text:
    M & J MATERIALS, INC. v. Stanford D. ISBELL
    2080880.
    Court of Civil Appeals of Alabama.
    Dec. 6, 2013.

      Erskine R. Funderburg, Jr., of Trussell & Funderburg, Pell City, for appellant.
    David Madison Tidmore of Weaver Tid-more, LLC, Birmingham, for appellee.
   On Remand from the Alabama Supreme Court'

PER CURIAM.

This case involves a retaliatory-discharge claim asserted against M & J Materials, Inc. (“the employer”), by Stanford D. Isbell (“the employee”). This court previously reversed the trial court’s judgment on the jury’s verdict in favor of the employee, holding that the employee had failed to make a prima facie case of retaliatory discharge. M & J Materials, Inc. v. Isbell, 153 So.3d 1 (Ala.Civ.App.2010). The employee filed a petition for certiorari review, and our supreme court reversed the judgment of this court. See Ex parte Isbell, 153 So.3d 8 (Ala.2013). In its opinion, the supreme court noted the following:

“Our reversal of the judgment of the Court of Civil Appeals on the issue of [the employee]’s prima facie ease for retaliatory discharge revives two issues [the employer] argued in its appeal of the jury verdict that the Court of Civil Appeals did not reach. In its appeal, [the employer] contended that the trial court erred when it reinstructed the jury after the jury initially returned an inconsistent verdict rather than ordering a new trial. It also contended that the punitive-damages verdict of $70,000 was excessive under the factors for evaluating the excessiveness of such an award provided in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589,134 L.Ed.2d 809 (1996), Hammond v. City of Gadsden, 493 So.2d 1374 (Ala. 1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989). Because the judgment of the Court of Civil Appeals pre-termitted consideration of those issues, we remand the case to the Court of Civil Appeals for consideration of those issues. See Ex parte Wood, 69 So.3d [166] at 172 [ (Ala.2010) ].”

153 So.3d at 23. This court, in conformity with the mandate of the supreme court, will now address those issues.

Reinstruction

The trial court, in its order denying the employer’s renewed motion for a judgment as a matter of law (“JML”), stated as follows:

“By polling the jury upon announcement of its first verdict, the Court did not ‘accept’ the jury’s flawed verdict. The Court certainly did not accept the verdict as final. This Court is satisfied that the first verdict was an inconsistent verdict in that the jury found no compensatory damages but awarded punitive damages; therefore, that verdict failéd to conform to Alabama law. Further, in recharging the jury on compensatory and punitive damages, the Court did not unduly emphasize one over the other, or[ the employee over the employer]. And, this Court was concerned over the possibility of having to try the entire case, with all ten witnesses and twelve exhibits, again.
“Based on the authority of Hanners v. Balfour Guthrie, Inc., 589 So.2d 684 (Ala.1991), [the employer’s request] to award it a new trial because the Court instructed the jury to deliberate again is DENIED.”

The trial court’s reasoning is sound, notwithstanding the employer’s insistence that that court erred in failing to order a new trial in response to the initial product of the jury’s efforts to reach a verdict. The common thread that unites all the authorities cited by the employer in its appellate brief addressing this issue is that, in each case cited, there is no indication that the pertinent trial court rejected the inconsistent verdict, as the trial court did in this case in response to the jury’s awarding only punitive damages; rather, it instead appears that, in each case cited, a judgment was entered on the inconsistent verdict. In contrast, in Hanners v. Balfour Guthrie, Inc., 589 So.2d 684 (Ala.1991), upon which the trial court relied in determining that it had not erred in reinstruct-ing the jury, our supreme court expressed approval of the very action taken by the trial court here, i.e., directing a jury that had reached an inconsistent verdict to resolve the inconsistency but not instructing the jury to resolve it in favor of any particular party:

“[T]he record shows that the jury first returned a verdict for [the plaintiff], but failed to award him any damages. [The plaintiff] promptly moved for a new trial, arguing that the verdict was inconsistent. Instead of granting [that] motion, however, the trial court, with the consent of both parties, recharged the jurors, telling them, in part, to either find for [the plaintiff] and award him damages, or to find for [the defendant]....
“We can find no error on the trial court’s part in resubmitting this case to the jury. By recharging the jury, which had already heard all of the evidence, and affording it the opportunity to return a verdict in conformity with the law, the trial court furthered the goal of obtaining the most efficient use of our judicial system.”

589 So.2d at 686; see also Robert P. Stapp Mach. Co. v. Russell, 277 Ala. 84, 86-87, 167 So.2d 167, 169 (1964) (noting that a verdict must have not only the approval of the jury, but also the approval of the trial judge; that a verdict is not a finding by the jury until such judicial approval is given; and that, as a general rule, a jury has the right and power upon resubmission to change its verdict at any time before the verdict has been accepted by the trial court). The trial court’s denial of the employer’s new-trial request based upon the reinstruction was, therefore, proper.

Excessiveness of the punitive-damages award

As we noted in our prior opinion, the employer asserted in its postjudgment motion that the punitive-damages award was excessive under common-law principles. Apart from citing the need for review of the punitive-damages award based upon the holdings of three leading cases concerning the propriety of punitive-damages awards at common law (BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989)), the employer made no other substantive contentions in the trial court regarding the punitive-damages award; the employer averred generally that “[t]he amount of punitive damages awarded should not exceed ... a ratio of 3:1 or 4:1 [to compensatory damages] at most as required by Alabama law.” The employer’s motion did not request a hearing pursuant to Rule 59(g), Ala. R. Civ. P., and the trial court denied the postjudgment motion in its entirety after the expiration of a scheduled period for briefing set by that court; the employer raises no issue regarding the absence of a hearing, which is not mandated in the absence of a request therefor, see Phillips v. Randolph, 828 So.2d 269, 279 (Ala.2002).

With respect to the permissibility of the $70,000 punitive-damages award, the trial court noted in its postjudgment order the factors set forth in Gore, i.e., “(1) the reprehensibility of the defendant’s conduct; (2) the ratio between the award of punitive and compensatory damages; and (3) a comparison of the award of punitive damages to the civil or criminal penalties that could be imposed for comparable misconduct.” Montgomery Coca-Cola Bottling Co. v. Golson, 725 So.2d 996, 1000 (Ala.Civ.App.1998). In considering those factors, the trial court stated in its post-judgment order (1) that the reprehensibility of the employer’s misconduct could be inferred from “the length of time between the gun incident and the investigation/statement gathering,” “the length of time between the investigation/statement gathering and the submitting of a police [incident] report,” and the solicitation of informal advice from an off-duty police officer before the employee’s employment was terminated; (2) that the 14:1 ratio between punitive damages and compensatory damages was not excessive because of “the gravity of wrongfully depriving [the employee] of ... a job he had held for several years, the chilling effect of retaliatory discharges, [and] the low amount of compensatory damages awarded to [the employee]”; and (3) that no other civil or criminal penalties existed regarding retaliatory discharges from employment proscribed by Ala.Code 1975, § 25-5-11.1, that would render meaningful a comparison of the punitive-damages award to other permissible civil or criminal sanctions.

In discussing the three Gore factors in its appellate brief as they pertain to its insistence that the punitive-damages award should be ordered remitted to $15,000, the employer concedes that no other civil or criminal penalties exist in the wrongful-termination setting, a fact that Alabama caselaw has also recognized. See Mercy Med. v. Gray, 864 So.2d 354, 368-69 (Ala.Civ.App.2002) (quoting AutoZone, Inc. v. Leonard, 812 So.2d 1179, 1188 (Ala.2001)). Secondly, as to reprehensibility, the employer flatly asserts that the employee admitted to having brought a gun into the employer’s plant and insists that the employer “acted appropriately” in discharging the employee from his employment — an argument that simply cannot be credited after the supreme court’s binding assessment of the correctness of the trial court’s judgment entered on the jury’s verdict finding against the employer on the retaliatory-discharge issue.

In the context of the “ratio” factor specified in Gore, the employer, citing dicta in Flint Construction Co. v. Hall, 904 So.2d 236, 254 (Ala.2004) (which involved a judgment containing a punitive-damages award that was less than the corresponding compensatory-damages award), and special writings of two former justices of our supreme court, contends for the existence of, and the application of, a “single-digit” ratio limitation upon awards of punitive damages. The contention made by the employer finds firmer precedential footing in Justice Kennedy’s analysis of Gore ⅛ ratio factor in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), in which, writing for the Court, Justice Kennedy noted that, “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process” and that, more specifically, any ratio of punitive damages to compensatory damages amounting to more than four to one approaches “the line of constitutional impropriety.” 538 U.S. at 425.

