Hunter Bend Homeowners Association, Inc. v. Victoria Grimes

Rel: August 22, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2025
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Hunter Bend Homeowners Association, Inc.

v.

Victoria Grimes

Appeal from Randolph Circuit Court
(CV-22-900007)

MOORE, Presiding Judge.

Hunter Bend Homeowners Association, Inc. ("the Association"),

appeals from a judgment entered by the Randolph Circuit Court ("the

circuit court") in favor of Victoria Grimes. We reverse the circuit court's

judgment and remand the case for the circuit court to hold a hearing on
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the postjudgment motion filed by the Association and to undertake such

other proceedings as are consistent with this opinion.

Background

In 2000, the Association was incorporated to govern the

maintenance, preservation, and architectural control of the 246 lots and

the common areas within the Hunter Bend Subdivision ("the

subdivision"), a 210-acre parcel of residential property in Randolph

County that is subject to the "Declaration of Covenants, Conditions, and

Restrictions for the Hunter Bend Subdivision" ("the restrictive

covenants"). The restrictive covenants provide that each owner of a lot

within the subdivision shall become a member of the Association by

recording a deed or other instrument of conveyance for the lot and

delivering a copy of the deed or other instrument to the Association.

According to the articles of incorporation of the Association, "each Lot

owner shall be entitled to one vote for each lot owned (with fractional vote

for a fractional Lot owned)" (emphasis added) and "[t]he voting rights of

the members of the Association shall be subject to the terms and

conditions of the Bylaws of the Association once prepared, executed, and

recorded." The restrictive covenants contain similar language and also

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include a clause providing that, in the event of a conflict between the

bylaws and the restrictive covenants, the restrictive covenants control.

In 2000, the Association prepared and executed bylaws ("the 2000

bylaws"), but the Association did not record those bylaws in the Randolph

Probate Court. The 2000 bylaws address the voting rights of the

members of the Association, in pertinent part, as follows:

"C. Voting Rights. The Members of the Association shall
be entitled to cast one vote for each Hunter Bend Lot owned
by them. ...

"D. Designation of Voting Representative. If a Hunter
Bend lot is owned by one person, his right to vote shall be
established by the record title to his Hunter Bend Lot. If a
Hunter Bend Lot is owned by more than one person, the
person entitled to cast the vote for the Hunter Bend Lot shall
be designated by a certificate signed by all of the record
owners of the Hunter Bend Lot and filed with the Secretary-
Treasurer of the Association. If a Hunter Bend Lot is owned
by a corporation, professional association or partnership, the
person entitled to cast the vote for the Hunter Bend Lot shall
be designated by a certificate of appointment filed with the
Secretary-Treasurer of the Association."

Both the restrictive covenants and the 2000 bylaws provide that

they can be amended by "an instrument signed by not less than seventy

percent (70%) of the Hunter Bend Lot Owners." In 2017 and 2019, the

Association purported to amend the 2000 bylaws. The 2019 amendment

purported to delete Section D of the 2000 bylaws relating to the

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designation of a voting representative. In 2021, the Association

purportedly voted to amend the restrictive covenants to reduce the

number of votes necessary to adopt an amendment of the restrictive

covenants. In early 2022, the officers of the Association sent ballots to

the members so that they could vote on a proposed amendment to the

restrictive covenants relating to the use of "trailers" on the lots in the

subdivision.

On February 8, 2022, Grimes, who had purchased three adjoining

lots in the subdivision in 2020, commenced a declaratory-judgment action

in the circuit court. In her complaint, Grimes alleged that over half of

the lots in the subdivision were owned by multiple persons, each with a

right to a fractional vote. Grimes alleged that the Association had

disregarded the voting rights of fractional owners as set forth in the

articles of incorporation of the Association and in the restrictive

covenants when it purported to adopt the 2021 amendment to the

restrictive covenants. According to the complaint, "[w]hen votes were

received from one member of a household where a lot was owned jointly

between two or more people that vote of the one member of the household

was counted as a whole vote when in fact it should have been counted as

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a fractional vote." Grimes contended that, if the votes had been properly

tabulated, the 2021 amendment to the restrictive covenants would not

have been adopted. Grimes further asserted that the Association should

not be allowed to follow the same voting procedures regarding fractional

lot owners relating to the proposed 2022 amendment of the restrictive

covenants. Grimes requested that the circuit court enter a judgment

declaring that each owner or fractional owner of a lot is entitled to a vote

proportionate to their ownership share and that the 2021 attempt to

amend the restrictive covenants was of no force and effect.

