Howard Ross v. West Wind Condominium Association (Appeal from Madison Circuit Court: CV-22-146).

Rel: February 7, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________

CL-2023-0829
_________________________

Howard Ross

v.

West Wind Condominium Association

Appeal from Madison Circuit Court
(CV-22-146)

On Application for Rehearing

MOORE, Presiding Judge.

This court's opinion issued on November 8, 2024, is withdrawn, and

the following is substituted therefor.
CL-2023-0829

Howard Ross appeals from a judgment entered by the Madison

Circuit Court ("the trial court") in favor of West Wind Condominium

Association ("West Wind"). We affirm the judgment in part and reverse

the judgment in part.

Procedural History

The history of the litigation between the parties is lengthy and

convoluted.1 The portion of that history pertinent to this appeal is as

follows. The West Wind Condominiums consists of two buildings, one

containing 10 units, including Unit J, and one containing 12 units,

including Unit D. Ross owns Unit D and Unit J. West Wind charges

$115 per month for homeowners' dues on each unit; despite repeated

demands, Ross has not paid the total dues that have accumulated since

2017.

On November 30, 2018, the building containing Unit D was

declared to be unsafe by the City of Huntsville due to an electrical

problem, and West Wind was ordered to repair the unsafe building. West

1See Ross v. West Wind Condo. Ass'n, 153 So. 3d 29 (Ala. Civ. App.

2012), rev'd, 153 So. 3d 43 (Ala. 2014), on remand, 153 So. 3d 52 (Ala.
Civ. App. 2014); and Ross v. West Wind Condo. Ass'n, 216 So. 3d 438 (Ala.
Civ. App. 2016).
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Wind raised the approximately $60,000 needed to pay for the repair work

by assessing the owners of the units in the unsafe building. For his part,

Ross, as the owner of Unit D, was assessed $4,980, which he did not pay.

The repairs were completed, and the City of Huntsville allowed the

building to be reoccupied in December 2022.

On August 2, 2021, West Wind filed a complaint against Ross in the

Madison District Court ("the district court"), asserting that Ross owed

West Wind homeowners' dues for Unit D and Unit J in addition to

condominium assessments for Unit D. Following a trial, the district court

entered a judgment in favor of West Wind and against Ross in the

amount of $7,964.32. On November 28, 2022, Ross timely appealed the

district court's judgment to the trial court.

On appeal, West Wind amended its complaint to increase its claim

for damages; Ross counterclaimed for lost rent during the period in which

the building housing Unit D was uninhabitable and for ejectment. The

trial court conducted a bench trial on September 18, 2023. On the

following day, the trial court entered a final judgment awarding West

Wind $29,267.29, plus interest. On October 14, 2023, Ross filed a

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postjudgment motion; the trial court entered an order denying that

motion on October 19, 2023. Ross timely appealed.

Standard of Review

" ' "When ore tenus evidence is presented, a
presumption of correctness exists as to the trial
court's findings on issues of fact; its judgment
based on these findings of fact will not be disturbed
unless it is clearly erroneous, without supporting
evidence, manifestly unjust, or against the great
weight of the evidence. J & M Bail Bonding Co. v.
Hayes, 748 So. 2d 198 (Ala. 1999); Gaston v. Ames,
514 So. 2d 877 (Ala. 1987). When the trial court in
a nonjury case enters a judgment without making
specific findings of fact, the appellate court 'will
assume that the trial judge made those findings
necessary to support the judgment.' Transamerica
Commercial Fin. Corp. v. AmSouth Bank, 608 So.
2d 375, 378 (Ala. 1992). Moreover, '[u]nder the ore
tenus rule, the trial court's judgment and all
implicit findings necessary to support it carry a
presumption of correctness.' Transamerica, 608
So. 2d at 378. However, when the trial court
improperly applies the law to [the] facts, no
presumption of correctness exists as to the trial
court's judgment. Allstate Ins. Co. v. Skelton, 675
So. 2d 377 (Ala. 1996); Marvin's, Inc. v. Robertson,
608 So. 2d 391 (Ala. 1992); Gaston, 514 So. 2d at
878; Smith v. Style Advertising, Inc., 470 So. 2d
1194 (Ala. 1985); League v. McDonald, 355 So. 2d
695 (Ala. 1978). 'Questions of law are not subject
to the ore tenus standard of review.' Reed v. Board
of Trustees for Alabama State Univ., 778 So. 2d
791, 793 n.2 (Ala. 2000). A trial court's conclusions
on legal issues carry no presumption of correctness

