Mary Jane Downing v. Halcyon Oaks Homeowners Association, Inc., et al.
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REL:
11/18/2011
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM,
2011-2012
2100663
Mary Jane Downing
v.
H a l c y o n Oaks Homeowners A s s o c i a t i o n ,
Appeal
MOORE,
from Montgomery C i r c u i t
(CV-10-900400)
Court
Judge.
Mary Jane Downing a p p e a l s
Montgomery C i r c u i t Court
for
Inc., et a l .
a summary
judgment
from a judgment e n t e r e d
("the t r i a l
filed
by t h e
court") granting a motion
by t h e Halcyon
Oaks
Homeowners
2100663
Association,
granting
Inc.
("the
a motion
J.
to
association"),
dismiss
Hughes,
and
Knox Argo,
partial
summary j u d g m e n t
filed
P.C.;
filed
by
March
petition
for
president
corporate
of
the
and
of
require
by
to
allow
further
s l a n d e r e d the
alleged
falsely
charged
against
that
access
that
accus[ing
the
Green
and
p r o p e r t y by
and
the
the
that
allow
her
that
corporate
not
paying
to
the
her
had
of " l i s
assessments
Finally,
had
the
records.
association
f i l i n g a notice
association
2
the
f i d u c i a r y duty to
the
as
that
alleged
the
the
inspect
to
Green to
[Downing] property."
and
a
and
requested
also
to
of
her
and
Green
her]
a
against
alleged
allow
breached t h e i r
t i t l e to her
pendens
alleged
to
association
her
for
court
trial
capacity
Downing
Downing
Green had
a
the
individual
association
and
Downing
complaint
the
association
failing
her
in
records.
those
motion
and
failed
the
a
Nicholas
Downing.
association.
G r e e n had
denying
filed
mandamus
in
Green;
History
Downing
Green,
records
court
access
and
of
association
2010,
a writ
association
trial
30,
Jewel
J. Knox Argo,
and
Procedural
On
by
and
Downing
maliciously
2100663
p r o s e c u t e d an a c t i o n
assessments
or, i n the a l t e r n a t i v e ,
F e b r u a r y 4,
J.
Knox
fraud
2011, Downing
complaint,
A r g o , P.C.,
claim
been p r o p e r l y
and
based
the
on
also
included
his alleged
association's
Downing
also
a
fraudulent
dues
had
asserted
a
been
request
w h e t h e r t h e dues
had
increased.
and
Green
her
for a declaratory
strike
certain
Green.
On
moved
evidence
M a r c h 9,
moved
for a partial
for
2011, the t r i a l
the
summary
judgment.
submitted
association
granting
again
a
A r g o , a n d J . K n o x A r g o , P.C.,
Downing
judgment;
claims
Downing
on t h e i s s u e
dismissal.
the
In her
c o m p l a i n t and added A r g o , Hughes,
judgment
judgment, and Hughes,
granting
t h e same
On
had
Finally,
association
request
a motion
she
that
a declaratory
and Green f i l e d
an amended c o m p l a i n t .
asserted
Hughes
increased.
The
had f a i l e d t o pay
f o r a summary j u d g m e n t .
as d e f e n d a n t s .
against
misrepresentation
for
filed
Downing
i n her o r i g i n a l
properly
Downing
11, 2010, t h e a s s o c i a t i o n
to dismiss
asserted
that
imposed by [ t h e a s s o c i a t i o n ] . "
On May
amended
"alleging
and
by
3
to
the
court
Green's
motion
She
moved f o r
judgment
also
moved
association
entered
motion
dismiss
summary
a
for a
filed
by
on
to
and
judgment
summary
Hughes,
2100663
A r g o , and
J . K n o x A r g o , P.C.;
a partial
summary j u d g m e n t and
31,
Downing
2011,
Supreme
court,
Court;
filed
that
pursuant
and
her
her
motion to s t r i k e .
notice
court
to Ala.
d e n y i n g Downing's motion
of
appeal
transferred
Code 1975,
§
the
to
On
the
for
March
Alabama
appeal
to
this
12-2-7.
Facts
Green
testified
1 98 9.
is
i n her
She
composed of
the
the
garden
at
t o $50
monthly
some p o i n t ,
for only
townhome o w n e r s g o t
an
annual
dues
the
that
the
a s s o c i a t i o n was
Halcyon
for
s e t at $25
for
association.
their
annual
and
had
formed i n
to
homeowners
is
Green,
in
the
townhome o w n e r s
paid
parking.
assessment
She
fee
testified
was
increased
owners.
she
had
been t o l d
together
and
decided
that
they wanted
of
$50
year
instead
assessment
association
Green
subdivision
According
a l l
fee
per
a d d i t i o n a l m o n t h l y dues t h e y were p a y i n g
the
Oaks
townhomes.
fee
garden-home
Green t e s t i f i e d
pay
the
homes a n d
originally
of
t h a t the
that
assessment
s u b d i v i s i o n was
that,
deposition
testified
annual
additional
president
agreed
owners' annual assessment
fee
and
had
to $50.