Such statements do, and should, give this court pause in affirming the punitive-damages component of the trial court’s judgment, which is 14 times the compensatory-damages award. Unlike in Tanner v. Ebbole, 88 So.3d 856 (Ala.Civ.App.2011), or Engineered Cooling Services, Inc. v. Star Service, Inc. of Mobile, 108 So.3d 1022 (Ala.Civ.App.2012), two cases in which larger ratios were deemed permissible because of the presence of a nominal compensatory-damages award, the jury in this case determined that $5,000 would fully compensate the employee. Although the termination of the employee from his employment was, as the employee states, an intentional act, we are not confronted in this case with a situation in which “ ‘the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine.’” State Farm, 538 U.S. at 425 (quoting Gore, 517 U.S. at 582). We are thus aware of no factor that would take this case out of the general rule, set forth by the United States Supreme Court, that a punitive-damages award exceeding four times the amount of compensatory damages is outside the limits of due process.

Based upon the foregoing facts and authorities, the judgment of the trial court is affirmed, on the condition that the employee file with this court, within 28 days, an acceptance of a remittitur of the punitive damages assessed against the employer from $70,000 to $20,000; otherwise, the judgment against the employer will be reversed and the case remanded for a new trial. See Ala.Code 1975, § 12-22-71.

AFFIRMED CONDITIONALLY.

PITTMAN and THOMAS, JJ., concur.

THOMPSON, P.J., and MOORE and DONALDSON, JJ., concur in the result, without writings.

      . See Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006); Life Ins. Co. of Georgia v. Smith, 719 So.2d 797 (Ala.1998); Alabama Power Co. v. Epperson, 585 So;2d 919 (Ala.1991); and Monteleone v. Trail Pontiac, Inc., 395 So.2d 1003 (Ala.Civ.App.1980).

      . The employer neither raised in the trial court nor argued in its appellate brief the potential operation of any statutory cap on punitive damages codified at Ala.Code 1975, § 6-11-21, including the cap applicable to “small business” entities.

      . See Orkin Exterminating Co. v. Jeter, 832 So.2d 25, 43 (Ala.2001) (Houston, J., concurring specially), and Reliable Mech., Inc. v. Integrated Constr. Servs., Inc., 781 So.2d 207, 207 (Ala.2000) (See, J., dissenting).

       Note from the reporter of decisions: On December 27, 2013, the appellee filed a acceptance of remittitur. On January 10, 2014, the Court of Civil Appeals issued a certificate of judgment stating: "There being an acceptance of remittitur, the judgment is affirmed.”


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Howard ROSS v. WEST WIND CONDOMINIUM ASSOCIATION, INC., and Joseph London III.
    2101167.
    Court of Civil Appeals of Alabama.
    Dec. 14, 2012.
    Rehearing Denied Feb. 15, 2013.

      Michael F. Robertson, Huntsville, for appellant.
    Curtis L. Whitmore, Huntsville, for ap-pellee, West Wind Condominium Association, Inc.
   On Application for Rehearing

BRYAN, Judge.

This court’s opinion of May 4, 2012, is withdrawn, and the following is substituted therefor.

Howard Ross appeals from summary judgments in favor of West Wind Condominium Association, Inc. (“West Wind”), and Joseph London III. We affirm.

On December 3, 2007, West Wind recorded instruments in the office of the Probate Judge of Madison County that gave notice that it claimed liens on four condominium units owned by Ross (collectively referred to as “the four condominium units”) based on his alleged failure to pay West Wind dues he owed on the four condominium units. The four condominium units were Unit A in building 3816 (“Unit A”), Unit J in building 3816 (“Unit J”), Unit C in building 3818 (“Unit C”), and Unit D in building 3818 (“Unit D”).

On January 18, January 25, February 1, and February 8, 2008, West Wind published notices in the Madison County Record, a local newspaper, stating that it would sell the four condominium units at foreclosure sales-on February 15, 2008. On February 15, 2008, West Wind conducted foreclosure sales of the four condominium units and made the highest bid on each of the four condominium units. That same day, the auctioneer who conducted the foreclosure sales on behalf of West Wind executed foreclosure deeds conveying the four condominium units to West Wind. On March 3, 2008, West Wind executed deeds conveying Unit A and Unit C to Jimmy D. Spruill and Cynthia I. Spruill, a deed conveying Unit J to London, and a deed conveying Unit D to Delvin Sullivan.

On April 18, 2008, Ross sued West Wind, London, the Spruills, and Sullivan. Ross alleged that, in April 2005, West Wind had agreed to give him a credit against the dues on the four condominium units in exchange for (1) his performing or paying for maintenance and repair work at the condominium and (2) his allowing a maintenance man employed by West Wind to live in one of the four condominium units without paying rent. He further alleged that, in September 2006, West Wind had told him that it did not need him to perform or pay for any more maintenance or repair work and that he had paid the dues on the four condominium units from December 2006 through May 2007. He also alleged that, in May 2007, West Wind had returned his payments for April and May 2007; that West Wind had refused to accept those payments; that West Wind had foreclosed on the four condominium units without giving him any actual notice that it intended to do so; and that he had not learned of the foreclosures until after they had occurred.

Based on those factual allegations, Ross stated two claims. The first claim sought an order setting aside the foreclosure sales on the ground that West Wind had failed to give Ross proper notice that it intended to foreclose on the four condominium units and on the ground that West Wind had failed to give Ross the appropriate credit he was due against the dues on the four condominium units pursuant to his agreement with West Wind. The second claim sought redemption of the four condominium units. Shortly after filing his original complaint, Ross filed a first amended complaint that added the addresses of the four condominium units but was in all material respects identical to his original complaint.

On December 31, 2008, London moved for a partial summary judgment with respect to Ross’s claim seeking redemption. As the grounds of his motion, London asserted that Ross was not entitled to redeem Unit J from London pursuant to § 6-5-255, Ala.Code 1975, because, London said, Ross had not paid or tendered payment of any money to London and that Ross was not entitled to redeem Unit J from London pursuant to § 6-5-256, Ala. Code 1975, because, London said, Ross had neither demanded a written statement of lawful charges to redeem Unit J nor paid any money into court. London supported his summary-judgment motion with his affidavit. In pertinent part, it stated:

“I purchased the real estate which is made the basis of the plaintiffs complaint at a sale for unpaid condominium association dues.... I never received a demand for lawful charges, nomination or appointment of a referee, from the plaintiff, Howard Ross and/or his agents prior to being served with the complaint in the above-styled action. I have not been contacted at any point prior to, or during this litigation, by Howard Ross and/or his agents concerning their desire to redeem the real estate which is the subject of Howard Ross’s complaint.”

On February 28, 2009, Ross filed a written response to London’s partial-summary-judgment motion. Ross asserted that London was not entitled to a summary judgment with respect to Ross’s claim seeking redemption because, Ross said, he could not determine the amount of the lawful charges to be tendered because West Wind had failed to inform him of the amount of the debt it was claiming he owed and, consequently, he had sought the equitable assistance of the trial court in determining the amount of the lawful charges. Ross also filed his affidavit in opposition to London’s motion. Ross’s affidavit stated:

“On or about April 2, 2005, ... I entered into an agreement with West Wind Condominiums, through its agent Charles Ragland, wherein the condominium association would accept maintenance and repairs performed by me on the condominium’s premises in lieu of my having to pay condominium dues. Around September of 2006,1 spoke with West Wind’s new president, Ray Hanson, who told me that further maintenance by me would not be necessary and that I should begin making my regular dues payments. I began making these payments in December of 2006 and made my regular payments for December 2006, January 2007, February 2007, and March 2007. West Wind accepted all these payments. When I made my payments for April and May of 2007, West Wind’s attorney, Mac Martinson, returned them to me with a letter saying West Wind would not accept the payments and requesting documentation that would dispute the charges being claimed by West Wind. I submitted an itemized list of charges for my work done through my attorney Patrick Jones, but I never received any further correspondence from West Wind. I subsequently tried to communicate with West Wind to determine the amount of dues that I would owe, taking into consideration my statement for work done. I also tried to contact several other West Wind board members to find out the dues that would be due. In February of 2008, West Wind foreclosed on the condominiums I owned, purchased the condominiums itself, and then sold the condominiums to the other defendants in the lawsuit. I learned of the foreclosures only when I ran into an attorney, Elizabeth Cvetetic.”