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on appeal. Ex parte Cash, 624 So. 2d 576, 577 (Ala.
1993). This court reviews the application of law to
facts de novo. Allstate, 675 So. 2d at 379 ('[W]here
the facts before the trial court are essentially
undisputed and the controversy involves questions
of law for the court to consider, the [trial] court's
judgment carries no presumption of
correctness.')." '

"[Farmers Ins. Co. v. Price-Williams Assocs., Inc.,] 873 So. 2d
[252,] 254-55 [(Ala. Civ. App. 2003)] (quoting City of Prattville
v. Post, 831 So. 2d 622, 627-28 (Ala. Civ. App. 2002))."

Kellis v. Estate of Schnatz, 983 So. 2d 408, 412 (Ala. Civ. App. 2007).

Discussion

The Assessment

Ross argues that the assessment for the repair work done to the

building containing Unit D was invalid because, he says, he did not

receive adequate notice of the meeting regarding the assessments, he did

not receive notice of the assessment against him, West Wind did not

timely file its claim to recover the assessment, and the assessment was

not apportioned among the owners of all the units in both buildings of

the West Wind Condominiums. We find the last argument to be

dispositive, so we do not address the other arguments.

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The approximately $60,000 assessed against the unit owners in the

unsafe building was used primarily to repair common elements, i.e., the

parts of the building not contained within any specific unit. Section 35-

8A-207(a), Ala. Code 1975, provides, in pertinent part, that a

condominium association's declaration "must allocate to each unit in a

condominium a fraction or percentage of undivided interests in the

common elements and in the common expenses of the association … to

each unit and state the formulas used to establish allocations of interest."

In accordance with § 35-8A-207(a), Section 6 of West Wind's Declaration

provides that "[e]ach unit owner, including the Declarant, is hereby

allocated an equal liability for common expenses and an equal share in

common surplus."

Sebastian Tarchala, the vice president of West Wind, testified that

West Wind had levied assessments against only the owners of the units

in the unsafe building because it would not have been fair to the owners

of the units in the other building to share in the repair costs for the unsafe

building. Section 35-8A-315(c)(2), Ala. Code 1975, provides that, to the

extent required by a condominium's declaration, "[a]ny common expense

or portion thereof benefiting fewer than all of the units must be assessed

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exclusively against the units benefited," and the Commissioner's

Commentary to § 35-8A-315 clarifies that "the declaration may provide

for assessment on a basis other than the allocation made in [§] 35-8A-

207[, Ala. Code 1975,] as to limited common elements, other expenses

benefiting less than all units, insurance costs, and utility costs."

(Emphasis added.) As discussed above, however, West Wind's

Declaration provides that each unit owner is allocated an equal liability

for common expenses, and it does not provide for assessments for

expenses benefiting fewer than all units.

"A condominium association may exercise its powers only within

the constraints of its condominium declaration and bylaws." Lion Square

Phase II & III Condo. Ass'n v. Hask, 700 P.2d 932, 934 (Colo. App. 1985).

Any assessments levied in violation of the declaration and bylaws are

ultra vires.2 Id. Based on its own declaration and bylaws, West Wind

could not levy assessments against only the owners of the units in the

unsafe building; thus, the assessment levied against Ross was not valid

2Black's Law Dictionary 1833 (11th ed. 2019) defines "ultra vires"

as: "Unauthorized; beyond the scope of power allowed or granted by a
corporate charter or by law."
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and enforceable. We, therefore, reverse the judgment to the extent that

it awarded West Wind damages for Ross's nonpayment of the

assessment, which West Wind calculated to be $5,840.12 with late fees

and interest.

