The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIAM O’DRISCOLL,
Plaintiff,
v. Case No. 8:22-cv-1984-VMC-JSS
ARBOR GROVE CONDOMINIUM
ASSOCIATION, INC., and
RESOURCE PROPERTY MANAGEMENT,
INC.,
Defendants.
______________________________/
ORDER
This matter is before the Court on consideration of
Defendants Arbor Grove Condominium Association, Inc. and
Resource Property Management, Inc.’s Motion for Partial
Summary Judgment (Doc. # 44), filed on August 31, 2023.
Plaintiff William O’Driscoll responded on September 14, 2023.
(Doc. # 45). For the reasons that follow, the Motion is
granted in part and denied in part.
I. Background
On August 29, 2022, William O’Driscoll initiated this
action against the Arbor Grove Condominium Association, Inc.
(“Arbor Grove”) and Resource Property Management, Inc.
(“RPM”) (Doc. # 1). O’Driscoll filed an amended complaint on
1
November 14, 2022. (Doc. # 9). The amended complaint asserts
violations of the Florida Consumer Collections Practices Act
(“FCCPA”) by both defendants and violations of the Fair Debt
Collection Practices Act (“FDCPA”) by RPM. (Id.). The parties
proceeded through discovery, which revealed the following.1
A. The Arbor Grove Community and O’Driscoll’s Property
O’Driscoll owns a condominium unit within the Arbor
Grove community. (Doc. # 9 at ¶¶ 6, 29). This property is
1 The Court entered an Order on Motions for Summary Judgment
on February 27, 2023. (Doc. # 30). This order states that
“[e]ach response in opposition to a motion for summary
judgment must include a section titled ‘Response to Statement
of Material Facts.’ The opposing party’s response must mirror
the statement of material facts [in the motion for partial
summary judgment] by admitting and/or denying each of the
moving party’s assertions in matching numbered
paragraphs.”(Id. at 2). O’Driscoll’s response does not
include a section admitting and/or denying each of
Defendants’ assertions in their statement of material facts.
(Doc. # 45). Therefore, the Court’s analysis is based on the
additional facts included in O’Driscoll’s response and the
strength of the evidence cited by Defendants in support of
their factual assertions. The Court notes that, “[i]n
deciding a motion for summary judgment, the Court will deem
admitted any fact in the statement of material facts that the
opposing party does not specifically controvert, provided
record evidence supports the moving party’s statement.” (Id.
at 2-3). “When resolving a motion for summary judgment, the
Court has no independent duty to search and consider any part
of the record not otherwise referenced and pinpoint cited in
the statement of material facts and response thereto.” (Id.
at 3).
2
subject to Arbor Grove’s Declaration, Bylaws, and other
governing documents. (Id. at ¶ 30). Arbor Grove “has the right
to fine [residents], upon reasonable notice and an
opportunity to be heard.” (Id. at ¶ 32). Specifically, Arbor
Grove’s Declaration provides:
In the event a Unit Owner or occupant . . . fails
to observe and perform all of the provisions of the
Declaration, the By-Laws, the Articles of
Incorporation of the Association, applicable rules
and regulations, or any other agreement, document
or instrument affecting the Condominium Property in
the manner required, the Association shall have the
right to proceed in a court of equity to require
performance and/or compliance, to impose any
applicable fines, to sue in a court of law for
damages, and to charge the Unit Owner for the sums
necessary to do whatever work is required to put
the Unit Owner or Unit in compliance.
(Doc. # 44-1 at Ex. A at 30).
B. Fines for Violations of Arbor Grove Community Rules
Arbor Grove and RPM sent O’Driscoll several notices
regarding his conduct at his property within the Arbor Grove
community. (Id. at Ex. B). This correspondence informed
O’Driscoll that he had violated Arbor Grove’s governing
documents and indicated that he would be subject to fines for
this conduct. (Id.).
3
1. The $300 Fine
On September 13, 2021, Arbor Grove, through RPM, sent
O’Driscoll correspondence informing him that he had violated
Arbor Grove’s governing documents through his language and
behavior, and stating that a hearing before the Arbor Grove
Compliance Committee would occur on October 5, 2021, to
determine whether to impose a fine for the violations. (Id.
at 1). The correspondence also indicated that, if O’Driscoll
could not attend the hearing, he could submit a written
statement to the committee. (Id.). The hearing was held on
October 5, 2021, as noticed, and the committee voted to
confirm the fines as levied by the Board of Arbor Grove. (Id.
at Ex. C). O’Driscoll did not attend. (Id.). A $300 fine was
added to O’Driscoll’s account on October 1, 2021. (Id. at Ex.
D at 17:18-21).
O’Driscoll testified that he recalled logging into his
online account with Arbor Grove on October 1, 2021, and
viewing that the account listed a $300 fine. (Id. at 45:19-
49:12). He did not subsequently contact anyone at RPM about
the fine because he knew it was “an illegal fine” and,
therefore, “didn’t care.” (Id. at 49:17-50:4). He referred
4
the matter to his attorney. (Id. at 50:1-10). He testified
that he did not know why the $300 fine was added to his
account. (Id. at 27:2-4).