On March 25, 2009, Ross filed a second amended complaint, which added a claim of breach of contract against West Wind only, a claim of intentional interference with business or ' contractual relations “against the defendants,” and a claim of “unlawful detention of property” against the Spruills only. On March 30, 2009, London moved to strike Ross’s second amended complaint on the ground that it was untimely.

On April 13, 2009, Ross filed a response to London’s motion to strike the second amended complaint. Ross asserted that the second amended complaint was timely because, he said, it added claims that were based on events that had occurred after the filing of his original complaint and his first amended complaint. He also asserted that London was not prejudiced by the second amended complaint because, he said, the breach-of-contract claim was asserted against West Wind only, the claims of intentional interference with business or contractual relations and “unlawful detention of property” were asserted against the Spruills only, and, therefore, “none of the newly-added causes of action are pled against Defendant London....”

On December 30, 2009, the trial court entered an order granting London’s motion to strike the second amended complaint. On January 4, 2010, the trial court entered a summary judgment in favor of London as to all of Ross’s claims.

On January 29, 2010, Ross filed motions asking the trial court to reconsider its rulings granting London’s motion to strike the second amended complaint and entering a summary judgment in favor of London as to all of Ross’s claims. In his motion to reconsider the ruling entering a summary judgment in favor of London as to all of Ross’s claims, Ross asserted that the trial court had erred by entering that summary judgment as to all of Ross’s claims because London’s partial-summary-judgment motion had challenged Ross’s claim seeking redemption only. The record does not contain a ruling by the trial court regarding Ross’s motions to reconsider the rulings granting London’s motion to strike and entering a summary judgment in favor of London as to all of Ross’s claims.

On June 8, 2009, the Spruills filed a partial-summary-judgment motion seeking a summary judgment with respect to Ross’s claim seeking redemption. The Spruills asserted the same grounds that London had asserted as the grounds of his partial-summary-judgment motion and supported their motion with their affidavits. Ross opposed the Spruills’ partial-summary-judgment motion and filed an affidavit that was identical to the affidavit he had filed in opposition to London’s partial-summary-judgment motion. On March 18, 2011, the trial court entered a summary judgment in favor of the Spruills as to all of Ross’s claims.

On March 28, 2011, West Wind moved for a summary judgment. As the ground of its motion, West Wind asserted that Ross owed unpaid dues on the four condominium units; that West Wind had given Ross notice that he owed unpaid dues on the four condominium units; that it had given him notice that it would place hens on the four condominium units if he did not pay the unpaid dues; that it had placed liens on the four condominium units due to Ross’s failure to pay dues on the four condominium units; that it had mailed a letter to Patrick A. Jones, an attorney representing Ross, stating that West Wind intended to foreclose on the four condominium units if Ross did not pay the unpaid dues by December 22, 2007; that it had published notice of the foreclosure sales in the Madison County Record once a week for four consecutive weeks; that it had purchased the four condominium units at the foreclosure sales; and that it had subsequently conveyed Units A and C to the Spruills, Unit J to London, and Unit D to Sullivan.

West Wind initially supported its summary-judgment motion with, among other things, copies of letters attorney Mac Mar-tinson, who then represented West Wind, had sent Ross in May 2007 notifying him of the amounts he owed on the four condominium units; copies of the liens it had filed on the four condominium units; a letter dated December 11, 2007, from Robert F. Vargo, an attorney who then represented West Wind, to Jones enclosing copies of the liens it had filed on the four condominium units and stating that West Wind would commence foreclosure proceedings if Ross did not pay the amounts owed by December 22, 2007; copies of the publisher’s affidavits executed by the Madison County Record certifying that it had published notices of the foreclosure sales on January 18, January 25, February 1, and February 8, 2008; copies of the foreclosure deeds conveying the four condominium units to West Wind; and copies of the deeds conveying Unit A and Unit C to the Spruills, Unit J to London, and Unit D to Sullivan.

On April 1, 2011, Ross filed a written response to West Wind’s summary-judgment motion. His response contained a “Narrative of Facts” as well as arguments in opposition to West Wind’s summary-judgment motion. In addition, Ross filed a number of unauthenticated documents and an affidavit signed by him. In pertinent part, his affidavit stated: “All of the facts contained in my Plaintiffs Response to Motion for Summary Judgment and the Narrative Statement of Facts contained therein, are true and correct to my knowledge and belief.” Ross also submitted an affidavit signed by Jones, which stated, in pertinent part:

“1. I have not represented nor acted as attorney for Howard Ross in any matters between said Howard Ross and Westwind [sic] Condominium Association.
“2. I have no knowledge of receipt of any alleged notices or communications sent by Robert Vargo, attorney at law, to Howard Ross.”

Ross’s response to West Wind’s summary-judgment motion asserted that West Wind was not entitled to a summary judgment because, he said, a genuine issue of material fact existed regarding whether West Wind had given him proper notice of the foreclosures and a genuine issue of material fact existed regarding whether he owed West Wind any dues when it foreclosed on the four condominium units.

On April 7, 2011, West Wind moved to strike Ross’s affidavit and the unauthenticated documents he had filed in opposition to West Wind’s summary-judgment motion. As grounds for striking Ross’s affidavit, West Wind asserted that Ross’s affidavit contained inadmissible testimony and that Ross’s affidavit did not satisfy the personal-knowledge requirement of Rule 56(e), Ala. R. Civ. P., because, West Wind said, Ross had qualified his affirmation of the truth of the facts recited in his response to West Wind’s summary-judgment motion with the phrase “to my knowledge and belief’ instead of affirming that they were true without qualification. Ross did not respond to West Wind’s motion to strike.

Also on April 7, 2011, West Wind filed an affidavit signed by Vargo with a number of documents attached. In pertinent part, Vargo’s affidavit stated:

“I represented Defendant West Wind Condominium Association, Inc. (herein referred to as West Wind’) in the matters of attempted collection of past due assessments from Howard Ross, who is the Plaintiff in the above-styled action pending before this Court. My client at the time, West Wind, provided information to me concerning the amounts of the unpaid assessment payments, interest and late charges owed to West Wind by Howard Ross pertaining to five condo units that Howard Ross owned at [that] time, which was the time period of November and December, 2007. There are four of those units that are the subject of this pending lawsuit, those being: Unit Number J of Building 3816 of the West Wind Condominiums; Unit Number A of Building 3816, Unit Number C of Building 3818 and Unit Number B of Building 3818.
“The President of West Wind at that time, Joseph London, III, verified those amounts owed by Howard Ross on five documents that I prepared with his assistance, of which there are four documents which pertain to the four units that are the subject matter of this lawsuit. I have attached hereto certified copies of the four documents, each titled ‘Claim Of Lien For Unpaid Assessments,’ which are attached and marked collectively as Defendant’s Exhibit W-6(CC)(since they are certified copies of the Defendant’s Exhibit W-6 already filed by West Wind in support of its motion for summary judgment). I took the steps necessary for those four Claims Of Lien to be recorded in the records of the Office of the Judge of Probate of Madison County, Alabama, on December 3, 2007.
“Having reviewed correspondence between the offices of Mr. A. Mac Martin-son, an attorney who had previously represented West Wind in the same matter of collection of assessments from Howard Ross, and Mr. Patrick A. Jones, I understood that Howard Ross was being represented at the time by Mr. Patrick A. Jones. Part of that correspondence is attached as exhibits to the response of Howard Ross to the motion for summary judgment, namely Plaintiffs Exhibits 6 and 17. In representing my client, and in order not to violate attorney ethics regarding not communicating about the subject matter of the representation with a party under circumstances implying that such party is represented in the matter by an attorney (i.e. Rule 4.2, Alabama Rules Of Professional Conduct), I prepared my letter for Howard Ross to be addressed to attorney Patrick A. Jones. I mailed the letter to Mr. Patrick A. Jones via United States Mail, proper postage prepaid, dated December 11, 2007, concerning Howard Ross. A true and correct copy of that letter, and its enclosures, is attached as Defendant’s Exhibit W-8 to the Motion For Summary Judgment filed by West Wind in this cause. The letter’s enclosures are the five liens-claims documents that I had caused to be recorded in the records of the Office of the Judge of Probate of Madison County, Alabama, of which four (Defendant’s Exhibit W-6 and W-6(CC)) pertain to this matter, as stated above. The letter contains a statement that, ‘In the event the subject amounts are not paid in full by December 22 2007, we will commence foreclosure proceedings.’
“I did not ever receive any response from either Howard Ross or Patrick A. Jones to that letter dated December 11, 2007, nor was that letter returned to me in the mail as undelivered. On behalf of West Wind, I proceeded with the process of foreclosing on the liens that West Wind had on the four condo units that belonged to Howard Ross. I caused notices of foreclosure sales on each of the four units to be run in a newspaper of local distribution in Madison County, Alabama, which is the Madison County Record. True and correct copies of those verified notices of publication prepared by the Publisher of that newspaper are attached as collective Defendant’s Exhibit W-2 to West Wind’s Motion For Summary Judgment, and the original documents were admitted into evidence at a hearing before this Court. The notices of each of the four foreclosure sales were published for four consecutive weeks, as the notices state.
“I held the foreclosure sales as auctioneer for each of the four subject condo units on February 15, 2008. I duly prepared, executed, and caused to be recorded in the records of the Office of the Judge of Probate of Madison County, Alabama, a Foreclosure Deed for each of the foreclosure sales of each of the four subject condo units. True and correct copies of those four Foreclosure Deeds are attached as collective Defendant’s Exhibit W-3 to West Wind’s Motion for Summary Judgment, and copies were admitted into evidence at a hearing before this Court.”