The Association filed an answer denying the material allegations of

the complaint and asserting various affirmative defenses, including lack

of standing, unclean hands, and estoppel. After multiple continuances,

the case was scheduled for trial on March 19, 2024. While the case was

pending, in 2022, the Association purported to amend the restrictive

covenants regarding the use of trailers. By March 11, 2024, the parties

had each filed witness lists and exhibit lists indicating that they intended

to call numerous witnesses and to submit numerous documents into

evidence at the trial.

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When the case was called for trial, the parties stipulated to the

admission into evidence of the Association's articles of incorporation, the

2000 bylaws (as purportedly amended), and the restrictive covenants.

Grimes's attorney, the Association's attorney, and the circuit-court judge

then engaged in a long colloquy. The circuit-court judge reviewed Section

D of the 2000 bylaws and asked if any certificates designating the voting

representatives had been filed. The Association's attorney responded

that "zero" certificates had been filed, explaining that the Association had

never created a certificate form and that the Association had determined

who could vote for a lot by establishing a master list based on the deeds

and other instruments of conveyance relating to the lots. The circuit-

court judge summarily determined that, due to noncompliance with

Section D, the votes on the 2017, 2019, 2021, and 2022 amendments were

not valid.

Based on that determination, the circuit-court judge declared that

there was no need to receive any testimony. The hearing recessed while

the Association's attorney conferred with the officers of the Association

who were present at the time. When the recess ended, the circuit-court

judge clarified that he had determined that the Association could not

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have received the number of votes necessary to adopt any amendment to

the restrictive covenants and the 2000 bylaws, because, he said, the

owners of the lots owned by two or more persons or a legal entity had not

filed the appropriate certificates to designate a person to vote. The

Association's attorney responded: "All right. We accept your ruling, and

we'll proceed accordingly."

On April 1, 2024, before the circuit court had entered a judgment,

the Association filed a "motion to submit additional evidence and legal

authority," arguing primarily that it had not been properly notified of any

claim that the amendments were invalid due to noncompliance with

Section D and that it should be allowed to present evidence to defend that

claim in a full trial. Grimes filed a response to the motion, and she also

submitted a proposed judgment for the circuit-court judge to sign. The

Association replied to the response. On October 18, 2024, the circuit

court entered a final judgment, adopting the proposed judgment filed by

Grimes, which states, in pertinent part:

"5. ... No one had been designated to be the sole person
to cast the vote for all owners of a lot in any of the four
attempts to amend the By-Laws and [restrictive covenants] at
issue in this case.

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"6. The Court finds that since the voting methods set out
by the [restrictive covenants] and By-Laws have not been
complied with in any of the four elections to amend the
[restrictive covenants] or By-Laws, all those votes cast by lots
with multiple owners have not been cast in conformity with
the requirements for a legitimate vote to be cast on issues
relating to amending the [restrictive covenants] and By-Laws.

"7. The Court finds that the two (2) attempts to amend
the By-Laws and the two (2) attempts to amend the
[restrictive covenants] allegedly passed and recorded in the
Probate Office of Randolph County as an Amendment to the
[restrictive covenants] and By-Laws are of no force and effect.
These votes are a nullity as concerns any Amendment of the
[restrictive covenants] and By-Laws.

"8. The Court finds there has been no legitimate
amendment of any of the [restrictive covenants] or By-Laws
... in the year 2017, 2019, 2021 or 2022.

"After hearing this Court's Findings of Fact, the
[Association] herein conceded that the voting requirements of
the [restrictive covenants] and By-Laws had not been
complied with specifically concerning the four elections at
issue. The [Association] announced in open court that the
Court could enter its Final Order on the issues before the
Court.

