Will v. Mill Condominium Owners' Ass'n
Will v. Mill Condominium Owners' Ass'n
Opinion of the Court
¶ 1. Plaintiff Anne M. Will, owner of a unit in the Mill Condominiums, challenges the trial court’s decision denying her claims for damages, attorneys’ fees, and costs resulting from the commercially unreasonable foreclosure sale of Will’s condominium by defendant Mill Condominium Owners’ Association. We affirm in part and reverse in part.
¶ 2. This is the second time this case has come before us on appeal. The facts underlying the conflict between Will and the defendants are recited in our first decision, Will v. Mill Condo. Owners’ Ass’n, 2004 VT 22, 176 Vt. 380, 848 A.2d 336 (“Will I”). In brief, Will failed to pay her condominium dues for a period of time; in response, the Association foreclosed and sold Will’s condominium. The Association sold the condominium to defendants Alen and Linda Seiple for $3,510.10, although the condominium was valued at approximately $70,000.
¶ 3. In turn, Will sued the Association, the Association’s attorney (Martin Nitka), and the Seiples, challenging the validity of the foreclosure sale and seeking its rescission. When the trial court indicated that it considered the sale valid and would not order rescission, Will amended her complaint to add claims for money damages based on various theories including breach of contract, mutual mistake, unjust enrichment, inadequacy of consideration, breach of fiduciary duty, and breach of the duty to sell the condominium in a commercially reasonable manner. Upon motions for summary judgment, the trial court ruled in favor of the Association, attorney Nitka, and the Seiples, concluding that the foreclosure sale
¶ 4. Thus, one of the central findings supporting summary judgment in favor of the Association and attorney Nitka was that they did not owe Will any duty to sell the condominium in a commercially reasonable manner. Will contested this conclusion on appeal, and this was the argument on which she prevailed.
¶ 5. Following remand, Will filed a proposed order with the trial court seeking to vacate the foreclosure deed and to set the matter for trial on Will’s claim for damages. Will then filed a motion for damages, costs, and attorneys’ fees. The trial court vacated the foreclosure immediately and initially indicated that it would hold further proceedings on the claims for damages, attorneys’ fees, and costs. Ultimately, however, the trial court denied Will’s damages claim, concluding that a trial on damages would exceed the scope of our remand, and also noting that the specific damages claim Will asserted on remand had not been pursued previously. The trial court further denied the claim for attorneys’ fees, concluding that fees were not available under the statutory section Will had invoked. Finally, the trial court denied Will’s claim for costs because she had not provided an adequate accounting. Will challenges these rulings in her appeal. The trial court denied Will’s damages claim and
¶ 6. We first examine whether Will should have been allowed to pursue a claim for damages against the Association and attorney Nitka for breach of the duty to sell the condominium in a commercially reasonable manner. Will claimed damages in the amount of $79,500 for lost use of her condominium, $5,000 for the cost of removing property and storage, $3,500 for replacement of personal property, $1,200 to clean and repair the unit, and $12,500 for lost personal time. We express no view on the merits of these claimed damages, but conclude that Will should at least be allowed to present them to the trial court in the first instance.
¶ 7. The trial court gave three related reasons for concluding that Will could not pursue her damages claim. First, the trial court determined that rescission and money damages were alternative and mutually exclusive remedies. The trial court did not cite authority in support of this proposition, and defendants offer none in their appellate briefing.
¶ 9. It is true that, in proceedings on remand, the trial court is limited to the specific directions in the remand order as interpreted in light of the opinion. Bissonnette v. Wylie, 168 Vt. 561, 562, 711 A.2d 1161, 1163 (1998) (mem.) (citing Coty v. Ramsey Assocs., 154 Vt. 168, 171, 573 A.2d 694, 696 (1990)). Unless the Court states explicitly otherwise,
¶ 10. Third, the trial court determined that Will’s damages claim was waived because she had not raised this particular damages claim previously, stating, “The obvious reason for the limited remand is
¶ 11. These arguments fail in light of the record. Will included damages claims based on breach of a duty of commercial reasonableness in the amended complaint. The trial court rejected this theory; Will appealed on that basis and prevailed. We held that the Association and its attorney did owe a duty and had breached that duty. Our decision in Will I validated Will’s theory of recovery, and therefore the claims based on that theory were revived for determination upon remand. That the specific components of the damages sought by Will have changed between the filing of her complaint and the proceedings on remand is to be expected.
