STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Bay Pointe Waterfront Condominium Association, Inc., Petitioner, v. Fee Case No Rel. Case No Arthur Delia, Respondent. / FINAL ORDER DENYING PETITIONER S MOTION TO DETERMINE AND TAX ATTORNEY S FEES AND COSTS Comes now, the undersigned arbitrator, and issues this final order as follows: On January 13, 2003, Bay Pointe Waterfront Condominium Association, Inc. (petitioner/association) filed a motion to determine and tax attorney s fees and costs, seeking an award of $1, in attorney s fees and $53.48 in costs, totaling $1, The fees and costs were incurred in arbitration case number , which was dismissed as moot on December 30, 2002, when it was agreed by the parties that the respondent had moved his storage shed as requested in the petition. The respondent filed a response to the petitioner s motion for fees on February 10, 2003, attesting that he re-positioned his storage shed on September 25, 2002, prior to the date on which the petition for arbitration was filed, and further that he notified the association of such re-positioning via U.S. mail on September 25, Because the respondent argues that compliance occurred prior to the date the petition was 1

2 filed, the respondent alleges that the association is not the prevailing party. On February 21, 2003, the arbitrator issued an order directing the respondent to submit three affidavits from individuals who witnessed the re-positioning of the storage shed and a copy of letter he sent to the association indicating that the shed had been moved. On March 6, 2003, the respondent filed the requested information, including the notification letter mailed to the association and three affidavits attesting that the shed was moved on September 25, On March 17, 2003, the arbitrator issued an order to show cause requiring the association to demonstrate why the motion for attorney s fees and costs should not be denied due to the documentation submitted by the respondent. On March 27, 2003, the association responded alleging that the shed was not moved into compliance until after the date on which the petition was filed and that compliance came only as a result of the filing of the petition. Accordingly, the association contends that it is the prevailing party as a matter of law. Due to the dispute concerning which party, if any, was the prevailing party in the underlying proceeding, a final hearing was conducted on the matter via teleconference call. The hearing was held on April 21, 2003, at 10:00 a.m. Steven Mezer, Esquire, represented the association, and Arthur Delia, respondent, represented himself. Mr. Mezer, Mr. Delia and three witnesses appeared at Mr. Mezer s law office for the hearing. Prior to taking testimony of the witnesses, Mr. Mezer asserted, as a preliminary matter, that the date at issue is the date the petition was filed, not the date the respondent was served with the petition for arbitration. Mr. Mezer stated that since the respondent s storage shed was moved into 2

3 compliance after the petition was filed, the motivating factor for the compliance was the filing of the petition and, as such, the association is entitled to an award of attorney s fees and costs as the prevailing party. Findings of Fact The association presented testimony from two witnesses: Richard Fanelli and Joyce Henke. Mr. Fanelli is a director/board member who currently lives on the condominium property. Mr. Fanelli stated that the respondent s unit and back porch, where the shed is located, is easily visible from the road when entering and exiting the condominium property. He also stated that he became aware of the shed violation through complaints submitted from other residents. He cited numerous dates in September and October 2002 and November 7, 2002, where he observed the shed in non-compliance. He first witnessed the shed in compliance when he returned from a trip on November 11, 2002, at approximately 10:00 a.m. He then informed Joyce Henke, president/board member, that as of November 11, 2002, the respondent s shed was in compliance. Ms. Henke, President, also testified. She currently lives on the condominium property and stated that she observed the shed in non-compliance as early as May She also stated that the shed remained in non-compliance as of September 25, 2002, and October 30, She was informed by Mr. Fanelli that the shed had been re-positioned and was in compliance as of November 11, On November 12, 2002, she observed the shed and agreed that it was in compliance as of that date. Ms. Henke testified that the shed must have been moved sometime after November 7, 2002, but no later than November 12,

4 The respondent presented testimony of four witnesses: himself, Lisette Mendoza, Derek Taber and Monty Velasco. Mr. Delia, the respondent, testified that he is the owner of unit B-202 and that he moved his storage shed on September 25, 2002, at approximately 11:00 p.m., with the assistance of Derek Taber and Monty Velasco. He also stated that Lisette Mendoza witnessed the move. While Mr. Delia alleged that his storage shed was never in non-compliance with the condominium documents, he decided to voluntarily move his shed to avoid possible legal action undertaken by the association. Additionally, Mr. Delia stated he wrote a letter to the association indicating that the shed was moved on September 25, 2002, which was mailed by Mr. Velasco. Mr. Delia further testified that it was his idea to move the shed on that particular date. On the evening of September 25, 2002, Mr. Delia testified that he went to Mr. Taber s unit and requested his assistance in moving the shed. Lastly, Mr. Delia stated that his shed has only been moved once. Lisette Mendoza appeared by telephone and stated that she is a friend of the respondent and does not live on the property. She testified that she went to Mr. Delia s condominium unit after work on September 25, 2002, at approximately 11:00 p.m., and witnessed Mr. Delia moving his storage shed, with the assistance of Mr. Velasco and Mr. Taber. She claims to remember that particular evening because it was the last week of her work on the night shift. She stated that Mr. Delia s storage shed has only been moved once, on September 25, 2002, and that it remains in the same location as of the date of this hearing. She also testified that she was not aware of the arbitration proceeding until sometime after September 25, 4

