author: PITTMAN, Judge.

text:
    Howard ROSS. v. WEST WIND CONDOMINIUM ASSOCIATION, INC., et al.
    2140675.
    Court of Civil Appeals of Alabama.
    Feb. 5, 2016.
    Rehearing Applications Denied April 8, 2016.
    Certiorari Denied Aug. 26, 2016
    Alabama Supreme Court 1150783.

      Michael F. Robertson, Huntsville, for appellant.

      Curtis L. Whitmore, Huntsville, for ap-pellee.
   PITTMAN, Judge.

Howard Ross appeals from a judgment entered by the Madison Circuit Court (“the trial court”) in a civil action he had brought against, among others, West Wind Condominium Association, Inc. (“West Wind”). We affirm in part, reverse in part, and remand.

This is the second appeal involving Ross’s claims against West Wind. In Ross v. West Wind Condominium Ass’n, 153 So.3d 29 (Ala.Civ.App.2012), this court affirmed summary judgments the trial court had entered in favor of West Wind and Joseph London III; however, in Ex parte Ross, 153 So,3d 43 (Ala.2014), our supreme court reversed this court’s judgment, and we subsequently reversed the summary judgments in favor of West Wind and London and remanded the cause to the trial court for further proceedings consistent with the supreme court’s opinion. Ross v. West Wind Condo, Ass’n, 153 So.3d 52 (Ala.Civ.App.2014).

The supreme court’s opinion recites the following facts that are pertinent to this appeal:

“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 Mar-tinson, 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.”

153 So.3d at 44-45.

In 2008, Ross sued West Wind, London, Jimmy Spruill, Cynthia Spruill, and Delvin Sullivan, alleging, among other things, that the foreclosure sales were invalid because, he said, West Wind had failed to give Ross “reasonable advance notice” of the foreclosure sales as required by § 35-8A-316(a), Ala.Code 1975. Thereafter, the trial court entered a default judgment against Sullivan and entered summary judgments in favor of London, the Spruills, and West Wind; however, those judgments did not dispose of the Spruills’ cross-claims against West Wind and their counterclaims against Ross. In April 2011, the Spruills and West Wind stipulated to the dismissal, without prejudice, of the Spruills’ cross-claims against West Wind, and the trial court entered an order dismissing those cross-claims without prejudice. On July 22, 2011, the Spruills executed quitclaim deeds conveying title to the two condominium units they had purchased from West Wind to Ross in consideration of Ross’s paying the Spruills $8,000, and Ross- and the Spruills filed a stipulation to the dismissal, with prejudice, of Ross’s claims against the Spruills and the Spruills’ counterclaims against Ross. Also on July 22, 2011, Ross filed a postjudgment motion challenging the summary judgment in favor of West Wind. On July 25, 2011, the trial court entered an order dismissing, with prejudice, Ross’s claims against the Spruills and the Spruills’ cross-claims against Ross. That same day, the trial court entered an order denying Ross’s postjudgment motion. Ross then appealed from the summary judgments in favor of West Wind and London. As noted above, this court affirmed those summary judgments in Ross v. West Wind, 153 So.3d at 42; the supreme court reversed this court’s judgment in Ex parte Ross, 153 So.3d at 49; and this court subsequently reversed the summary judgments in favor of West Wind and London and remanded the cause to the trial court for further proceedings consistent with the supreme court’s opinion, Ross v. West Wind, 153 So.3d at 52.

After remand, the trial court held a bench trial at which it received evidence ore tenus. Following the trial, the parties stipulated in writing to some of the facts pertinent to a decision in the action and filed post-trial briefs. In his post-trial brief, Ross argued that West Wind’s foreclosures of his condominium units were invalid because, he said, he had not been afforded the “reasonable advance notice” of the foreclosures required by § 35-8A-316(a). He further argued that, because the foreclosures were invalid, he was entitled to have title to those condominium units restored to him, to recover damages from West Wind, and to recover an attorney fee from West Wind pursuant to § 35-8A-414, Ala.Code 1975, which provides, in pertinent part:

“If a declarant or any other person subject to [the Alabama Uniform Condominium Act of 1991, § 35-8A-101 et seq., Ala.Code 1975,] fails to comply with any provision hereof ..., any person or class of persons adversely affected by the failure to comply has a claim for actual damages or appropriate equitable relief. The court, in an appropriate case, may award reasonable attorney’s fees....”

Ross, who had not introduced any evidence establishing the amount of the attorney fee he had incurred, stated in his post-trial brief that “[he would] submit an itemized statement for his attorney’s fees upon the request of the Court.”

After the parties submitted their written stipulation of facts and filed their post-trial briefs, the trial court entered a judgment finding that West Wind had failed .to give Ross the reasonable advance- notice required by § 35-8A-316(a) and that, therefore, the foreclosure sales conducted by West Wind were invalid. As relief, the judgment ordered that title to the condominium units be restored to Ross. However, the judgment denied Ross’s claim seeking damages from West Wind on the ground that “Ross [had] failed to provide any, much less sufficient, evidence upon which any damage award could reliably be based” and denied his claim seeking recovery of an attorney fee from West Wind.

Ross timely filed a postjudgment motion asserting that the trial court had erred insofar as it had denied his claims seeking to recover damages and an attorney fee from West Wind. The trial court denied Ross’s postjudgment motion, and he then timely appealed. Our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Because the trial court received evidence ore tenus, our review is governed by the following principles:

“ ‘ “ ‘[Wjhen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.”” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Phil-pot v. State, 843 So.2d 122, 125 (Ala. 2002)). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

Ross first argues that the trial court erred insofar as it denied his claim seeking to recover damages from West Wind because, he says, he proved that the invalid foreclosures of the two condominium units that West Wind had subsequently conveyed to the Spruills had proximately caused him to pay the Spruills $8,000 as consideration for their executing a quitclaim deed restoring title to those two condominium units to him. We agree that the doctrine of mitigation of damages required him to minimize his damages by acquiring title to those condominium units from the Spruills. See Auburn’s Gameday Ctr. at Magnolia Corner Owners Ass’n v. Murray, 138 So.3d 317, 328 (Ala.Civ.App. 2013) (“ ‘[T]he law imposes upon all parties who seek recompense from another a duty to mitigate their losses or damages.’” (quoting Avco Fin. Servs., Inc. v. Ramsey, 631 So.2d 940, 942 (Ala.1994))). Accordingly, because the undisputed evidence indicated that Ross had paid the Spruills $8,000 in order to acquire title to those two condominium units from them, we conclude that the trial court erred in determining that Ross had introduced no evidence that would support an award of damages with respect to those two condominium units.

