216 So. 3d 438
Ala. Civ. App.2016Background
- Ross sued West Wind and others after West Wind foreclosed on his four condo units in 2008 and later conveyed some units to third parties.
- Ross challenged the foreclosures as invalid for failure to give ‘reasonable advance notice’ under § 35-8A-316(a), Ala.Code 1975, and sought title restoration, damages, and attorney’s fees under § 35-8A-414.
- The trial court found insufficient damages evidence and denied attorney’s fees, but ordered title restoration due to invalid foreclosures.
- On appeal, this Court previously affirmed some judgments, then the Alabama Supreme Court reversed and remanded for proceedings consistent with its opinion.
- On remand, the trial court heard ore tenus evidence; Ross asserted damages from the Spruills’ quitclaim transaction and from London’s rental of Ross’s unit, as well as a request for attorney’s fees.
- Ross argued London’s post-foreclosure rent losses and Spruills’ $8,000 settlement constituted recoverable damages; West Wind asserted failure to prove damages and raised mitigation as an affirmative defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages for invalid foreclosures | Ross claimed damages due to invalid foreclosures and sought damages and fees under § 35-8A-414. | West Wind argued damages were not proven and mitigation or other defenses precluded recovery. | Damages affirmed for Ross; reversal on denial of damages for the London unit, remanding for further proceedings on damages. |
| Mitigation of damages for the Spruill quitclaims | Ross paid $8,000 to obtain title back from the Spruills; seeks damages for loss attributed to that. | West Wind contends no mitigation analysis was appropriate for those damages. | Trial court erred by denying damages; Ross is entitled to damages for the Spruills’ conveyance as mitigating recovery. |
| Damages for rent loss after London unit foreclosure | London rented Ross’s unit post-foreclosure at $300/month; Ross suffered ongoing loss. | West Wind argued evidence did not prove extended or higher rent losses. | Damages of $1,800 proven (six months at $300), beyond which damages would be speculative; reversal for this item. |
| Attorney’s fees under § 35-8A-414 | Ross sought attorney’s fees due to § 35-8A-414 as an appropriate case. | West Wind contends discretion lies with trial court and this case was not appropriate for an award. | Trial court acted within its discretion; no fee award granted as this was not an appropriate case. |
Key Cases Cited
- Prudential Ballard Realty Co. v. Weatherly, 792 So.2d 1045 (Ala. 2000) (mitigation is an affirmative defense; must be pleaded)
- Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013 (Ala. 2003) (appellate review can affirm on any valid legal ground)
- Avco Fin. Servs., Inc. v. Ramsey, 631 So.2d 940 (Ala. 1994) (burden to prove damages; evidence must be fairly proved, not speculative)
- Continental Volkswagen, Inc. v. Soutullo, 54 Ala.App. 410, 309 So.2d 119 (Ala. Civ. App. 1975) (damages must be proved with reasonable certainty)
- Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440 (Ala. 2007) (ore tenus findings presumed correct unless palpably erroneous)
- Waltman v. Rowell, 913 So.2d 1083 (Ala. 2005) (ore tenus standard; law applied correctly)
- Seals Piano & Organ Co. v. Bell, 84 So. 779 (Ala. 1920) (damages must be proven; speculation not permitted)
- Auburn’s Gameday Ctr. at Magnolia Corner Owners Ass’n v. Murray, 138 So.3d 317 (Ala.Civ.App. 2013) (mitigation and damages precedents for HOA contexts)