"In consideration of the Court's Findings of Fact and the
[Association's] conceding that it did not wish to continue with
the trial based on the Court's Findings of Fact and Rulings as
stated herein all the parties agreed that the Court could enter
a Final Judgment in accordance with the Court's Findings of
Fact. The Court then instructed [Grimes] to file for the Court
Record: (a) a copy of the [restrictive covenants]; and (b) a copy
of the By-Laws of the Hunter Bend Homeowners Association.

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"It is therefore ORDERED, ADJUDGED, and
DECREED by the Court as follows:

"The purported Amendments of the By-Laws and
[restrictive covenants] done in the years 2017, 2019, 2021 and
2022 are of no force and effect. These Amendment[s] were not
passed as required by a vote of 70% of the membership of [the
Association].

"All the instruments purportedly changing the
[restrictive covenants] and By-Laws that have been recorded
in the Office of the Judge of Probate of Randolph County are
hereby declared to be null and void. A copy of this Order shall
be recorded in the Probate Office to signify that such
attempted amendments are null and void.

"This Court is not making a Finding of Fact that the
[restrictive covenants] and By-Laws cannot be amended. If
they are amended, they shall be done in strict compliance with
the language of the [restrictive covenants] and By-Laws as
concerns what is required to amend the same."

(Capitalization in original.)

On November 18, 2024, the Association, through new counsel, filed

a timely postjudgment motion seeking to alter, amend, or vacate the

judgment and, in the alternative, requesting a new trial. The Association

asserted that its rights had been substantially prejudiced by the injection

of new claims on the day of trial. The Association also argued that the

judgment had been erroneously based on statements of counsel and not

on any admissible evidence, that Grimes could not sue the Association

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for any votes occurring before 2020, that the circuit court had

misinterpreted the documents controlling the voting procedures, and

that the certification requirements of Section D did not apply, had been

waived, or had been substantially performed. The Association

maintained that the circuit court should conduct a new trial to consider

the evidence relating to its defenses. At the conclusion of the

postjudgment motion, the Association requested a hearing pursuant to

Rule 59(g), Ala. R. Civ. P.

The record contains no evidence of any further proceedings in the

case. On February 3, 2025, the Association filed a notice of appeal. At

that time, the Association's postjudgment motion was still pending, so

the notice of appeal was held in abeyance. See Rule 4(a)(5), Ala. R. App.

P. On February 18, 2025, the postjudgment motion was denied by

operation of law, see Rule 59.1, Ala. R. Civ. P., and the notice of appeal

became effective pursuant to Rule 4(a)(5).1

1Rule 59.1, Ala. R. Civ. P., provides that a postjudgment motion

that is not ruled on by the court within 90 days is deemed denied at the
expiration of the 90-day period. The 90th day following the Association's
filing of its postjudgment motion on November 18, 2024, was Sunday,
February 16, 2025, and Monday, February 17, 2025, was a state holiday,
see Rule 6, Ala. R. Civ. P. Therefore, the Association's postjudgment
motion was deemed denied on Tuesday, February 18, 2025. See First
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Issues

The Association maintains that the circuit court erred in denying

its postjudgment motion without first conducting a hearing. The

Association also argues that the circuit court should have granted its

postjudgment motion to alter, amend, or vacate the judgment or,

alternatively, for a new trial.

Preservation of Right of Appeal

Before considering the issues raised by the Association, we must

address the findings in the circuit court's judgment that the Association

"announced in open court that the Court could enter its Final Order on

the issues before the Court" and that the Association "conced[ed] that it

did not wish to continue with the trial." The record does not support

those findings. The transcript of the trial proceedings reveals that,

through its attorney, the Association stipulated that it had not received

any voting certificates as required by Section D of the 2000 bylaws.

Based in part on that stipulation, and on its review of the 2000 bylaws,

Alabama State Bank v. McGowan, 758 So. 2d 1116 (Ala. Civ. App. 2000),
and Richburg v. Cromwell, 428 So. 2d 621 (Ala. 1983); see also
Williamson v. Fourth Ave. Supermarket, Inc., 12 So. 3d 1200, 1203-04
(Ala. 2009).