4
that,
i n 2002,
for parking
increased
She
the
testified
of
and
the
to
the
that
townhome
that
she
2100663
was
not
present
corporate
records
however, t h a t
paying
an
owners
were
showing
the
t o pay
there
She
later
i n or
and
that
annual
assessment
association's
bylaws
and
a
around
the
were
no
stated,
regarding
the
an
purchased
subdivision
that
f e e o f $50
of the a s s o c i a t i o n ' s
Downing
and
increase.
the
assessment
supposed
to
discussion
a l l t h e homeowners were s e n t a l e t t e r
annual
according
meeting
for that
townhome
fee
of
$50
minutes
of
a
Halcyon
Oaks
officers.
townhome
1990.
By
in
the
p u r c h a s i n g the
property,
s h e a u t o m a t i c a l l y b e c a m e a member o f t h e a s s o c i a t i o n .
Downing
paid
did
an
annual
increase
her
received
assessment
payment
a notice
to
from
fee
of
$50.
Green
$25
each
On
June
informing
her
year
8,
and
2009,
that
she
Downing
owed
association
t h e amount o f $ 2 5 p e r y e a r f r o m 2 0 0 5 t h r o u g h
plus
a $100
fine.
from
Argo,
who
behalf
owed
of
the
included
the
On
i s an
association
past-due
3,
2009, Downing r e c e i v e d
attorney
association;
a l a w s u i t w o u l d be
August
J u l y 24,
fees,
filed
the
with
that
total
interest,
J . Knox
letter
stated
amount
and
5
of
attorney
i f she d i d n o t pay
2009.
Argo,
a
the
2009
letter
P.C.,
that
on
Downing
$444.98,
fees,
not
and
which
that
t h e a m o u n t owed b y
2100663
On
August
17,
Montgomery C i r c u i t
other
the
association
along
costs;
with
that
Association,
filed
late
case
fees,
was
seeking
the
five
past-due
assessment
attorney
interest,
styled
in
Downing and
Court a complaint against
members o f t h e a s s o c i a t i o n
fees,
case
2009,
fees,
Halcyon
Oaks
I n September 2009, Downing
A r g o a n d s c h e d u l e d an a p p o i n t m e n t t o meet w i t h
the
case.
with
At
the meeting,
J . Knox Argo,
Downing,
Hughes
which
that,
be
seized
and
of
sold
On
to s a t i s f y
October
County
Downing
testified
received
no
the
According
to
to the
Downing,
association
her property
owed
the a s s o c i a t i o n
Downing's
i n her a f f i d a v i t
from
attorney
would
to the
filed
property
in
a
the
Court.
that,
to Green r e q u e s t i n g
association.
reply
discuss
agreement t o
the indebtedness
2009,
contacted
an
a settlement
amount,
assigned
him to
i s also
$1,144.98
against
2009, she s e n t a l e t t e r
of
19,
Probate
who
to sign.
s h e owed
l i s pendens
Montgomery
records
presented
refused
that
Hughes,
i f she d i d n o t pay t h a t
association.
notice
P.C.,
she
had s t a t e d
and
Homeowners
I n c . v . M a r y J a n e D o w n i n g e t a l . a n d was
no. CV-09-900966.
and
According
Green,
6
so
she
on N o v e m b e r
access
to
to c e r t a i n
Downing,
submitted
2,
a
she
second
2100663
request
not
on D e c e m b e r
respond
to
3, 2 0 0 9 .
that
According
letter
testified
in his affidavit
submitted
a
records
identified
testified
Hughes
On
request
that
January
complaint
had
that
that,
Hughes
Downing's
on
January
f o r access
several
no.
Downing
Downing t e s t i f i e d
Downing's
to
2010,
the
he
corporate
communications
answered
CV-09-900966,
He
with
but
attorney
J a n u a r y 18, 2010, s t a t i n g :
the a s s o c i a t i o n ' s
she
d i d not
i n her a f f i d a v i t
the a s s o c i a t i o n claimed
900966.
18,
2, 2 0 0 9 , r e q u e s t .
follow-up
made p a y m e n t s t o t h e a s s o c i a t i o n u n t i l
amount
attorney
request.
18, 2010,
i n case
counterclaim.
either.
i n Downing's November
he
regarding
to
t o Downing, Green d i d
she
sent
file
a
t h a t she had
she had f u l l y p a i d t h e
owed
an
i n case
e-mail
no.
to
CV-09-
Hughes
"[W]e u n d e r s t a n d t h a t y o u r
on
cashing
of the check r e p r e s e n t s
' f i n a l p a y m e n t ' i n s o f a r as t h e a n n u a l
assessments
are concerned."
Downing's
up
t o 2009
attorney
s t a t e d : " I would
you
intend
against
amount
my
on
also
another
appreciate
continuing
client,
claimed
sent
despite
by your
to
On
e-mail
you
client."
7
fact
to
advising
pursue
the
January
the
that
Hughes
22,
Hughes,
as
to
pending
she
has
2010,
which
whether
claim(s)
paid
responded by
the
stating
2100663
that
the a s s o c i a t i o n
Downing.
Downing's
might
have
attorney
an
additional
replied,
claim
against
stating:
"[I]t
i s my u n d e r s t a n d i n g t h a t a l l sums c l a i m e d b y
your
client
i n the
pending
action
have
been
s a t i s f i e d . W h e t h e r y o u r c l i e n t may o r may n o t h a v e
'new c l a i m s ' h a s no b e a r i n g on t h e c l a i m ( s ) a s s e r t e d
i n the pending matter. Thus, the c o n t i n u e d p u r s u i t
of t h i s a c t i o n i s w i t h o u t s u b s t a n t i a l j u s t i f i c a t i o n .