O’Driscoll testified in his deposition he never received
any mail related to the $300 fine. (Id. at 18:1-7, 19:4-7,
19:14-21:10). Despite referencing the September 13, 2021,
letter in his amended complaint (Doc. # 9 at ¶ 35), O’Driscoll
testified that he did not receive any correspondence in
September 2021 advising that Arbor Grove might refer
information about O’Driscoll’s behavior to a fining
committee. (Doc. # 44-1 at Ex. D at 20:9-18). More generally,
O’Driscoll testified that he did not receive any
correspondence prior to September 13, 2021, regarding his
behavior or language within the community. (Id. at 28:7-10).
Additionally, O’Driscoll did not recall several later
correspondences regarding rule violations, including
correspondence dated September 21, 2021, and October 6, 2021.
(Id. at 28:19–23, 33:10-15). He also provided somewhat
conflicting testimony regarding whether he received a letter
dated October 20, 2021. He first testified that he did not
recall receiving it. (Id. at 26:15-27:1). Later in the same
5
deposition, he appeared to affirm that he had received the
letter. (Id. at 43:12-19). Yet, O’Driscoll’s testimony about
this letter is intertwined with a discussion of the October
1, 2021, charge to his online account with Arbor Grove, and
thus may not be referencing the October 20, 2021, letter.
(Id. at 43:9-49:10). He also did not recall receiving a letter
dated December 21, 2021, though he assumed that he received
it sometime that month. (Id. at 41:7-17).
He also testified that he had never “received any
correspondence or communication[,] either a letter or an in
person conference with anyone from the Board or related to
RPM regarding [his] behavior or language.” (Id. at 29:7-24).
O’Driscoll further testified that he never attended any
hearings before Arbor Grove’s Compliance Committee. (Id. at
28:11-13). Additionally, he denied “ever receiv[ing] any
communications advising [him] that there was a hearing either
before the [C]ompliance [C]ommittee or a fining committee
related to any alleged violations.” (Id. at 28:14-18).
2. The $200 Fine
On February 1, 2022, Arbor Grove sent O’Driscoll a notice
that he had violated Arbor Grove’s governing documents
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through his behavior and foul language. (Id. at Ex. B at 7).
Later that day, O’Driscoll instructed RPM not to “correspond
with [him] again in any form relating to any matter” and to
direct future correspondence to his attorney, Andrew Mallory.
(Doc. # 45-1 at Ex. A). Mallory confirmed this request the
following day. (Id.). According to Edward Evans, President of
Arbor Grove, both Arbor Grove and RPM were aware of this
communication. (Evans Depo. at 5:6-8, 31:16-32:11). Evans
acknowledged that communications directly to O’Driscoll
should have stopped after this date. (Id. at 33:7-11).
However, he also confirmed that direct communications did
continue. (Id. at 35:2-22).
Subsequently, RPM sent O’Driscoll a Notice of Non-
Compliance on March 30, 2022. (Doc. # 44-1 at Ex. B at 9).
The Notice indicated that the Arbor Grove Fining Committee
would hold a hearing on April 20, 2022, “to determine whether
to confirm or reject the [$200] fine proposed by the Board of
Arbor Grove at their last Board meeting.” (Id.).
On May 4, 2022, RPM sent O’Driscoll correspondence
advising that the Fining Committee had confirmed the fine and
that a $200 fine had been posted to his account. (Id. at 10).
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O’Driscoll testified that he never received any
correspondence in the mail related to this fine. (Id. at Ex.
D at 18:21-19:3). He also specifically did not recall
receiving correspondence from Arbor Grove or RPM dated
February 22, 2022, March 30, 2022, or May 4, 2022. (Id. at
32:12-16, 33:2-5, 33:16-21).
C. State Court Lawsuit Seeking Injunction
Arbor Grove filed a lawsuit against O’Driscoll in state
court on November 2, 2021, seeking an injunction to prevent
O’Driscoll from “willfully and knowingly failing to comply
with” Arbor Grove’s Declaration. (Id. at Ex. G). The behavior
at issue in the lawsuit included yelling; name calling,
including homophobic slurs; damage to common elements; making
continuous complaints; using foul language; and placing
carpet pieces and plants in ways that “interfer[ed] with
ingress and egress.” (Id.). Arbor Grove also sought
attorney’s fees. (Id.).
Counsel for O’Driscoll in that case, Scott B. Tankel,
filed a Notice of Appearance on May 10, 2022. (Id. at Ex. H).
O’Driscoll filed an answer on August 15, 2022. (Id. at Ex.
8
I). O’Driscoll’s answer included violations of the FCCPA and
FDCPA as an affirmative defense. (Id.).
D. Attorney’s Fees from State Court Lawsuit Regarding
Injunction
On May 13, 2022, a $2,975 charge for “[a]ttorney’s fees,
per manager 2022” was applied to O’Driscoll’s online account
with Arbor Grove. (Doc. # 9-1 at 1, 4). In his deposition,
O’Driscoll denied “ever receiv[ing] any communication
[through the mail] related to attorney’s fees . . . being
assessed to [his] account.” (Doc. # 44-1 at Ex. D at 18:13-
20).
The $2,975 charge for attorney’s fees was removed from
O’Driscoll’s account on December 31, 2022. (Id. at 54:1-19).