Ross next argues that the trial court erred in denying his claim seeking to recover damages from West Wind because, he says, London testified that, after evicting Ross’s tenants from the condominium unit London had purchased from West Wind, London had rented the unit to a tenant for $300 per month, and, therefore, according to Ross, he established that he had lost $300 per month from the date London evicted Ross’s tenants until the date the trial court entered the judgment now before us. London testified as follows:

“[Ross’s counsel:] You are not occupying [the condominium unit that you purchased from West Wind after it was foreclosed]?
“A. Just recently I occupied it. When I first purchased it, I had problems with it. Mr. Ross had—still had people living in it, and I couldn’t get them out. Every time I called the police, they said it was a civil matter. So for upwards of at least a year, year and a half, he still had people living in it, collecting rent from them.
“Q. For a year, year and a half?
“A. At least a year. He had somebody in it, and I couldn’t get them out. I had contacted [the attorney who was representing me then]. They just kept saying it was a civil matter, so we would have to go to court. Eventually I got them out. But, yeah, for the first portion of it I couldn’t get—tenants were living there, and I couldn’t get them out. Even the tenants there were saying, ‘It’s his. Don’t pay me rent, pay him rent.’ I guess he had already—since he had already pre-established that they were in there. He even came in and changed the locks on it one time.
“Q. Did you have any—so you never collected any rent for approximately a year after you purchased it?
“A. Probably about a year at least, if not more.
“Q. Since then, you have been renting it out. How much have you been renting it out per month?
“A. I have only rented it for probably about six months. The people moved out. A little bit longer than six months. Then it was just a monthly—$300 a month.
“Q. Three hundred dollars a month?
“A. Yes.
“Q. So is that pretty much the standard units—
“A. No, it probably would go for more. It was a two-bedroom....”

West Wind preserved for our consideration the affirmative defense of failure to mitigate damages by pleading it in its answer. See Prudential Ballard Realty Co. v. Weatherly, 792 So.2d 1045, 1048 (Ala. 2000) (holding that mitigation of damages is an affirmative defense that must be pleaded); and Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala. 2003) (holding that an appellate court can affirm a trial court’s judgment on any valid legal ground subject to the exception, among others, that it cannot do so on the basis of an unpleaded affirmative defense). However, West Wind did not introduce any evidence tending to prove that any damages arising from the foreclosure of the condominium unit West Wind conveyed to London “could have been lessened by [Ross’s] reasonable efforts and expense, without undue risk,” and, therefore, “the application of the rule [requiring a plaintiff to mitigate his, her, or its damages] is due to be rejected as a matter of law” with respect to that condominium unit. Avco Fin. Servs., Inc. v. Ramsey, 631 So.2d at 943.

In Continental Volkswagen, Inc. v. Soutullo, 54 Ala.App. 410, 414, 309 So.2d 119, 122-23 (1975), this court stated:

“The burden is on the plaintiff in an action for damages to furnish proof from which the [fact-finder] can determine the amount of damages, if any, to which plaintiff is entitled and if plaintiff fails in this the [fact-finder] cannot supply the omission by speculation, Seals Piano & Organ Co. v. Bell, 17 Ala.App. 331, 84 So. 779 [ (1920) ].
“The amount of damages must be fairly proved and not left to guess or conjecture. Kershaw Mining Co. v. Lankford, 213 Ala. 630, 105 So. 896 [ (1925) ].”

London testified that he had been able to rent the condominium unit conveyed to him by West Wind for only six months or “a little bit longer than six months” and that the rent he received had been $300 per month. Ross did not introduce any evidence tending to prove that that condominium unit could have been rented for a longer period than six months or that it could have been rented for a specific amount that was more than $300 per month. Thus, any damages in excess of $1,800 ($300 multiplied by six months equals $1,800) would be speculative; however, Ross proved that he had suffered damages in the amount of $1,800 as a proximate result of the invalid foreclosure of the condominium unit West Wind had conveyed to London. Thus, the trial court erred insofar as it concluded that Ross had failed to prove any damages with respect to that condominium unit.

Finally, Ross argues that the trial court erred in denying his claim seeking to recover an attorney fee from West Wind. However, § 35-8A-414 provides that “[t]he court, in an appropriate case, may award reasonable attorney’s fees,... ” (Emphasis added.) The plain language of § 35-8A-414 provides that a trial court’s authority to award an attorney fee pursuant to that Code section is limited to a case that is “an appropriate case.” Moreover, that Code section does not indicate what constitutes “an appropriate case.” Thus, we infer that the determination of whether a “case” is “appropriate” for an attorney-fee award under § 35-8A-414 and, if so, what the amount of a suitable award would be in such “an appropriate case” are matters that are within the discretion of the trial court. Moreover, we conclude that the trial court did not improperly exercise its discretion in determining that this was not “an appropriate case” for an attorney-fee award pursuant to § 35-8A-114.

In summary, we reverse the judgment of the trial court insofar as it denied Ross’s claim seeking to recover damages from West Wind, we affirm the trial court’s judgment in all other respects, and we remand the cause to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . In pertinent part, that Code section provides:
      “The [condominium] association has a lien on a unit for any assessment levied against that unit ... from the time the assessment .,, 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....”
      (Emphasis added.)

      . The trial court's judgment was not adverse to Ross with respect to his claim against London; therefore, London is not a party to this appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Tom GLOOR III v. BANCORPSOUTH BANK.
    2140914.
    Court of Civil Appeals of Alabama.
    April 1, 2016.
    Rehearing Denied May 27, 2016.
    Certiorari Denied Aug. 12, 2016
    Alabama Supreme Court 1150960.

      Henry E. Lagman, Birmingham, for appellant.
    Herbert Newell, Tuscaloosa, for appel-lee.
   PITTMAN, Judge.

In January 2004, the Jefferson Circuit Court rendered and entered a judgment awarding $21,483.60 to BancorpSouth Bank (“the Bank”) in its civil action against Thomas W. Gloor III; that judgment was subsequently affirmed by this court. See Gloor v. BancorpSouth Bank, 925 So.2d 984 (Ala.Civ.App.2005). In January 2015, the Bank filed and served upon Gloor a motion in the action seeking the revival of the judgment pursuant to Article 8 of Chapter 9 of Title 6, Ala.Code 1975 (Ala.Code 1975, § 6-9-190 et seq.); that motion was supported by an affidavit of one of the Bank’s recovery officers, who averred that he was familiar with the record pertaining to the recovery of the debt and judgment owed by Gloor, that the judgment remained unpaid, and that despite the Bank’s collection efforts an unpaid balance remained. Gloor filed a motion to strike the affidavit and to quash service of the motion, and he subsequently filed a brief in support of that motion and in opposition to the Bank’s revivor motion; however, for all that appears in the record, Gloor made no effort to demonstrate that he had actually satisfied the judgment. The trial court, after a hearing, concluded that the motion and affidavit demonstrated that the 2004 judgment remained unsatisfied and allowed the requested revivor. Gloor appeals.