A c c o r d i n g l y , u n l e s s t h i s a c t i o n i s d i s m i s s e d by t h e
c l o s e o f b u s i n e s s on J a n u a r y 2 6 , 2 0 1 0 , I s h a l l h a v e
no r e c o u r s e b u t t o s e e k s a n c t i o n s u n d e r t h e A l a b a m a
Litigation Accountability Act."
That
same
permission,
dismiss."
to
the
I
Hughes
will
responded,
cash
the
the
claims
s t a t i n g : "Now
Court
check
against
Downing
i t has
resolved
[The
association]
f o r ...
m o t i o n was
granted
February
corporate
specific
produced.
Downing
records
records
has
file
a
2010,
27,
motion
Downing's
case
issues
the
had been
requests
to
this
association
a motion
no.
CV-09-
against
a
...
voluntary
motion."
produced
by Downing
t e s t i f i e d that
8
unto
that
That
certain
t o Downing; however, t h e
requested
attorney
as
to
2010.
of the a s s o c i a t i o n
that
in
your
and shows u n t o t h e C o u r t
agreed
on J a n u a r y
3,
the
therefore
d i s m i s s a l a s t o ... D o w n i n g o n l y
On
and
"With
comes t h e [ a s s o c i a t i o n ] a n d s h o w s
that
Downing.
Counsel
stating:
On J a n u a r y 2 5 , 2 0 1 0 , t h e a s s o c i a t i o n f i l e d
dismiss
900966,
day,
he
were
sent
not
Hughes
2100663
two
e-mails
addressing
t h a t Hughes had
be
a d v i s e d him
d i r e c t e d to Argo.
February
16,
issue
the
of
request,
2010,
On
2010,
2010,
stated,
state
to
the
of
the
in part:
that
e-mail,
i n her
3,
At
Downing's
2009,
to
Downing's
specificity."
listing
attorney
is
an
produced
o f N o v e m b e r 2,
of
e-mail
something
documents
not been a l l o w e d access
Argo's
Argo.
the
on
dues,
that
were
although
February
to a l l the
2009, and
else
attorney
Hughes t e s t i f i e d t h a t ,
were
on
the
letters
Downing's
the
should
regarding
records.
" I f there
records
letters
Argo
and
that,
f u r n i s h e d to e s t a b l i s h
Downing and
requested
to
forwarded
be
testified
corporate
sent
with
attorney
e-mail
December
such
Downing has
requested
an
should
requested.
of
sent
Argo
production
that f u r t h e r correspondence
attorney
and
contend
responded
some
13,
he
you
please
being
2009,
May
which
which
he
Downing's
d e f i c i e n c y i n the
Downing's
production
N o v e m b e r 2,
in
the
3,
documents
December
3,
D o w n i n g ' s a t t o r n e y s e n t H u g h e s an
e¬
2009.
On N o v e m b e r 1, 2 0 1 0 ,
mail
inquiring
whether
Downing's
property
would
Downing's
attorney
sent
the
notice
be
removed.
Hughes
9
and
of
l i s pendens
On
Argo
December
an
e-mail
against
14,
2010,
demanding
2100663
the
removal
pendens
was
testified
her
of
the
not
she
in
case
pendens had
been
Downing
pendens
her
of
that
had
loan, but,
loan
1
filed
line,
until
she
1
filed
She
said,
there
aware
her
and
the
produced
that
had
to
2011.
the
testified
on
that
February
and
the
about
Wells
Fargo
refinancing
or
something"
her
not
the
she
of l i s
testified
was
refinancing
owed
2010,
notice
Downing
the
when
3,
could
that
of l i s
she
that,
she
testified
filed
believed
association
telephoned
"lien
she
notice
they t o l d her
a
Downing
time
had
merit.
inquire
of l i s
property.
CV-09-900966
without
she
at
she
She
notice
the
that
no.
deposition
because
house.
against
were
that
9,
CV-09-900966
Hughes
case
been
her
no.
The
February
been
$1,144.98.
records
deposition
before
not
filed
association
discovered
had
l i s pendens.
until
testified
representations
corporate
of
removed
that
answer
the
notice
in
a
month
her
home
refinance
the
against
her
loan
could
have
The
p r e s e n t a c t i o n was
f i l e d two m o n t h s a f t e r D o w n i n g
h e r a n s w e r i n c a s e no. C V - 0 9 - 9 0 0 9 6 6 . B a s e d on t h i s t i m e
i t i s c l e a r t h a t t h i s t e l e p h o n e c a l l was
not
placed
a f t e r h e r a n s w e r was f i l e d i n t h a t a c t i o n .
A l t h o u g h a n o t i c e of l i s pendens i s not a " l i e n , "
for
purposes of d e t e r m i n i n g
whether the
summary j u d g m e n t
was
p r o p e r , we a s s u m e t h a t W e l l s F a r g o was r e f e r r i n g t o t h e n o t i c e
of l i s pendens.
