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Bluff Creek Townhomes Association, Inc. v. Hammon

Court of Civil Appeals of Oklahoma, Division No. 4

September 16, 2019

BLUFF CREEK TOWNHOMES ASSOCIATION, INC., Plaintiff/Appellee,
v.
Demarcus HAMMON, Defendant/Appellant.

          Mandate Issued: 10/16/2019

Page 213

          APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA; HONORABLE LISA T. DAVIS, TRIAL JUDGE.

         THIS OPINION HAS BEEN RELEASED FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS, Division 4

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

          Demarcus Hammon, Oklahoma City, Oklahoma, Pro se

          OPINION

          JANE P. WISEMAN, VICE-CHIEF JUDGE:

         [¶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.

          FACTS AND PROCEDURAL BACKGROUND

         [¶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.

Page 214

         [¶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. ...


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