E. Correspondence to Collect Fines and Attorney’s Fees
On May 17, 2022, RPM sent O’Driscoll a letter indicating
that he had a $3,475 balance in his account. (Doc. # 45-1 at
Ex. E). This balance was comprised of a $300 previous balance,
a $200 fine, and $2,975 in “[a]ttorney’s fees, per manager.”
(Id.). The letter also stated it “shall serve as the
association’s notice to proceed with further collection
action against your property no sooner than 30 days after the
9
date of this letter, unless you pay the amount set forth.”
(Id.).
On June 17, 2022, RPM sent O’Driscoll additional
correspondence. (Id. at Ex. F). This letter also sought to
collect $3,475, comprised of the same costs listed in the
previous letter. (Id.). It also included the same statement
regarding “further collection action.” (Id.).
O’Driscoll testified that he received “fourteen
collection notices,” believed the documents attached to his
Interrogatory Answers were part of those letters received,
but did not know when those letters were received other than
to say he assumed “near or close to the postmark.” (Doc. #
44-1 at Ex. D at 33:19-34:24). During his deposition,
O’Driscoll could not recall whether he first learned of the
attorney’s fees through the May 17, 2022, letter. (Id. at
31:24-32:10). He also testified that RPM sent fourteen
letters threatening collection of $3,475. (Id. at 21:14-18).
Evans stated that Arbor Grove was no longer
corresponding with O’Driscoll directly by the date of his
deposition, May 18, 2023. (Evans Depo. at 32:14-16).
10
F. Emotional Harm
O’Driscoll experiences several mental health issues,
including bipolar disorder, anxiety, depression, fatigue, and
mood changes. (Doc. # 45-1 at Ex. G at 62:11-16, 63:15-22).
He testified that, “prior to receiving any communications
from RPM or [Arbor Grove] related to fines in October of
2021,” his emotional state was “stable.” (Id. at 58:21-24).
O’Driscoll also testified he never behaved improperly or
used improper language with any Board member or property
manager. (Id. at 30:9-13). Yet, on January 28, 2021,
O’Driscoll left a voicemail for the Board of Arbor Grove that
included significant foul language and name-calling regarding
an employee and communications that she had sent him about
his dogs. (Id. at 85:5-25). Within his deposition testimony
for another case to which Arbor Grove was a party, O’Driscoll
admitted receiving several letters from Arbor Grove regarding
his behavior towards members of the community. (Doc. # 44-1
at Ex. L at 110:1-9). He separately acknowledged that he had
been fined for his foul language. (Id. at 110:19-111:3).
O’Driscoll testified that the communications from Arbor
Grove and RPM exacerbated his mental health issues, requiring
11
both different medication and higher doses. (Id. at Ex. D at
62:14-64:10). The letters also caused O’Driscoll to see Dr.
Patel, his psychiatrist, more frequently. (Id. at 60:5,
113:14-23). According to O’Driscoll, he suffered from memory
loss because of the medications that he is taking and from
lack of sleep. (Id. at 57:9-17, 108:13-23).
Within O’Driscoll’s Initial Disclosures, he indicated
that “Dr. Patel is able to testify as to the stress that the
above-styled case and underlying state [court] litigation has
had on the Plaintiff.” (Id. at Ex. E).2 At his deposition,
O’Driscoll also stated that, after October 1, 2021, he worked
only about a quarter of the hours he previously did for his
employer due to the impact that the fines had on him. (Id. at
Ex. D at 136:13-18).
G. Additional Events That Caused Emotional Distress
1. Lawsuit Regarding Dog Bite
On May 23, 2022, O’Driscoll brought suit against Arbor
Grove and Paul and Debra Oliver, residents within the Arbor
2 While Arbor Grove and RPM indicated in their Motion that
records from Dr. Patel would be “filed separately and
confidentially,” (Doc. # 44 at 23 n.1), these records do not
appear to have been filed with the Court.
12
Grove community, for personal injury caused by an attack by
the Olivers’s dog that occurred on March 7, 2021. (Id. at Ex.
J). The complaint states that the attack resulted in “bodily
injury and resulting pain and suffering, disability,
disfigurement, mental anguish, loss of capacity for the
enjoyment of life, expense of hospitalization, medical and
nursing care and treatment, loss of earnings, loss of ability
to earn money, and aggravation of a previously existing
condition.” (Id. at ¶¶ 33, 38).
Within the Verified Answers to Interrogatories that
O’Driscoll provided in that case, he stated that he lost
income, and would lose additional income, because he “was
unable to maintain [his] marketing activities and [] secured
far less commissions as a result.” (Id. at Ex. K). He also
stated that “[t]he psychological harm caused by the attack
continues to interfere with [his] daily activities.” (Id.).
He indicated that the attack caused him to require additional
medication, which caused “fatigue, nausea and digestive
issues,” that his anxiety got worse, and that he feared
getting attacked by a dog when outside. (Id.). He also had
trouble sleeping, felt “tired, depressed and [had] low
13
energy, low motivation and lack of concentration.” (Id.).
Elsewhere, he stated, “[m]y mental health condition was
managed before the attack. After the attack, my bipolar and
anxiety has increased and I have to take more medication on
a daily basis as a result.” (Id.). This anxiety comes in part
from the scars left by the attack. (Id. at Ex. L at 84:3-6).
