‘Better Safe Than Sorry’: South Florida Court Upholds Attorney Fee Ruling in Fight Over Condo’s Ungated Pool

The Third District Court of Appeal upheld a Miami-Dade County Court judge’s decision that a man suing his condo association was the prevailing party, despite dismissing his case as being moot. 

Attorney John Mullin along with Robert Scheppske III of Tripp Scott represented condo unit owner Fernando Riveiro, who sued the Collins Condominium Association over a dispute about a safety barrier at an ungated pool.

“I think the lesson is, you’re only better safe than sorry,” said Mullin. “This could’ve been a catastrophic problem had an accident happened.” 

The dispute started when Riveiro wanted to erect and pay for a railing on his unit, and every ground-floor unit, following concerns about an ungated pool.

“He ultimately got so frustrated he had to file suit, but before he could get an injunction hearing the COVID-19 pandemic broke out and live hearings were suspended for months,” said Mullin.  “Ultimately the city cited the condo for building code violations and they got approval to install electronic alarm devices on the sliding glass doors, and so Mr. Riveiro ultimately elected to dismiss his case as being moot.”

The trial court then determined that Riveiro was the prevailing party in the litigation and awarded about $65,000 in attorney fees and costs. According to the opinion, the trial court concluded Riveiro voluntarily dismissed his complaint not because he was destined to lose on the merits, but because the association’s actions had rendered his lawsuit moot.

Mullin said the awarded fees have yet to be paid. 

The Collins Condominium Association appealed the trial court’s decision, arguing that since Riveiro voluntarily dismissed his complaint, the association should have been the prevailing party and the fees should have been awarded to it instead.

Lissette Gonzalez and Carly Weiss of Cole, Scott & Kissane in Miami represented the Collins Condominium Association. They did not respond to a request for comment by deadline.

Third DCA judges Kevin Emas, Edwin Scales and Monica Gordo agreed with the trial court’s decision. 

“We have carefully reviewed the record in this case and are compelled to affirm because, under this case’s unique facts and procedural background, we are unable to conclude that the trial court, in determining that Riveiro was the prevailing party on the significant issue in the litigation, abused its discretion,” the judges wrote in a per curiam opinion.

In addition to prior trial court fees, the Third DCA ruled that the prevailing party is entitled to attorney’s fees for the appeal. Mullin said although the fees aren’t yet calculated, he estimates the fees could be an additional $20,000.  

Mullin said he’s pleased with decision, believing that, ultimately, common sense prevailed.

“We are extremely pleased that Judge Miller’s decision was upheld on appeal, and are hopeful that this dispute with the Collins Condominium Association may soon come to an end. Our client is a father of a young daughter who wanted nothing more than to erect some kind of safety barrier to protect her from drowning in an ungated pool. Mr. Riveiro lived in a ground-floor unit that was elevated several steps above the pool deck, and he had pictures of strangers sitting on his patio furniture thinking it was part of the condo common area.”

According to Mullin, Riviera has since moved out of the building and rented out his apartment to a tenant. 

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