Gloor argues that the trial court lacked subject-matter jurisdiction to act on the revivor motion because no filing fee was paid; he also argues that the trial court lacked personal jurisdiction to act because the Bank did not serve him with process pursuant to the provisions of Rule 4, Ala. R. Civ. P., governing initial service of process in the institution of civil actions. It is true that the main opinion in Hicks v. Hicks, 130 So.3d 184 (Ala.Civ.App.2012), indicates that this court has viewed the provisions of Ala.Code 1975, § 12-19-70(a), which provides that “a ... civil filing fee, known as a docket fee, [shall be] collected ... at the time a complaint is filed in circuit court ” subject to the power of the circuit court to defer that payment upon a showing of substantial hardship, as a jurisdictional prerequisite to the commencement of an action. 130 So.3d at 186-87. However, Gloor’s filing-fee argument completely misconstrues the nature of postjudgment revivor relief permissible pursuant to Ala.Code 1975, § 6-9-192, which in its 1975 recodification permitting revivor by “appropriate motion ... under the Alabama Rules of Civil Procedure” reflected the abolition of the old common-law writ of scire facias under Rule 81(c), Ala. R. Civ. P., by which judgments had formerly been revived,, and the transfer of that writ’s function in that rule to motion practice at the election of an interested party. Further, as was noted by our supreme court in Second Bank of Cincinnati v. Allgood, 234 Ala. 654, 176 So. 363 (1937), the object of revivor efforts is not to obtain a new judgment, but merely to reinvest the judgment creditor with the power of execution on a judgment already obtained in the same proceeding, and the common-law right to bring a separate action on the judgment is not affected by the availability of revivor. 234 Ala. at 656, 176 So. at 365. Thus, the Bank’s revivor motion did not involve the filing of a complaint to which the filing-fee statutes could apply, nor did it amount to anything other than a “written motion” after the “original complaint” so as to fall within the scope of Rule 5(a), Ala. R. Civ. P., rather than the Rule 4 complex.

The third issue asserted by Gloor on appeal is that § 6-9-192, as applied to him by the trial court, violates constitutional due-process and equal-protection guarantees. However, apart from a bare mention of his entitlement to due process and equal protection in his brief in the trial court, Gloor presented none of the constitutional arguments he has presented to this court to the trial court; those arguments are thus waived. “[Ajppellate courts will not consider constitutional challenges which were not presented to the trial court.” Tucker v. State, 445 So.2d 811, 314 (Ala.Civ.App.1984).

Finally, Gloor contends that the trial court erred as to the merits of its decision to allow revivor. In its ruling, the trial court cited this court’s decision in Slay v. McKean Paint & Hardware Store, Inc., 55 Ala.App. 487, 317 So.2d 326 (Civ. App.1975). In Slay, which was decided after the Rules of Civil Procedure were adopted, we considered whether a trial court could properly deem the statutory 10-year presumption of payment of judgments set forth in current § 6-9-191 to be rebutted by evidence from the corporate president of a judgment creditor that he was familiar with the books and records of the corporation and knew that the judgment had not been paid in full; we concluded that that evidence was sufficient proof of nonpayment to overcome the presumption and opined that a contrary holding would mean that “a plaintiff-corporation could, in effect, rarely overcome the presumption.” 55 AlaApp. at 489, 317 So.2d at 328. The trial court in this case was presented with similar affidavit testimony from a corporate officer of the Bank to the effect that the judgment entered by that court remained unpaid despite efforts to recover the outstanding balance from Gloor, and Gloor did not adduce any evidence tending to impeach that affidavit testimony.

Although Gloor contends that the trial court’s judgment is contrary to Gambill v. Cassimus, 247 Ala. 176, 22 So.2d 909 (1945), we note that our supreme court’s holding in that pre-Rules case was simply that testimony from one of the judgment creditor’s five attorneys appearing in the record to the effect that he had handled the case and had not collected the judgment did not justify reversal of a judgment declining to issue a writ of scire facias to revive a judgment that had not been executed upon in the preceding 11 years. 247 Ala. at 177-79, 22 So.2d at 910-11. Similarly, neither of the unreported federal eases cited by Gloor, PACCAR Financial Corp. v. Robbins Group International, Inc. (No. 3:97-cv-1751-SLB, Nov. 1, 2012) (N.D.Ala.2012) (not reported in F.Supp.2d), and Cunningham v. Glenn (No. 2:02-MC-03127-ID, Feb. 24, 2011) (M.D.Ala.2011) (not reported in F.Supp.2d), involved consideration of testimony of a corporate officer with responsibility for recovery of debts who would have personal knowledge derived from his employment (as opposed to retention as a collections attorney) of whether the pertinent judgment creditor had been paid the moneys due under its judgment.

Based on the foregoing, the trial court’s judgment is affirmed.

AFFIRMED.

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

      . Gloor has not asserted any argument that the Bank's motion could not properly have been granted because it was served upon him personally and not on the attorney who had represented him in the proceedings leading to the entry of the 2004 judgment.

      . We assume, for the sake of argument, that Gloor’s “as applied” challenge to § 6-9-192 is not subject to Ala.Code 1975, § 6-6-227, such that his failure to notify the attorney general of his constitutional objections would bar reversal on that basis. See generally Ex parte Squires, 960 So.2d 661, 664-66 (Ala. 2006).


author: MOORE, Judge.

text:
    ALABAMA DEPARTMENT OF PUBLIC HEALTH v. BESSEMER MEAT/SOUTHEASTERN MEAT Alabama Department of Public Health v. Sixth Avenue Meat and Fish Market, LLC Alabama Department of Public Health v. Third Avenue Meat and Fish Market.
    2141063, 2141064, and 2141065.
    Court of Civil Appeals of Alabama.
    April 22, 2016.
    Rehearing Applications Denied June 10, 2016.
    Certiorari Denied Aug. 12, 2016
    Alabama Supreme Court 1151008, 1151009, and 1151010.

      Bethany L. Bolger, asst. atty. gen., Alabama Department of Public Health.
    James E. Hill III and Candace B. Cren-shaw of Hill, Hill & Gossett, P.C., Moody, for appellees.
   MOORE, Judge.

In these consolidated appeals, the Alabama Department of Public Health (“the Department”) appeals from three separate, but identical, judgments entered by the Bessemer Division of the Jefferson Circuit Court (“the circuit court”) that reversed three separate orders of the State Health Officer disqualifying Bessemer Meat/Southeastern Meat (“Bessemer Meat”), Sixth Avenue Meat and Fish Market, LLC (“Sixth Avenue”), and Third Avenue Meat and Fish Market (“Third Avenue”) from participating in the Women, Infants, and Children (“WIC”) program. We reverse the circuit court’s judgments.

Background

The United States Congress created the WIC program in 1966 primarily to provide supplemental dietary and nutritional aid to low-income pregnant, breast-feeding, and non-breast-feeding postpartum women and to infants and children up to age five who are found to be at nutritional risk. See 42 U.S.C. § 1786(a). The United States Department of Agriculture (“USDA”) issues cash grants to the various states to administer the WIC program. See generally 42 U.S.C. § 1786(c)(2); 7 C.F.R. § 246.1. The USDA requires appropriate state agencies to use a portion of those cash grants to deliver approved supplemental foods and nutritional aid to eligible participants. 42 U.S.C. § 1786(f)(ll).

The Department administers the WIC program for the State of Alabama. See Ala.Code 1975, § 22-12C-1 et seq. The Department has adopted a food-delivery system by which it issues “food instruments” to eligible participants that can be redeemed at authorized retail vendors for approved supplemental foods. See Ala. Admin. Code (Dep’t of Public Health), Rule 420-10-2-.05(l). The food instruments designate specific types and quantities of food items that the participant may purchase, i.e., “one gallon of whole milk.” The participant obtains the described food items at retail stores operated by an authorized WIC vendor and tenders the food instrument as a form of payment for the food items. To accept the food instrument, the vendor stamps the food instrument with the vendor’s identification number and fills in the total purchase price of the food items. The participant then signs the food instrument. The vendor deposits the food instrument into its bank account, and the vendor’s bank then presents the food instrument for payment at the Department’s “contract bank.” Id.