10
2100663
saved her
she
was
a l o t o f money b e c a u s e h e r
hoping to r e f i n a n c e
Downing
testified
produce
the
corporate
and
pay
attorneys
to
suffering.
had
made
appeared
that,
at
due
her
records,
fee's
dislike
i n t e n t on
a lower
to
Downing t e s t i f i e d
of
trying
interest
the
she
and
interest
rate
association's
had
had
had
been
to
known
file
destroy
and
4.5%.
to
lawsuit
emotional
that
that
Downing at
of
a
caused
and
6%
refusal
i n a second a f f i d a v i t
Downing
to
r a t e was
any
Green
she
had
cost.
Discussion
On
erred
appeal,
in
Downing
entering
association
and
a
first
summary
argues
that
judgment
the
in
trial
favor
Green.
"'A
summary j u d g m e n t i s p r o p e r when
t h e r e i s no g e n u i n e i s s u e o f m a t e r i a l f a c t
and
the
moving p a r t y
is entitled
to
a
j u d g m e n t as a m a t t e r o f l a w . R u l e 5 6 ( c ) ( 3 ) ,
Ala.
R. C i v . P. T h e b u r d e n i s on t h e m o v i n g
p a r t y t o make a p r i m a f a c i e s h o w i n g t h a t
t h e r e i s no g e n u i n e i s s u e o f m a t e r i a l f a c t
and t h a t i t i s e n t i t l e d t o a j u d g m e n t as a
m a t t e r of law. I n d e t e r m i n i n g whether the
movant has c a r r i e d t h a t b u r d e n , t h e
court
i s t o v i e w the e v i d e n c e i n a l i g h t most
f a v o r a b l e t o the nonmoving p a r t y and
to
draw a l l r e a s o n a b l e i n f e r e n c e s i n f a v o r of
t h a t p a r t y . To d e f e a t a p r o p e r l y s u p p o r t e d
summary
judgment
motion,
the
nonmoving
p a r t y must p r e s e n t " s u b s t a n t i a l e v i d e n c e "
11
court
of
the
2100663
c r e a t i n g a genuine i s s u e of m a t e r i a l f a c t
-" e v i d e n c e o f s u c h w e i g h t and
quality
t h a t f a i r - m i n d e d persons i n the e x e r c i s e of
i m p a r t i a l judgment can r e a s o n a b l y i n f e r the
e x i s t e n c e o f t h e f a c t s o u g h t t o be p r o v e d . "
Ala.
Code
1975,
§
12-21-12;
West
v.
F o u n d e r s L i f e A s s u r a n c e Co. o f F l o r i d a , 54 7
So. 2 d 8 7 0 , 871
(Ala. 1989).'
" C a p i t a l A l l i a n c e I n s . Co. v . T h o r o u g h - C l e a n , I n c . ,
639 So. 2 d 1 3 4 9 ,
1350
( A l a . 1994). Q u e s t i o n s of law
a r e r e v i e w e d de n o v o . A l a b a m a R e p u b l i c a n P a r t y
v.
M c G i n l e y , 893 So. 2 d 3 3 7 , 342
(Ala. 2004)."
Pritchett
(Ala.
v.
ICN
Med.
Alliance,
Inc.,
938
So.
2d
933,
935
2006).
We
against
assert
first
a d d r e s s Downing's c l a i m of m a l i c i o u s
G r e e n and
that
the
summary
b e c a u s e c a s e no.
association.
judgment
was
C V - 0 9 - 9 0 0 9 6 6 was
The
a s s o c i a t i o n and
appropriate
not
prosecution
terminated
on
that
in
Green
claim
Downing's
favor.
" I n order f o r a c l a i m of m a l i c i o u s
prosecution
t o be
s u b m i t t e d to a j u r y , the t r i a l
court
must
determine
that
the
plaintiff
has
presented
s u b s t a n t i a l e v i d e n c e of the f o l l o w i n g elements:
(1)
that
the
present
defendant
instituted
a
prior
j u d i c i a l p r o c e e d i n g a g a i n s t the p r e s e n t p l a i n t i f f ;
(2) t h a t i n i n s t i t u t i n g t h e p r i o r p r o c e e d i n g
the
present defendant acted without probable cause
and
w i t h m a l i c e ; (3) t h a t t h e p r i o r p r o c e e d i n g e n d e d i n
f a v o r o f t h e p r e s e n t p l a i n t i f f ; and
(4) t h a t
the
p r e s e n t p l a i n t i f f was
d a m a g e d as a r e s u l t o f
the
prior proceeding."
12
2100663
Wal-Mart
2000).
Inc.,
that
Stores,
In
E v a n s v.
474
a
nature
So.
2d
of
v.
86,
88
of
but
terminated
(Ala.
1985),
'in favor'
dismissal
had
been
the
the
present
the
the
owed
in
CV-09-900966,
no.
r e q u e s t e d t h a t the
thereafter
was
filed
that
like
Downing had
terminated
in
that
the
association
paid
the
full
conclude that
to
that
to
Downing
dismissed
amount c l a i m e d
be
and
the
i n the
that
13
The
court
which
not
a
been
plaintiff,
evidence
Id.
indicates
claiming
attorney
she
then
t h a t the
association
case,
specifically
the
filing
of
c a s e no.
because
action
of the
that
motion.
CV-09-900966
i t is
only
lawsuit.
summary j u d g m e n t i n f a v o r
the
interests
maintained.
Downing's
the
cannot hold
of
not
dismiss
agreed
favor
had
held
"in
in
a s s o c i a t i o n was
dismissed,
a motion
i n E v a n s , we
could
amount t h e
c a s e be
the
action
undisputed
Downing p a i d
case
was
malicious-prosecution
claim
case,
court
case
filed
(Ala.