5 2002. Derek Taber, a friend of Mr. Delia, testified next. Mr. Taber does not live on the condominium property at this time, but resided in unit B-201 on September 25, 2002, when he assisted Mr. Delia in moving his storage shed. He testified that Mr. Delia came to his unit around 11:00 p.m. on September 25 th and requested his help in moving his shed. He remembers that date because he had more spare time than usual due to his unemployed status and because he had noted it in his daily planner. Mr. Taber stated that Mr. Velasco was present when the shed was moved and that Ms. Mendoza arrived sometime that evening as well. He did not have knowledge of the arbitration proceeding when the shed was moved and did not know the exact reason for moving the shed. Finally, Monty Velasco testified. Mr. Velasco is a friend of Mr. Delia and lives on the condominium property in unit D-208. He stated that Mr. Delia s storage shed was moved on September 25, 2002, around 10:00 or 11:00 p.m., with it being Mr. Delia s idea to move the shed. He stated that Mr. Taber assisted with the move and Ms. Mendoza arrived to witness it. He also testified that he was responsible for mailing Mr. Delia s letter to the association which indicated the shed was repositioned as of September 25, At the conclusion of the witness testimonies, Mr. Mezer reiterated his position that the date at issue is the date the petition for arbitration was filed, namely November 4, 2002, not the date the respondent was served with the petition, which was November 20, He stated that two witnesses testified that the shed was not moved until November 11 th or 12 th, and since this occurred after the filing of the 5

6 petition, the association is the prevailing party in this proceeding. Mr. Delia stated that all of his witnesses testified that the shed was moved on September 25, 2002, prior to the date the petition was filed, and, as such, the association is not the prevailing party. Conclusions of Law A party is a prevailing party if it succeeds on a significant issue in the arbitration and achieves some of the benefit sought in bringing the action. See Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807, 809 (Fla. 1992)(citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). There need not be a determination on the merits for purposes of a fee award, if the applicable statutory provision provides for fees to a prevailing party. State Department of Health and Rehabilitative Services v. Hall, 409 So. 2d 193 (Fla. 3d DCA 1982). This proposition applies when a case becomes moot because the opposing party voluntarily provides the relief sought in the action. See 51 Island Way Condominium Association, Inc. v. Williams, 458 So. 2d 364, 367 (Fla. 2d DCA 1984). In West Wind Estates Condominium Association, Inc. v. Becker, Arb. Case No F, Order on Motion for Attorney s Fees (August 15, 1995), the arbitrator set forth the appropriate test for determining the prevailing party where the arbitration petition is dismissed as moot: A party can be considered a prevailing party, even though the case is moot, when (1) it has obtained the relief it sought in the arbitration or lawsuit; (2) the petition for arbitration or lawsuit was the catalyst that motivated the opposing party to take the action causing the case to become moot; and (3) the action taken by the opposing party was required by law. 6

7 In the case at hand, while the association achieved the relief it sought in the underlying arbitration proceeding when the respondent re-positioned his storage shed to be in compliance with the condominium documents, the association failed to establish that the petition for arbitration was the catalyst that motivated the respondent s compliance. The arbitrator finds the testimony provided by the respondent s witnesses to be more convincing and concludes that the respondent s storage shed was re-positioned, in compliance with the governing documents, on September 25, 2002, prior to the date on which the respondent was served with the petition for arbitration. The respondent s witnesses had on the whole better and more convincing reasons to recall the precise date on which the shed was moved and the arbitrator found their testimony to be credible overall. Under these circumstances, it cannot be said that the petition was the motivating catalyst behind the respondent s compliance because the petition had not been served on the respondent yet. That being the case, the relief requested by the association was not obtained during the pendency of the arbitration case. Consequently, the association is not entitled to prevailing party attorney s fees; petitioner s motion to determine and tax attorney s fees and costs is therefore denied. See Cypress Chase Condo. #2 Assn., Inc. v. Urbano, Arb. Case No , Final Order on Motion for Attorney s Fees (March 14, 2000) (where complained-of dog was removed before respondent came under the jurisdiction of this tribunal by receipt of the petition for arbitration and order requiring answer, the relief requested by petitioner was not obtained during the pendency of the arbitration case and petitioner was not entitled to prevailing party attorney s fee); Horizons West Condo. Number 3 Assn., Inc. v. Penaranda, Arb. 7

8 Case No F, Final Order Denying Motion (March 22, 1994) (filing of petition could not have been motivating factor because violations were cured prior to respondents being served with a copy of the petition, and accordingly association was not prevailing party; no fees awarded.) It is worth noting that even considering all relevant facts in the light most favorable to the association and concluding that the respondent s shed was brought into compliance on November 11, 2002 or November 12, 2002, as testified to by the association s witnesses, the arbitrator s ruling would not differ. Applying the holdings from Urbano and Penaranda, the date at issue is the date the respondent was served with the petition, not the date the petition was filed. See also Golfside of Lee Condominium Association, Inc. v. Spicer, et. al., Arb. Case No F, Final Order Denying Attorney s Fees (March 31, 1995), Chevy Chase Condominium Association, Inc. v. Achaibar, Arb. Case No , Final Order on Motion for Attorney s Fees and Costs (October 13, 2000). Under these facts, it remains that the storage shed was moved prior to the date on which the respondent was served with the petition for arbitration. Since the alleged violation was cured before the respondent was served with the petition, the association would not be the prevailing party, and, as such, the petitioner s motion to determine and tax attorney s fees and costs would be denied. Based on the foregoing, it is determined that the association is not the prevailing party in this arbitration action. It is therefore ORDERED: Petitioner s motion to determine and tax attorney s fees and costs is DENIED. 8

9 DONE AND ORDERED this 20 th day of May 2003, at Tallahassee, Leon County, Florida. Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 20 th day of May 2003: Steven H. Mezer, Esq. Bush Ross Gardner Warren & Rudy, P.A. P.O. Box 3913 Tampa, Florida Arthur Delia 8802 Baypointe Drive Unit B-202 Tampa, Florida Melissa Mnookin, Arbitrator Right to Appeal As provided by section , F.S., this final order may be appealed by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. 9