In O’Driscoll’s deposition for the dog bite case, he
testified that his “bipolar condition has been exasperated by
the attack. [His] anxiety is worse. [His] depression is
worse. [He] lose[s] sleep. [He] can’t stay awake during the
day.” (Id. at 22:1-4). He stated that his bipolar medication
was increased because of the attack. (Id. at 24:4-10). He
also stated that he lost sleep because of the pain and because
he took his dogs out only at night to avoid the Olivers’s
dog, and gained approximately 35 pounds. (Id. at 82:20-83:2,
85:6-8).
Yet, within O’Driscoll’s deposition in the present case,
he testified that in April 2021, he travelled, attended
networking events, and was “a very social person.” (Id. at
Ex. D at 96:5-13).
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2. Letters from The Concerned Residents of Arbor
Grove
O’Driscoll testified he received three letters from a
“vigilante group in the neighborhood calling themselves The
Concerned Residents of Arbor Grove” that encouraged him to
leave the community. (Id. at 77:16-20, 127:7-17). O’Driscoll
believed that they came from people associated with Defendant
Arbor Grove, but he could not prove it. (Id. at 129:24-130:8).
One of these letters, sent in February 2020, was laced with
white powder. (Id. at 77:21-22, 128:23-25); (Id. at Ex. M).
O’Driscoll testified that these letters were sent to
“terrorize and intimidate” him. (Id. at 132:23-133:2).
O’Driscoll testified that his partner at the time,
Ramon, felt threatened by the letter with the white powder
and that the two went to the hospital, where they were
humiliated and “treated like [they] were criminals.” (Id. at
102:16-23). Further, these letters caused O’Driscoll “to go
into a depression,” experience more anxiety, and lose sleep.
(Id. at 129:5-11).
H. Plaintiff’s Counsel
O’Driscoll has three attorneys. First, Andrew Mallory
represents him in general matters and in the dog bite lawsuit.
15
(Id. at 10:10-16, 50:21-22, 52:5-53:4). Second, Bryant
Dunivan represents O’Driscoll in this matter. (Id. at 2:5-8,
50:16-20). Third, Scott Tankel represents O’Driscoll in
general matters and in the state court action with Arbor
Grove. (Id. at 50:23-51:9).
O’Driscoll testified that Tankel has performed work for
which he is requesting attorney’s fees related to
“collections”. (Id. at 51:13-17). Plaintiff did not disclose
Tankel as counsel for which attorney’s fees were being claimed
within his Initial Disclosures or in his Answers to
Interrogatories. (Id. at Ex. E & F).
I. Parties’ Unopposed Motion as to Consent to
Liability and Issues Still to Be Determined
On April 25, 2023, the parties filed an unopposed motion
as to consent to liability and issues still to be determined.
(Doc. # 32). In this motion, RPM admitted liability under
both counts of the amended complaint as to the May 17, 2022,
and June 17, 2022, correspondence to O’Driscoll. Arbor Grove
“stipulate[d] to liability conditional upon the Court’s
determination that the Association can be liable under the
FCCPA as a ‘debt collector.’” (Id. at 2). The Court later
determined that Arbor Grove is a person capable of violating
16
the FCCPA. (Doc. # 34 at 7). However, the Court denied the
motion as “it is not this Court’s practice to finalize an
interim agreement when the parties are still litigating
claims and before judgment has been entered.” (Doc. # 35).
II. Legal Standard
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
17
the Court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260
(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)).
“When a moving party has discharged its burden, the non-
moving party must then ‘go beyond the pleadings,’ and by its
own affidavits, or by ‘depositions, answers to
interrogatories, and admissions on file,’ designate specific
facts showing that there is a genuine issue for trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th
Cir. 1995) (quoting Celotex Corp., 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the Court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846
18
F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s
response consists of nothing “more than a repetition of his
conclusional allegations,” summary judgment is not only
proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Analysis
A. Propriety of the Fines Imposed by Arbor Grove
Arbor Grove and RPM first assert that summary judgment
should be granted in their favor on O’Driscoll’s claim that
they violated Florida Statute Section 559.72(9).3 (Doc. # 44
at 16).
Section 559.72(9) of the FCCPA provides that, “[i]n
collecting consumer debts, no person shall . . . [c]laim,
attempt, or threaten to enforce a debt when such person knows
that the debt is not legitimate, or assert the existence of
3 This argument also references O’Driscoll’s claim pursuant
to Florida Statute Section 559.72(18). (Doc. # 44 at 16).
However, as the remainder of this section of the Motion only
references caselaw related to Section 559.72(9), the Court
will not consider whether Arbor Grove and RPM have met their
burden with regards to Section 559.72(18). Arbor Grove and
RPM also mention in passing O’Driscoll’s FDCPA claims. (Id.
at 18). As argument related to this statute was not included
in this section, the Court will also not consider this
argument as it applies to these claims.
19
some other legal right when such person knows that the right
does not exist.” Fla. Stat. § 559.72(9). “[T]o establish a
violation under this subsection of the FCCPA, it must be shown
that either a debt which did not exist was being asserted or
that a legal right which did not exist was being asserted.”
Ortiz v. Accts. Receivable Mgmt., Inc., No. 09-80124-CIV,
2010 WL 547910, at *3 (S.D. Fla. Feb. 12, 2010). “[A] party
must allege knowledge of intent by the debt collectors in
order to state a cause of action” under this provision. Longo
v. Campus Advantage, Inc., 588 F. Supp. 3d 1286, 1300 (M.D.