On April 14, 2011, the trial court entered an order (1) striking Ross’s affidavit and all the unauthenticated documents Ross, had filed with his response to West Wind’s summary-judgment motion and (2) granting West Wind’s summary-judgment motion.

On July 22, 2011, Ross filed a motion asking the trial court to reconsider its rulings striking his affidavit and granting West Wind’s summary-judgment motion. Ross argued that the trial court should reconsider its ruling striking his affidavit because, he said,

“the statements in the Plaintiff’s narrative summary that are supported by the Plaintiffs affidavit are the knowledge of the Plaintiff, or are statements made by a representative of West Wind, the party opponent in this matter, and are not offered to prove the matter asserted. The offering of statements made by West Wind agents were offered to show-the Plaintiffs belief that he was making repairs and performing work with the expectation of reimbursement in the form of credit toward his condominium dues. The establishment of Plaintiffs said belief supports his claim for dues credit that he had personally sent to West Wind’s counsel.”

Ross argued that the trial court should reconsider its ruling granting West Wind’s summary-judgment motion because, he said, a genuine issue of material fact existed regarding whether West Wind had given him proper notice of the foreclosures and a genuine issue of material fact existed regarding whether he owed West Wind any dues when it foreclosed on the four condominium units.

On July 25, 2011, the trial court entered an order denying Ross’s motion asking the trial court to reconsider its rulings striking his affidavit and granting West Wind’s motion for a summary judgment.

Ross’s claims against Sullivan were disposed of by the entry of a default judgment in favor of Ross.

Ross timely appealed to this court from the summary judgments in favor of West Wind and London. Due to lack of jurisdiction, this court transferred the appeal to the supreme court. The supreme court then transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Initially, we note that Ross did not name the Spruills as appellees in his notice of appeal, did not otherwise indicate in his notice of appeal that he was appealing the summary judgment in favor of the Spruills, and did not direct the circuit-court clerk to serve the Spruills with a copy of his notice of appeal. Therefore, the Spruills are not parties to this appeal, and the issue whether the summary judgment in their favor was proper is not before us. See Veteto v. Swanson Servs. Corp., 886 So.2d 756, 768-65 (Ala.2003).

Ross argues that the trial court erred in striking his affidavit in opposition to West Wind’s summary-judgment motion because, he says, the facts recited in the “Narrative of Facts” in his response to that motion, which he says he affirmed in his affidavit in opposition to that motion, were either facts of which he had personal knowledge or were statements made by representatives of West Wind that were merely offered to show Ross’s belief regarding his right to a credit against his dues.

The material facts Ross sought to prove by his affidavit’s adoption of the “Narrative of Facts” in his response to West Wind’s summary-judgment motion were (1) that, on April 2, 2005, West Wind, through its then president, Charles Rag-land, agreed to accept Ross’s performance of maintenance and repairs on West Wind’s premises in lieu of Ross’s having to pay condominium dues; (2) that in September 2006 West Wind’s then president, Ray Hanson, told Ross that West Wind no longer needed him to perform maintenance and repairs on West Wind’s premises and that he should begin paying his condominium dues; (3) that Ross began paying his condominium dues in December 2006 and paid his condominium dues for December 2006, January 2007, February 2007, and March 2007; (4) that West Wind accepted all those payments of condominium dues; (5) that Ross paid his condominium dues for April and May of 2007 but West Wind returned those payments to him and requested documentation of the amounts he was claiming as a credit against his condominium dues; (6) that Ross provided the requested documentation to West Wind; (7) that he never heard anything further from West Wind; (8) that West Wind foreclosed on the four condominium units; and (9) that Ross did not learn of the foreclosures until a third party told him that they had already occurred. The two identical affidavits Ross had filed in opposition to the partial-summary-judgment motions filed by London and the Spruills attested to all those material facts. In Fountain v. Phillips, 404 So.2d 614, 618 (Ala.1981), the supreme court stated:

“It is the law in Alabama, as well as in federal courts, that a trial court may properly consider any material that would be admissible at trial and all evidence of record as well as material submitted in support of or in opposition to the motion when ruling on a motion for summary judgment. Moms v. Morris, 366 So.2d 676 (Ala.1978). See also, 10 C. Wright & A. Miller, Federal Practice and Procedure § 2721 (1973). We therefpre hold that all evidence of record, as well as that evidence formally submitted in support of or in opposition to a motion for summary judgment, should be considered in ruling on [a] motion ¡for a summary judgment].”

(Final emphasis added.)

Thus, the two identical affidavits Ross had filed in opposition to the partial-summary-judgment motions filed by London and the Spruills, which were in the record when the trial court took West Wind’s summary-judgment motion under submission, constituted evidence to be considered by the trial court in ruling on West Wind’s summary-judgment motion, see Fountain v. Phillips, and to be considered by this court in reviewing the summary judgment entered by the trial court, see Mathis v. Jim Skinner Ford, Inc., 361 So.2d 113, 116 (Ala.1978) (“The propriety of granting motions for summary judgment must be tested by reviewing what the trial court had before it when it granted the motion.”). Consequently, because the two affidavits Ross had filed in opposition to the partial-summary-judgment motions filed by London and the Spruills attested to all the material facts Ross sought to prove by his affidavit in opposition to West Wind’s summary-judgment motion, any error the trial court may have committed by striking Ross’s affidavit in opposition to West Wind’s summary-judgment motion was harmless error and does not warrant a reversal of the summary judgment in favor of West Wind. See Rule 45, Ala. R.App. P. (“No judgment may be reversed ... in any civil ... case on the ground of ... the improper ... rejection of evidence ... unless in the opinion of the court to which the appeal is taken ..., after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”).

Ross also argues that the trial court erred in granting West Wind’s summary-judgment motion because, he says, § 35-8A-316(a), Ala.Code 1975, required West Wind to give him actual advance notice of the foreclosure of the four condominium units and West Wind failed to make a prima facie showing that it had given him such notice.

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala. 2002).
“ “We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co.[ v. DPF Architects, P.C.l 792 So.2d [369] at 372 [ (Ala.2000) ] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

Section 35-8A-316(a) provides:

“(a) The association has a lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes due. The association’s lien may be foreclosed in like manner as a mortgage on real estate but the association shall give reasonable advance notice of its proposed action to the unit owner and all lienholders of record of the unit. Unless the declaration otherwise provides, fees, charges, late charges, fines, and interest charged pursuant to section 35-8A-302(a)(10), (11) and (12) are enforceable as assessments under this section. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment thereof becomes due.”

(Emphasis added.)

West Wind supported its summary-judgment motion with, among other things, Vargo’s affidavit. In his affidavit, Vargo authenticated a letter he had mailed to Jones on December 11, 2007. That letter stated:

“I represent West Wind Condominium Association, Inc. in an effort to collect past due assessments from Howard Ross. It is my understanding that you represent Mr. Ross in connection with this subject matter.
“Enclosed please find the lien claims filed by my client in connection with the failure of your client to pay assessments. In the event the subject amounts are not paid in full by December 22, 2007, we will commence foreclosure proceedings.”