Consultants,
neither party."
of
of
174
supreme
in a
prior
that
Just
of
the
favor
166,
compromising
because
in
2d
Health
our
filed
agreement,
malicious-prosecution
noting
So.
that,
stipulation
In
789
Professional
dismissal
a settlement
concluded
Goodman,
Alabama
stipulation
of b o t h p a r t i e s ,
the
Inc.
undisputed
after
Downing
Accordingly,
we
association
and
2100663
Green
was
appropriate
on
Downing's
malicious-prosecution
claim.
The
a s s o c i a t i o n and Green a s s e r t t h a t Downing's
claims
against
duty,
a
t h e m -- s l a n d e r
request
association
declaratory
counterclaim
for
a
writ
of t i t l e ,
of
to produce corporate
judgment
--
are
breach
mandamus
records,
barred
of
remaining
fiduciary
requiring
and a request
by
the
the
fora
compulsory-
rule.
"'Rule 13(a),
[ A l a . ] R.
p e r t i n e n t p a r t , as f o l l o w s :
C i v . P.,
provides,
in
"'"(a)
Compulsory
counterclaims.
A
p l e a d i n g s h a l l s t a t e as a c o u n t e r c l a i m any
claim which at the time of s e r v i n g the
pleading
the pleader
has
against
any
opposing party, i f i t a r i s e s out of the
transaction
or occurrence
that
i s the
subject
matter
of the opposing
party's
claim
and
does
not
require
for i t s
adjudication the presence of t h i r d p a r t i e s
of
whom
the
court
cannot
acquire
jurisdiction
"
to
"'The f o l l o w i n g a r e p e r t i n e n t C o m m i t t e e Comments
that subsection:
"'"The p u r p o s e o f t h i s
provision i s to
a v o i d c i r c u i t y o f a c t i o n s , and t o r e q u i r e
a s s e r t i o n as c o u n t e r c l a i m s o f t h o s e
claims
w h i c h a r e l i k e l y t o t u r n on t h e same f a c t s
as t h e o r i g i n a l c l a i m . A c o u n t e r c l a i m i s
c o m p u l s o r y i f t h e r e i s any l o g i c a l
relation
of any s o r t between t h e o r i g i n a l c l a i m and
the c o u n t e r c l a i m
"
14
2100663
"'(Citations
omitted.)
( E m p h a s i s a d d e d . ) We h a v e
consistently applied the "logical relationship" test
s u g g e s t e d i n t h e a f o r e m e n t i o n e d C o m m i t t e e Comments
t o d e t e r m i n e what i s and what i s n o t a c o m p u l s o r y
counterclaim.
S e e E x p a r t e C a n a l I n s u r a n c e C o . , 534
So.
2 d 582 ( A l a . 1 988 ) ,
and Brooks v. Peoples
N a t i o n a l B a n k o f H u n t s v i l l e , 414 S o . 2 d 917 ( A l a .
1 9 8 2 ) ; s e e , a l s o , O'Donohue v . C i t i z e n s B a n k , 350
So. 2 d 1 0 4 9 ( A l a . C i v . A p p . 1 9 7 7 ) .
"'"'[Claims
are l o g i c a l l y related] tothe
opposing
party's
claim
where
separate
t r i a l s on e a c h o f t h e i r r e s p e c t i v e
claims
would i n v o l v e a s u b s t a n t i a l d u p l i c a t i o n of
effort
and time by t h e p a r t i e s and t h e
c o u r t s . W h e r e m u l t i p l e c l a i m s i n v o l v e many
o f t h e same f a c t u a l i s s u e s , o r t h e same
f a c t u a l and l e g a l i s s u e s , o r where t h e y a r e
offshoots
o f t h e same b a s i c
controversy
between
the
parties,
fairness
and
considerations
of
convenience
and o f
economy r e q u i r e t h a t t h e c o u n t e r c l a i m a n t be
p e r m i t t e d t o maintain h i s cause of a c t i o n .
Indeed t h e d o c t r i n e of r e s j u d i c a t a compels
the c o u n t e r c l a i m a n t
to assert h i s claim i n
t h e same s u i t f o r i t w o u l d b e b a r r e d i f
asserted separately,
subsequently.'"
" ' M i s s i s s i p p i V a l l e y T i t l e I n s . Co. v . H a r d y , 541
So. 2 d 1 0 5 7 , 1 0 5 9 - 6 0 ( A l a . 1 9 8 9 ) ( c i t a t i o n s o m i t t e d )
( q u o t i n g D e s r o c h e s v . R y d e r T r u c k R e n t a l , I n c . , 429
So. 2 d 1 0 1 0 , 1 0 1 2 ( A l a . 1 9 8 3 ) , q u o t i n g a n e a r l i e r
case).