Fla. 2022). “To be liable for a violation, a person must have
actual knowledge that the legal right it was asserting did
not exist.” Johnston v. Mitchell & Lynn Judgement Recovery
Sols., LLC, No. 8:23-cv-38-CEH-AEP, 2023 WL 7411338, at *4
(M.D. Fla. Oct. 17, 2023), report and recommendation adopted,
No. 8:23-cv-38-CEH-AEP, 2023 WL 8004432 (M.D. Fla. Nov. 17,
2023).
In the amended complaint, O’Driscoll alleges that Arbor
Grove and RPM violated Section 559.72(9) by (1) “asserting
the existence of a legal right to collect the debt, or a
portion thereof, when Defendant knew the right to collect
20
said debt did not exist through written correspondence sent
on May 17, 2022 and June 17, 2022,” (2) “asserting the
existence of a legal right to collect the debt, namely
threatening ‘additional collection activities,’ when
Defendant knew the right to collect said debt did not exist
under the declaration and Fla. Stat. 718.303 with respect to
the fine through written correspondence sent on May 17, 2022
and June 17, 2022,” and (3) “including language in its initial
communication, through counsel, that sought a settlement of
the amounts in question without providing written notice that
no litigation could ensue with respect to the debt in question
through written correspondence sent on May 17, 2022 and June
17, 2022.” (Doc. # 9 at ¶¶ 48-50).
Arbor Grove and RPM argue that O’Driscoll cannot succeed
on this claim as to the fines that Arbor Grove sought to
impose upon O’Driscoll because he cannot demonstrate that
“the fines were illegitimate or that the Association had
actual knowledge that the right did not exist.” (Doc. # 44 at
17). Arbor Grove and RPM’s argument centers on the
communications about fines imposed in October 2021 and May
2022, informing O’Driscoll of violations and compelling him
21
to attend hearings held about whether to impose fines for his
conduct. (Id.); (Doc. # 44-1 at Ex. B at 1, 7). Therefore,
Arbor Grove and RPM’s argument appears to only address the
first alleged violation of Section 559.72(9) stated in the
amended complaint.
As an initial note, O’Driscoll appears to confirm that
he is not challenging the validity of the fines issued by
Arbor Grove. See (Doc. # 45 at 9) (“[T]he fine is not at issue
in this litigation. . . . [T]his cause of action arises out
of attempts to collect attorney’s fees which accrued
presumably during the pendency of the injunctive relief claim
filed by the Defendant.”). Further, the Court notes that
Plaintiff’s amended complaint includes specific references to
the “correspondence sent on May 17, 2022 and June 17, 2022”
in each allegation that Defendants violated the FCCPA. (Doc.
# 9 at ¶¶ 48-50). While the May and June 2022 correspondence
states that O’Driscoll owed the two fines, information
regarding the fines and the process by which Arbor Grove
imposed them was included in earlier letters. (Doc. # 44-1 at
Ex. B). Even so, the Court acknowledges that the amended
complaint’s discussion of the fines and issues related to
22
their assessment, such as lack of notice (Doc. # 9 at ¶ 36),
makes it unclear whether O’Driscoll is seeking relief for
violations related to the imposition of the fines. Therefore,
the Court will address this issue.
As to the $300 fine, the Court notes that no genuine
dispute of material fact exists. O’Driscoll cannot
demonstrate that the fine was illegitimate or that Arbor Grove
and RPM knew it was illegitimate, and thus this fine was not
imposed in violation of Section 559.72(9). O’Driscoll admits
in his amended complaint that Arbor Grove “has the right to
fine, upon reasonable notice and an opportunity to be heard.”
(Id. at ¶ 32). This corresponds with Arbor Grove’s
Declaration, which provides:
In the event a Unit Owner or occupant . . . fails
to observe and perform all of the provisions of the
Declaration, the By-Laws, the Articles of
Incorporation of the Association, applicable rules
and regulations, or any other agreement, document
or instrument affecting the Condominium Property in
the manner required, the Association shall have the
right to . . . impose any applicable fines . . . .
(Doc. # 44-1 at Ex. A at ¶ 19.3).
O’Driscoll’s testimony provides conflicting evidence
about whether he received written correspondence informing
him that the $300 fine would be imposed and providing him an
23
opportunity to attend a hearing. However, O’Driscoll’s
amended complaint states that “Arbor Grove alleged violations
of rules in September and October of 2021.” (Doc. # 9 at ¶
34). Further, the amended complaint acknowledges that, prior
to determining that O’Driscoll had violated the rules, Arbor
Grove sent written correspondence, including a September 13,
2021, letter that compelled O’Driscoll to attend a hearing.
(Id. at ¶ 35). O’Driscoll then alleged that “no adequate
notice was given, [so] any fine would be impermissible.” (Id.
at ¶ 36).
The September 13, 2021, letter, provides timely notice
of the fine. While the body of the letter does state that the
hearing has been scheduled on “[[hearing_date]] at 5:15
p.m.,” the letter also notes elsewhere that the hearing date
was October 5, 2021. (Doc. # 44-1 at Ex. B). This date was
over fourteen days after the notice, and therefore, in
compliance with Florida Statute Section 718.303(3)(b), which
states that “[a] fine . . . levied by the board of
administration may not be imposed unless the board first
provides at least 14 days’ written notice to the unit owner
. . . and an opportunity for a hearing before a committee .