The Department assures that its authorized vendors are properly complying with the WIC program and redeeming the food instruments for the purchase of approved supplemental foods through a variety of measures, including monitoring, “compliance buys,” and inventory audits. See Ala. Admin. Code (Dep’t of Public Health), Rule 420-10-2-.05(5).

“An inventory audit is the official examination and documentation of a WIC vendor’s inventory, accounts, and records to determine whether the vendor has purchased sufficient quantities of supplemental foods to provide participants the quantities specified on the food instruments redeemed by the vendor during a given time period.”

Rule 420-10-2-.05(5)(c). Amanda Martin, the director of Alabama’s WIC program, testified that, in an inventory audit, the Department “[essentially ... look[s] to see if [the vendors’] redemptions exceed the amount of inventory they have in the store.” An inventory audit consists of counting the inventory of specified WIC food products maintained by the vendor during the audit period and determining whether the WIC redemptions for those same products during the audit period correspond to the inventory count. If the WIC redemptions exceed the documented inventory count, the Department considers the vendor to be noncompliant with the WIC program.

Bessemer Meat, Sixth Avenue, and Third Avenue (“the vendors”) are authorized WIC vendors. Based on suspiciously high redemptions at the vendors’ retail stores, the Department conducted inventory audits at those sites from July 17, 2013, through September 17, 2013. On July 17, 2013, two Department investigators independently counted the inventory of different milk and infant-formula products present at the vendors’ stores and confirmed those counts. Upon reaching matching numbers, the investigators listed the quantity of each type of product, as well as each corresponding retail price for a unit of that product, on an inventory worksheet. That worksheet represented the starting inventory for the audit period.

During the audit period, as their inventory of the milk and infant-formula products was depleted due to sales, the vendors purchased additional units of the milk and infant-formula products. The Department requested the receipts of all such purchases from the vendors. The Department then added to the inventory count the units of milk and infant-formula products shown on the receipts received from each vendor to get a running count of each vendor’s inventory. The Department then recounted the inventory at the vendors’ stores on September 17, 2013, and subtracted that inventory count from the running inventory count. The final total represented the entire inventory for the designated products in the audit period.

The Department then added up the WIC food instruments redeemed at the vendors’ stores during the relevant period. The Department gathered that information mainly from their banking system but also included the food instruments maintained at the vendors’ stores. The Department finally compared the inventory count to the redeemed food instruments. The Department determined that, for the designated period, it had paid the vendors for milk and infant-formula purchases exceeding the vendors’ documented inventory.

Federal and state regulations mandate that a vendor with “[a] pattern of claiming reimbursement for the sale of an amount of a specific WIC food item that exceeds the vendor’s documented inventory of that WIC food item for a specific period of time” shall be disqualified from the WIC program for three years. Ala. Admin. Code (Dep’t of Public Health), Rule 420-10—2—.05(5)(e)3.(ii); see 7 C.F.R. § 246.12 (Z)(l)(iii)(B).

“A pattern for the purpose of determining the vendor sanction for a violation of paragraph (5)(e)3.(ii) of this rule can be established during a single review if a vendor’s records indicate that, for a two-month audit period, the vendor’s re-demptions for a specific food item exceed its documented inventory.”

Ala. Admin. Code (Dep’t of Public Health), Rule 420—10—2—.05(5)(f). Based on its inventory audits, the Department notified the vendors that it was disqualifying them from participating in the WIC program for three years. The vendors each requested an administrative review before an independent hearing officer to appeal the disqualification. See 7 C.F.R. § 246.18 (a)(l)(i)(C); Ala. Admin.Code (Dep’t of Public Health), Rule 420-10-2-.06(a)(l). A hearing officer conducted an evidentiary-hearing on June 18 and June 18, 2014.

During the evidentiary hearing, the vendors introduced evidence indicating that the Department had admitted that it had made a calculation error in a 2012 inventory audit of Sixth Avenue. The vendors also showed that the Department had committed multiple errors in regard to the 2013 audits. The Department did not count the infant-formula inventory that was maintained by the owner of Third Avenue at her home. The Department also did not account for food instruments that the vendors secured at the owners’ homes. The Department omitted some purchases during the inventory-audit period despite having receipts for those purchases. The Department also had made some calculation, classification, and pricing mistakes regarding the inventory-purchase receipts. During the hearing, Martin adjusted the audit figures to account for most of the inaccuracies and omissions.

Following the hearing, the hearing officer issued three opinions. As to each vendor, the hearing officer adjusted the audit figures to account for the applicable audit errors, some of which the hearing officer attributed to the vendor’s record-keeping practices. In each instance, the hearing officer found that, even after correcting the errors and omissions, the reported WIC redemptions still exceeded the documented inventory. Specifically, the hearing officer concluded that Bessemer Meat’s redemptions exceeded its inventory in the amount of $8,212.45, that Third Avenue’s redemptions exceeded its inventory in the amount of $7,671.94, and that Sixth Avenue’s redemptions exceeded its inventory in the amount of $3,003.91. The hearing officer recommended that the Department’s decision to disqualify the vendors from participating in the WIC program should be upheld. After an administrative review of the record, the State Health Officer agreed with that recommendation and issued orders disqualifying the vendors.

The vendors appealed the State Health Officer’s orders to the circuit court. The vendors asserted that the determinations of the Department should be overturned because the Department did not have sufficient reliable evidence to sustain the vendors’ disqualifications. The circuit court found that the disqualifications had been based solely on the 2013 inventory audits and that those audits were wholly unreliable. The circuit court reversed the State Health Officer’s orders disqualifying the vendors. The Department timely appealed. This Court consolidated the appeals by an order dated October 2,2015.

Discussion

We review the judgments of the circuit court without any presumption of correctness, since that court was in no better position to review the orders of the State Health Officer than is this court. See Ex parte Williamson, 907 So.2d 407, 413 (Ala.2004). In reviewing the decisions of the State Health Officer, this court follows Ala.Code 1975, § 41-22-20(k), which provides, in pertinent part:

“Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.”

By that standard, this court must consider the evidence contained in the whole record and determine whether the record contains reliable, probative, and substantial evidence that sustains the orders of the State Health Officer. In making that decision, this court presumes that the agency decision is just and reasonable. Id.

The circuit court determined that the State Health Officer rested its decisions solely on the 2013 inventory audits. The record bears out that the Department based its initial decision to disqualify the vendors only on the 2013 inventory audits following an internal review by Martin. However, upon the vendors’ appeals, the Department appointed a hearing officer, who heard testimony regarding various errors and omissions committed by the Department in the audits. In its three orders, the hearing officer expressed concern for the reliability of the audits used by the Department, and encouraged the Department to take steps that would “drastically” minimize future errors. Nevertheless, the hearing officer concluded that it could decide the cases based on the testimony and other evidence adduced at the hearing, which corrected any errors and rectified any omissions committed during the audits. The hearing officer adjusted the audit figures based on that testimony, which it credited in its orders. Only after considering that evidence, and taking all reasonable inferences from that evidence in favor of the vendors, did the hearing officer determine that disqualifying shortfalls remained. The State Health Officer reviewed the hearing officer’s recommendations and the transcript of the hearing before reaching its separate determinations. The Department clearly based its decisions to disqualify the vendors on more than just the inventory audits, and the circuit court erred in concluding otherwise.