The Homeowners' Dues

Ross argues that he should not have been found liable for unpaid

homeowners' dues because he was not properly notified of the

delinquency. Ross does not point to any part of the declaration or bylaws

requiring West Wind to notify him of unpaid homeowners' dues. "[I]t is

not the duty of the appellate court to search the record for evidence to

support an appellant's contention of error." Certain Underwriters at

Lloyd's, London v. Southern Nat. Gas Co., 142 So. 3d 436, 453 (Ala. 2013).

At any rate, before West Wind commenced the underlying action to

collect the dues, Tarchala sent Ross several notices regarding the unpaid

dues, each of which included the current balance, to which Ross

responded on March 25, 2021, plainly showing that Ross did receive

notice of the unpaid homeowners' dues. Ross complains that those

notices were not personally delivered to him or sent via registered or

certified mail in accordance with Article IX, Section 1, of West Wind's

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bylaws, but he has failed to show how that section applies to a notice of

unpaid homeowners' dues.3

Additionally, to the extent that Ross argues that he did not receive

notice of the meeting regarding collection of the homeowners' dues via

registered or certified mail in accordance with Article IX, Section 1, of the

bylaws, we note that Article III, Section 3, of the bylaws provides for

notice of meetings and states, in pertinent part, that "[t]he mailing or

delivering of a notice of meeting in the manner provided in this Section

shall be considered service of notice." Because it appears that that

portion of the bylaws, rather than Article IX, Section 1, which indicates

that it applies only "[u]nless otherwise provided" in the bylaws, dictates

the manner of notice for meetings, we cannot conclude that any failure

3Article IX, Section 1, provides, in pertinent part: "Unless otherwise

provided in these bylaws, all notices, demands, bills, statements, or other
communications under these bylaws shall be in writing and shall be
deemed to have been duly given if delivered personally/or, if sent by
registered or certified mail, return receipt requested, first class postage
prepaid." (Emphasis added.) Ross has not shown that the bylaws require
notice of unpaid homeowners' dues.
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by West Wind to provide notice of meetings pursuant to Article IX,

Section 1, amounts to reversible error. 4

Ross also argues that West Wind failed to prove the amount of the

unpaid homeowners' dues. Tarchala testified that West Wind charges

$115 per month per unit for homeowners' dues. Tarchala stated that,

according to another officer of West Wind, Ross had not paid any dues on

either Unit D or Unit J since 2017, which Ross disputed. West Wind

submitted an exhibit detailing the amount of the unpaid homeowners'

dues for each unit owned by Ross, along with accumulated late fees and

interest. Ross objected to the exhibit on the ground that it was not

produced in discovery, but West Wind's counsel argued that the exhibit

had been prepared strictly for litigation purposes to aid the court in

understanding Tarchala's testimony and that the exhibit was not within

the scope of Ross's discovery requests. The trial court overruled the

objection and admitted the exhibit.

4Ross does not present any argument on appeal that West Wind

failed to comply with the notice requirements for meetings as outlined in
Article III of the bylaws.
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On appeal, Ross does not present any legal authority to

substantiate his contention that the trial court erred in admitting the

exhibit over his objection that it had not been produced in discovery or

otherwise provided to him before trial. See Rule 28(a)(10), Ala. R. App.

P.; White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala.

2008) ("Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs

contain discussions of facts and relevant legal authorities that support

the party's position. If they do not, the arguments are waived."). Instead,

Ross argues that Tarchala's testimony and the exhibit should have been

excluded based on the best-evidence rule, see Rule 1002, Ala. R. Evid.;

however, Ross did not object on that ground and therefore waived such

objection. See Kids' Klub, Inc. v. State Dep't of Hum. Res., 874 So. 2d

1075, 1089 (Ala. Civ. App. 2003) (discussing that a failure to object on

grounds different from those stated impliedly waives all other grounds

for the objection to the evidence). Ross also complains that West Wind

did not corroborate Tarchala's testimony with contemporaneous

documents showing that Ross did not pay the monthly homeowners' dues;

however, Ross fails to cite any legal authority requiring a party to supply

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documentary, as opposed to or in addition to testimonial, evidence of its

accounting. See Rule 28(a)(10).

