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Gulf Shores Plantation Condo. Ass'n v. Resort Conf. Ctr. Bd. of Dirs.

Alabama Court of Civil Appeals

June 19, 2015

Gulf Shores Plantation Condominium Association
v.
Resort Conference Centre Board of Directors

         Editorial Note:

         This Opinion is subject to formal revision before publication in the advanced sheet of the Southern Reporter.

          Appeal from Baldwin Circuit Court. (CV-12-901575).

         THOMAS, Judge. Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

          OPINION

Page 1041

          THOMAS, Judge.

         Gulf Shores Plantation Condominium Association (" GSP" ) appeals from a summary judgment entered by the Baldwin Circuit Court (" the trial court" ) in favor of the Resort Conference Centre Board of Directors (" RCC" ). The relevant facts are as follows. GSP and RCC, along with Gulf Shores Plantation Planned Unit Development Property Owner's Association, Inc. and Plantation Palms Condominium Owners Association, Inc. (hereinafter collectively referred to as " the other properties" ), entered into a written agreement in January 2000 (" the 2000 agreement" ) providing, in relevant part, RCC and the other properties access to amenities, such as an indoor pool, at property owned or managed by GSP. The 2000 agreement included the following paragraphs regarding payment for use of the amenities:

" 4. Payment of Costs of Operation, Maintenance and Repair of Certain Common Areas and Amenities. Each Association hereby agrees to pay a portion of the expense of operating (including utilities), maintaining and repairing the amenities and common areas listed on Exhibit 'A'. The percentage of such expenses to be paid by each Association is set forth on Exhibit 'B'. The Associations shall pay their respective portions of such expenses at such intervals as may be agreed upon by the Associations. If any Association shall fail or refuse to pay its portion of such expenses when due, its members may be denied the use of the amenities and common areas administered by the other Associations, in addition to any other remedies which such Associations may have against the non-paying Association. Costs of operation, maintenance and repair covered by this Agreement, as to any amenity or common area listed on Exhibit 'A', shall

Page 1042

be the routine and periodically recurring expenses associated with the operation and maintenance of such amenity or common area. Costs of reconstruction or substantial repair on account of casualty or catastrophic events are not governed by this Agreement, but shall be borne by the individual Association which administers the amenity or common area which was damaged or destroyed. Each Association agrees to keep insured against casualty loss or damage, at its own expense, the amenities and common areas administered by it to the extent that such insurance is reasonably available.
" 5. Determination of Costs of Operation Maintenance and Repair. Each Association agrees to cause its management company to determine the costs of operating, maintaining and repairing the amenities and common areas listed on Exhibit " A" and administered by it. Such costs shall be calculated subsequent to June 30 of each year for the twelve month period ending on such date, and the amount so determined shall determine the amount to be paid by the Associations for the calendar year commencing the following January 1. Such amount shall be provided to the other Associations as soon as practicable after June 30 of each year for use by them in formulating their budgets for the following calendar year."

         The record includes a judgment entered by the trial court in February 2011 that incorporated a consent agreement between GSP and RCC terminating the 2000 agreement as between them.[1] The record indicates that RCC continued to remit monthly payments to GSP and that GSP accepted the monthly payments and continued to allow RCC access to its amenities. It is undisputed that RCC continued to use GSP's amenities until approximately mid April 2013, after negotiations for a new agreement had failed, at which time GSP discontinued RCC's access to its amenities and RCC ceased making monthly payments.

         On May 31, 2013, GSP filed an amendment to a complaint it had previously filed against the other properties in the trial court, asserting claims of breach of contract, waiver and judicial estoppel, account stated, and open account against RCC, based on allegations that RCC had an outstanding balance relating to its use of GSP's amenities.[2] RCC filed an answer on June 27, 2013, and raised various affirmative defenses. On September 22, 2014, RCC filed a motion for a summary judgment and attached exhibits in support of its motion. GSP responded to the motion for a summary judgment on October 14, 2014, asserting, among other things, that the doctrine of unjust enrichment precluded a summary judgment in favor of RCC. On October 17, 2014, RCC filed a motion to strike the portion of GSP's response alleging unjust enrichment because, according to RCC, that argument was not raised in the initial pleadings; the record does not indicate that the trial ...


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