As the Department argues, the parties and the hearing officer strictly scrutinized the inventory audits at the hearing. The vendors fully seized their opportunity to point out any discrepancies in the audits. The vendors did not attack the methodology used by the Department in conducting its audits, apparently recognizing that the inventory audits, if properly performed, would yield consistent, verifiable results. Instead, the vendors questioned the accuracy of the figures inputted into the Department’s audit formulae; The vendors produced evidence tending to prove that the Department had used incorrect inventory data, especially in regard to the interim inventory purchases made by the vendors, based on misinformation, classification mistakes, omissions, and mathematical errors, By closely examining the audits, the vendors were able to isolate those omissions and errors in the data. The audit methodology was not so deficient that any other errors or omissions could not be detected.

Moreover, at the hearing, the vendors introduced evidence for the purpose of correcting the inaccuracies in the inventory audits. In its recommendations, the hearing officer accepted each of the vendors’ complaints as proven, revised the audit figures accordingly, and factored the corrected figures into its final equations. The vendors do not contend that the hearing officer’s calculations, specifically based on the evidence introduced by the vendors, yielded incorrect results. Through its process, the hearing officer effectively negated any prejudice to the vendors arising from the audit errors made by the Department’s investigators.

Based on a review of the entirety of the record, we cannot conclude that the orders entered by the State Health Officer were “[cjlearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” § 41-22-20(k)(6). Therefore, we conclude that the circuit court erred in reversing the State Health Officer’s orders disqualifying the vendors from participating in the WIC program.

Conclusion

Based on the foregoing, we reverse the judgments of the circuit court and remand these cases for the entry of judgments affirming the orders of the State Health Officer.

2141063—REVERSED AND REMANDED WITH INSTRUCTIONS.

2141064—REVERSED AND REMANDED WITH INSTRUCTIONS.

2141065—REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Third Avenue’s owner testified that some infant-formula inventory had been purchased and stored at her residence during the audit period, but Third Avenue did not provide receipts for those purchases. The hearing officer determined that the Department was not responsible for failing to count that inventory, which was not documented. See Ala. Admin. Code (Dep’t of Public Health), Rule 420-10-2-.05(5)(f) (referencing “documented inventory”).


text:
    MEDICAL PARK STATION, LLC v. 72 MADISON, LLC.
    2141069.
    Court of Civil Appeals of Alabama.
    April 22, 2016.
    Rehearing Denied Aug. 26, 2016.

      James H. White IV of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for appellant.
    Stuart M. Maples and Deanna S. Smith of Maples Law Firm, P.C., Huntsville, for appellee.
   PITTMAN, Judge.

This appeal arises from a dispute stemming from a lease contract entered into between Medical Park Station, LLC (“the lessor”), and Southern Food Services, LLC, whose position as lessee under that contract was later assumed by 72 Madison, LLC (“the assignee”). The assignee sued the lessor in April 2014, seeking reformation of the lease contract and an award of compensatory and punitive damages, on theories of fraud and mistake, based upon the lessor’s failure or refusal to pay a $40,000 allowance for tenant improvements that, the assignee asserted, had been negotiated as a term of the lease contract. The lessor answered the complaint, denying the assignee’s right to relief, and demanded an award of attorney fees pursuant to another provision of the lease contract. The lessor moved for a summary judgment in March 2015, after which the assignee filed a response in opposition and the lessor filed a reply memorandum; the trial court did not initially rule on that motion. Rather, on July 7, 2015, after holding an ore tenus proceeding, the trial court granted the lessor’s sumrñary-judgment motion; however, that court entered an order on July 8, 2015, setting aside the summary judgment as having been entered in error. Subsequently, the trial court entered a judgment in favor of the assignee in which that court determined that the lessor had wilfully misrepresented and suppressed material facts so as to warrant relief on the basis of the law of fraud and deceit; that court awarded compensatory damages of $40,000 plus accrued interest of $3,893.66 and punitive damages of $20,000. The lessor timely appealed, and its appeal was transferred to this court pursuant to § 12-2-7(6), Ala.Code 1976.

Our standard of review is as follows:

“““[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.”” ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007) (citations omitted; quoting earlier cases).

The record reveals that, in August 2011, a letter of intent (“the letter of intent”) was drafted by a commercial-lease broker, Southpace Properties, Inc. (“the broker”), that was addressed to Allen Hawkins at Terra Equities, LLC (“Terra”), a Birmingham-based real-estate development and leasing entity that Hawkins owned and operated; Hawkins made various handwritten changes to the letter of intent before executing it on behalf of Terra. The letter of intent “summarize[d] some of the terms and conditions pursuant to which” an unnamed prospective “tenant”—identified in the letter only as a “qualified ... franchisee” of Dunkin’ Brands, Inc., a franchiser of pastry bakery/restaurants that trade under the name “Dunkin’ Donuts”—“would consider entering into a lease” at a proposed 34,000-square-foot shopping center known as “Medical Park Station” that was to be located in Madison County on land owned by the lessor, ie., Medical Park Station, LLC, a business entity of which Hawkins was also the part owner and principal operator. The letter of intent further indicated, in pertinent part, that the “landlord” under the lease would receive a minimum rental rate per square foot of leased space during the first five years of the lease; that the landlord would not sell or lease space in the center to “any entity whose primary business is the manufacture or sale of coffee, donuts, bagels, pastry or bakery products”; and that the landlord would pay the tenant a “Tenant Improvement Allowance” (“TIA”) of $40,000 “for the cost of constructing ... leasehold improvements.” Finally, an exhibit to the letter of intent noted that the broker was “providing a good and valuable service in procuring” a tenant “who is interested in occupying space at” Medical Park Station and provided that a commission would be payable to the broker “should a lease or other occupancy agreement be consummated” by the tenant as to Medical Park Station.

At the time that the letter of intent was prepared, Terra was in the final stages of arranging for the leasing of space in a shopping center located in Trussville to another Dunkin’ Donuts franchisee, and a draft lease contract had been prepared through negotiations in which Dunkin’ Brands, Inc., Hawkins (and his counsel), and that franchisee had each participated. After Edward W. Robinson, the principal of both Southern Foods Services, LLC, and the assignee, had been approved by Dunkin’ Brands, Inc., as a franchisee for the north Alabama area, and had begun working with Dan Tavares, a. development manager in the employ of Dunkin’ Brands, Inc., on securing a place to operate a “Dunkin’ Donuts” brand bakery/restaurant, Tavares telephoned Hawkins and arranged a meeting between Hawkins and Robinson regarding a potential lease of property at Medical Park Station.

