June 19, 2015
Gulf Shores Plantation Condominium Association
Resort Conference Centre Board of Directors
Opinion is subject to formal revision before publication in
the advanced sheet of the Southern Reporter.
from Baldwin Circuit Court. (CV-12-901575).
Judge. Thompson, P.J., and Pittman, Moore, and Donaldson,
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
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."
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. 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.
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. 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 court entered an order on the motion to
strike. The trial court entered an order on November 25,
2014, granting RCC's motion for a summary judgment. GSP
filed a notice of appeal to our supreme court on January 5,
2015; our supreme court transferred
this appeal to this court pursuant § 12-2-7(6), Ala.
Code 1975, on January 15, 2015.
" '" This Court's review of a summary
judgment is de novo. Williams v. State Farm Mut. Auto.
Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the
same standard of review as the trial court applied.
Specifically, we must determine whether the movant has made a
prima facie showing that no genuine issue of material fact
exists and that the movant is entitled to a judgment as a
matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross &
Blue Shield of Alabama v. Hodurski, 899 So.2d 949,
952-53 (Ala. 2004). In making such a determination, we must
review the evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.
1986). Once the movant makes a prima facie showing that there
is no genuine issue of material fact, the burden then shifts
to the nonmovant to produce 'substantial evidence' as
to the existence of a genuine issue of material fact.
Bass v. SouthTrust Bank of Baldwin County, 538 So.2d
794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12.
'[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 Assur.
Co. of Fla., 547 So.2d 870, 871 (Ala. 1989)." '
" Prince v. Poole, 935 So.2d 431, 442 (Ala.
2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d
1035, 1038-39 (Ala. 2004))."
Brown v. W.P. Media, Inc., 17 So.3d 1167, 1169 (Ala.
argues in its brief on appeal that the parties had entered
into a quasi-contract (" the implied contract" )
and that the trial court failed to apply the terms of the
implied contract, that RCC's failure to compensate GSP
for the use of its amenities resulted in unjust enrichment,
and that the trial court improperly applied the doctrines of
res judicata and judicial estoppel.
" 'It is a general rule of law that where parties
who have entered into a contract continue their respective
performances under the terms of the contract beyond the
expiration date of the contract, the parties are deemed to
have mutually agreed to a new implied contract encompassing
the same terms. A. Corbin, Contracts, § 684; W.
Williston, Contracts, § 90. While there is no Alabama
authority directly [on] point, the Alabama cases recognizing
that a contract may be implied in fact from circumstances
demonstrating a mutual intent to so contract indicate to this
Court that Alabama would follow the majority rule set out
above. See, e.g., Sims v. Etowah County Board of
Education, 337 So.2d 1310 (Ala. 1976); Montgomery
Water Works and Sanitary Sewer Board v. Norman, 282 Ala.
41, 208 So.2d 788 (1968); Broyles v. Brown Engineering
Company, 275 Ala. 35, 151 So.2d 767 (1963).'
" [Blalock v. Perfect Subscription Co.], 458
F.Supp. [123,] 126 [(S.D. Ala. 1978)]."
Gafnea v. Pasquale Food Co., 454 So.2d 1366, 1369
previously stated, after the 2000 agreement was terminated,
GSP continued to allow RCC access to its amenities and to
provide monthly invoices to RCC. The amount invoiced was
based upon the provisions set forth in the 2000 agreement;
RCC continued to pay the invoices it received from GSP in
full through December 2012 and in part for the first three
of 2013. The record indicates that GSP sent RCC a letter on
March 19, 2013, with a proposed new agreement; RCC notified
GSP that it would not accept the proposed new agreement via a
letter dated April 9, 2013. Shortly thereafter, GSP denied
RCC further access to its amenities and RCC immediately
stopped all payments to GSP. Both parties agree that there
was no written or oral agreement in place but that they were
continuing the status quo that existed under the 2000
agreement until a new agreement could be
reached. After a review of the various
arguments set forth in GSP's brief, it appears that the
actual question before this court is whether, pursuant to the
provisions of the 2000 agreement, RCC continued to owe GSP
for its past use of GSP's amenities.
argues that the provisions of the 2000 agreement referenced
above (specifically, paragraph 5) provided that RCC would be
billed 18 months in arrears for its use of GSP's
amenities. Therefore, GSP asserts, RCC continued to be
responsible to pay the invoices it received from GSP after
RCC was denied access to its amenities. We disagree with this
characterization of the 2000 agreement. GSP filed a complaint
in 2009 seeking termination of the 2000 agreement (" the
2009 action" );  in that complaint, GSP did not allege
that RCC owed an arrearage or seek payment from RCC for an
outstanding balance. Additionally, the trial court's
judgment in the 2009 action that incorporated the
parties' consent agreement in 2011 did not reference or
order RCC to bring current any outstanding payments pursuant
to the 2000 agreement. Applying the same provisions of the
2000 agreement to the present case, we cannot agree that the
language of the 2000 agreement supports GSP's claim for
an 18-month arrearage.
documentation in the record indicates that the amount GSP
billed RCC for use of its amenities increased from $1,232.66
per month in 2012 to $3,307.93 per month beginning in January
2013. The parties agree that RCC used GSP's amenities in
January, February, March, and part of April 2013, after which
time GSP denied RCC access to its amenities. Nonetheless,
documentation in the record indicates that RCC remitted only
$1,300 per month to GSP for use of GSP's amenities during
those months. John Linn, a past president and current member
of RCC testified in his deposition that RCC disagreed with
the increased monthly payment and that, after reviewing the
itemized expenses, RCC had unilaterally determined that
$1,300 was the correct amount for which it should be billed
based upon the terms of the 2000 agreement. Although we agree
that RCC's liability ended when GSP began denying RCC
access to its amenities in April 2013, there is a question of
material fact regarding what amount, if any, RCC owes GSP for
actual use of its amenities in 2013.
we conclude that a question of material fact exists as to
whether RCC potentially owes a balance to GSP for the use of
GSP's amenities in 2013, the trial court's summary
judgment, insofar as it determined that RCC did not owe GSP
any amount, is reversed. However, we affirm the trial
court's summary judgment in favor of RCC insofar as it
determined that RCC was no longer liable for payment for use
of GSP's amenities after GSP denied RCC access to the
amenities in April 2013. This case is remanded for
proceedings consistent with this opinion.
IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
P.J., and Pittman, Moore, and Donaldson, JJ., concur.
The 2000 agreement remained in effect as to
GSP and the other properties.
GSP first filed a complaint in the
trial court on December 12, 2012, against the other
properties who were parties to the 2000 agreement; GSP
amended the complaint on May 31, 2013, to add RCC as a
defendant. GSP settled its claims against the other
properties, and the other properties are not parties to this
RCC contends that the parties were
operating under a " month-to-month" agreement;
however, RCC does not assert that GSP failed to provide
proper notice that it was terminating such an
The complaint filed in the 2009 action is
included in the record on appeal.
Based on our determination that RCC
was not billed 18 months in arrears pursuant to the 2000
agreement and that a question of material fact exists
regarding payment for the months that RCC actually used
GSP's amenities in 2013, we need not address the
remaining issues that GSP raises on appeal.