(Emphasis added.) Vargo’s affidavit and his December 11, 2007, letter to Jones made a prima facie showing that West Wind had given Ross reasonable advance notice that it proposed to foreclose on the four condominium units if he did not pay the amounts it was claiming in its liens by December 22, 2007, and thus made a prima facie showing that West Wind had given Ross the “reasonable advance notice of its proposed action” required by § 35-8A-316(a). By making that prima facie showing, West Wind shifted the burden to Ross to produce substantial evidence establishing a genuine issue of material fact regarding whether West Wind had given Ross the reasonable advance notice of its proposed action required by § 35-8A-316(a). See Lucas v. Alfa Mut. Ins. Co., 622 So.2d 907, 908-09 (Ala.1993).

Ross does not argue in his principal brief to this court that the trial court erred in granting West Wind’s summary-judgment motion because Ross met his burden of producing substantial evidence establishing the existence of a genuine issue of material fact regarding whether West Wind had given him reasonable advance notice of its proposed action as required by § 35-8A-816(a). Although his reply brief contains language that could possibly be construed as making that argument, this court does not consider issues raised for the first time in a reply brief. See Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002) (“[An appellate court] does not address issues raised for the first time in a reply brief.”). Thus, by failing to make that argument in his principal brief, Ross waived the issue whether the trial court erred because Ross met his burden of producing substantial evidence establishing the existence of a genuine issue of material fact regarding whether West Wind had given him reasonable advance notice of its proposed action as required by § 35-8A-316(a). See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”); Byrd v. Lamar; and McGlathery v. Alabama Agric. & Mech. Univ., 105 So.3d 437, 442 (Ala.Civ.App.2012) (“[A]ppellate courts do not consider arguments raised for the first time on rehearing.”).

Ross also argues that the trial court erred in granting West Wind’s summary-judgment motion because, he says, West Wind failed to make a prima facie showing that he owed West Wind a debt. However, West Wind supported its summary-judgment motion with the hen claims West Wind had recorded in the probate court with respect to each of the four condominium units. Each lien claim stated the amount West Wind claimed that Ross owed with respect to the condominium unit that was the subject of the lien claim, and each lien claim was verified by London, who signed the following verification:

“I, Joseph London, III, declare that:
“I am the President of West Wind Condominium Association, Inc., an Alabama corporation, named as the Association in the foregoing claim of lien; I am authorized to make this verification for the Association.
“I have read it and know its contents; it is true to my own knowledge and contains, among other things, a correct statement of my demand after deducting all just credits and offsets.”

Ross argues that the lien claims were not admissible evidence. However, he did not move to strike them. Because he did not move to strike the lien claims, he waived any objection on appeal regarding the trial court’s consideration of the lien claims. See Ex parte Secretary of Veterans Affairs, 92 So.3d 771, 777 (Ala.2012) (“Because Frank failed to move the trial court to strike the Hiatt affidavit and the unsworn, uncertified, and unauthenticated documents that accompanied that affidavit, he waived any objection on appeal regarding the trial court’s consideration of the affidavit and supporting documents.”). Thus, West Wind made a prima facie showing that Ross owed it a debt and shifted the burden to Ross to produce substantial evidence establishing the existence of a genuine issue of material fact regarding whether he owed West Wind a debt. See Potter v. First Real Estate Co., supra.

Ross does not argue in his principal brief to this court that the trial court erred in granting West Wind’s summary-judgment motion because he met his burden of producing substantial evidence establishing the existence of a genuine issue of material fact regarding whether he owed West Wind a debt. Therefore, he has waived that issue. See Boshell v. Keith; Byrd v. Lamar; and McGlathery v. Alabama Agric. & Mech. Univ. Accordingly, we affirm the summary judgment in favor of West Wind.

Ross also argues that the trial court erred in granting London’s partial-summary-judgment motion with respect to Ross’s claim seeking an order setting aside the foreclosure sales because, he says, London’s partial-summary-judgment motion did not challenge that claim. Ross’s contention that London’s partial-summary-judgment motion did not challenge Ross’s claim seeking an order setting aside the foreclosure sales is correct. Because London’s partial-summary-judgment motion did not challenge Ross’s claim seeking an order setting aside the foreclosure sales, it did not meet London’s initial burden of making a prima facie showing that he was entitled to a summary judgment with respect to that claim. See Employees of the Montgomery Cnty. Sheriff's Dep’t v. Marshall, 893 So.2d 326, 330 (Ala.2004) (“Since the sheriffs motion did not challenge the plaintiffs’ claims against the sheriff in his individual capacity, the motion did not meet the initial burden of the sheriff in his individual capacity, that is, ‘ “the burden of production, i.e., the burden of making a prima facie showing that he is entitled to summary judgment.” ’ Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)).”). However, in order to prevail on his claim seeking an order setting aside the foreclosure sales, Ross would have to prevail on that claim against West Wind, the party who actually foreclosed on the condominium units, and Ross has failed to present arguments on appeal justifying a reversal of the summary judgment in favor of West Wind with respect to that claim. Consequently, we conclude that the trial court’s error in granting London’s partial-summary-judgment motion with respect to Ross’s claim seeking an order setting aside the foreclosure sales did not injuriously affect Ross’s substantial rights and, therefore, constituted harmless error that does not warrant reversal of the summary judgment in favor of London. See Rule 45, Ala. R.App. P. Therefore, we affirm the summary judgment in favor of London.

Finally, Ross argues that the trial court erred in granting London’s motion to strike the second amended complaint. However, Ross represented to the trial court that he had asserted two of the three claims added by the second amended complaint, i.e., the claim of intentional interference with business or contractual relations and the claim of unlawful detention of property, against the Spruills only. As noted above, Ross has not appealed the summary judgment in favor of the Spruills. Therefore, the summary judgment in favor of the Spruills has become a final judgment that bars Ross from prosecuting the claims against them that he sought to add in the second amended complaint. See Stevenson v. Precision Standard, Inc., 762 So.2d 820, 827 (Ala.1999) (“[Because Stevenson[, the plaintiff,] did not appeal from the judgment in favor of Windsor[, one of the defendants], that judgment has become final; therefore, the doctrine of res judica-ta bars a new trial on the issue of Windsor’s liability.”). Consequently, any error committed by the trial court in granting the motion to strike those two claims against the Spruills did not affect Ross’s substantial rights and, consequently, constitutes harmless error. See Rule 45.

The remaining claim Ross sought to add in the second amended complaint was a breach-of-contraet claim against West Wind. That claim was based on the allegation that West Wind’s agreement to give Ross a credit against the dues on the four condominium units for performing or paying for maintenance and repair work at the condominium and for allowing a maintenance man employed by West Wind to live temporarily in one of the four condominium units without paying rent constituted a contract and that West Wind had breached that contract by failing to give Ross such a credit. Thus, that claim was based on alleged facts that were known to Ross when he filed his original complaint. Indeed, Ross’s claim seeking an order setting aside the foreclosure sales, which he included in his original complaint filed on April 18, 2008, was based, in part, on those same alleged facts. Yet, Ross delayed filing his second amended complaint for almost a year after he filed his original complaint. Moreover, the first trial setting was scheduled for March 2009, and Ross filed his second amended complaint less than 42 days before that first trial setting.

In Rector v. Better Houses, Inc., 820 So.2d 75, 77-78 (Ala.2001), the supreme court stated:

“Rule 15(a), Ala. R. Civ. P., governs amendments to pleadings. It provides, in pertinent part:
“ ‘Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause.’
“(Emphasis added.) In Boros v. Baxley, 621 So.2d 240 (Ala.1993), we explained:
“ ‘Although Rule 15(a) itself calls for liberal amendment, this Court has held consistently that “the grant or denial of leave to amend is a matter that is within the discretion of the trial court and is subject to reversal on appeal only for an abuse of discretion.” ’
621 So.2d at 245 (citations omitted). Thus, ‘Rule 15, [Ala. R. Civ. P.], is not carte blanche authority to amend a complaint at any time.’ Stallings v. Angelica Uniform Co., 388 So.2d 942, 947 (Ala.1980) (quoting Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975)). ‘[Ujndue delay in filing an amendment, when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment.’ Puckett, Taul & Underwood, Inc. v. Schreiber Corp., 551 So.2d 979, 984 (Ala.1989). ‘[I]f the court determines ... that a party has had sufficient opportunity to state a claim ... but has failed to do so, leave to amend may properly be denied.’ Walker v. Traughber, 351 So.2d 917, 922 (Ala.Civ.App.1977).”

In the present case, because Ross had knowledge of all the alleged facts upon which he based his breach-of-contract claim when he filed his original complaint yet delayed filing his second amended complaint for almost a year after he filed his original complaint and because he filed his second amended complaint less than 42 days before the first trial setting, we conclude that the trial court did not exceed its discretion in striking the second amended complaint as to Ross’s breach-of-contract claim. See Rector v. Better Houses.

