May 15, 2015
Gazebo East Apartments
from Montgomery Circuit Court. (CV-14-624).
7, 2014, Gazebo East Apartments (" the landlord" )
served on Edward Woodruff (" the tenant" ) two
documents: a 30-day notice of nonrenewal of the parties'
current lease and a 14-day notice of lease termination for
cause. The lease between the landlord and the tenant
indicated that the lease term began on August 21, 2013, and
ended on July 31, 2014. The lease also provided that "
[t]his lease contract will automatically renew month-to-month
unless either party gives at least thirty (30) days written
notice of termination or intent to move out."
tenant did not vacate the property on July 31, 2014, and, on
August 8, 2014, the landlord brought an unlawful-detainer
action in the Montgomery District Court (" the district
court" ). In the complaint, the landlord alleged that
the tenant was a willful holdover tenant despite having been
served two lease-termination notices and that the tenant had
not paid rent in August 2014. The tenant's answer stated
that the landlord had not served upon him a 30-day notice of
nonrenewal and that, under the terms of the lease, the lease
had automatically renewed on July 31, 2014, for an additional
month. The district court entered a judgment in favor of the
landlord on September 18, 2014, and the
tenant filed a timely notice of appeal to the Montgomery
Circuit Court (" the circuit court" ) on September
October 8, 2014, the landlord filed in the circuit court a
motion for a summary judgment in which it asserted that it
was entitled to a judgment as a matter of law on its
unlawful-detainer claim. To support its claim that it was
entitled to a judgment as a matter of law, the landlord
alleged that it had filed an action alleging unlawful
detainer based on the tenant's willful failure to vacate
the leased premises after being served with a 30-day notice
of nonrenewal, that the tenant did not appear at the trial in
the district court, that the lease " plainly shows the
lease expired on July 31, 2014," and that " the
appeal is frivolous on its face." Although the
summary-judgment motion indicates that the lease was attached
as an exhibit to the motion, the only copy of the lease
contained in the record is the copy that was appended to the
complaint filed in the district court; the district
court's file was provided to the circuit court.
tenant filed a response in opposition to the motion for a
summary judgment. In that response, the tenant argued that
the landlord had failed to make a prima facie showing that no
genuine issue of material fact existed. Furthermore, the
tenant argued that he should be allowed to conduct discovery
regarding the allegation that he had not complied with the
lease. The tenant also explained that he had not been able to
attend the trial in the district court because he suffered
from a terminal illness and was bedridden. The tenant
supported his response with his affidavit, the affidavit of
his wife, Bessie Woodruff, a letter from the tenant's
physician regarding his health issues, a copy of the answer
filed by the tenant in the district court, an affidavit from
the tenant's attorney, and a copy of a power of attorney
given by the tenant to his wife. The tenant also filed an
amended answer in which he again denied that he had received
a 30-day notice to terminate the lease and in which he denied
having failed to pay rent in August 2014. The amended answer
asserted as affirmative defenses unclean hands and
retaliatory acts by the landlord.
circuit court did not rule on the October 2014 motion for a
summary judgment. The tenant served discovery requests, and
the landlord sought a protective order, which the circuit
court granted. The circuit court set the matter for a trial
to be held on November 21, 2014. The record indicates,
however, that the November 21, 2014, trial was not held.
December 1, 2014, the landlord filed a renewed motion for a
summary judgment or, in the alternative, a motion for an
expedited final hearing. In that motion, the landlord
asserted again that it was due a judgment as a matter of law
because the lease had expired on July 31, 2014, and because
the tenant had failed to pay rent in August
2014. The landlord attached no exhibits to
its renewed summary-judgment motion. The circuit court
entered two orders
on December 11, 2014: the first order set the case for a
trial, and the second order granted the landlord's motion
for a summary judgment, ordered the tenant to vacate the
leased premises within seven days, and awarded the landlord
statutory damages equivalent to three months of rent, as
permitted by Ala. Code 1975, § 35-9A-441(c). On December
12, 2014, the circuit court set aside the order setting the
case for trial.