In October 2011, Tavares sent an electronic-mail message to Robinson and his son indicating that they might be able to “save ... a good amount of legal fee’s [sic] on the lease” of a retail space in which to operate the planned Dunkin’ Donuts bakery/restaurant by “simply copying]” the Trussville Dunkin’ Donuts lease contract “as it is with the same landlord,” alluding to the fact. that entities associated with Hawkins were involved in both the Trussville lease and the potential Madison County lease. Tavares also forwarded a draft electronic copy of the Trussville lease contract to Robinson at that time. In addition, in December 2011, Ryan Crumley, a regional development/construction manager for 'Dunkin’ Brands, Inc., sent an electronic-mail message addressed to Robinson and his son (with a courtesy copy directed to Hawkins) that attached a draft copy of the “lease template that we negotiated with Terra for the Trussville deal” and directed Robinson and his son to “[pjlease begin reviewing and incorporating the Madison deal specific info” and “deal directly with .,. Hawkins regarding finalizing the terms of the” pertinent lease contract. Neither of the two draft lease contracts sent by representatives of Dunkin’ Brands, Inc., to Robinson and his son contained a provision requiring a TIA, and both were single-spaced.

At trial, Robinson testified that he and Hawkins had begun negotiating potential lease terms in December 2011 or January 2012; Robinson also testified that he had retained Craig Paulus, a Huntsville lawyer, to assist him in creating business entities and advising him on lease negotiations, although he added that Paulus had never been “commission[ed] to generate the drafting of a” lease contract. Robinson testified that he would typically “communicate change[s]” in the proposed lease contract to Hawkins primarily by telephone communications during their negotiations; he also admitted that he had signed the signature sheet of the first draft sent to him and had sent it back to Paulus, whereupon Paulus had informed Robinson that the draft lease contract did not contain any provision for a TIA. Robinson testified that he had then orally pointed out to Hawkins the absence of a TIA provision in the draft lease contract, and he stated that Hawkins had thereafter forwarded to him by electronic mail a different draft lease contract, a double-spaced document that was introduced into evidence at trial as Plaintiffs Exhibit 5, containing a TIA provision. However, Robinson admitted during cross-examination that he had no documentary proof that Plaintiffs Exhibit 5 had actually originated from Hawkins, and a substantially similar double-spaced draft lease contract containing a TIA provision—which was introduced into evidence as Defendant’s Exhibit 4 and which was named “Working Copy of Hwy 72 Lease Madison (l).docx”—was shown to have been taken from a disk drive on one of Paulus’s computers, to have been typed by an “Author” named “Jason,” and to have been last modified by Paulus on February 17, 2012.

On March 6, 2012, Hawkins sent an electronic-mail message to Robinson and his son that attached what Hawkins identified as the “last version of the” lease contract that he had for Robinson and his son “to reference if needed”; Hawkins also mentioned in his message the impact of a proposed change to the section of the draft lease contract pertaining to exclusivity in light of a potential new tenant at Medical Park Station, a restaurant known as “Blue Plate Café” that was identified as customarily serving breakfast items. The draft lease contract forwarded by Hawkins was, like the previous versions stemming directly from the Trussville lease-contract draft, single-spaced and lacked a TIA provision, but the draft contained “redlining” indicating the proposed new exclusivity terms. On March 9, 2012, Paulus, acting on behalf of Robinson, sent a letter to Hawkins via electronic mail stating that, although Pau-lus’s office was reviewing the March 6, 2012, draft lease contract, Southern Foods expressly objected to the provisions of that draft pertaining to exclusivity. A flurry of electronic-mail communications involving Robinson, Paulus, Crumley, and Hawkins then ensued leading to an agreement between Hawkins and Robinson as to the rent and exclusivity provisions; in none of those messages was the absence of a TIA provision in the March 6, 2012, draft lease contract mentioned. Ultimately, on April 4, 2012, a lease contract naming as parties thereto the lessor and Southern Food Services, LLC, “d/b/a Dunkin’ Donuts” was executed; that contract did not contain a TIA provision but did contain an integration term providing that the contract “contain[ed] the entire agreement between the parties” and that “any agreement [thereafter made [would] be ineffective to change, modify or discharge [the contract] in whole or in part unless such agreement [wa]s in writing and signed by both parties.”

The lease contract, as entered into by the lessor and Southern Food Services, LLC, was the subject of two subsequent amendments, each labeled as an “addendum” to the contract. The first amendment, executed by the parties on October 18 and October 19, 2012, modified certain terms of the lease pertaining primarily to the delivery date of the leased premises and the amount of rental charges per square foot; that amendment contained an express affirmation of the lease contract “with all rights and obligations in full force and effect.” A second amendment, executed by the parties on September 4, 2013, pertained primarily to the delivery date of the leased premises and to waiver of certain rights of termination; however, that amendment also contained affirmations by Southern Food Services, LLC, that the lease contract remained in full force and effect and that “as of the date of this Second Amendment [the lessor] [wa]s not in default of any term or condition of the” lease contract. On the same day that the second amendment was executed, Southern Food Services, LLC, assigned its interest in the lease contract to the assignee. After that assignment, Robinson telephoned Hawkins to request disbursement of tenant-improvement moneys, at which time Hawkins directed Robinson to consult the lease contract as to the absence of any provision for a TIA therein. The assignee, following an exchange of letters between an attorney at Paulus’s law firm and Hawkins and his attorneys, brought the civil action from which the current appeal arose.

In its brief on appeal, the lessor asserts that the claims asserted by the assignee in its complaint sounding in fraud are barred by the absence of the common element of reasonable reliance. “To recover in a fraud action filed after March 14,

1997, a plaintiff must prove that he or she reasonably relied on the defendant’s alleged misrepresentation.” Alfa Life Ins. Corp. v. Green, 881 So.2d 987, 991 (Ala. 2003) (emphasis added); see also id. at 992 (quoting Ex parte Household Retail Servs., Inc., 744 So.2d 871, 879 (Ala.1999), for the proposition that “ ‘a plaintiffs ... “reasonable reliance” ... is an essential element of a suppression claim’”). The date referred to by our supreme court in Green denotes when Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997), was decided. Under Foremost and its progeny, “ ‘ “it is the policy of courts not only to discourage fraud but also to discourage negligence and inattention to one’s own interests,”’” and, as our supreme court has noted, “ ‘ “the right of reliance comes with a concomitant duty on the part of the plaintiffs to exercise some measure of precaution to safeguard their interests”’”; thus, as our supreme court has held, “ ‘ “[i]f the circumstances are such that a reasonably prudent person who exercised ordinary care would have discovered the true facts, the plaintiffs should not recover.” ’ ” Gant v. Azalea City Credit Union, 69 So.3d 880, 883 (Ala.Civ.App.2011) (quoting AmerUs Life Ins. Co. v. Smith, 5 So.3d 1200, 1207 (Ala.2008), quoting in turn Torres v. State Farm Fire & Cas. Co., 438 So.2d 757, 758-59 (Ala.1983)). Further, the reasonable-reliance standard “ ‘imposes ... on a plaintiff a “general duty ... to read the documents received in connection with a particular transaction,” together with a duty to inquire and investigate’”; thus, as a matter of law, “ ‘a plaintiff who is capable of reading documents, but who does not read them or investigate facts that should provoke inquiry, has not reasonably relied upon’ ” statements “ ‘that contradict the written terms in the documents.’ ” Gant, 69 So.3d at 883-84 (quoting AmerUs Life Ins. Co., 5 So.3d at 1208, quoting in turn Foremost, 693 So.2d at 421). After a review of the testimony and exhibits admitted into evidence at trial, we are constrained to agree with the lessor.