¶ 12. We emphasize that we are not deciding the merits of Will’s damages claim, only that it deserves a hearing. The Association and attorney Nitka are entitled to seek to dismiss the claim, move for summary judgment, or pursue whatever strategy they wish. But it was error for the trial court to conclude that the claim was waived, precluded by our remand, or generally unavailable in light of the award of rescission.
¶ 13. Will’s claims against the Seiples were not based on the breach of the duty to conduct a commercially reasonable foreclosure sale. Rather, the amended complaint asserted claims against the Seiples for mutual mistake and unjust enrichment. The basis for granting summary judgment in favor of the Seiples was unaltered by our
¶ 14. Will sought to recover her attorneys’ fees under 27A V.S.A. § 3-116(g), the attorneys’ fees provision of the statute permitting homeowners’ associations to assert a lien over property where the property owner is delinquent in paying assessments. While it is true that the Association foreclosed on Will’s condominium under this statute, Will brought a separate declaratory judgment action to challenge the foreclosure sale. Thus, the invalidation of the foreclosure did not take place in the context of a § 3-116 proceeding. Generally, a party must proceed under the applicable statute to recover statutory attorneys’ fees. See Kirchner v. Giebink, 155 Vt. 351, 355, 584 A.2d 1120, 1122-23 (1990) (indicating that attorneys’ fees available under provision of federal statute would not be available if plaintiff prevailed solely on state law grounds). Further, the decision in this case did not invalidate the Association’s basic entitlement to foreclosure in light of Will’s nonpayment of fees, but rather invalidated the sale because of the surrounding circumstances. Will is not entitled to attorneys’ fees under 27A V.S.A. § 3-116(g).
¶ 15. Finally, we consider the trial court’s denial of Will’s request for costs. The prevailing party in a civil action is entitled to recover his or her costs as a matter of course under V.R.C.P. 54(d). Further, V.R.A.P. 39(a) provides that where, as in Will I, judgment is reversed and remanded on appeal, “costs on the appeal shall be taxed against the appellee, [and] costs on the first trial shall be held in abeyance pending judgment in the new trial, when costs of both trials shall be allowed to the prevailing party.” The Association faults Will for failing to produce an itemized accounting of her costs. But at the time the trial court requested that Will specify her costs, the court by all appearances was intending to hold further proceedings in the case. Instead, the court’s next order was to deny all of Will’s
¶ 16. We note that attorney Nitka has filed a motion to dismiss this appeal. The motion presents an argument already covered in attorney Nitka’s appellate brief: that further proceedings are not warranted in this case because our remand in Will I was limited. In light of our resolution of that issue above, we deny the motion.
The grant of summary judgment to the Seiples and the denial of attorneys’ fees are affirmed. The decision of the trial court is otherwise reversed and remanded for proceedings consistent with this decision. Costs shall be taxed against the Association and attorney Nitka. See V.R.A.P. 39(a).
Will also argued that the foreclosure sale was premised on mutual mistake and that the foreclosure violated certain constitutional rights. We rejected both of these arguments.
Attorney Nitka cites case law to the effect that a party seeking to enforce a real estate contract must elect either specific performance (transfer of the property) or damages. This body of law does not assist us in determining the remedies available to Will, who seeks compensation for breach of a noncontractual duty.
Examples of cases in which we have explicitly entered limited remands are abundant, and distinct from the language used in Will I. See, e.g., DeKoeyer v. DeKoeyer, 146 Vt. 493, 498, 507 A.2d 962, 965 (1986) (‘‘Affirmed; remanded, for the limited purpose of considering plaintiff’s request for an award of attorney’s fees and costs.”); Trombetta v. Champlain Valley Fruit Co., 117 Vt. 491, 495, 94 A.2d 797, 800 (1953) ("Judgment as to liability affirmed. Judgment as to damages reversed, and cause remanded for retrial on that issue only.”).
For example, now that rescission has been awarded, Will can no longer seek to recover the value of her unit. Nevertheless, with the passage of time since her original complaint, she may be entitled to damages for the prolonged exclusion from her property — damages that had not yet been realized to a significant extent at the time the amended complaint was filed in 2002.
In a variation on this argument, the Association argues that 27A V.S.A. § 1-114 limits the damages that Will may recover in the present action. For the same reasons discussed above, this statutory provision does not apply.
The fourteen-day time limit for filing an itemized and verified bill of costs cited by the Association applies to recovery of costs incurred in the Supreme Court only. See V.R.A.P. 39(c).
Reference
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- Anne M. Will v. Mill Condominium Owners' Association
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