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the circuit court determined that Grimes was entitled to a judgment as a

matter of law, which, in the view of the circuit court, obviated the need

for further testimony. After the circuit court clarified the terms of its

decision, the Association's attorney "accept[ed] [the] ruling" made by the

circuit court with the caveat that the Association would "proceed

accordingly." At no point did the Association concede to the

discontinuation of the trial or announce in open court that the circuit

court could enter a final judgment granting Grimes the relief that she

was requesting. We recognize that a party cannot appeal from a

judgment or order to which it has consented. City of Bessemer v.

Brantley, 258 Ala. 675, 682, 65 So. 2d 160, 166 (1953). However, an

attorney does not consent to the entry of a judgment adverse to his or her

client by merely acknowledging the decision of the trial court, see New

Orleans & Ne. R.R. v. Lewis, 4 Pelt. 562, 565 (La. Ct. App. 1921), or by

agreeing that the terms of the judgment accurately reflect the decision of

the trial court. See In re Cauley, 437 S.W.3d 650 (Tex. App. 2014); Elliott

v. Elliott, 97 N.J. Super. 10, 12, 234 A.2d 101, 102 (Ch. Div. 1967); Moore

v. Crandall, 146 Iowa 25, 124 N.W. 812 (1910).

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In her brief, Grimes contends that, by accepting the circuit court's

ruling in open court, the Association had settled the case. Section 34-3-

21, Ala. Code 1975, provides: "An attorney has authority to bind his ...

client, in any action or proceeding, by any agreement in relation to such

case, made in writing, or by an entry to be made on the minutes of the

court." In Ex parte Sims, 627 So. 2d 380, 382 (Ala. 1993), the supreme

court held that § 34-3-21 governs the settlement of cases at the trial-court

level. In this case, however, there was no agreement between the

attorneys or the parties to resolve the litigation that could be enforced

under § 34-3-21. The record contains no mention of any settlement

agreement between the parties. See BFI Waste Servs., L.L.C. v. Circle J

Roll-Offs, Inc., 934 So. 2d 1058, 1061 (Ala. Civ. App. 2005) (holding that,

in the absence of a written agreement or an agreement made in open

court, § 34-3-21 did not apply). The transcript shows only that the circuit

court summarily decided the merits of the case and that the Association's

attorney subsequently acknowledged the decision. When a judgment

incorporates the settlement agreement of the parties, it may be

considered a consent decree, see Phoenix E. Ass'n v. Perdido Dunes

Tower, LLC, 295 So. 3d 1016, 1027 (Ala. 2019) (explaining the nature of

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a consent decree), which generally may not be appealed, see McGriff v.

McGriff, 535 So. 2d 187, 187 (Ala. Civ. App. 1988), but, because there was

no settlement agreement, the judgment in this case cannot be construed

as a consent decree.

A party may lose the right to appeal by recognizing the validity of

a judgment and acquiescing to its terms. See In re M.H., 252 Md. App.

29, 46, 256 A.3d 365, 375 (2021). However,

" '[a]cquiescence in [a] judgment is never presumed and
must be established by evidence that leaves no doubt of the
required intent.' Vincent v. State Farm Mut. Auto. Ins. Co.,
95-1538, p. 3 (La. App. 3 Cir. 4/3/96), 671 So. 2d 1127, 1129.
' "Furthermore, appeals are favored in the law, and forfeiture
of a party's right to appeal through acquiesce[nce] should be
decreed only when the party's intention to acquiesce and to
abandon his right of appeal is clearly demonstrated." '
Thibodeaux v. Evangeline Parish Sch. Bd., 08-1065, p. 1 (La.
App. 3 Cir. 10/15/08), 995 So. 2d 1252, 1253 (alteration in
original) (quoting Hoyt v. State Farm Mut. Auto. Ins. Co., 413
So. 2d 1003, 1005 (La. App. 3 Cir.), writ denied, 423 So. 2d
1180 (La. 1982))."

