Bluff Creek Townhomes Ass'n, Inc. v. Hammon
| Decision Date | 16 September 2019 |
| Docket Number | Case No. 117,753 |
| Parties | BLUFF CREEK TOWNHOMES ASSOCIATION, INC., Plaintiff/Appellee, v. Demarcus HAMMON, Defendant/Appellant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Michael Loyd, MICHAEL L. LOYD & ASSOCIATES, Bethany, Oklahoma, for Plaintiff/Appellee
Demarcus Hammon, Oklahoma City, Oklahoma, Pro se
OPINION BY JANE P. WISEMAN, VICE-CHIEF JUDGE:
¶1 Demarcus L. Hammon appeals a trial court order granting judgment in favor of Bluff Creek Townhomes Association, Inc., foreclosing Bluff Creek's lien on Hammon's townhome, ordering the sale of the townhome, and dismissing Hammon's counterclaim.1 The primary issue on appeal is whether the trial court's "dismissal" of Hammon's counterclaim was proper. We review this case without appellate briefing pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2018, ch. 15, app. 1. Our review tells us the trial court's adjudication was in error, and we reverse and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
¶2 Bluff Creek filed a petition on May 11, 2017, alleging Hammon owns the townhome located at 6552 N. Meridian Avenue, Unit 104, in Oklahoma City, which is subject to the Declaration of Covenants and Restrictions of Bluff Creek Townhomes Unit Ownership of Estates (the Declaration). Bluff Creek alleged the Declaration was recorded with the County Clerk of Oklahoma County, each homeowner in the association "is assessed monthly dues to pay for the utilities, upkeep, and maintenance of the units and common areas," and Hammon was past due in paying dues and owed $8,603.68 as of November 20, 2016, plus ongoing dues of $87.12 a month. It demanded payment, but Hammon refused to pay. Bluff Creek filed a lien on Hammon's property with the County Clerk on December 17, 2013, and refiled a notice of lien on December 5, 2016. Bluff Creek sought judgment in the amount of $8,603.68, plus the ongoing charges of $87.12 a month, attorney fees and costs, and foreclosure of its lien.
¶3 In his answer, Hammon denied he owed past dues or that a lien had been placed on the property. Under the heading "Counterclaims," Hammon said:
Defendant property that is the subject of this case has mold from water drainage into the property. The mold has caused damage to property whereby Defendant is unable to live in the property. Defendant has notified Plaintiff of damages in excess of $10,000.00 and Plaintiff has refused to fix the property.
Hammon asked the Court to dismiss Bluff Creek's case and find in his favor on his counterclaim.
¶4 In response, Bluff Creek argued that Hammon in his counterclaim failed to state a claim on which any relief could be granted and asked that the counterclaim be dismissed. It also asserted affirmative defenses of statute of limitations, waiver, contributory negligence, estoppel, release and waiver. No separate ruling on Bluff Creek's request to dismiss the counterclaim appears of record.
¶5 Bluff Creek filed a motion for summary judgment urging as undisputed the facts we summarize and quote here. On October 26, 2007, Hammon purchased Unit 104 located in Bluff Creek Townhomes, which is a unit ownership estate. The deed was recorded in the office of the County Clerk of Oklahoma County. When Hammon purchased Unit 104, he was subject to the Declaration. "Hammon had admitted in his deposition, that there were homeowners['] dues payable monthly to the homeowners['] association" and "he has not made any payments of his homeowner[s'] dues since some time in 2009." Because Hammon failed to pay homeowners' dues, Bluff Creek's president filed a lien on Hammon's property on December 5, 2016, and recorded it with the County Clerk. According to Bluff Creek's records, Hammon owes $8,603.68 through November 2016, and $87.12 per month thereafter, for a total of $10,453.20.