24
. . .” Fla. Stat. § 718.303(3)(b). Therefore, no genuine
dispute of material fact exists that the $300 fine was
properly imposed in compliance with Arbor Grove’s
declarations and Florida law. As far as O’Driscoll seeks
damages for the imposition of the $300 fine sought by Arbor
Grove and RPM, summary judgment is granted for Defendants on
this issue.
Similarly, there is no genuine dispute of material fact
regarding the propriety of the $200 fine. True, as with the
previous fine, O’Driscoll testified that he did not receive
written notice that the fine would be imposed and that a
hearing would be held on the matter. (Doc. # 44-1 at Ex. D at
18:21-19:3). Additionally, the exhibits attached to
O’Driscoll’s response to interrogatories in this case do not
include the March 30, 2022, letter. (Id. at Ex. D at Ex. 3).
In O’Driscoll’s response to the Motion, however, he
acknowledges that “[o]n March 30, 2022, Defendant RPM, on
behalf of Arbor Grove, sent written correspondence to
Plaintiff.” (Doc. # 45 at ¶ 7). Because O’Driscoll admits
that he was sent the letter informing him of the imposition
of the fine and that Arbor Grove would hold a hearing on the
25
matter, no genuine dispute of material fact exists that $200
fine was properly imposed. Therefore, as far as O’Driscoll is
seeking damages for the imposition of the $200 fine, summary
judgment is granted on this issue in favor of Defendants.
B. Attorney’s Fees Related to State Court Lawsuit
Seeking Injunction
Arbor Grove and RPM also assert that O’Driscoll should
not be permitted to recover damages based on the attorney’s
fees Arbor Grove incurred in the state court lawsuit seeking
an injunction against O’Driscoll and the attorney’s fees
O’Driscoll incurred in defending himself in that action.4
(Doc. # 44 at 18-19).
As a preliminary matter, the Court notes that the
argument as it pertains to Arbor Grove’s attorney’s fees
resembles that raised in Defendants’ motion to dismiss. (Doc.
# 34 at 7-9). At that time, the Court denied the motion as to
this issue, as the May 17, 2022, and June 17, 2022, letters
4 Defendants also highlight that O’Driscoll stated that he
was seeking “[a]ttorney’s fees and costs related to the
allegations of this action - $18,270” in his Initial
Disclosures in this case. (Doc. # 44 at 18); (Doc. # 44-1 at
Ex. E at 3). However, this response does not clearly indicate
the litigation or other work for which these attorney’s fees
were incurred.
26
list $2,975 in “attorney’s fees, per manager” as part of the
balance O’Driscoll owed Arbor Grove “in connection with his
unpaid HOA fines and assessments.” (Id. at 9).
The Court notes that, as in the motion to dismiss and
response, the parties’ arguments on this issue are not a model
of clarity. Further, Defendants do not cite any caselaw in
support of their argument.
At this juncture, the Court determines that a genuine
dispute of material fact remains as to whether the attorney’s
fees Arbor Grove incurred in pursuing the state court lawsuit
for an injunction qualify as consumer debts under the FCCPA
and FDCPA.
The complaint in the state court lawsuit alleged that
“[O’Driscoll] is causing a substantial, unreasonable
interference with the unit owners’ and residents’ rights to
use and enjoy their condominium property and the unit owners
and residents cannot use the condominium property or their
unit in a manner that was intended for residential use.” (Doc.
# 44-1 at Ex. G). Further, that complaint requested that the
state court “temporarily and permanently enjoin [O’Driscoll]
from the conduct . . . [and] to stop the nuisance.” (Id.).
27
The complaint does not mention or seek to recover the fees
that Defendants sought to collect from O’Driscoll. Instead,
it only seeks injunctive relief and attorney’s fees related
to Arbor Grove’s pursuit of the action. (Id.).
But there is no indication that the fees Arbor Grove and
RPM seek to recover were awarded by the state court. Instead,
they highlight that Arbor Grove has the authority to “to sue
in a court of law for damages, and to charge the Unit Owner
for the sums necessary to do whatever work is required to put
the Unit Owner or Unit in compliance.” (Id. at Ex. A at ¶
19.3); (Doc. # 44 at 19). Arbor Grove and RPM then included
the value of the attorney’s fees in the balance sought from
O’Driscoll, along with other fees related to his ownership of
property within the Arbor Grove community. (Doc. # 9-1). In
short, these are the attorney’s fees Arbor Grove and RPM
incurred in the state court action but were, apparently, never
awarded by the state court.
Defendants argue that the attorney’s fees are not a
consumer debt, as they do not arise from a consumer
transaction. (Doc. # 44 at 18-19). The FCCPA defines “consumer
debt” as “any obligation or alleged obligation of a consumer
28
to pay money arising out of a transaction in which the money,
property, insurance, or services which are the subject of the
transaction are primarily for personal, family, or household
purposes . . . .” Fla. Stat. § 559.55(6). This Court
acknowledges that the attorney’s fees were incurred in
pursuing a state court lawsuit for an injunction against
O’Driscoll. However, since Arbor Grove appears to assert that
it may recover these fees pursuant to Arbor Grove’s
declaration and attempted to do so through the same avenue by
which O’Driscoll pays bills and fees related to his ownership
of the condominium unit, a genuine dispute of material fact
remains as to whether the attorney’s fees are a consumer debt.
