Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bluff Creek Townhomes Association, Inc. v. Hammon

Court of Appeals of Oklahoma, Division IV

September 16, 2019

DEMARCUS HAMMON, Defendant/Appellant.

          Mandate Issued: 10/16/2019


          Michael Loyd, MICHAEL L. LOYD & ASSOCIATES, Bethany, Oklahoma, for Plaintiff/Appellee

          Demarcus Hammon, Oklahoma City, Oklahoma, Pro se


         ¶1 Demarcus L. Hammon appeals a trial court order granting judgment in favor of Bluff Creek Townhomes Association, Inc., foreclosing Bluff Creek's lien on Hammon's townhome, ordering the sale of the townhome, and dismissing Hammon's counterclaim. [1] The primary issue on appeal is whether the trial court's "dismissal" of Hammon's counterclaim was proper. We review this case without appellate briefing pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S.Supp. 2018, ch. 15, app. 1. Our review tells us the trial court's adjudication was in error, and we reverse and remand for further proceedings.


         ¶2 Bluff Creek filed a petition on May 11, 2017, alleging Hammon owns the townhome located at 6552 N. Meridian Avenue, Unit 104, in Oklahoma City, which is subject to the Declaration of Covenants and Restrictions of Bluff Creek Townhomes Unit Ownership of Estates (the Declaration). Bluff Creek alleged the Declaration was recorded with the County Clerk of Oklahoma County, each homeowner in the association "is assessed monthly dues to pay for the utilities, upkeep, and maintenance of the units and common areas," and Hammon was past due in paying dues and owed $8, 603.68 as of November 20, 2016, plus ongoing dues of $87.12 a month. It demanded payment, but Hammon refused to pay. Bluff Creek filed a lien on Hammon's property with the County Clerk on December 17, 2013, and refiled a notice of lien on December 5, 2016. Bluff Creek sought judgment in the amount of $8, 603.68, plus the ongoing charges of $87.12 a month, attorney fees and costs, and foreclosure of its lien.

         ¶3 In his answer, Hammon denied he owed past dues or that a lien had been placed on the property. Under the heading "Counterclaims," Hammon said:

Defendant property that is the subject of this case has mold from water drainage into the property. The mold has caused damage to property whereby Defendant is unable to live in the property. Defendant has notified Plaintiff of damages in excess of $10, 000.00 and Plaintiff has refused to fix the property.

         Hammon asked the Court to dismiss Bluff Creek's case and find in his favor on his counterclaim.

         ¶4 In response, Bluff Creek argued that Hammon in his counterclaim failed to state a claim on which any relief could be granted and asked that the counterclaim be dismissed. It also asserted affirmative defenses of statute of limitations, waiver, contributory negligence, estoppel, release and waiver. No separate ruling on Bluff Creek's request to dismiss the counterclaim appears of record.

         ¶5 Bluff Creek filed a motion for summary judgment urging as undisputed the facts we summarize and quote here. On October 26, 2007, Hammon purchased Unit 104 located in Bluff Creek Townhomes, which is a unit ownership estate. The deed was recorded in the office of the County Clerk of Oklahoma County. When Hammon purchased Unit 104, he was subject to the Declaration. "Hammon had admitted in his deposition, that there were homeowners['] dues payable monthly to the homeowners['] association" and "he has not made any payments of his homeowner[s'] dues since some time in 2009." Because Hammon failed to pay homeowners' dues, Bluff Creek's president filed a lien on Hammon's property on December 5, 2016, and recorded it with the County Clerk. According to Bluff Creek's records, Hammon owes $8, 603.68 through November 2016, and $87.12 per month thereafter, for a total of $10, 453.20.

         ¶6 Bluff Creek maintained there is no substantial controversy as to any material fact and nothing in Hammon's answer is more than a general denial. It argued Hammon admitted (1) he owns Unit 104, (2) he owes homeowners' association dues, (3) he has not paid the dues, and (4) the property damage he claims was to the interior of his home and its contents. Bluff Creek alleged, "It is stated clearly in the Declarations that the homeowners['] association insures only the exterior and common elements of the property." Bluff Creek asserts that the Declaration also provides that the unit owners are responsible for insuring their units' contents and personal property and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.