Guidry v. Beauregard Elec. Coop., Inc., 164 So. 3d 266, 276 (La. Ct. App.

2015). In this case, after announcing that the Association would accept

the ruling, the Association's attorney indicated that the Association

would "proceed accordingly." Thereafter, the Association lodged multiple

challenges to the decision, first by filing a motion before the judgment

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was entered, second by filing a postjudgment motion after entry of the

judgment, and third by filing this appeal. In these challenges, the

Association has consistently argued that Grimes is not entitled to a

judgment declaring that the amendments to the restrictive covenants

and the 2000 bylaws are void based on its noncompliance with Section D.

The record shows that the Association did not acquiesce in the judgment.

Therefore, we conclude that the Association has preserved its right to

appeal.

The Merits

Rule 59(g), Ala. R. Civ. P., provides:

"Presentation of any post-trial motion to a judge is not
required in order to perfect its making, nor is it required that
an order continuing any such motions to a date certain be
entered. All such motions remain pending until ruled upon by
the court (subject to the provisions of Rule 59.1[, Ala. R. Civ.
P.]), but shall not be ruled upon until the parties have had
opportunity to be heard thereon."

(Emphasis added.) Pursuant to Rule 59(g), a party who has requested a

hearing on a postjudgment motion has a right to a hearing before it is

adjudicated. See Flagstar Enters., Inc. v. Foster, 779 So. 2d 1220, 1221

(Ala. 2000). A trial court errs when it allows a postjudgment motion to

be denied by operation of law under Rule 59.1 without conducting a

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requested hearing on the motion. Palmer v. Hall, 680 So. 2d 307, 308

(Ala. Civ. App. 1996). That error is reversible if the postjudgment motion

has probable merit. See S.L. v. J.L.C., 282 So. 3d 26, 35 (Ala. Civ. App.

2019).

In this case, the Association moved the circuit court to alter, amend,

or vacate the final judgment or, alternatively, to order a new trial. As

the first ground for the requested relief, the Association argued that it

had no notice of the claim upon which the judgment was entered. The

Association pointed out that, in her complaint, Grimes did not seek a

judgment declaring that the 2017, 2019, 2021, and 2022 amendments to

the restrictive covenants and the 2000 bylaws were invalid due to a

violation of Section D of the 2000 bylaws or the failure of the Association

to obtain the certificates described therein. The Association also asserted

that it otherwise had no notice of the claim until the trial, when the

circuit court raised the issue on its own.

After reading the complaint, we agree that Grimes did not make

any claim that the amendments were invalid due to the certification

requirement set out in Section D of the 2000 bylaws. Grimes claimed

only that the 2021 amendment and, potentially, the 2022 amendment

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were invalid because the Association had not complied with the

fractional-voting rules set forth in the restrictive covenants and the

articles of incorporation of the Association. Grimes never attempted to

amend her complaint. On July 20, 2022, the Association deposed Grimes,

and, when asked if she had any basis for claiming that the amendments

were invalid other than the alleged failure of the Association to properly

count the votes of fractional lot owners, Grimes did not mention any

alleged violations of Section D of the 2000 bylaws. The record contains

no indication that Grimes was seeking declaratory relief on that basis

before the trial date. Grimes claimed that the Association had learned of

the full extent of her claims through discovery and discussions between

her attorney and the Association's attorney, but Grimes did not allege

that she had notified the Association that she was claiming that the

amendments were void due to noncompliance with Section D of the 2000

bylaws. Grimes also did not present any affidavit or other admissible

evidence to that effect.

In Penney v. Carden, 356 So. 2d 1188 (Ala. 1978), two landowners

disputed the ownership of a 20-acre tract of land. The supreme court

affirmed a judgment determining that the Cardens had adversely

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possessed the land. Penney claimed that he was still entitled to

compensation for valuable improvements he had made to the land.