"'While
we
have
not
defined
the
terms
" t r a n s a c t i o n " or "occurrence" i n Rule 13(a), the
M i s s o u r i Supreme C o u r t h a s d e f i n e d " t r a n s a c t i o n " i n
i t s R u l e 5 5 . 3 2 ( a ) , V.A.M.R., w h i c h i s i d e n t i c a l t o
Rule
13(a),
i n Myers v. C l a y c o
State
B a n k , 687
S.W.2d 2 5 6 , 2 6 0 - 6 1 (Mo. A p p . 1 9 8 5 ) , q u o t i n g C a n t r e l l
15
2100663
v. C i t y o f C a r u t h e r s v i l l e ,
471
(1949), as f o l l o w s :
359 Mo.
2 8 2 , 2 2 1 S.W.2d
" ' " T r a n s a c t i o n imports a p l i a b l e meaning
a n d may e n c o m p a s s a s e r i e s o f o c c u r r e n c e s ,
and
d e p e n d s i n a p p l i c a t i o n , n o t s o much
upon t h e i m m e d i a c y o f c o n n e c t i o n , as upon
l o g i c a l r e l a t i o n s h i p . Claim [of e i t h e r the
o r i g i n a l pleader or of the counterpleader]
r e f e r s not to the form of the a c t i o n , but
'to t h e u n d e r l y i n g
f a c t s combined with the
law g i v i n g a p a r t y a r i g h t t o a remedy o f
one
f o r m o r a n o t h e r b a s e d on t h e c l a i m . '
S u b j e c t m a t t e r o f t h e c l a i m does n o t equate
merely w i t h the cause of a c t i o n , nor the
object
of the action,
but rather
...
describes the composite of 'physical f a c t s ,
the
things
r e a l o r p e r s o n a l , t h e money,
l a n d s , c h a t t e l s , and t h e l i k e , i n r e l a t i o n
t o w h i c h t h e s u i t i s p r o s e c u t e d . ' ... T h u s ,
t h e t e r m t r a n s a c t i o n e x t e n d s t o i n c l u d e ...
' a l l o f t h e f a c t s and c i r c u m s t a n c e s which
constitute the foundation of a claim
...
"all
t h e f a c t s and c i r c u m s t a n c e s out o f
which the i n j u r y complained of arose."'
" ' ( C i t a t i o n s omitted.)
(Emphasis i n Myers.)
This
definition
i s
consistent
with
our
logical
relationship
t e s t and t h e purpose o f Rule 13(a)
("[t]he
rule
on c o m p u l s o r y
counterclaims
should
r e c e i v e a 'broad r e a l i s t i c i n t e r p r e t a t i o n i n l i g h t
of
the interest
of avoiding
a multiplicity
of
s u i t s , ' " M i s s i s s i p p i V a l l e y T i t l e I n s . Co. v . H a r d y ,
541 S o . 2 d a t 1 0 6 0 ) . ' "
Owens v . Owens,
(quoting JJ's
31 S o . 3 d 7 2 2 , 7 2 6 - 2 7
Heating
(Ala.
& A i rConditioning,
L u m b e r C o . , 572 S o . 2 d 1 2 4 3 , 1 2 4 4 - 4 5
16
C i v . App.
2009)
I n c . v. G o b b l e - F i t e
(Ala.
1990)).
2100663
Downing's
claims
mandamus r e l i e f
failure
to
the basis
of
corporate
records
arose
against
900966.
of the claims
asserted
no.
from
the f i l i n g
Downing's p r o p e r t y
We
asserted
by t h e a s s o c i a t i o n
her
they
13(a).
In
of
that
asserted
arise
Owens,
from
against
c a s e no. CV-09-
Downing
claims
have
assessment
i n c a s e no.
are l o g i c a l l y
i n case
t h e same t r a n s a c t i o n
involved
Downing i n case
f o r past-due
by t h e a s s o c i a t i o n
served
l i s pendens
judgment
against
against
related
no. CV-09-
f o r purposes of
supra.
response to the a s s o c i a t i o n
remaining
of
a l l of those
the claims
the
slander-of-title
the notice
Because Downing's c l a i m s
the claims
Rule
Downing's
claims
by t h e a s s o c i a t i o n
CV-09-900966.
900966,
and f o r
support
i n connection with
conclude
a logical relationship with
to
of
of the association's
CV-09-900966.
fees
in
Downing's r e q u e s t f o r a d e c l a r a t o r y
the m e r i t s
duty
c l a i m f o r past-due assessment fees, which
Downing i n case no. CV-09-900966.
claim
fiduciary
arose from t h e a s s o c i a t i o n and Green's a l l e g e d
produce
association's
as
of breach
claims
against
and Green's argument
them
are
barred
by
that
the
c o m p u l s o r y - c o u n t e r c l a i m r u l e , Downing argues t h a t , because she
was
n o t aware
of her s l a n d e r - o f - t i t l e
17
claim
at the time
she
2100663
filed
her
answer
counterclaim
of
i n case
no.
r u l e i s not a p p l i c a b l e to that
her argument,
Downing
cites
Jehle-Slauson
Construction
in
supreme
which our
P.,]
cannot
compulsory
has."
as
be
that
to
her
counterclaim
09-900966.
a
held:
claim;
We
claim
or
that
thus,
the
claim,
would
mere
be
Accordingly,
we
against
association
the
conclude
compulsory-counterclaim
to
that
file
know i t
she
was
not
claims
were
h e r answer i n c a s e no.
filing
of
the
a
of l i s pendens
association's
CV-
knowledge
notice
of l i s
Downing c o n s t r u c t i v e n o t i c e o f
sufficient.
that
and
rule.
as
not
Sho-Me a s r e q u i r i n g a c t u a l
the
not
( A l a .1985),
i t does
a notice
I n c . v.