Ross last argues that West Wind was precluded from recovering

some of the homeowners' dues by § 35-8A-316(e), Ala. Code 1975, which

provides that "[a] lien for unpaid assessments is extinguished unless

proceedings to enforce the lien are instituted within three years after the

full amount of the assessments becomes due." Section 35-8A-316(f),

however, provides, in pertinent part, that "[t]his section does not prohibit

actions to recover sums for which subsection (a) creates a lien." Because

the present action was initiated to recover from Ross amounts allegedly

due for unpaid homeowners' dues and not to foreclose an existing lien, we

conclude that § 35-8A-316(e) does not apply.

Based on the foregoing reasoning, we hold that the trial court did

not err in awarding West Wind damages for unpaid homeowners' dues.

Lost Rents

Ross next argues that the trial court erred in failing to award him

damages for lost rents during the period that the unsafe building could

not be lawfully occupied or in failing to set off the damages awarded to

West Wind by the amount of the lost rents. Upon declaring the building

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containing Unit D to be unsafe, the City of Huntsville ordered that the

building be vacated until it was adequately repaired. As a result, Ross

could not lease Unit D, and he testified that he lost rental payments that

he otherwise would have collected during the period that the building

was uninhabitable.

Section § 35-8A-307(a), Ala. Code 1975, generally provides that a

condominium association is responsible for the "maintenance, repair, and

replacement of the common elements" and that, if the association is

responsible, the association "is liable for the prompt repair thereof." In

this case, although there was some dispute as to how the electrical system

in the unsafe building was damaged, West Wind ultimately assumed

responsibility for repairing the damage; however, West Wind did not

immediately repair the damage.

Tarchala testified that, in November 2018, when the City of

Huntsville closed the unsafe building and ordered it to be repaired, West

Wind did not have sufficient funds to make the repairs. According to

Tarchala, West Wind made several unsuccessful attempts to collect the

necessary funds from the unit owners before West Wind finally levied

assessments. The repair work commenced in 2020, and Tarchala

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testified that it took two years to replace the roof and the entire electrical

system on the outside of the building and to repair several balconies, the

exterior of the building, and the electricity and plumbing related to a

laundry facility to meet the code requirements related to each of those

repairs. Ross did not dispute that testimony, and, on appeal, he does not

explain how the delay in commencing the repair work while attempting

to raise the funds for that project violated West Wind's duty to promptly

repair the unsafe condition of the building.

It was undisputed that, during the period the unsafe building was

vacated, several unit owners sold their units to a limited-liability

company owned by Tarchala. Ross theorizes that West Wind's officers

conspired with Tarchala to delay the repair work so that he could

pressure the unit owners into selling their units at unconscionably low

prices. Ross testified that Tarchala offered to purchase Unit D for $8,000,

although Ross estimated that it was worth $80,000. Tarchala testified

that his limited-liability company paid "fair market value" for the units

it purchased. Tarchala explained that some unit owners did not want to

contribute to the costs of repairing the unsafe building and had opted to

sell their units instead. The trial court heard the conflicting evidence

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and implicitly determined that West Wind had not violated its statutory

duty to promptly repair the unsafe building or that it had done so for

nefarious reasons. Based on our standard of review, we are bound by

that determination. See Kellis, supra.

We conclude that the trial court did not err in denying Ross's

counterclaim for lost rents or in failing to set off the amount of the lost

rents against the damages awarded to West Wind.

The "Joinder" Argument

Ross next argues that the trial court erred in failing to "join" the

underlying action with other pending actions. Ross cites Rule 19, Ala. R.