Penney admitted that he had not specifically pleaded a compensation

claim for the improvements, but he argued that compensation could be

awarded under his prayer for general relief. The supreme court reversed

the judgment and remanded the case for the trial court to consider

whether Penney was entitled to a judgment compensating him for the

improvements and directed the trial court to consider whether the failure

of Penney to plead the claim had substantially prejudiced the Cardens.

On remand, the trial court, without considering whether the

Cardens had been substantially prejudiced by the assertion of the

compensation claim for improvements during the trial, awarded Penney

$3,300 in compensatory damages for the improvements. On appeal, this

court reversed the judgment, concluding that the Cardens had been

substantially prejudiced. See Carden v. Penney, 362 So. 2d 266, 268 (Ala.

Civ. App. 1978). Rule 54(c), Ala. R. Civ. P., provides, in pertinent part:

"Except as to a party against whom a judgment is entered by default,

every final judgment shall grant the relief to which the party in whose

favor it is rendered is entitled, even if the party has not demanded such

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relief in the party's pleadings." In Carden, this court said, in pertinent

part:

"Under the provisions of Rule 54(c) of the Alabama
Rules of Civil Procedure it is the duty of the court to grant
relief to which a party is entitled irrespective of the request
for relief contained in the pleadings. ... However, Rule 54(c)
does not sanction the granting of relief not requested in the
pleadings where it appears that a party's failure to ask for
particular relief has substantially prejudiced the opposing
party. ... Moreover, if the relief granted pursuant to Rule 54(c)
is not justified by the proof or is justified by proof which the
opposing party has not had an opportunity to challenge, the
relief granted should not be sustained on appeal. ...
Accordingly, logic dictates that in those situations where an
opposing party has no notice, by pleadings or otherwise,
regarding the claim upon which relief is granted by means of
Rule 54(c) and is thereby denied an opportunity to have
challenged or defended against such a claim, the opposing
party has suffered substantial prejudice and the judgment
granting relief must be reversed."

362 So. 2d at 268-69.

In Carden, this court determined that the Cardens had not been

given notice of the claim for the value of the improvements before trial

and that the Cardens had not voluntarily litigated the claim, having

objected to any consideration of the claim based on lack of notice. This

court held: "The Cardens were substantially prejudiced because they did

not receive sufficient notice that such an issue would be litigated thus

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enabling them to challenge the amount and validity of Penney's claim."

362 So. 2d at 269.

In this case, the Association did not receive notice of the claim upon

which the judgment was entered before trial. During opening

statements, the circuit-court judge raised the claim on his own. At that

time, the Association did not object to the claim being considered, but,

based on the unusual nature in which the circuit court summarily

adjudicated the case, a strong argument can be made that the claim was

not voluntarily litigated so that the pleadings were amended to conform

to the evidence under Rule 15(b), Ala. R. Civ. P. Before the final

judgment was entered, the Association filed a motion objecting to a

judgment being entered on that claim because it had not been pleaded,

citing Carden. In its postjudgment motion, the Association renewed its

objection by asserting that it had suffered substantial prejudice because

it had been deprived of a fair opportunity to challenge or to defend the

claim due to lack of notice in the pleadings or otherwise. The Association

requested that the circuit court vacate the judgment and, at least, order

a new trial at which it could defend against the new claim. It appears to

this court that this argument has probable merit.

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Conclusion

Having concluded that at least one of the issues presented in the

Association's postjudgment motion is probably meritorious, we reverse

the circuit court's judgment and remand the case for the circuit court to

conduct a hearing on the entire postjudgment motion. See Kent v.

Herchenhan, 215 So. 3d 1079, 1085 (Ala. Civ. App. 2016). On remand,

the circuit court shall not be limited to the notice issue discussed herein;

it may consider all the issues presented in the postjudgment motion in

deciding whether to alter, amend, or vacate the final judgment or to order

a new trial. The circuit court must allow Grimes an opportunity to

respond to the Association's postjudgment motion and must allow the

Association an opportunity to file a reply to the response. The circuit

court may consider any evidence that the parties properly present in

support of or in opposition to the postjudgment motion. Following the

hearing and the entry of an order on the postjudgment motion, the circuit

court may undertake such other proceedings as are consistent with this

opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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