Ross v. West Wind Condominium Ass'n

Citations: 216 So. 3d 438; 2016 Ala. Civ. App. LEXIS 38Docket: 2140675

Court: Court of Civil Appeals of Alabama; February 4, 2016; Alabama; State Appellate Court

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Howard Ross appeals a judgment from the Madison Circuit Court in a civil case against West Wind Condominium Association, Inc. This marks Ross's second appeal concerning his claims against West Wind. The previous appeal, Ross v. West Wind Condominium Ass’n, resulted in summary judgments in favor of West Wind and Joseph London III, which were later reversed by the Alabama Supreme Court, leading to a remand for further proceedings.

Relevant facts include Ross owning four units in the West Wind community and an agreement made on August 2, 2005, allowing him to provide maintenance in lieu of monthly dues. In September 2006, West Wind requested Ross to resume dues payments, which he began in December 2006. However, West Wind rejected his payments for April and May 2007, disputing his maintenance charges. Ross sent an itemized list of charges through his attorney but received no further communication from West Wind.

On December 3, 2007, West Wind filed liens against Ross's units, and on January 18, 2008, published notice of a foreclosure sale, which occurred on February 15, 2008, with West Wind acquiring the units. Ross contested the validity of the foreclosure, claiming insufficient notice as mandated by Alabama law. The trial court granted a default judgment against one defendant and summary judgments for West Wind and others, though some cross-claims remained unresolved. In 2011, Ross reached a settlement with the Spruills, who had purchased two units, and dismissed his claims against them. Ross subsequently filed a postjudgment motion challenging the summary judgment for West Wind, which the court denied, closing with the dismissal of remaining claims with prejudice.

Ross appealed summary judgments favoring West Wind and London, which were initially affirmed by the court but later reversed by the supreme court, leading to remand for further proceedings. Following the remand, a bench trial was conducted where evidence was presented, and the parties reached written stipulations on certain facts. Ross contended that the foreclosures on his condominium units were invalid due to a lack of 'reasonable advance notice' as required by Alabama Code § 35-8A-316(a). He sought restoration of title to the units, damages from West Wind, and attorney fees under § 35-8A-414, which allows for recovery of damages and attorney fees for violations of the Alabama Uniform Condominium Act. The trial court ruled that West Wind failed to provide the required notice, rendering the foreclosures invalid and restoring title to Ross. However, it denied Ross's claims for damages and attorney fees, citing insufficient evidence to support a damage award and the absence of an itemized fee statement. Ross's postjudgment motion challenging these denials was also rejected. He subsequently appealed, with the appellate court noting that findings of fact from an ore tenus hearing are presumed correct unless shown to be palpably erroneous or unjust, although this presumption does not apply to conclusions of law.

Ross contends that the trial court incorrectly denied his damages claim against West Wind, asserting that he incurred $8,000 to regain title to two condominium units after their invalid foreclosure, which he argues was proximately caused by West Wind's actions. The court agrees that Ross had a duty to mitigate damages by acquiring the title and concludes that he presented sufficient evidence to support a damages award for these units. Additionally, Ross claims to have lost $300 per month in rental income after London evicted his tenants and began renting the unit he purchased from West Wind. Testimony indicated that London faced difficulties evicting Ross's tenants for over a year and only began renting the unit for $300 monthly after that period. West Wind raised the affirmative defense of failure to mitigate damages in its answer, which is crucial as mitigation is a legal requirement that must be pleaded. The appellate court can affirm a trial court's decision on any valid legal basis, but not on an unpleaded affirmative defense.

West Wind failed to provide evidence that Ross could have mitigated damages from the foreclosure of the condominium unit. Consequently, the court rejected the application of the mitigation rule for that unit. The burden of proof lies with the plaintiff to establish the amount of damages, as noted in Avco Fin. Servs. Inc. v. Ramsey and Kershaw Mining Co. v. Lankford. Ross demonstrated damages amounting to $1,800 based on six months of rental at $300 per month, while any claims for damages exceeding this amount were deemed speculative due to lack of evidence. The trial court erred in concluding that Ross had proven no damages regarding the condominium unit. 

Regarding the claim for attorney fees under § 35-8A-414, the statute allows for such awards in "appropriate cases," but does not define what constitutes appropriateness. The determination of appropriateness and the amount of the award are at the trial court's discretion. The trial court did not abuse this discretion in determining that this case was not appropriate for an attorney fee award. The judgment is reversed concerning Ross's claim for damages from West Wind, affirmed in all other respects, and remanded for further proceedings consistent with this opinion. London is not part of this appeal as the trial court's judgment was not adverse to him.