In this case, the record reflects that the parties to the lease contract started the drafting process as to the lease contract using a form suggested by Dun-kin Brands, Inc., that did not include a TIA provision, and the assignee adduced testimonial evidence of, at most, a single instance wherein Hawkins might have sent a draft of the lease contract to Robinson that included a TIA provision in February 2012. Further, although the assignee notes that the March 6, 2012, electronic-mail message from Hawkins contained a draft lease contract that included redlining only of proposed provisions pertaining to exclusivity (rather than highlighting any “missing” TIA provisions), that draft was a single-spaced document that bore more resemblance to the draft lease contract initially circulated by Dunkin’ Brands, Inc., and Hawkins than it did to Plaintiffs Exhibit 5. Regardless of the content or provenance of those preliminary draft versions, however, the fact remains that Robinson, after having retained legal counsel to protect his interests and having been informed of the absence of a TIA provision in an earlier draft, executed on behalf of Southern Food Services, LLC (the assign-ee’s predecessor in interest), a lease contract in April 2012 that contained no TIA provision.

Thus, to the extent that the trial court awarded compensatory and punitive damages to the assignee on theories of fraud, its judgment cannot stand in light of the capability of Robinson and his counsel to read and understand the draft documents presented by Hawkins after February 2012 that undisputedly did not contain a TLA provision, and Robinson’s claimed

reliance upon a belief that a TIA provision had been included in the final lease contract was directly contradicted by the written terms in the March 6, 2012, draft and the April 4, 2012, final version so as to be unreasonable. This is not a case in which a party labored under a medical disability preventing review of pertinent documents, such as Massey Automotive, Inc. v. Norris, 895 So.2d 215 (Ala.2004), nor did the assignee base its fraud claims upon sup-pressions of fact after the parties’ contractual relationship had been formed so as to render Bethel v. Thorn, 757 So.2d 1154 (Ala.1999), on point.

Finally, we reject the assignee’s contention that the alternative remedy of reformation of the lease contract would be appropriate in lieu of the damages awarded by the trial court’s judgment. As we held in Eubanks & Eubanks, Inc. v. Colonial Pacific Leasing, 757 So.2d 437, 441 (Ala.Civ.App.1999), a claim seeking reformation or rescission based upon an alleged fraud must suffer the same fate as a claim for damages stemming from that same alleged fraud when the requisite reliance element is shown to be missing. Further, as noted by the lessor in its brief, the principal authority relied upon by the as-signee, the federal district court decision in Buckmasters, Ltd. v. Action Archery, Inc., 915 F.Supp. 1188 (M.D.Ala.1996), was decided before Foremost, and, in its holding as to reformation, the federal court expressly relied upon caselaw decided under the now-abrogated (and subjective) “justifiable reliance” standard (i.e., Valley Props., Inc. v. Strahan, 565 So.2d 571 (Ala. 1990)).

Based upon the foregoing facts and authorities, the judgment of the trial court awarding the assignee compensatory and punitive damages is reversed. The cause is remanded for that court to enter a judgment in favor of the lessor and to assess costs pursuant to Rule 54(d), Ala. R. Civ. P.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Paulus admitted at trial that an attorney named Jason had previously worked at his office.

      . Although the trial court also refers to "deceit” in its judgment, we note that a claim of deceit differs from a general claim of fraud only with respect to the state of mind of a party alleged to have defrauded another: “An action [alleging] deceit, under [Ala.Code 1975,] § 6-5-103 and § 6-5-104, results from either a willful or reckless misrepresentation or a suppression of material facts with an intent to mislead.'' Whitlow v. Bruno's, Inc., 567 So.2d 1235, 1241 (Ala. 1990). Because Robinson's reliance was unreasonable under the circumstances presented, the state of mind of the lessor is immaterial.

      . Valley Properties was expressly overruled on another point in White Sands Group, L.L.C. v. PRSII, LLC, 32 So.3d 5 (Ala.2009).

      . Our conclusion regarding the absence of reasonable reliance obviates the necessity of considering whether reversal would be compelled by the integration clause in the lease contract or by the reaffirmation by Southern Food Services, LLC, of the lease contract in the first and second amendments thereto.


text:
    F.V.O. v. COFFEE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2140807, 2140808, and 2140810.
    Court of Civil Appeals of Alabama.
    May 20, 2016.
    Certiorari Denied July 15, 2016
    Alabama Supreme Court 1150915, 1150930, and 1150931.

      Amy C. Marshall, Enterprise, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L, Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

F.V.O. (“the mother”) appeals from permanency orders entered by the Coffee Juvenile Court (“the juvenile court”) in which the juvenile court, among other things, determined that the Coffee County Department of Human Resources (“DHR”) “shall no longer be required” to use reasonable efforts to reunite the mother with M.H., A.H., and B.H. (“the children”). We affirm the juvenile court’s orders.

Procedural History

DHR filed separate dependency petitions relating to the children on April 10, 2009, following allegations that M.H., who was then six years old, had been sexually abused. That same date, the juvenile court awarded legal custody of the children to DHR, who placed the children in foster care. After E.H.A, (“the father”) was implicated as the perpetrator of the sexual abuse, the juvenile court adopted a plan to reunite the children solely with the mother. On January 3, 2012, the juvenile court entered orders in the three dependency actions indicating that reasonable efforts to reunite the children with the mother had failed. The mother appealed from those orders. After this court affirmed the orders, F.V.O. v. Coffee Cty. Dep’t of Human Res., 145 So.3d 11 (Ala. Civ.App.2012), our supreme court reversed this court’s judgment and remanded the cause with instructions that this court dismiss F.V.O.’s appeal as arising from nonfi-nal judgments. Ex parte F.V.O., 145 So.3d 27, 30-31 (Ala.2013). Pursuant to that directive, this court dismissed the appeal and remanded the cases to the juvenile court for further proceedings. F.V.O. v. Coffee Cty. Dep’t of Human Res., 145 So.3d 41 (Ala.Civ.App.2013). On remand, the juvenile court conducted a series of ore tenus hearings, culminating in the entry, on May 15, 2015, of orders (“the permanency orders”) in the three dependency actions that relieved DHR of the duty to exert reasonable efforts to reunite the children with the mother pursuant to Ala. Code 1975, § 12-15-312(c)(l). On May 29, 2015, the mother filed a motion to alter or amend the permanency orders, which the juvenile court denied on June 2, 2015. The mother timely appealed.

Analysis

Although the mother appeals from the May 15, 2015, permanency orders, in her appellant’s brief to this court the mother does not argue that the juvenile court committed any error by relieving DHR of the duty of making reasonable efforts to reunite the mother with the children, which was the only issue adjudicated in those orders. In her brief, the mother argues:

“DHR failed and refused to make reasonable efforts to reunite the mother with the children. The [juvenile] court’s finding in its orders entered on January 3, 2012, that reasonable efforts had been made to reunite the mother with her children, and that those efforts had failed, is not supported by the evidence. The [juvenile court] failed to issue an Order stating that reasonable efforts [shall] no longer be required until May 15, 2015.... Therefore, DHR was under an obligation to make efforts towards reunification [until that time] and DHR blatantly refused to so.”