Civ. P., which addresses joinder of persons needed for just adjudication.

We acknowledge that Ross asserted in motions filed on May 4, 2023, and

July 14, 2023, that he was an "indispensable party" in separate pending

actions; however, Ross did not request the joinder of additional parties in

the underlying action at any time. Ross's references to Rule 19 and

caselaw discussing the operation of that rule have no bearing on the case.

It appears that, in substance, Ross is asserting on appeal that the

underlying action should have been consolidated with the other pending

actions pursuant to Rule 42, Ala. R. Civ. P., or that the other actions

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should have been enjoined from proceeding without him; however, Ross

again fails to present any legal argument supporting those contentions.

See Rule 28(a)(10). Accordingly, the "joinder" argument does not merit

reversal of the trial court's judgment.

Ejectment

Finally, Ross argues that the trial court erred in denying his

counterclaim for ejectment, which he filed in February 2023. In that

counterclaim, Ross alleged that he was the owner of a third unit in the

West Wind Condominiums, Unit K, and that West Wind was leasing that

unit in contravention of his ownership rights. Ross sought to eject West

Wind from the premises. The trial court denied the ejectment claim,

concluding that Ross should file a claim to quiet title to Unit K.

Ross asserts that the trial court erred in concluding that a claim to

quiet title was appropriate to address the ownership of Unit K because,

he says, to quiet title to property, a claimant must be in possession

thereof and he had never been in possession of Unit K. See Ala. Code

1975, §§ 6-6-540 and 6-6-560. Although we agree with Ross that he could

not have proceeded with a claim to quiet title to Unit K when he was not

in possession thereof, this court "may affirm a judgment, or a portion of

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a judgment, that is correct for any reason." McConico v. Patterson, 204

So. 3d 409, 415 (Ala. Civ. App. 2016).

Ross's claim for ejectment is governed by Ala. Code 1975, § 6-6-280,

which provides for the recovery of lands or the possession thereof. In

State v. Steele, 560 So. 2d 192, 195 (Ala. 1990), our supreme court stated,

in pertinent part:

"This Court has stated, regarding [Ala. Code 1975,] § 6-
6-280(b):

" '[I]t remains incumbent upon the plaintiff to
prove a right to possession at the time of the
commencement of the action.... The plaintiff may
allege and prove that he either has the legal title
to, or was possessed of, the land and that the
defendant entered thereupon and unlawfully
withholds and detains it.

" 'As at common law, the plaintiff must
prevail on the strength of his own legal title or
claim to possession and not on the weakness of the
defendant's.... Although he may, the defendant is
not required to show legal title or a right to
possession in himself. Therefore, even against one
with no title or right to possession, the plaintiff
cannot prevail unless he meets his burden of
proof.'

"MacMillan Bloedell, Inc. v. Ezell, 475 So. 2d 493, 496-97 (Ala.
1985). (Citations omitted.)"

(Emphasis added.)

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In this case, Ross did not present any evidence indicating that West

Wind was unlawfully withholding and detaining Unit K at the time he

filed his ejectment counterclaim. Tarchala testified that his limited-

liability company had purchased Unit K approximately nine months

before the September 18, 2023, trial without any knowledge that Ross

claimed an ownership interest in the unit and that his limited-liability

company, not West Wind, had been leasing the unit to a resident. Ross

did not satisfy his burden of proof on his ejectment claim against West

Wind under the circumstances. Accordingly, we affirm the denial of

Ross's claim for ejectment against West Wind.

Conclusion

We reverse the trial court's award insofar as it awarded West Wind

damages for Ross's failure to pay the assessment, which we have

concluded was improperly apportioned amongst less than all the unit

owners of both buildings, and we remand the case to the trial court to

recalculate the amount of its judgment. Otherwise, the trial court's

judgment is affirmed.

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APPLICATION GRANTED; OPINION OF NOVEMBER 8, 2024,

WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART;

REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

Edwards, Hanson, Fridy, and Lewis, JJ., concur.

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