Mandate Issued: 10/16/2019
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE LISA T. DAVIS, TRIAL JUDGE
Michael Loyd, MICHAEL L. LOYD & ASSOCIATES, Bethany,
Oklahoma, for Plaintiff/Appellee
Demarcus Hammon, Oklahoma City, Oklahoma, Pro se
P. WISEMAN, VICE-CHIEF JUDGE
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.  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.
AND PROCEDURAL BACKGROUND
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.
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
asked the Court to dismiss Bluff Creek's case and find in
his favor on his counterclaim.
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.
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.
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 ...