Accordingly, we affirm the judgments of the trial court.

APPLICATION FOR REHEARING GRANTED; OPINION OF MAY 4, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . Section 6-5-255 provides:
      "If the purchaser or his or her vendee or transferee fails or refuses to reconvey to such party entitled and desiring to redeem such title as the party acquired by the sale and purchase, such party so paying or tendering payment shall thereupon have the right to file in the circuit court having jurisdiction thereof a complaint to enforce his or her rights of redemption.”

      . Section 6-5-256 provides:
      "Upon the filing of any complaint as provided in these sections and paying into court the amount of purchase money and the interest necessary for redemption and all lawful charges, if the written statement thereof has been furnished or, if not furnished, offering to pay such debt or purchase price and all lawful charges, the circuit court shall take jurisdiction thereof and settle and adjust all the rights and equities of the parties, as provided in this article.”


author: MOORE, Chief Justice. MURDOCK, Justice SHAW, Justice

text:
    Ex parte Howard ROSS. (In re Howard Ross v. West Wind Condominium Association, Inc., and Joseph London III).
    1120636.
    Supreme Court of Alabama.
    April 4, 2014.

      Michael F. Robertson, Huntsville.
    Submitted on petitioner’s brief only.

       Justice Bryan was a member of the Court of Civil Appeals when that court considered this case.

   MOORE, Chief Justice.

Howard Ross petitioned this Court for a writ of certiorari to review the judgment of the Court of Civil Appeals affirming summary judgments in favor of West Wind Condominium Association, Inc. (“West Wind”), and Joseph London III. See Ross v. West Wind Condo. Ass’n, 153 So.3d 29 (Ala.Civ.App.2012). We granted certiorari review, and we now reverse and remand.

I. Facts and Procedural History

Howard Ross owned four condominium units within the West Wind condominium community. On August 2, 2005, Ross and West Wind agreed that West Wind would accept maintenance and repair work from Ross in lieu of his paying the condominium association’s monthly dues. West Wind informed Ross in September 2006 that further work would not be necessary and that he should start paying the dues. Ross paid his dues monthly starting in December 2006. When Ross made his payments for April and May 2007, West Wind rejected those payments and sent Ross a letter through its attorney, A. Mac Martinson, disputing Ross’s charges for the maintenance and repair work that Ross had performed. Through an attorney named Patrick Jones, Ross submitted an itemized list of charges for his work done for West Wind, but Ross never received any further correspondence from West Wind.

On December 3, 2007, West Wind recorded instruments in the office of the Probate Judge of Madison County claiming liens on Ross’s four condominium units. On January 18, 2008, West Wind published notice of a foreclosure sale on Ross’s units in a local newspaper and continued publishing the notice for four weeks. On February 15, 2008, West Wind conducted foreclosure sales on Ross’s four condominium units and was the highest bidder as to all of them. That same day, the auctioneer executed foreclosure deeds conveying the four units to West Wind. On March 3, 2008, West Wind conveyed two of the units to Jimmy Spruill and Cynthia Spruill, one unit to Joseph London III (who was president of West Wind), and one unit to Delvin Sullivan.

Ross sued West Wind, London, Sullivan, and the Spruills in the Madison Circuit Court on April 18, 2008, alleging claims of wrongful foreclosure and seeking redemption of the properties. Ross sought an order setting aside the foreclosure sales, as well as redemption of the four condominium units. Ross claimed that West Wind had foreclosed on his units without giving him proper notice and that he had not learned of the foreclosures until after they had occurred. The trial court entered a default judgment against Sullivan, but it entered summary judgments in favor of London and the Spruills on January 4, 2010, and March 8, 2011, respectively, on their motions.

On March 28, 2011, West Wind also moved for a summary judgment, arguing, among other things, that it had the right to foreclose under § 35-8-17, Ala.Code 1975, based on Ross’s unpaid dues. West Wind supported its summary-judgment motion with copies of letters Martinson had sent to Ross and hen claims filed by West Wind against Ross. West Wind also included a letter dated December 11, 2007, from Robert Vargo, who was the attorney representing West Wind at the time, to Patrick Jones, notifying Jones of West Wind’s intention to foreclose. The letter from Vargo to Jones stated:

“I represent West Wind Condominium Association, Inc. in an effort to collect past due assessments from Howard Ross. It is my understanding that you represent Mr. Ross in connection with this subject matter.
“Enclosed please find the lien claims filed by my client in connection with the failure of your client to pay assessments. In the event the subject amounts are not paid in full by December 22, 2007, we will commence foreclosure proceedings.”

On April 1, 2011, Ross filed a response opposing West Wind’s summary-judgment motion, arguing that West Wind was not entitled to a summary judgment because, he said, a genuine issue of material fact existed as to whether he had received proper notice from West Wind. Ross’s response also contained a narrative of facts, a number of unauthenticated documents, an affidavit by Ross, and an affidavit by Patrick Jones, which stated, in relevant part:

“1. I have not represented nor acted as attorney for Howard Ross in any matters between said Howard Ross and Westwind [sic] Condominium Association.
“2. I have no knowledge of receipt of any alleged notices or communications sent by Robert Vargo, attorney at law, to Howard Ross.”

On April 7, 2011, West Wind moved to strike Ross’s affidavit and the unauthenticated documents attached to Ross’s response. On the same day, West Wind filed an affidavit from Robert Vargo, which stated, in relevant part:

“Having reviewed the correspondence between the offices of Mr. A. Mac Mar-tinson, an attorney who had previously represented West Wind in the same matter of collection of assessments from Howard Ross, and Mr. Patrick A. Jones, I understood that Howard Ross was being represented at the time by Mr. Patrick A. Jones.... In representing my client, and in order not to violate attorney ethics regarding not communicating about the subject matter of the representation with a party under circumstances implying that such party is represented in the matter by an attorney (i.e. Rule 4.2, Alabama Rules of Professional Conduct), I prepared my letter for Howard Ross to be addressed to attorney Patrick A. Jones.”

Vargo’s affidavit further stated that he mailed the letter to Jones, that the copy of the letter in West Wind’s summary-judgment motion was a true and correct copy of that letter, and that he never received a reply from either Jones or Ross. Vargo also stated that he published notices of the sales in the local paper and that he held the foreclosure sales on February 15, 2008, and acted as the auctioneer.

On April 14, 2011, the trial court granted West Wind’s motion to strike and then granted West Wind’s motion for a summary judgment. Ross filed a motion to reconsider on July 22, 2011, which the trial court denied on July 25, 2011. Ross appealed to the Court of Civil Appeals.

Before the Court of Civil Appeals, Ross argued that West Wind had not given him proper notice of the foreclosures by power of sale under § 35-8A-316(a), Ala.Code 1975; instead, he argued, notice was improperly given of the foreclosures by an action under § 35-8-17. West Wind replied that it had the authority to foreclose under § 35-8-17 but made no argument concerning § 35-8A-316. The Court of Civil Appeals held, among other things, that West Wind made a prima facie showing that Ross received notice of the foreclosures under § 35-8A-316. The court then held that Ross did not argue in his principal brief that he presented substantial evidence creating a genuine issue of material fact as to whether he had received such notice and that, therefore, he had waived that argument. Ross petitioned this Court for a writ of certiorari, which we granted.

II. Standard of Review

“This Court reviews a summary judgment de novo. We apply the same standard as the trial court to determine whether the evidence made out a genuine issue of material fact, see Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Rule 56(c), Ala. R. Civ. P.; Wright v. Wright, 654 So.2d 542 (Ala.1995).
“ ‘ “When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright [v. Wright], 654 So.2d [542] at 543 [ (Ala.1995) ] (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).” ’
“Walker v. City of Montgomery, 833 So.2d 40, 43 (Ala.2002) (quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)).”

Baldwin v. Estate of Baldwin, 875 So.2d 1138,1140 (Ala.2003).

III. Analysis

This Court granted certiorari to consider, as a matter of first impression, whether the power to foreclose by judicial action under § 35-8-17, Ala.Code 1975, includes the power to foreclose by sale under § 35-8A-316, Ala.Code 1975.