tenant filed a postjudgment motion on December 12, 2014,
which the circuit court denied on December 22, 2014. The
tenant filed his notice of appeal on December 18, 2014; it
was held in abeyance until the circuit court denied the
postjudgment motion. See Rule 4(a)(5), Ala. R. App. P. The
tenant also sought a stay of the judgment, which the circuit
review a summary judgment de novo; we apply the same standard
as was applied in the circuit court. A motion for a summary
judgment is to be granted when no genuine issue of material
fact exists and the moving party is entitled to a judgment as
a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party
moving for a summary judgment must make a prima facie showing
" that there is no genuine issue as to any material fact
and that [it] is entitled to a judgment as a matter of
law." Rule 56(c)(3); see Lee v. City of
Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). If the movant
meets this burden, " the burden then shifts to the
nonmovant to rebut the movant's prima facie showing by
'substantial evidence.'" Lee, 592 So.2d at 1038.
" [S]ubstantial evidence is evidence of such weight and
quality that fair-minded persons in the exercise of impartial
judgment can reasonably infer the existence of the fact
sought to be proved." West v. Founders Life
Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.
1989); see Ala. Code 1975, § 12-21-12(d).
initial matter, we note that the landlord failed to present
any evidence in support of either its initial motion for a
summary judgment or its renewed summary-judgment motion.
However, " 'all evidence of record, as well as that
evidence formally submitted in support of or in opposition to
a motion for summary judgment, should be considered in ruling
on the motion.'" Barter v. Burton Garland
Revocable Trust, 124 So.3d 152, 157 (Ala.Civ. 2013)
(quoting Fountain v. Phillips, 404 So.2d 614, 618
(Ala. 1981)). The lease and the July 7, 2014, notice of
nonrenewal served on the tenant were contained in the circuit
court's record, and the circuit court was free to
consider those documents when ruling on the landlord's
motion for a summary judgment.
appeal, the tenant argues that the landlord failed to
establish that the lease terminated on July 31, 2014. As
noted above, the stated termination date of the lease was
July 31, 2014. However, the lease also provided for automatic
renewal and the creation of a month-to-month tenancy if
neither party gave the other a 30-day notice of termination
of the tenancy.
reading of the lease supports the tenant's contention
that the lease does not " plainly show" that the
lease expired on July 31, 2014. We construe a lease like any
other contract, and when the terms used in the lease are
plain and unambiguous, the lease must be given effect as
written. See Horne v. TGM Assocs., L.P., 56 So.3d
615, 622 (Ala. 2010). The language used in the lease
concerning the automatic renewal of the lease is clear: upon
its termination date, the lease will " automatically
renew month-to-month unless either party gives at least
thirty (30) days written notice of termination ...."
Even considering the notice of nonrenewal that the landlord
served on the tenant on July 7, 2014, the evidence of record
not establish that the lease expired on July 31, 2014.
Instead, as the tenant has consistently argued, the notice of
nonrenewal was not served upon him 30 days before the
expiration of the lease, and the notice was therefore not
effective to prevent the automatic renewal of the lease for
an additional month, or through August 31,
we cannot conclude that the circuit court's judgment may
be upheld based on the tenant's alleged failure to pay
the August 2014 rent payment. The record contains no notice
from the landlord to the tenant regarding the August 2014
rent payment; thus, nothing in the record indicates that the
landlord properly notified the tenant of the tenant's
alleged failure to pay the August 2014 rent. See Ala. Code
1975, § 35-9A-421(b) ( requiring that a landlord serve
notice of a failure to pay rent on the tenant "
specifying the amount of rent and any late fees owed to
remedy the breach and that the rental agreement will
terminate upon a date not less than seven days after receipt
of the notice" ). Because the record does not reflect
that the tenant was properly notified of the alleged failure
to pay the August 2014 rent and the impending termination of
the lease on that basis, the landlord failed to demonstrate
that it was entitled to a summary judgment based on that
alleged breach of the lease.
review of the record convinces us that the evidence presented
by the landlord does not support the conclusion that the
lease terminated on July 31, 2014, or that the tenant failed
to pay the August 2014 rent after proper notice of its
alleged delinquency, resulting in a termination of the lease
on that basis. Accordingly, we conclude that the circuit
court erred in entering a summary judgment in favor of the
landlord on its unlawful-detainer claim.
