Leeth v. J. J. Properties

69 So. 3d 176, 2010 Ala. Civ. App. LEXIS 321, 2010 WL 4371355
CourtCourt of Civil Appeals of Alabama
DecidedNovember 5, 2010
Docket2090758
StatusPublished

This text of 69 So. 3d 176 (Leeth v. J. J. Properties) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leeth v. J. J. Properties, 69 So. 3d 176, 2010 Ala. Civ. App. LEXIS 321, 2010 WL 4371355 (Ala. Ct. App. 2010).

Opinions

BRYAN, Judge.

Larry Eugene Leeth and Edna Lee Washington Leeth appeal from a summary judgment entered in favor of J & J Properties (“J & J”). We affirm.

In 2005, the Leeths entered into a six-month lease agreement with J & J to rent an apartment (“the apartment”) owned by J & J. Upon the expiration of the six-month lease period, the Leeths began renting the apartment on a month-to-month basis. On August 26, 2009, J & J gave the Leeths 30 days’ written notice of the termination of their month-to-month tenancy. After the Leeths failed to vacate the apartment within 30 days, J & J filed an unlawful-detainer action in the Limestone District Court. The Leeths, acting pro se, filed a counterclaim alleging a retaliatory eviction. After a trial, the district court entered a judgment in favor of J & J on its unlawful-detainer claim and on the Leeths’ retaliatory-eviction counterclaim.

The Leeths appealed the district court’s judgment to the Limestone Circuit Court. The circuit court severed the unlawful-detainer claim from the Leeths’ retaliatory-eviction counterclaim; in substance, that counterclaim appeared to be brought under § 35-9A-501, Ala.Code 1975, which prohibits certain retaliatory conduct by landlords. Following a bench trial on the unlawful-detainer claim, the circuit court entered a judgment on that claim in favor of J & J. The Leeths filed amended counterclaims alleging “retaliatory eviction/gross negligence,” “noncompliance by [J & J],” “retaliation/discrimination,” “bad faith noncompliance and retaliation,” and “defamation of character.” J & J filed a motion for a summary judgment, which the circuit court granted following a hearing. After the denial of their postjudgment motion, the Leeths appealed to this court.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ 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.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. 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 [178]*178existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (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).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

On appeal, the Leeths first argue that the circuit court erred in entering a summary judgment on certain of their counterclaims because, the Leeths say, J & J failed to address those counterclaims in its summary-judgment motion. The Leeths stated several purported counterclaims; some of those counterclaims were not addressed in J & J’s summary-judgment motion. However, the Leeths did not object in their postjudgment motion to the entry of a summary judgment as to the counterclaims that were not addressed by J& J.

In Employees of the Montgomery County Sheriff’s Department v. Marshall, 893 So.2d 326 (Ala.2004), the plaintiffs sued Sheriff D.T. Marshall in both his official and his individual capacities. Sheriff Marshall moved for a summary judgment in his official capacity only. However, the trial court entered a summary judgment in favor of Sheriff Marshall in both his official capacity and his individual capacity. The plaintiffs then appealed to the supreme court. With respect to the summary judgment in favor of Sheriff Marshall in his individual capacity, the supreme court stated:

“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, the record before us does not reveal whether the plaintiffs objected to the trial court in a timely postjudgment Rule 59(e), Ala. R. Civ. P., motion that the trial court erred in failing to limit the summary judgment to the claims against the sheriff in his official capacity, see Hatch v. Health-Mar, Inc., 686 So.2d 1132, 1132 (Ala.1996) (‘[I]t was error for the trial court to enter a summary judgment as to all of [the plaintiffs] claims, because one claim ... was not before the trial court on the summary judgment motion’), and Henson v. Mobile Infirmary Ass’n, 646 So.2d 559, 562 (Ala.1994) (‘[W]e observe at the outset that the trial court could not properly enter the summary judgment as to all of [the plaintiffs] claims. Counts one and two ... were not before the trial court on the [defendant’s] motion’). Such a Rule 59(e) motion would have been necessary to preserve such an objection for an appeal ‘because this issue [did] not involve a question of law that ha[d] been the subject of a previous objection and ruling. McKenzie v. Killian, 887 So.2d 861, 865 (Ala.2004).”

893 So.2d at 330-31 (final emphasis added). Accordingly, in this case, because the Leeths did not object to the entry of the summary judgment on the counterclaims unaddressed by J & J in its summary-judgment motion, they did not preserve the issue of the propriety of that ruling for our review.

[179]*179In its summary-judgment motion, J & J did thoroughly address the Leeths’ retaliatory-eviction counterclaim brought under § 35-9A-501(a)(l), Ala.Code 1975. That section provides, in pertinent part:

“(a) Except as provided in this section, a landlord may not retaliate ... by bringing or threatening to bring an action for possession because:
“(1) the tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety.”

In their retaliatory-eviction counterclaim, the Leeths alleged that the apartment had “toxic mold” and that a faulty ventilation system had allowed “cigarette and other secondhand smoke” from other apartments into the apartment; these allegations appear to be the purported “violations” under § 35-9A-501(a).

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Related

Wilma Corp. v. Fleming Foods of Alabama
613 So. 2d 359 (Supreme Court of Alabama, 1993)
McKenzie v. Killian
887 So. 2d 861 (Supreme Court of Alabama, 2004)
Bass v. SOUTHTRUST BANK OF BALDWIN CTY.
538 So. 2d 794 (Supreme Court of Alabama, 1989)
Roberts v. Carroll
377 So. 2d 944 (Supreme Court of Alabama, 1979)
Hobson v. American Cast Iron Pipe Co.
690 So. 2d 341 (Supreme Court of Alabama, 1997)
Bussey v. John Deere Co.
531 So. 2d 860 (Supreme Court of Alabama, 1988)
Turner v. Azalea Box Co.
508 So. 2d 253 (Supreme Court of Alabama, 1987)
Hatch v. Health-Mor, Inc.
686 So. 2d 1132 (Supreme Court of Alabama, 1996)
Hanners v. Balfour Guthrie, Inc.
564 So. 2d 412 (Supreme Court of Alabama, 1990)
Wright v. Wright
654 So. 2d 542 (Supreme Court of Alabama, 1995)
Spradlin v. Spradlin
601 So. 2d 76 (Supreme Court of Alabama, 1992)
Henson v. Mobile Infirmary Ass'n
646 So. 2d 559 (Supreme Court of Alabama, 1994)
Employees of Montgomery County v. Marshall
893 So. 2d 326 (Supreme Court of Alabama, 2004)
Berner v. Caldwell
543 So. 2d 686 (Supreme Court of Alabama, 1989)
West v. Founders Life Assur. Co. of Florida
547 So. 2d 870 (Supreme Court of Alabama, 1989)
Ex Parte General Motors Corp.
769 So. 2d 903 (Supreme Court of Alabama, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
69 So. 3d 176, 2010 Ala. Civ. App. LEXIS 321, 2010 WL 4371355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leeth-v-j-j-properties-alacivapp-2010.