Ross v. W. Wind Condo. Ass'n, Inc. (Ex parte Ross)
Decision Date | 04 April 2014 |
Docket Number | 1120636. |
Parties | Ex parte Howard ROSS. (In re Howard Ross v. West Wind Condominium Association, Inc., and Joseph London III). |
Court | Alabama Supreme Court |
Michael F. Robertson, Huntsville.
Submitted on petitioner's brief only.
Howard Ross petitioned this Court for a writ of certiorari to review the judgment of the Court of Civil Appeals affirming summary judgments in favor of West Wind Condominium Association, Inc. (“West Wind”), and Joseph London III. See Ross v. West Wind Condo. Ass'n, 153 So.3d 29 (Ala.Civ.App.2012). We granted certiorari review, and we now reverse and remand.
Howard Ross owned four condominium units within the West Wind condominium community. On August 2, 2005, Ross and West Wind agreed that West Wind would accept maintenance and repair work from Ross in lieu of his paying the condominium association's monthly dues. West Wind informed Ross in September 2006 that further work would not be necessary and that he should start paying the dues. Ross paid his dues monthly starting in December 2006. When Ross made his payments for April and May 2007, West Wind rejected those payments and sent Ross a letter through its attorney, A. Mac Martinson, disputing Ross's charges for the maintenance and repair work that Ross had performed. Through an attorney named Patrick Jones, Ross submitted an itemized list of charges for his work done for West Wind, but Ross never received any further correspondence from West Wind.
On December 3, 2007, West Wind recorded instruments in the office of the Probate Judge of Madison County claiming liens on Ross's four condominium units. On January 18, 2008, West Wind published notice of a foreclosure sale on Ross's units in a local newspaper and continued publishing the notice for four weeks. On February 15, 2008, West Wind conducted foreclosure sales on Ross's four condominium units and was the highest bidder as to all of them. That same day, the auctioneer executed foreclosure deeds conveying the four units to West Wind. On March 3, 2008, West Wind conveyed two of the units to Jimmy Spruill and Cynthia Spruill, one unit to Joseph London III (who was president of West Wind), and one unit to Delvin Sullivan.
Ross sued West Wind, London, Sullivan, and the Spruills in the Madison Circuit Court on April 18, 2008, alleging claims of wrongful foreclosure and seeking redemption of the properties. Ross sought an order setting aside the foreclosure sales, as well as redemption of the four condominium units. Ross claimed that West Wind had foreclosed on his units without giving him proper notice and that he had not learned of the foreclosures until after they had occurred. The trial court entered a default judgment against Sullivan, but it entered summary judgments in favor of London and the Spruills on January 4, 2010, and March 8, 2011, respectively, on their motions.
On March 28, 2011, West Wind also moved for a summary judgment, arguing, among other things, that it had the right to foreclose under § 35–8–17, Ala.Code 1975, based on Ross's unpaid dues. West Wind supported its summary-judgment motion with copies of letters Martinson had sent to Ross and lien claims filed by West Wind against Ross. West Wind also included a letter dated December 11, 2007, from Robert Vargo, who was the attorney representing West Wind at the time, to Patrick Jones, notifying Jones of West Wind's intention to foreclose. The letter from Vargo to Jones stated:
On April 1, 2011, Ross filed a response opposing West Wind's summary-judgment motion, arguing that West Wind was not entitled to a summary judgment because, he said, a genuine issue of material fact existed as to whether he had received proper notice from West Wind. Ross's response also contained a narrative of facts, a number of unauthenticated documents, an affidavit by Ross, and an affidavit by Patrick Jones, which stated, in relevant part:
On April 7, 2011, West Wind moved to strike Ross's affidavit and the unauthenticated documents attached to Ross's response. On the same day, West Wind filed an affidavit from Robert Vargo, which stated, in relevant part:
Vargo's affidavit further stated that he mailed the letter to Jones, that the copy of the letter in West Wind's summary-judgment motion was a true and correct copy of that letter, and that he never received a reply from either Jones or Ross. Vargo also stated that he published notices of the sales in the local paper and that he held the foreclosure sales on February 15, 2008, and acted as the auctioneer.
On April 14, 2011, the trial court granted West Wind's motion to strike and then granted West Wind's motion for a summary judgment. Ross filed a motion to reconsider on July 22, 2011, which the trial court denied on July 25, 2011. Ross appealed to the Court of Civil Appeals.1
Before the Court of Civil Appeals, Ross argued that West Wind had not given him proper notice of the foreclosures by power of sale under § 35–8A–316(a), Ala.Code 1975; instead, he argued, notice was improperly given of the foreclosures by an action under § 35–8–17. West Wind replied that it had the authority to foreclose under § 35–8–17 but made no argument concerning § 35–8A–316. The Court of Civil Appeals held, among other things, that West Wind made a prima facie showing that Ross received notice of the foreclosures under § 35–8A–316. The court then held that Ross did not argue in his principal brief that he presented substantial evidence creating a genuine issue of material fact as to whether he had received such notice and that, therefore, he had waived that argument. Ross petitioned this Court for a writ of certiorari, which we granted.
Baldwin v. Estate of Baldwin, 875 So.2d 1138, 1140 (Ala.2003).
This Court granted certiorari to consider, as a matter of first impression, whether the power to foreclose by judicial action under § 35–8–17, Ala.Code 1975, includes the power to foreclose by sale under § 35–8A–316, Ala.Code 1975.
In 1964, the legislature passed what is currently § 35–8–17 as part of the Condominium Ownership Act. Section 35–8–17 states, in relevant part:
(Emphasis added.)
In 1991, the legislature enac...
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Ross v. W. Wind Condo. Ass'n, Inc.
...this court affirmed summary judgments the trial court had entered in favor of West Wind and Joseph London III; however, in Ex parte Ross, 153 So.3d 43 (Ala.2014), our supreme court reversed this court's judgment, and we subsequently reversed the summary judgments in favor of West Wind and L......
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Ross v. W. Wind Condo. Ass'n, Inc., 2101167.
...Association, Inc., and Joseph London III has been reversed, and the cause remanded by the Supreme Court of Alabama. See Ex parte Ross, 153 So.3d 43 (Ala.2014). On remand to this court, and in compliance with the supreme court's opinion, the summary judgments entered by the trial court in fa......