4, 2015, the landlord filed in this court a suggestion of the
tenant's death and motion seeking a dismissal of the
appeal. However, Rule 43(a), Ala. R. App. P., states that an
appeal " shall not abate" upon the suggestion of
the death of a party. See Cox v. Dodd, 242 Ala. 37,
39, 4 So.2d 736, 737 (1941) (" It is a further general
rule that the death of a party, pending an appeal ...,
furnishes no grounds for the abatement of the suit. In such
case it is the common practice for the appellate court to
affirm or reverse the judgment nunc pro tunc." ).
Instead, this court is to dispose of the appeal as it may
direct. Rule 43(a).
this appeal involves a money judgment against the tenant, we
decline to dismiss the appeal and have instead followed
" the common practice" of considering the merits of
the appeal. Because the landlord's unlawful-detainer
the tenant's death, the judgment is reversed, and the
cause is remanded for further proceedings in accordance with
this opinion. See Ridgeway v. Waugh, 51 Ala. 423,
424 (1874); see also Brewington v. Stephens'
Adm'rs, 31 Mo. 38, 39 (1860) (concluding that an
unlawful-detainer action should have survived the death of
the defendant and continued against the heirs and the
administrator of the decedent's estate because an
unlawful-detainer action " is an action for damages ...
and also for the possession of the land" and noting that
" [i]f it is a case in which the heirs have no right or
interest in the premises, they can disclaim, and this suit
can proceed against the administrator alone" ). On
remand, substitution of the proper party, if appropriate,
should be made in compliance with Rule 25, Ala. R. Civ. P.
P.J., and Pittman, Moore, and Donaldson, JJ., concur.
We note that the landlord did not rely on
the 14-day notice of termination for cause in either its
initial or its renewed motion for a summary judgment, and,
therefore, we will not consider whether the 14-day notice of
termination for cause terminated the lease in July 2014. See
Liberty Nat'l Life Ins. Co. v. University of Alabama
Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.
2003) (explaining that the rule that permits an appellate
court to affirm a trial court's judgment on any ground,
even one not argued to the trial court, fails in application
where due-process considerations required notice at the trial
level, as in a situation involving a summary-judgment
movant's failure to assert before the trial court a
particular argument, thus not triggering the responding
party's burden to produce substantial evidence on that
issue or to argue that issue).
The parties entered into a month-to-month
periodic tenancy upon the expiration of the lease term, and
the landlord was required to give notice of termination of
that month-to-month periodic tenancy in accordance with the
terms of the lease, which, in this case, requires a 30-day
notice; a 30-day notice is generally required to terminate a
month-to-month tenancy. See Ala. Code 1975, §
35-9A-441(b) ( " The landlord or the tenant may
terminate a month-to-month tenancy by a written notice given
to the other at least 30 days before the periodic rental date
specified in the notice." ); see also Gulf Coast
Realty Co. v. Professional Real Estate Partners, Inc.,
926 So.2d 992, 1007 (Ala. 2005) (quoting Brown v.
Williams, 576 So.2d 195, 197 (Ala. 1991), citing in turn
1 Restatement (Second) of Property: Landlord and Tenant
§ 1.5(f)) (" '[T]he general rule is that, in
the absence of an agreement between the parties, a
month's notice prior to the end of the leasehold period,
when that period is a month or more, is adequate.'"
Section 35-9A-421(b) further indicates
that, after receiving notice that rent has not been paid, a
tenant may remedy his or her failure within seven days of the
notice to avoid termination of the lease.