See Agrelo v. Affinity Mgmt. Servs., LLC, 841 F.3d 944, 952
(11th Cir. 2016) (“By agreeing to the terms of the governing
documents, the homeowners acknowledged that a failure to
comply with HOA requirements could result in a fine that would
be deemed and treated as an individual assessment. Thus, their
obligation to pay an assessment for a claimed breach of the
governing documents arose out of an underlying consumer
transaction.”).
29
Second, Defendants state that O’Driscoll confirmed that
he was seeking “costs for the defense of the state court
injunction.” (Doc. # 44 at 18). Upon review of the sources
cited, O’Driscoll appears to have testified that he was only
seeking attorney’s fees for Mr. Tankel “as [they] relate[] to
collection.” (Doc. # 44-1 at Ex. D at 51:13-18). Therefore,
O’Driscoll does not explicitly state that he is seeking
recovery of attorney’s fees for the state court case in this
testimony. Yet, O’Driscoll’s response to the motion for
partial summary judgment confirms that he is seeking damages
for the defense of the state court action. (Doc. # 45 at 13-
14).
As to these attorney’s fees, O’Driscoll is correct that
courts often allow parties to recover “attorneys’ fees
actually incurred in defending the underlying collection
action” under the FDCPA. (Doc. # 45 at 13) (quoting Gordon v.
S. Credit Bureau Corp., 5:19-CV-63 (MTT), 2019 WL 3937630, at
*3 n.5 (M.D. Ga. Aug. 20, 2019)). However, the state court
action seeking an injunction was not a collection action.
Instead of seeking to recover a debt for past violations of
Arbor Grove’s rules, it sought to prevent O’Driscoll from
30
committing future violations. Therefore, O’Driscoll may not
recover attorney’s fees for the defense of this action.
In sum, a genuine dispute of material fact remains
regarding whether damages related to attorney’s fees Arbor
Grove incurred pursuing the state court action are
recoverable in this lawsuit. However, summary judgment is
granted as to whether O’Driscoll can recover attorney’s fees
for his defense in the state court action seeking an
injunction.
C. Limitations on Statutory Damages
Arbor Grove and RPM further argue that summary judgment
should be granted as to the maximum amount of statutory
damages that O’Driscoll can recover under the FCCPA, if they
are determined to have violated the statute. (Doc. # 44 at
19-20). Specifically, they argue that, if O’Driscoll prevails
on his FCCPA count, the statutory damages imposed upon both
defendants should not exceed $1,000. (Id.). In his amended
complaint, O’Driscoll requests that the Court award “[t]he
maximum amount of statutory . . . damages provided under Fla.
Stat. § 559.77(2) as to each Defendant.” (Doc. # 9 at ¶
52(b)).
31
Florida Statute Section 559.77(2) states that “[a]ny
person who fails to comply with any provision of [Section]
559.72 is liable for . . . additional statutory damages as
the court may allow, but not exceeding $1,000 . . . .” Fla.
Stat. § 559.77(2) (emphasis added). Defendants are correct
that courts within this circuit have held that statutory
damages are limited to $1,000 per action in cases with only
one defendant. E.g., Tacoronte v. Tate & Kirlin Assocs., No.
6:13-cv-331-RBD-DAB, 2013 WL 5970720, at *2 (M.D. Fla. Nov.
8, 2013) (“The FCCPA also authorizes a statutory award of
$1,000 per plaintiff in a class action[]not per violation.
Under these provisions, courts properly decline to multiply
the $1,000 statutory award by each violation alleged in a
single count under the FCCPA.” (citing Lara v. Specialized
Loan Servicing, LLC, No. 1:12–cv–24405-UU, 2013 WL 4804387,
at *3 (S.D. Fla. Sept. 6, 2013))). However, when there are
multiple defendants, courts allow plaintiffs to recover
statutory damages of up to $1,000 per defendant. E.g., Gamboa
v. Carruthers, No, 8:10-cv-1473-SCB-MAP, 2010 WL 4823671, at
*1 (M.D. Fla. Nov. 19, 2010) (“[T]he Court finds that awarding
Plaintiff the maximum statutory damages per Defendant is
32
appropriate . . . .”); Brown v. Kopolow, No. 10-80593-CIV,
2011 WL 283253, at *1 (S.D. Fla. Jan. 25, 2011) (“Recovery of
statutory damages under the FCCPA is . . . limited to $1,000
per defendant per adverse adjudication.”).
Therefore, summary judgment is denied as to this
argument.
D. Emotional Damages
Defendants also argue that they should be granted
summary judgment on any emotional damages claimed by
O’Driscoll. (Doc. # 44 at 20-24). Defendants argue that the
“lack of documented credible proof,” such as medical records,
and conflicting testimony by O’Driscoll on this issue warrant
summary judgment. (Id. at 24).
A plaintiff can recover damages for emotional distress
under both the FCCPA and the FDCPA. Minnifield v. Johnson &
Freedman, LLC, 448 F. App’x 914, 916 (11th Cir. 2011); Fini
v. Dish Network, L.L.C., 955 F. Supp. 2d 1288, 1299-1300 (M.D.
