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Ross v. West Wind Condominium Association, Inc.

Alabama Court of Civil Appeals

December 14, 2012

Howard Ross
v.
West Wind Condominium Association, Inc., and Joseph London III

Page 30

Appeal from Madison Circuit Court. (CV-08-596). James P. Smith, Trial Judge.

For Appellant: Michael F. Robertson, Huntsville.

For West Wind Condominium Association, Inc, Appellee: Curtis L. Whitmore, Huntsville.

BRYAN, Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

OPINION

Page 31

On Application for Rehearing

BRYAN, Judge.

This court's opinion of May 4, 2012, is withdrawn, and the following is substituted therefor.

Howard Ross appeals from summary judgments in favor of West Wind Condominium Association, Inc. (" West Wind" ), and Joseph London III. We affirm.

On December 3, 2007, West Wind recorded instruments in the office of the Probate Judge of Madison County that gave notice that it claimed liens on four condominium units owned by Ross (collectively referred to as " the four condominium units" ) based on his alleged failure to pay West Wind dues he owed on the four condominium units. The four condominium units were Unit A in building 3816 (" Unit A" ), Unit J in building 3816 (" Unit J" ), Unit C in building 3818 (" Unit C" ), and Unit D in building 3818 (" Unit D" ).

On January 18, January 25, February 1, and February 8, 2008, West Wind published notices in the Madison County Record, a local newspaper, stating that it would sell the four condominium units at foreclosure sales on February 15, 2008. On February 15, 2008, West Wind conducted foreclosure sales of the four condominium units and made the highest bid on each of the four condominium units. That same day, the auctioneer who conducted the foreclosure sales on behalf of West Wind executed foreclosure deeds conveying the four condominium units to West Wind. On March 3, 2008, West Wind executed deeds conveying Unit A and Unit C to Jimmy D. Spruill and Cynthia I. Spruill, a deed conveying Unit J to London, and a deed conveying Unit D to Delvin Sullivan.

On April 18, 2008, Ross sued West Wind, London, the Spruills, and Sullivan. Ross alleged that, in April 2005, West Wind had agreed to give him a credit against the dues on the four condominium units in exchange for (1) his performing or paying for maintenance and repair work at the condominium and (2) his allowing a

Page 32

maintenance man employed by West Wind to live in one of the four condominium units without paying rent. He further alleged that, in September 2006, West Wind had told him that it did not need him to perform or pay for any more maintenance or repair work and that he had paid the dues on the four condominium units from December 2006 through May 2007. He also alleged that, in May 2007, West Wind had returned his payments for April and May 2007; that West Wind had refused to accept those payments; that West Wind had foreclosed on the four condominium units without giving him any actual notice that it intended to do so; and that he had not learned of the foreclosures until after they had occurred.

Based on those factual allegations, Ross stated two claims. The first claim sought an order setting aside the foreclosure sales on the ground that West Wind had failed to give Ross proper notice that it intended to foreclose on the four condominium units and on the ground that West Wind had failed to give Ross the appropriate credit he was due against the dues on the four condominium units pursuant to his agreement with West Wind. The second claim sought redemption of the four condominium units. Shortly after filing his original complaint, Ross filed a first amended complaint that added the addresses of the four condominium units but was in all material respects identical to his original complaint.

On December 31, 2008, London moved for a partial summary judgment with respect to Ross's claim seeking redemption. As the grounds of his motion, London asserted that Ross was not entitled to redeem Unit J from London pursuant to § 6-5-255, Ala. Code 1975,[1] because, London said, Ross had not paid or tendered payment of any money to London and that Ross was not entitled to redeem Unit J from London pursuant to § 6-5-256, Ala. Code 1975,[2] because, London said, Ross had neither demanded a written statement of lawful charges to redeem Unit J nor paid any money into court. London supported his summary-judgment motion with his affidavit. In pertinent part, it stated:

" I purchased the real estate which is made the basis of the plaintiff's complaint at a sale for unpaid condominium association dues. ... I never received a demand for lawful charges, nomination or appointment of a referee, from the plaintiff, Howard Ross and/or his agents prior to being served with the complaint in the above-styled action. I have not been contacted at any point prior to, or during this litigation, by Howard Ross and/or his agents concerning their desire to redeem the real estate which is the subject of Howard Ross's complaint."