(Emphasis added.) That argument focuses entirely on the reasonableness of DHR’s efforts to reunite the family before May 15, 2015, and the correctness of the juvenile court’s January 3, 2012, orders finding that DHR had made reasonable reunification efforts. Notably, the juvenile court did not make any finding in the May 15, 2015, permanency orders that DHR had made reasonable efforts to reunite the family and that those efforts had failed.

In Ex parte F.V.O., supra, our supreme court held that the mother could not appeal from the January 3, 2012, orders because the juvenile court had not adjudicated any issue regarding the reasonableness of DHR’s family-reunification efforts or the success of those efforts. The supreme court determined that the juvenile court’s finding that “ ‘[reasonable efforts have been made to reunite the mother and child and said efforts have failed’ ” was “simply a finding as to an historical fact,” not “an adjudication of substantive rights from which an appeal would lie.” 145 So.Sd at 30. Because the January 3, 2012, orders were not final judgments, the supreme court directed this court to dismiss the appeal. 145 So.3d at 31. In Ex parte F.V.O., the supreme court implied that the mother could appeal from an order containing “language expressly relieving DHR of its legal obligation to make reasonable efforts toward [the mother’s] rehabilitation and reunification with the children..,. ” 145 So.2d at 30. But the supreme court meant only that the mother could appeal the termination of DHR’s legal duty to make reasonable efforts, not that she could raise in that appeal the separate issue of the reasonableness of the efforts DHR had made, which had been addressed, but not adjudicated, in the January 3, 2012, orders.

At this point, according to the reasoning in Ex parte F.V.O., the juvenile court has not yet adjudicated whether DHR made reasonable family-reunification efforts and whether those efforts have failed. Although the children have now been in foster care for over seven years, those issues apparently will have to be adjudicated if and when the juvenile court hears a petition to terminate the parental rights of the mother, see W.A. v. Calhoun Cty. Dep’t of Human Res., 211 So.3d 849, 854-55 (Ala. Civ.App.2016) (Moore, J,, concurring specially), so we do not express any opinion on those points. The May 15, 2015, permanency orders adjudicated only the question whether DHR had a duty to make reasonable efforts going forward. The mother has not made any argument as to the correctness of the determination that DHR no longer has such a duty, so this court concludes that the mother has waived all errors relating to the permanency orders, see Robino v. Kilgore, 838 So.2d 366, 370 (Ala.2002), which, as a consequence, must be affirmed. See N.T. v. P.G., 54 So.3d 918, 921 (Ala.Civ.App.2010).

2140807—-AFFIRMED.

2140808—AFFIRMED.

2140810—AFFIRMED.

THOMPSON, P.J., and PITTMAN and DONALDSON, JJ., concur.

THOMAS, J., concurs in the result, without writing.


author: WELCH, Judge.

text:
    Johnny Lavorso ABRO v. STATE of Alabama.
    CR-14-0059.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 2015.
    William R. Davis, Sherri Lee Mazur, and Alline Aylia McKee, Montgomery, for appellant.
    Luther Strange, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WELCH, Judge.

Johnny Lavorso Abro appeals the Montgomery Circuit Court’s decision to depart from the non-prison dispositional recommendation of the presumptive sentencing standards (“the presumptive standards”), see § 12-25-34.2, Ala.Code 1975, and instead, to sentence him to prison. We reverse and remand.

On August 7, 2014, Abro pleaded guilty to third-degree burglary, a violation of § 1SA-7-7, Ala.Code 1975, and to second-degree theft of property, a violation of § 13A-8-4, Ala.Code 1975. The burglary conviction was subject to the voluntary sentencing guidelines, and the theft conviction was subject to the presumptive standards. Because the theft conviction was considered the more serious offense, having the highest worksheet-point total, the presumptive standards applied to sentencing. According to the guilty-plea form, the presumptive standards recommended a du-rational sentencing range between 54 and 115 months, and 6 to 19 months split, and also recommended a sentence disposition of “non-prison.”

At the sentencing hearing on September 25, 2014, the circuit court asked the prosecutor if she had filed any “aggravators”; she responded that she had not. Abro requested that the circuit court follow the presumptive standards. The circuit court stated that it was not going to follow the presumptive standards and that it was deviating from the guidelines because of Abro’s criminal history. According to the circuit court, Abro’s criminal history was an aggravating factor reasonably related to the purposes of sentencing. The circuit court also stated that the burglary conviction was the more serious offense and should have controlled sentencing. The circuit court sentenced Abro to 60 months in prison. Abro informed the circuit court that he wanted to appeal the deviation, stating that he did not receive the appropriate notice regarding the “aggravator” and that the circuit court had erred in deviating from the guidelines.

On appeal, Abro contends that the circuit court erred when it deviated from the presumptive standards by entering a dis-positional departure from the “non-prison” recommendation. Specifically, Abro argues that the State failed to give notice of any aggravating factors that would justify a departure from the presumptive standards, that his case did not warrant a departure from the presumptive standards, and that the circuit court erred in using his prior criminal history as an aggravating factor.

The Presumptive and Voluntary Sentencing Standards Manual sets forth procedures that must be followed before the circuit court may depart from a disposi-tional or durational recommendation. Those procedures include: the court must consider any aggravating factor proven by the prosecutor beyond a reasonable doubt; the defendant is entitled to a jury trial on the existence of the aggravating factor unless the factor is admitted by the defendant or both parties waive determination by a jury; the prosecutor give the defendant notice of aggravating factors no less than 7 days before trial; and the circuit court state the aggravating factors found as reasons for any departure in its sentencing order.

Here, the record demonstrates that none of the above-listed procedures was followed when the circuit court chose to depart from Abro’s “non-prison” disposi-tional recommendation. The State did not seek to prove any “aggravators,” and, therefore, did not provide any notice of aggravating circumstances. Additionally, the question of the existence of any aggravating factors was not presented to a jury, and neither Abro nor the State waived the right to a jury determination of the existence of aggravating factors that would justify the circuit court’s decision to depart from the presumptive standards. The State made no arguments and presented no evidence of the existence of any aggravating factors at the sentencing hearing; instead, the circuit court sua sponte applied what it deemed to be an aggravating factor. Because the circuit court failed to follow the requirements set forth in the Presumptive and Voluntary Sentencing Standards Manual when it chose to depart from the non-prison dispositional recommendation, the circuit court abused its discretion when it imposed a “prison” sentence on Abro. See Hyde v. State, 185 So.3d 501 (Ala.Crim.App.2015). Accordingly, the circuit court’s judgment imposing a “prison” disposition is reversed, and this case is remanded to the circuit court for that court to impose on Abro a “non-prison” disposition consistent with the dis-positional recommendation on the presumptive sentencing guidelines. The circuit court’s sentencing order should reflect the sentence for each conviction and should state that the sentences are to run concurrently. Due return should be made to this Court within 28 days from the date of this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WINDOM, P.J., and KELLUM and BURKE, JJ., concur.

JOINER, J., concurs in the result.

       Note from the reporter of decisions: On August 5, 2016, on return to remand, the Court of Criminal Appeals affirmed, without opinion.