In 1964, the legislature passed what is currently § 35-8-17 as part of the Condominium Ownership Act. Section 35-8-17 states, in relevant part:

“The association shall have a lien on each unit for any unpaid assessment duly made by the association for a share of common expenses, limited common expenses or otherwise, together with interest thereon and, if authorized by the declaration or bylaws, reasonable attorney’s fees. Such lien shall be effective from and after the time of recording in the public records of the county in which the unit is located of a claim of lien stating the description of the unit, the name of the record owner, the amount due and the date when due. Such claim of lien shall include only sums which are due and payable when the claim of lien is recorded and shall be signed and verified by an officer or agent of the association. ...
“(4) Liens for unpaid assessments may be foreclosed by an action brought in the name of the association in the same manner as a foreclosure of a mortgage on real property.”

(Emphasis added.)

In 1991, the legislature enacted § 35-8A-316 as part of the Alabama Uniform Condominium Act. Section 35-8A-316(a) states, in relevant part:

“The association has a lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes due. The association’s lien may be foreclosed in like manner as a mortgage on real estate but the association shall give reasonable advance notice of its proposed action to the unit owner and all lienholders of record of the unit.”

(Emphasis added.)

These statutes provide condominium associations two different methods for foreclosing on condominium units. As demonstrated above, § 35-8-17 requires a claim of lien to be filed in the public records of the county in which the unit is located. After that, the condominium association may commence a foreclosure action against the condominium unit. In contrast, § 35-8A-316 states that the lien is effective against the unit from the time the assessment becomes due. Also unlike § 35-8-17, § 35-8A-316 does not require the condominium association to commence an action to foreclose on the unit. Instead, “[s]ubsection (a) permits the association’s assessment lien to be foreclosed in the manner of a realty mortgage. This is intended to mean a mortgage that includes a power of sale.” § 35-8A-316, Alabama Commentary; cf. §§ 35-10-1 through -16 (providing for power of sale in mortgages). However, if a condominium association seeks to foreclose by sale pursuant to § 35-8A-316, the association must give “reasonable advance notice” to the unit owner, whereas § 35-8-17 has no such requirement. Given the differences between the two foreclosure methods provided in these statutes, we hold that the power to foreclose by an action under § 35-8-17 does not include the power to foreclose by sale under § 35-8A-316.

In this case, Ross argues that West Wind initiated foreclosure by judicial action under § 35-8-17 but then foreclosed by sale under § 35-8A-316(a) without giving him reasonable advance notice. In the proceedings below, the Court of Civil Appeals interpreted this argument as presented in Ross’s brief to mean that “West Wind failed to make a prima facie showing that it had given him such notice.” Ross, 153 So.3d at 38. The court held that West Wind had satisfied its burden of making a prima facie showing by submitting in support of its summary-judgment motion Var-go’s December 11, 2007, letter to Jones and Vargo’s affidavit. 153 So.3d at 39. The Court of Civil Appeals held that the burden then shifted to Ross to present substantial evidence of the existence of a genuine issue of material fact as to whether he received proper notice and that, because he did not make that argument in his principal brief to that court, the argument that he did not receive proper notice was waived. 153 So.3d at 40.

The Court of Civil Appeals based its analysis on the following section of Ross’s brief:

“West Wind asserted in its motion for summary judgment that it gave Ross advance notice of the intended foreclo- • sure of his condominium units and supported its claim with an affidavit of Robert Vargo, its attorney at that time. Vargo’s affidavit stated that the notice of foreclosure was sent to local attorney, Patrick Jones, because it was Vargo’s understanding that Mr. Jones represented Ross. Ross presented an affidavit of Patrick Jones which stated that, not only did Mr. Jones not represent Ross in matters between Ross and West Wind, but that Mr. Jones did not receive any notice of the intended foreclosure of Ross’s condominium units. The content of that letter was a notice of the lien claims filed by West Wind along with a demand for payment and a conditional threat of foreclosure proceedings if the payment were not tendered. The said letter does not constitute a notice of foreclosure, as was later published by West Wind in the newspaper. Even if the referenced letter had been sent to Ross, it would fail to satisfy the notice requirement of Ala.Code 1975, § 35-8A-316(a). In accordance with Ala.Code 1975, § 35-8A-316(a), a condominium association maintains a lien by law for any money owed for assessed condominium dues. This section authorizes foreclosure of such a lien by the power of sale, as for a mortgage, if the association provides reasonable advance notice, as opposed to by action under Ala.Code 1975, § 35-8-17. Ala.Code 1975, § 35-8A-316(d), provides that recording the declaration constitutes record notice and perfection of the lien, and no further recordation of any claim of lien for assessment under this section is required.”

(Ross’s brief on appeal, at 25-26.) The essence of Ross’s argument to the Court of Civil Appeals was that, although West Wind’s steps to provide notice would have complied with the requirements of foreclosure under § 35-8-17, Ala.Code 1975, West Wind did not provide proper notice as required by § 35-8A-316, Ala.Code 1975, which, Ross says, was the applicable statute in this case. To prove his point, Ross stated that he presented Jones’s affidavit, in which Jones said that he neither represented Ross in any matters between him and West Wind nor had knowledge of any receipt of communications sent from Vargo to Ross.

Thus, the essence of Ross’s argument was not that West Wind failed to make a prima facie showing that there was no genuine issue of material fact but, rather, that he had presented substantial evidence showing that there was a genuine issue of material fact. Arguably, Ross should have presented his argument in the context of a burden-shifting analysis, but his argument was still sufficient to satisfy Rule 28(a)(10), Ala. R.App. P., and to preserve his argument for appeal. Therefore, the Court of Civil Appeals erred in holding that Ross had waived the argument.

Ross also argues that West Wind should have known that Jones could not be representing Ross because Jones and Ross were made codefendants in another suit after Ross sent his itemized list of charges to West Wind through Jones. Ross cites Rule 1.7, Ala. R. Prof. Cond., to argue that Jones could not continue to represent Ross because that representation would have created a conflict of interest. However, the documents upon which Ross relies to make this argument were struck from the evidence, and Ross has not argued that the trial court erred in striking this evidence. Thus, this argument is not properly before us.

Regardless, Jones’s affidavit was still properly admitted and provided substantial evidence to create a genuine issue of material fact as to whether Ross had received proper notice under § 35-8A-316, Ala.Code 1975. Thus, the trial court erred in entering a summary judgment for West Wind and London. The Court of Civil Appeals erred in holding that Ross had waived the argument that he had presented substantial evidence creating a genuine issue of material fact as to whether he had received proper notice, and that judgment is due to be reversed.

IV. Conclusion

Based on the foregoing, the judgment of the Court of Civil Appeals is reversed and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

STUART, PARKER, MAIN, and WISE, JJ., concur.

BOLIN, J., concurs in the result.

MURDOCK, J., concurs in the result, but dissents as to the rationale.

SHAW, J., dissents.

BRYAN, J., recuses himself.

MURDOCK, Justice

(concurring in the result, but dissenting as to the rationale).

I agree with the main opinion that the power to foreclose by judicial action under § 35-8-17, Ala.Code 1975, does not include the power to foreclose by sale under § 35-8A-316, Ala.Code 1975. Our providing an answer to this question, however, does not resolve the dispute presented. Clearly, West Wind Condominium Association, Inc. (“West Wind”), attempted to pursue to a conclusion only a foreclosure by the power of sale, a power given to it under § 35-8A-316, independent of § 35-8-17. The dis-positive question presented, however, is whether West Wind actually satisfied the prerequisites for conducting a power-of-sale foreclosure or, more precisely, whether it and Joseph London III were entitled to a summary judgment to this effect.

The Court of Civil Appeals considered the issue before it to be whether the letter sent by Robert Vargo, an attorney representing West Wind, and the averments in Vargo’s affidavit were sufficient to establish a prima facie case that West Wind gave Ross the notice required for a power-of-sale foreclosure under § 35-8A-316(a). Because § 35-8A-316(a) requires a condominium association to give notice of foreclosure “to the unit owner” and because Vargo averred only that he sent notice to Patrick Jones (who Vargo averred was Ross’s attorney), I disagree with the Court of Civil Appeals’ conclusion that West Wind and London established a prima fa-cie case of proper notice under the statute. In fact, West Wind’s showing conclusively demonstrates that the notice required by the statute was not given and therefore that Ross, not West Wind and London, would be entitled to a summary judgment.

By the same token, I disagree with the answer supplied by by the main opinion, which considers the issue to be whether an affidavit executed by Jones in response to Vargo’s affidavit created a genuine issue of material fact as to whether Ross received a proper power-of-sale notice under § 35-8A-316. I agree that Jones’s affidavit constituted substantial evidence creating a genuine issue of fact as to whether Jones represented Ross at the time he received the Vargo letter. I do not agree, however, that whether Jones was Ross’s attorney is something that matters here, i.e., is an issue of “material fact.” This is so because, again, § 35-8A-316(a) requires a condominium association to give notice of its proposed action “to the unit owner.”