Fla. 2013). “Emotional distress must have a severe impact on
the sufferer to justify an award of actual damages.” Alecca
v. AMG Managing Partners, LLC, No. 3:13-cv-163-BJD-PDB, 2014
WL 2987702, at *2 (M.D. Fla. July 2, 2014) (citing Titus v.
33
Com. Recovery Sys., Inc., 8:13-cv-567-JDW-AEP, 2014 WL 55016,
at *2 (M.D. Fla. Jan. 7, 2014)). “To find evidence of severe
impact, courts look for medically significant physical
symptoms of the underlying mental anguish, or a combination
of genuine fear, humiliation, and anxiety.” Id. (citing
Crespo v. Brachfeld Law Grp., No. 11-60569-CIV, 2011 WL
4527804, at *5 (S.D. Fla. Sept. 28, 2011). The burden lies
with the plaintiff to establish emotional distress. See
Baumann v. Prober & Raphael, No. 6:15-cv-1951-PGB-GJK, 2017
WL 10350673, at *3 (M.D. Fla. May 17, 2017) (declining to
award damages for emotional pain as the plaintiff “provide[d]
no evidence or any other explanation showing where [the]
damages come from, how they were calculated, or how they were
caused by [the defendant’s] conduct”).
First, Arbor Grove and RPM argue that O’Driscoll should
not recover emotional damages as “[m]any courts have declined
to award damages for emotional distress where the plaintiff’s
testimony was not supported by medical records.” (Doc. # 44
at 21); see Lane v. Accredited Collection Agency Inc., No.
6:13-cv-530-GKS-GJK, 2014 WL 1685677, at *8 (M.D. Fla. Apr.
28, 2014) (determining that plaintiff had not suffered actual
34
damages, despite testimony that the plaintiff had suffered
nervousness, anxiety, and sleeplessness). They also cite
several cases where courts have declined to award damages for
emotional distress even when the defendant had engaged in
serious misconduct that qualified as a violation of the FDCPA.
(Doc. # 44 at 21-22); e.g., Jordan v. Collection Servs., Inc.,
No. 97-600-CA-01, 2001 WL 959031 (Fla. Cir. Ct. Apr. 5, 2001)
(declining to award damages for mental anguish even when
Defendant’s employee threatened “to refuse to admit
Plaintiffs or their ill child [to the hospital] if they did
not pay their hospital bill”).
However, medical records and testimony are not always
required for plaintiffs to establish damages for emotional
distress. See Goodin v. Bank of Am., N.A., 114 F. Supp. 3d
1197, 1211-13 (awarding damages for emotional distress
despite lack of medical records). Thus, the lack of medical
records here does not automatically preclude such damages.
Defendants further argue that O’Driscoll’s testimony
regarding this issue conflicts such that “no factfinder would
be able to discern which conflicting testimony of the
Plaintiff may be credible,” nor distinguish which symptoms
35
were related to the mailings rather than the other
occurrences. (Doc. # 44 at 24). As noted above, “[e]motional
distress must have a severe impact on the sufferer to justify
an award of actual damages.” Alecca, 2014 WL 2987702, at *2.
The Court acknowledges that O’Driscoll’s evidence regarding
emotional distress conflicts, as the harm he claims overlaps
significantly with the harm claimed from the dog attack and
from receiving letters from the Concerned Residents of Arbor
Grove. (Doc. # 44-1 at Ex. D at 62:14-64:10, 113:14-23, 57:9-
17, 108:14-23, 129:5-11); (Id. at Ex. K); (Id. at Ex. L at
22:1-4, 24:4-10, 82:20-83:2, 85:6-8). Nevertheless,
“‘[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge,’ so they are not
appropriate determinations to make at the summary judgment
stage.” Butler v. Gualtieri, 41 F.4th 1329, 1334 (11th Cir.
2022) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). “Even if the district court believes that the
evidence presented by one side is of doubtful veracity, it is
not proper to grant summary judgment on the basis of
credibility choices.” Miller v. Harget, 458 F.3d 1251, 1256
36
(11th Cir. 2006). O’Driscoll has provided some evidence
claiming that he suffered additional emotional distress as a
result of the correspondence. E.g., (Doc. # 44-1 at Ex. D at
62:14-64:10) (testifying that the communications from Arbor
Grove and RPM exacerbated his mental health issues, requiring
both different medication and higher doses). Therefore, the
Court will not grant summary judgment on this issue.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1) Defendants Arbor Grove Condominium Association, Inc.’s
and Resource Property Management, Inc.’s Motion for
Partial Summary Judgment (Doc. # 44) is GRANTED in part
and DENIED in part.
(2) Summary judgment is granted in favor of Arbor Grove and
RPM and against Plaintiff William O’Driscoll as to
whether Arbor Grove and RPM properly imposed the $300
and $200 fines, and whether O’Driscoll can recover
attorney’s fees for his defense during the state court
action seeking an injunction against him. The case will
proceed to trial on all other issues.
37
DONE and ORDERED in Chambers in Tampa, Florida, this 7th
day of February, 2024.
VIR IA M. HERNANDEZ’*COVINGTON
UNITED STATES DISTRICT JUDGE
38