Br. at 32.
[¶50] As with the 2019 Delinquency Policy, the failure to conduct annual audits was not properly ratified. Again, ratification occurs only when the ratifying party has knowledge of all material facts related to the unauthorized acts. Guideone Ins. Co., 950 N.E.2d at 1242. The lack of annual audits was not specifically identified in the list of ratified acts, and simply referring to "all prior acts" over preceding decades is not specific enough to establish the homeowners were aware of all material facts surrounding the lack of annual audits. It was therefore proper to award summary judgment to Taylor on this claim.
[¶51] Affirmed.
Robb, J., and Riley, J., concur.