A l a . R. C i v .
party
affidavit
she had f i l e d
construe
a
In support
Lodges,
13(a)[,
which
filed
pendens, w h i c h would have g i v e n
her
"Rule
require
the a s s o c i a t i o n had
property
claim.
C o . , 466 S o . 2 d 8 3 , 90
to
a
the compulsory-
Sho-Me M o t o r
t e s t i f i e d i n her
improper u n t i l a f t e r
of
court
construed
Downing
aware
CV-09-900066,
her
Green
466
So.
2d
at
slander-of-title
is
not
barred
90.
claim
by
the
2
We n o t e t h a t D o w n i n g m a k e s t h i s a r g u m e n t w i t h r e g a r d t o
only the s l a n d e r - o f - t i t l e claim.
T h u s , we w i l l n o t a d d r e s s
w h e t h e r she had knowledge o f h e r o t h e r c l a i m s a t t h e t i m e she
f i l e d h e r answer i n c a s e no. CV-09-900966.
"An a r g u m e n t n o t
made on a p p e a l i s a b a n d o n e d o r w a i v e d . " A v i s R e n t A C a r S y s . ,
I n c . v . H e i l m a n , 876 S o . 2 d 1 1 1 1 , 1124 n.8 ( A l a . 2 0 0 3 ) .
2
18
2100663
The
association
j u d g m e n t was
because
no
Mitchell,
recover
and
appropriate
malice
391
for
Green
on
Downing's
or
damages
2d
So.
1038 ,
slander
of
also
were
1041
title
argue
proved.
realty
(1)
h i s ownership
of
publication
by
the defendant
of a f a l s e
his
(3)
statement;
than
the
the
(6)
of
association
To
and
disparaged
the
title
Four
I n c . , 36
of
1 980 )
the
As
to
So.
3d
property.
542,
558
See,
that the annual assessment
f e e was
informal
the
t o someone
19
other
statement
by
the
property
or
his
caused
Downing
or
as t o b o t h
that
recklessly
e.g.,
deposition
Dabbs
v.
2008 ) .
testimony
i n c r e a s e d as a r e s u l t
owners,
by
argues,
( A l a . C i v . App.
townhome
(2)
concerning
Downing must p r o v e
intentionally
her
must
publishing his
i s s u e s of m a t e r i a l f a c t
Green
v.
("To
slandered;
damages p r o x i m a t e l y
show m a l i c e ,
among
in
plaintiff's
D o w n i n g p o i n t s o u t t h a t , b a s e d on G r e e n ' s
agreement
Harrison
statement
statement
claim
plaintiff
property
statement.").
are genuine
elements.
Tees,
of
special
the
a
defendant
(5) p u b l i c a t i o n
t h e r e t o ; and
those
the
of the
disparagement
publication
the
the
in
however, t h e r e
of
by
(4) p u b l i c a t i o n
plaintiff;
defendant
title
malice
See
( A l a . C i v . App.
to
summary
slander-of-title
establish:
title;
that
there
of
an
is
an
2100663
issue
of fact
and,
as t o w h e t h e r
i f t h e y were n o t , w h e t h e r
knowledge t h a t
issue
of fact
would
be
because
the fees
were
or
there
that
recklessly
the
that
home l o a n
at a lower
notice
she had been
interest
basis
Green
property
f o r the
filing
of l i s pendens.
testified
from
there
and
Downing's
Downing
prevented
I f that
of Downing,
or the notice
t o t h e damages e l e m e n t ,
and Green had
association
disparaged
lawsuit
increased
increased.
i n favor
w o u l d h a v e b e e n no p r o p e r
affidavit
the
were n o t p r o p e r l y
proof
the association's
With regard
were p r o p e r l y
the association
t o be r e s o l v e d
sufficient
intentionally
of
the fees
i n her
refinancing
rate because of the presence of
o f l i s p e n d e n s t h a t was f i l e d
against
her
property.
Accordingly,
we c o n c l u d e t h a t a g e n u i n e i s s u e o f m a t e r i a l
exists
regard
with
her
to the elements
of the
fact
slander-of-title
claim.
B a s e d on t h e f o r e g o i n g ,
erred
title
i n entering
claim
that
the t r i a l
a s u m m a r y j u d g m e n t on D o w n i n g ' s
against
Green
conclude
that
judgment
on t h e r e m a i n i n g
Green
we c o n c l u d e
the t r i a l
and
court
claims
and t h e a s s o c i a t i o n .
20
the
slander-of-
association.
correctly
asserted
entered
court
We
also
a
summary
by Downing
against
2100663
II.
Downing
granting
next
the motion
Knox A r g o ,
argues
that
to dismiss
the
filed
trial
court
erred
by Hughes, Argo,
in
and J .
P.C.
"The
appropriate
s t a n d a r d o f review under
Rule
1 2 ( b ) ( 6 ) [ , A l a . R. C i v . P.,] i s w h e t h e r , w h e n t h e
allegations
of
the complaint
are viewed
most
s t r o n g l y i n the p l e a d e r ' s favor, i t appears that the
p l e a d e r c o u l d prove any s e t o f c i r c u m s t a n c e s t h a t
would e n t i t l e h e r t o r e l i e f . R a l e y v. C i t i b a n c of
f
A l a b a m a / A n d a l u s i a , 474 S o . 2 d 6 4 0 , 641 ( A l a . 1 9 8 5 ) ;
H i l l v . F a l l e t t a , 589 So. 2 d 746 ( A l a . C i v . A p p .