¶6 Bluff Creek maintained there is no substantial controversy as to any material fact and nothing in Hammon's answer is more than a general denial. It argued Hammon admitted (1) he owns Unit 104, (2) he owes homeowners' association dues, (3) he has not paid the dues, and (4) the property damage he claims was to the interior of his home and its contents. Bluff Creek alleged, "It is stated clearly in the Declarations that the homeowners['] association insures only the exterior and common elements of the property." Bluff Creek asserts that the Declaration also provides that the unit owners are responsible for insuring their units' contents and personal property and that " ‘under no circumstances shall the Association be required to purchase any insurance covering ... the interior space owned individually by any unit owner.’ "
¶7 Hammon filed an objection to Bluff Creek's motion for summary judgment and a cross-motion for summary judgment. Hammon claimed he never received a copy of Bluff Creek's motion for summary judgment, but a hearing was held on September 28, 2018. He said he was unaware he needed to file a response to the motion for summary judgment. He stated there is no dispute (1) Bluff Creek is seeking to recover the dues it claims he owes, (2) Bluff Creek owners are expected to pay dues of $87.12 a month, (3) he purchased a unit in Bluff Creek, (4) he paid his monthly dues "until 2009 when he decided to stop paying dues after management failed to fix damages done to his property by virtue of the unit flooding because of water seeping into the unit from [the] outside," (5) Bluff Creek is responsible for the unit's exterior "and insuring that maintenance is kept up for the safety and security of the property owners," and (6) water seeped into his unit from the exterior, destroying his personal property and causing mold. He asserted that "tenants have the right to withhold homeowners['] dues when property owners refuse to correct conditions which make the homeowners['] living arrangement unsafe and inhabitable [sic ]." He claims he refused to pay the dues and moved out of the unit because Bluff Creek refused to fix the defect in the building's exterior. He complained numerous times that seepage from the exterior of the building caused flooding in his home, but Bluff Creek's only response was that it was not responsible for matters involving his home's interior. He asserted Bluff Creek breached the implied warranty of habitability and that violated "Oklahoma Residential Landlord and Tenant Act 41 O.S. § 2001 102(1) et seq."
¶8 Hammon argued he was entitled to summary judgment on his counterclaim and cited the following facts quoted and summarized here as undisputed. There is no dispute that he filed a counterclaim and "that water entered [his] dwelling from the exterior of the building unit where he bought a unit from Bluff Creek Townhouses." "There is no dispute that [he] bought unit 104 formerly owned by a tenant on the grounds of property owned by [Bluff Creek] in 2007." The estimate to repair his unit exceeds $21,000. "There is no dispute that water seeping into the unit caused mold to form inside [his] dwelling place destroying furniture, chairs, clothing, tainting walls, sogging wet carpet and other fixtures, leaving stinking-murky smells." There is no dispute that Bluff Creek "was responsible for securing the outside of the dwelling where the water seeped into the interior of [his] unit." He notified Bluff Creek that the exterior wall needed repair: "[I]n 2009, after I bought the unit that I began complaining about the unit flooding when it rained and that it was brought to the attention of Nathan a man [he] knew as the president of the Homeowners Association."
¶9 Hammon attached his own affidavit, photos of damage to the townhome, and estimates for repairing the damage. He also included a report regarding fungi and mold that said "water migration has come from along the west side through the patio doors." He states in his affidavit that "for almost two years [he] made it known to [Bluff Creek] that water was seeping into his house from the exterior of the property he purchased from former tenants" and that "there is no dispute that [Bluff Creek] is solely responsible for correcting defects in property that they own and [Hammon] agrees that he's responsible for all activity which occurs inside the dwelling."
¶10 On October 26, 2018, the trial court's journal entry of judgment was filed finding Bluff Creek was entitled to enforce its lien in the amount of $10,453.20, the lien is a valid lien on Unit 104, and the property should be sold by the Oklahoma County Sheriff to satisfy the lien. The court further found Bluff Creek "is not liable for damages to [Hammon's] property and that [Hammon's] counter claim should be dismissed."
¶11 On November 1, 2018, Hammon filed a motion to vacate, which the trial court denied.
¶12 Hammon now appeals.2
STANDARD OF REVIEW
¶13 "The standard of review for an order dismissing a case for failure to state a claim upon which relief can be granted is de novo and involves consideration of whether a plaintiff's petition is legally sufficient." Fanning v. Brown , 2004 OK 7, ¶ 4, 85 P.3d 841. "An appeal on summary judgment comes to this court as a de novo review." Deutsche Bank Nat'l Trust Co. v. Richardson , 2012 OK 15, ¶ 3, 273 P.3d 50.
ANALYSIS
¶14 Title 60 O.S.2011 § 852(C) grants a homeowners' association "the power to enforce any obligation in connection with membership in the owners['] association by means of a levy or assessment which may become a lien upon the separately or commonly owned lots, parcels or areas of defaulting owners or members." A lien held by a homeowners' association "may be foreclosed in any manner provided by law for the foreclosure of mortgages or deeds of trust, with or without a power of sale." 60 O.S.2011 § 852(C).
¶15 Bluff Creek in its motion states the Declaration establishes the dues obligation and refers to the attached Declaration, but the copy of the summary judgment motion in the record on appeal has no exhibits attached. As a result, we do not know the exact terms of the...
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