Both West Wind’s position that it did present a prima facie case of the requisite notice to Ross and Ross’s position that West Wind failed to do so or that he countered West Wind’s showing with sufficient evidence to create a genuine issue of fact in this regard presuppose that Rule 4.2, Ala. R. Prof. Cond., alters the statutory notice requirement of § 35-8A-316. Rule 4.2 limits the ability of a lawyer for one party to communicate directly with another party who the lawyer knows is represented by counsel. A rule of professional conduct promulgated by this Court, however, cannot alter or countermand a statutory mandate of the nature presented here. Concomitantly, I do not think this Court intended by a rule of professional conduct to alter a statutory mandate of this nature. Furthermore, even if Rule 4.2 prevented an attorney retained by West Wind from giving the statutorily required notice directly to Ross, this would not have prevented West Wind itself from sending that notice directly to Ross, i.e., from sending the statutorily required notice without the aid of an attorney operating under such a restriction.

Alternatively (i.e., even if the statutory requirement of notice to Ross could have been satisfied by the delivery of a notice to Ross’s attorney), the content of the letter presented by West Wind fails to satisfy another statutory prerequisite. Section 35-8A-316(a) requires notice of the actual foreclosure. The letter delivered to Jones in this case (i) advised the reader that West Wind had filed lien claims against the condominium units (a step previously taken by West Wind in anticipation of a judicial-action foreclosure) and (ii) made a demand for payment. As Ross points out, the letter also (iii) contained “a conditional threat of foreclosure proceedings if the payments were not tendered.” Accordingly, Ross contends, the “letter does not constitute a notice of foreclosure.”

Ross is right. The letter simply is not a notice of an actual foreclosure. It is only a threat of a foreclosure if certain conditions are not satisfied. The threat may be of a foreclosure that, if it occurs, will occur imminently, but it is still only a threat of a foreclosure and it is still conditioned on the occurrence of potential future events that might or might not ever occur. The letter does not advise of an actual or present foreclosure. It is not the notice prescribed in § 35-8A-316(a). For this additional reason, West Wind and London were not entitled to a summary judgment; instead, Ross is entitled to such a judgment.

In sum, the record does not reflect a prima facie showing by West Wind that the required power-of-sale statutory notice was given to Jones. Indeed, rather than being able to conclude that West Wind and London were entitled to a summary judgment, I must conclude that it was Ross who was entitled to a summary judgment on the issue of the. validity of the foreclosure. Accordingly, I agree with the main opinion that the judgment of the trial court should be reversed and the case remanded, but I disagree with the rationale upon which the main opinion reaches that conclusion and with the implied instruction that the case be remanded to the trial court for further proceedings. I would remand the cause to the Court of Civil Appeals with instructions that that court in turn remand the case to the trial court for the entry of a judgment consistent with the foregoing analysis.

SHAW, Justice

(dissenting).

The issue in the certiorari petition that this Court agreed to consider (ground “A”) is accurately summarized in the main opinion: “This Court granted certiorari to consider, as a matter of first impression, whether the power to foreclose by judicial action under § 35-8-17, Ala.Code 1975, encompasses the power to foreclose by sale under § 35-8A-316, Ala.Code 1975.” 153 So.3d at 47. See Rule 39(a)(1)(C), Ala.. RApp. P. (“[PJetitions for writs of certio-rari will be considered ... [f]rom decisions where a material question requiring decision is one of first impression for the Supreme Court of Alabama_”). I dissented from granting the petition: Of course, the power to foreclose by judicial action under § 35-8-17 does not include the power to foreclose by sale under § 35-8A-316 — the latter Code section was enacted 26 years after the former. And this issue is of no consequence — it is not material— because the Court of Civil Appeals did not base its decision in any way on § 35-8-17; in fact, the court did not even mention that Code section, which does not apply to “events and circumstances occurring after January 1,1991-” Ala.Code 1975, § 35-8A-102(a).

The main opinion goes on to address whether a genuine issue of material fact exists as to whether West Wind Condominium Association, Inc., provided proper notice to Howard Ross under § 35-8A-316. This is not the issue the main opinion identifies — quoted above — as the issue upon which this Court granted certiorari review, and it is not the issue presented by ground “A” of the certiorari petition. It is certainly not a “material question of first impression”; that a trial court erred in finding that no genuine issue of material fact existed for purposes of entering a summary judgment is simply a general allegation of error, which is not a proper ground for certiorari review under Rule 39(a)(1).

Further, Ross’s certiorari petition never challenged the Court of Civil Appeals’ holding that he waived this issue on appeal. The main opinion is thus reversing that court’s judgment on an issue not before us. Simply granting certiorari on one discreet ground for review does not open the Court of Civil Appeals’ decision to a full review of every issue ruled upon by that court. West Wind, which did not file a brief, had no notice that this Court would address the issue.

      . Ross did not appeal the summary judgment in favor of the Spruills; he appealed only the summary judgments in favor of West Wind and London.

      . When a statute prescribes a specific notice or other condition to a real-property right, it is that specific notice or condition that must be met. Also, a notice of the nature mandated by statute in such a case does no harm of the nature that Rule 4.2 was intended to guard against.


author: PER CURIAM.

text:
    Howard ROSS v. WEST WIND CONDOMINIUM ASSOCIATION, INC., and Joseph London III.
    2101167.
    Court of Civil Appeals of Alabama.
    May 30, 2014.
    Michael F. Robertson, Huntsville, for appellant.
    Curtis L. Whitmore, Huntsville, for ap-pellee West Wind Condominium Association, Inc.
   After Remand from the Alabama Supreme Court

PER CURIAM.

The prior judgment of this court affirming the summary judgments entered by the Madison Circuit Court (“the trial court”) in favor of West Wind Condominium Association, Inc., and Joseph London III has been reversed, and the cause remanded by the Supreme Court of Alabama. See Ex parte Ross, 153 So.3d 43 (Ala.2014). On remand to this court, and in compliance with the supreme court’s opinion, the summary judgments entered by the trial court in favor of West Wind and London are reversed, and the cause is remanded to the trial court for further proceedings consistent with the supreme court’s opinion.

REVERSED AND REMANDED.

All the judges concur.


author: PER CURIAM. WELCH, Presiding Judge,

text:
    Sarah Janie HICKS v. STATE of Alabama.
    CR-09-0642.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 2011.
    Rehearing Denied Feb. 10, 2012.
    Carmen F. Howell, Enterprise, for appellant.
    Troy King and Luther Strange, attys. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

KELLUM, BURKE, and JOINER, JJ., concur. WELCH, P.J., concurs in the result, with opinion. WINDOM, J., concurs in the result.

WELCH, Presiding Judge,

concurring in the result.

I concur in the result reached in the Court’s unpublished memorandum for the same reasons I stated in my special writing in Ankrom v. State, 152 So.3d 373 (Ala.Crim.App.2011) (Welch, P.J., concurring in the result and dissenting in part).

I believe that the indictment here, like the indictment in Ankrom, properly-charged an offense within the circuit court’s jurisdiction and that the circuit court correctly denied Sarah Janie Hicks’s pretrial motion to dismiss the indictment, because to rule otherwise would have been an impermissible pretrial determination as to the sufficiency of the evidence. Adhering to this view, I continue to disagree with the Ankrom court’s decision to overrule Doseck v. State, 8 So.3d 1024 (Ala.Crim.App.2008). Moreover, here, as in Ankrom, Hicks followed the denial of her motion to dismiss the indictment with the entry of a guilty plea. Because Hicks pleaded guilty, an appellate challenge to the sufficiency of the evidence would be resolved adversely to her. Lawrence v. State, 953 So.2d 431, 433 (Ala.Crim.App. 2006) (“ ‘A guilty plea serves as an admission to all elements of the offense charged.’ ” (quoting Mitchell v. State, 495 So.2d 738, 739 (Ala.Crim.App.1986))).

Therefore, I believe that Hicks’s conviction is due to be affirmed. However, in this case I can concur only in the result because the analysis relies on Ankrom. I believe that the circuit court’s proper denial of the motion to dismiss the indictment followed by the entry of a guilty plea rendered the construction of the statute charging chemical endangerment of a child, as was done in Ankrom, unnecessary to the disposition of Ankrom’s appeal, and likewise, unnecessary to the disposition of Hicks’s appeal.

For the foregoing reasons, I respectfully concur in the result.