1991). I n making t h i s d e t e r m i n a t i o n , t h i s C o u r t does
not c o n s i d e r whether t h e p l a i n t i f f w i l l u l t i m a t e l y
p r e v a i l , b u t o n l y w h e t h e r s h e may p o s s i b l y p r e v a i l .
F o n t e n o t v . B r a m l e t t , 470 S o . 2 d 6 6 9 , 671 ( A l a .
1 9 8 5 ) ; R i c e v . U n i t e d I n s . Co. o f A m e r i c a , 465 So.
2 d 1 1 0 0 , 1 1 0 1 ( A l a . 1 9 8 4 ) . We n o t e t h a t a R u l e
1 2 ( b ) ( 6 ) d i s m i s s a l i s p r o p e r o n l y when i t a p p e a r s
b e y o n d d o u b t t h a t t h e p l a i n t i f f c a n p r o v e no s e t o f
f a c t s i n support of the c l a i m that would e n t i t l e the
p l a i n t i f f t o r e l i e f . G a r r e t t v . H a d d e n , 495 So. 2 d
6 1 6 , 617 ( A l a . 1 9 8 6 ) ; H i l l v . K r a f t , I n c . , 4 9 6 S o .
2d 768, 769 ( A l a . 1 9 8 6 ) . "
N a n c e v . M a t t h e w s , 622 S o . 2 d 2 9 7 , 2 9 9 ( A l a . 1 9 9 3 ) .
on
a motion
to dismiss
correctness."
"A
ruling
i s reviewed without a presumption
Newman v . S a v a s ,
of
878 S o . 2 d 1 1 4 7 , 1 1 4 8 - 4 9 ( A l a .
2003).
We
i n i t i a l l y note
P.C., a r g u e d i n t h e i r
that
Hughes,
Argo,
motion t o dismiss
w e r e b a r r e d b y , among o t h e r t h i n g s ,
21
and J . Knox
t h a t Downing's
Argo,
claims
the defenses of estoppel,
2100663
res
j u d i c a t a , accord
has
failed
t o present
with supporting
appellant
an argument
and waiver.
i n her brief
an i s s u e below t h a t t h e a p p e l l e e
a judgment i n i t s f a v o r
Downing
to this
a u t h o r i t y on e a c h o f t h o s e d e f e n s e s .
confronts
warrants
and s a t i s f a c t i o n ,
and t h e t r i a l
court
"When a n
contends
court's
does n o t s p e c i f y a b a s i s
f o ri t s ruling,
the omission
argument
to
i n the
order
on
principal
issue."
20 06);
appeal
brief
Fogarty
see a l s o
as
that
constitutes
a
waiver
v. Southworth,
City
issue
with
o f any
appellant's
respect
to the
953 So. 2 d 1 2 2 5 , 1232 ( A l a .
o f Birmingham v. B u s i n e s s
Realty Inv.
C o . , 722 S o . 2 d 7 4 7 , 752 ( A l a . 1 9 9 8 ) ("When a n a p p e l l a n t
to
cite
any a u t h o r i t y f o r an argument
on a p a r t i c u l a r
fails
issue,
t h i s C o u r t may a f f i r m t h e j u d g m e n t a s t o t h a t i s s u e , f o r i t i s
neither
this
Court's
duty
nor i t s function
appellant's legal research.").
has w a i v e d h e r arguments w i t h
dismissal
Argo,
of her claims
to perform
T h u s , we c o n c l u d e t h a t
respect
against
an
Downing
t o the p r o p r i e t y ofthe
Knox,
Hughes,
and J . Knox
P.C.
III.
Downing's
denying
final
her motion
argument i s t h a t t h e t r i a l
for a
partial
22
summary
court erred i n
judgment
on h e r
2100663
request
for a
declaratory
judgment
and
e r r e d i n denying her motion to s t r i k e
by
the
claim.
association
the
extent
denial
10,
appealable,
that
trial
h o w e v e r , we
her
Inc.
motion
So.
to
Mayer
v.
2010]
the
the
merits
3d
dismiss
d e n i a l of
Elec.
strike.
her
that
See
Supply
,
court
c e r t a i n evidence offered
regarding
i t challenges
of
Constructors,
Dec.
Green
the
of
Because the d e n i a l of her motion f o r a p a r t i a l
judgment i s not
the
and
that
Co.,
that
summary
appeal
motion
Buco
[Ms.
( A l a . C i v . App.
to
and
Bldg.
2090574,
2010).
Conclusion
Based
on
the
foregoing,
on D o w n i n g ' s c l a i m o f s l a n d e r
and
we
Green,
we
remand the
affirm
cause
the
we
reverse
of t i t l e
judgment
for further
the
i n a l l other
IN
R E V E R S E D IN
PART; AND
CAUSE REMANDED WITH
and
respects,
PART; JUDGMENT A F F I R M E D
Pittman,
concur.
23
and
proceedings.
DISMISSED
P.J.,
judgment
a g a i n s t the a s s o c i a t i o n
APPEAL
Thompson,
summary
Bryan,
IN
PART
AND
INSTRUCTIONS.
and
Thomas,
JJ.,
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