On February 28, 2009, Ross filed a written response to London's partial-summary-judgment motion. Ross asserted that London was not entitled to a summary judgment with respect to Ross's claim

Page 33

seeking redemption because, Ross said, he could not determine the amount of the lawful charges to be tendered because West Wind had failed to inform him of the amount of the debt it was claiming he owed and, consequently, he had sought the equitable assistance of the trial court in determining the amount of the lawful charges. Ross also filed his affidavit in opposition to London's motion. Ross's affidavit stated:

" On or about April 2, 2005, ... I entered into an agreement with West Wind Condominiums, through its agent Charles Ragland, wherein the condominium association would accept maintenance and repairs performed by me on the condominium's premises in lieu of my having to pay condominium dues. Around September of 2006, I spoke with West Wind's new president, Ray Hanson, who told me that further maintenance by me would not be necessary and that I should begin making my regular dues payments. I began making these payments in December of 2006 and made my regular payments for December 2006, January 2007, February 2007, and March 2007. West Wind accepted all these payments. When I made my payments for April and May of 2007, West Wind's attorney, Mac Martinson, returned them to me with a letter saying West Wind would not accept the payments and requesting documentation that would dispute the charges being claimed by West Wind. I submitted an itemized list of charges for my work done through my attorney Patrick Jones, but I never received any further correspondence from West Wind. I subsequently tried to communicate with West Wind to determine the amount of dues that I would owe, taking into consideration my statement for work done. I also tried to contact several other West Wind board members to find out the dues that would be due. In February of 2008, West Wind foreclosed on the condominiums I owned, purchased the condominiums itself, and then sold the condominiums to the other defendants in the lawsuit. I learned of the foreclosures only when I ran into an attorney, Elizabeth Cvetetic."

On March 25, 2009, Ross filed a second amended complaint, which added a claim of breach of contract against West Wind only, a claim of intentional interference with business or contractual relations " against the defendants," and a claim of " unlawful detention of property" against the Spruills only. On March 30, 2009, London moved to strike Ross's second amended complaint on the ground that it was untimely.

On April 13, 2009, Ross filed a response to London's motion to strike the second amended complaint. Ross asserted that the second amended complaint was timely because, he said, it added claims that were based on events that had occurred after the filing of his original complaint and his first amended complaint. He also asserted that London was not prejudiced by the second amended complaint because, he said, the breach-of-contract claim was asserted against West Wind only, the claims of intentional interference with business or contractual relations and " unlawful detention of property" were asserted against the Spruills only, and, therefore, " none of the newly-added causes of action are pled against Defendant London ...."

On December 30, 2009, the trial court entered an order granting London's motion to strike the second amended complaint. On January 4, 2010, the trial court entered a summary judgment in favor of London as to all of Ross's claims.

On January 29, 2010, Ross filed motions asking the trial court to reconsider its

Page 34

rulings granting London's motion to strike the second amended complaint and entering a summary judgment in favor of London as to all of Ross's claims. In his motion to reconsider the ruling entering a summary judgment in favor of London as to all of Ross's claims, Ross asserted that the trial court had erred by entering that summary judgment as to all of Ross's claims because London's partial-summary-judgment motion had challenged Ross's claim seeking redemption only. The record does not contain a ruling by the trial court regarding Ross's motions to reconsider the rulings granting London's motion to strike and entering a summary judgment in favor of London as to all of Ross's claims.

On June 8, 2009, the Spruills filed a partial-summary-judgment motion seeking a summary judgment with respect to Ross's claim seeking redemption. The Spruills asserted the same grounds that London had asserted as the grounds of his partial-summary-judgment motion and supported their motion with their affidavits. Ross opposed the Spruills' partial-summary-judgment motion and filed an affidavit that was identical to the affidavit he had filed in opposition to London's partial-summary-judgment motion. On March 18, 2011, the trial court entered a summary judgment in favor of the Spruills as to all of Ross's claims.

On March 28, 2011, West Wind moved for a summary judgment. As the ground of its motion, West Wind asserted that Ross owed unpaid dues on the four condominium units; that West Wind had given Ross notice that he owed unpaid dues on the four condominium units; that it had given him notice that it would place liens on the four condominium units if he did not pay the unpaid dues; that it had placed liens on the four condominium units due to Ross's failure to pay dues on the four condominium units; that it had mailed a letter to Patrick A. Jones, an attorney representing Ross, stating that West Wind intended to foreclose on the four condominium units if Ross did not pay the unpaid dues by December 22, 2007; that it had published notice of the foreclosure sales in the Madison County Record once a week for four consecutive weeks; that it had purchased the four condominium units at the foreclosure sales; and that it had subsequently conveyed Units A and C to the Spruills, Unit J to London, and Unit D to Sullivan.

West Wind initially supported its summary-judgment motion with, among other things, copies of letters attorney Mac Martinson, who then represented West Wind, had sent Ross in May 2007 notifying him of the amounts he owed on the four condominium units; copies of the liens it had filed on the four condominium units; a letter dated December 11, 2007, from Robert F. Vargo, an attorney who then represented West Wind, to Jones enclosing copies of the liens it had filed on the four condominium units and stating that West Wind would commence foreclosure proceedings if Ross did not pay the amounts owed by December 22, 2007; copies of the publisher's affidavits executed by the Madison County Record certifying that it had published notices of the foreclosure sales on January 18, January 25, February 1, and February 8, 2008; copies of the foreclosure deeds conveying the four condominium units to West Wind; and copies of the deeds conveying Unit A and Unit C to the Spruills, Unit J to London, and Unit D to Sullivan.

On April 1, 2011, Ross filed a written response to West Wind's summary-judgment motion. His response contained a " Narrative of Facts" as well as arguments in opposition to West Wind's ...


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