Opinion

O'Driscoll v. Arbor Grove Condominium Association, Inc

Court
District Court, M.D. Florida
Filed
Feb 7, 2024
Cited by
0 cases
Authority
More cited than 20.0%

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.).

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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

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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

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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).

7

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

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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).

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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.

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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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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