STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION DRIFTWOOD OF ZEPHYRHILLS CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Fee Case No. 2010-01-0260 Rel. Case No. 2009-05-4517 CAROL SUE THOMPSON, Respondent. / FINAL ORDER ON MOTION FOR AWARD OF ATTORNEY S FEES AND COSTS On February 26, 2010, Driftwood of Zephyrhills Condominium Association, Inc. (the Association) moved for an award of $4,890.00 in attorney s fees and costs. On April 2, 2010, Carol Sue Thompson (Respondent) filed a response to the Association s motion. This fees case arises from arbitration case number 2009-05-4517. In the underlying case, the Association alleged that Respondent was maintaining a dog in her unit that she claimed was medically necessary. 1 The Association further alleged that it had implemented an application process by which an owner was required to submit a verification form establishing he or she is entitled to keep a pet as reasonable accommodation under the federal Fair Housing Act. The Association further claimed that Respondent had not submitted a verification form to the Association. The Association also alleged that, although Respondent had not submitted a verification form, it had informed her in writing that, even if she were approved to keep her dog, it 1 Under the condominium s governing documents, Respondent would not be permitted to keep a dog in her unit. 1
would be subject to requirements regarding where it may be walked, leashing, and cleaning up after it. The Association claimed that Respondent failed to comply with such restrictions. The underlying case was dismissed after the Association filed a Notice of Voluntary Dismissal Without Prejudice. Subsequently, the Association s motion to withdraw its Notice of Voluntary Dismissal Without Prejudice was denied. Entitlement to Attorneys Fees Pursuant to 718.1255(4)(k), Fla. Stat., the prevailing party in an arbitration proceeding shall be awarded the costs of the arbitration and reasonable attorney s fees in an amount determined by the arbitrator. 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)). The Association voluntarily dismissed the underlying action before a ruling could be made on the merits of its claim. In its fees motion, the Association claims that it should be deemed the prevailing party because Respondent ceased walking her dog throughout the community as result of it filing the petition. The Association further claims in the motion that it filed its Notice of Voluntary Dismissal due to mootness because the matters in the petition no longer appeared to be at issue as Respondent had been complying with the rules adopted by the Association. In its Motion to Withdraw Notice of Voluntary Dismissal Without Prejudice, filed in the underlying case on January 19, 2010, the Association states that the dismissal was premised on the fact that Respondent had not pursued her Housing Discrimination 2
Complaint and had voluntarily complied with Association s demand for relief. 2 The Association further stated that, on January 11, 2010, the Respondent filed a second Housing Discrimination Complaint rendering the Dismissal void. Where the underlying case is rendered moot due to the respondent s compliance, the petitioner is presumed to be the prevailing party for the purpose of awarding costs and attorney s fees if the respondent s compliance was motivated by the filing and receipt of the petition. Rule 61B-45.048(7), Florida Administrative Code. See The Diplomat Apartment Association v. Johnson, Arb. Case No. 2006-01-5487, Final Order on Attorney s Fees and Costs( May 23, 2006)(when the respondent provides the relief request after receipt of the petition, resulting in the petition be dismissed as moot, Rule 61B-45.048(7), Fla. Admin. Code, creates are rebuttable presumption that the petitioner is the prevailing party ). see also Bermuda Cays Condo. Assoc., Inc. v. Baker, Arb. Case No. 99-0074, Final Order on Attorney s Fees (March 12, 1999), Boca Terrace Condo. Assoc., Inc. v. Grecco, Arb. Case No. 98-4374, Final Order on Attorney s Fees (September 14, 1998). states: The body of the Association s Notice of Voluntary Dismissal Without Prejudice, Petitioner, Driftwood of Zephyrhills Condominium Association, Inc., by and through its undersigned counsel, hereby voluntarily dismisses this action without prejudice against Respondent, Carol Sue Thompson. Each party shall bear their own attorney s fees and costs. 2 Prior to commencement of the underlying arbitration case, Respondent filed and dismissed a Fair Housing Complaint. In her answer she indicated that she intended to file a second Fair Housing Complaint. Therefore, Respondent was ordered, on or before December 21, 2009, to file proof that a Fair Housing discrimination complaint was pending before the appropriate Fair Housing agency. The order further stated that upon Respondent s doing so the case would be administratively closed until the Fair Housing complaint was resolved. Respondent filed a response to the order on December 9, 2009. Before the undersigned had an opportunity to evaluate the response and determine whether the underlying case should be administratively closed, the Association filed its Notice of Voluntary Dismissal. 3
The underlying case was dismissed before a ruling could be made on the merits of the Association s claim. There was no indication in the Association s Notice of Voluntary dismissal that the case was being dismissed because the dispute had been rendered moot by Respondent s compliance. Additionally, the notice stated that each party shall bear their owner attorney s fees and costs, an indication that the Association was waiving its right to seek attorney s fees and costs in the underlying case. Finally, there is presently a Fair Housing Complaint pending related to the dispute in the underlying case. Taking these factors into consideration, the undersigned finds that the Association s Motion for Attorney s Fees and Costs should be denied. Florida. Based upon the foregoing, it is ORDERED: The Association s Motion for Award of Attorney s Fees and Costs is denied. DONE AND ORDERED this 16 th day of April, 2010, at Tallahassee, Leon County, James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Telephone: 850.414.6867 Facsimile: 850.487.0870 4
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 16 th day of April, 2010: Gary M. Schaaf, Esq. Brian C. Willis, Esq. Becker & Poliakoff, P.A. 311 Park Place Blvd., Suite 250 Clearwater, FL 33759 Carol Sue Thompson 38341 Ironwood Place Zephyrhills, FL 33542 James W. Earl, Arbitrator Trial de novo This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section 718.1255, Florida Statutes. 5