Third District Court of Appeal
State of Florida
Opinion filed October 7, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D26-1268
Lower Tribunal No. 26-4885-CA -01
Gratigny Park Condominium No. 1, Inc.,
Petitioner,
vs.
Reinier Vargas Perez and Alina Garcia Gonzalez,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, William Thomas, Judge.
Vernis & Bowling of Miami, P.A., and Evelynn Greenstone Kammet, and Waynice Amoii Green-Musgrove, for petitioner.
Gomez Law, and Eduardo Gomez, for respondents.
Before FERNANDEZ, MILLER and GOODEN, JJ.
GOODEN, J.
Petitioner Gratigny Park Condominium No. 1, Inc. seeks a writ of
certiorari to quash the trial court’s order denying its motion to dismiss for
failure to comply with presuit requirements of section 617.07401, Florida
Statutes, which governs derivative suits. 1 Because we find the subject
lawsuit is subject to the presuit requirements and the Respondents did not
comply with those requirements, we grant the petition and quash the order.
Respondents Reinier Vargas Perez and Alina Garcia Gonzalez own a
unit within a 79-unit condominium. Gratigny Park, a non-profit corporation,
functions as the homeowner’s association that manages and maintains the
condominium. All unit owners are members of the association.
Without complying with section 617.07401, Florida Statutes, Perez and
Gonzalez sued Gratigny and Sun City Condo Solutions, Inc. for injunctive
and declaratory relief.2 The complaint alleges breach of fiduciary duty,
corporate mismanagement, and improper corporate expenditures in violation
of the declaration of condominium, its bylaws, and articles of incorporation.
1
Section 617.07401, Florida Statutes, has since been repealed. See Ch. 2026-168, § 168, Laws of Fla. (eff. July 1, 2026). In the same bill, the Legislature enacted section 617.0742, Florida Statutes. Id. § 35. This section specifies certain requirements for a complaint brought in the right of a corporation.
2
The claims against Sun City were dismissed below.
2
Among other things, the complaint alleges that association funds were paid
to both the maintenance provider, Sun City, and the association’s president
for the same services. The wherefore clause provided:
WHEREFORE, Plaintiffs REINIER VARGAS PEREZ and ALlNA
GARCIA GONZALEZ request that this Court enter an Injunction
to compel Defendant Association to: (a) immediately cease
making, any and all payments to the Association President for
“Janitorial Services” or any other services for which he should
not have been compensated; (b) terminate the Property
Management Services Agreement with Sun City Condo
Solutions, Inc. due to the Manager’s violation of the licensing
requirements of § 718.111(3)(g) and the Agreement itself; (c)
establish and maintain the online portal required by §
718.111(12)(g) for unit owner access to official records; (d)
comply with its governing documents in all respects; and (e)
award reasonable attorney’s fees and costs pursuant to Fla. Stat.
§§ 718.303, 57.105(7), Section 12.2 of the Declaration and
applicable Florida law and for any other relief this Court deems
just and proper.
Asserting the claims were derivative in nature, Gratigny Park moved to
dismiss for want of compliance with section 617.07401, Florida Statutes. But
Perez and Gonzalez maintained that their claims were not derivative and
section 718.303(1), Florida Statutes, provides unit owners a direct right of
action.
After a hearing, the trial court denied Gratigny Park’s motion. It ruled
that section 718.303(1), Florida Statutes, authorizes a unit owner to bring an
action against the association for violating Chapter 718, the declaration, and
the association rules. It explained: “This statute creates a direct right of
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action for individual unit owners and does not condition that right upon
compliance with the derivative pre-suit demand requirements of Section
617.07401.” Gratigny moved for reconsideration, which was denied. This
petition timely followed.
To obtain a writ of certiorari, a party must demonstrate a departure
from the essential requirements of the law that results in material injury that
cannot be corrected on plenary appeal. Reeves v. Fleetwood Homes of Fla.,
Inc., 889 So. 2d 812, 822 (Fla. 2004). Failure to enforce statutory presuit
mandates satisfies the irreparable harm requirement for certiorari review.
See, e.g., Moss & Assocs., LLC v. Peterson, 406 So. 3d 344, 348 (Fla. 3d
DCA 2025); Citizens Prop. Ins. Corp. v. Walden, 395 So. 3d 216, 217–18
(Fla. 3d DCA 2024); Dial 4 Care, Inc. v. Brinson, 319 So. 3d 111, 115 (Fla.
3d DCA 2021). Such failure deprives a party of its statutory right to presuit
notice, demand, and investigation—a right that cannot be meaningfully
enforced or restored on plenary appeal.
To determine whether a departure of the essential requirements of law
occurred, we turn to the statutory framework. First, we will start with general
business organization laws. Pertinent here, Chapter 617 addresses
nonprofits corporations. See § 617.01011, Fla. (2025). A condominium
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association organized under Chapter 617 has certain powers, including the
power to “[s]ue and be sued.” § 617.0302(2), Fla. Stat. (2025).
Section 617.07401, Florida Statutes, places restrictions on its
members’ ability to bring derivative suits. It provides:
(1) A person may not commence a proceeding in the right of a
domestic or foreign corporation unless the person was a
member of the corporation when the transaction complained
of occurred or unless the person became a member through
transfer by operation of law from one who was a member at
that time.
(2) A complaint in a proceeding brought in the right of a domestic
or foreign corporation must be verified and allege with
particularity the demand made to obtain action by the board
of directors and that the demand was refused or ignored by
the board of directors for at least 90 days after the date of the
first demand unless, before the expiration of the 90 days, the
person was notified in writing that the corporation rejected the
demand, or unless irreparable injury to the corporation would
result by waiting for the expiration of the 90-day period. If the
corporation commences an investigation of the charges made
in the demand or complaint, the court may stay any
proceeding until the investigation is completed.
§ 617.07401, Fla. Stat. (2025).
Next, we turn to the specific laws governing condominiums—Chapter
718. This Chapter requires condominiums to be operated by an association.
§ 718.111(1)(a), Fla. Stat. (2025). Unit owners are members of that
association and the officers and board of directors have a fiduciary duty to
those members. Id. But “[a] unit owner does not have any authority to act
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for the association by reason of being a unit owner.” Id. at (1)(c). Like it
does under Chapter 617, an association has the power to “sue, and be sued.”
Id. at (3).
Section 718.303, Florida Statutes, states:
(1) Each unit owner, tenant and other invitee, and association is
governed by, and must comply with the provisions of, this
chapter, the declaration, the documents creating the
association, and the association bylaws which are expressly
incorporated into any lease of a unit. Actions at law or in
equity, or both, for failure to comply with these provisions may
be brought by the association or by a unit owner against:
(a) The association.
(b) A unit owner.
(c) Directors designated by the developer, for actions taken
by them before control of the association is assumed by
unit owners other than the developer.
(d) Any director who willfully and knowingly fails to comply
with these provisions.
(e) Any tenant leasing a unit, and any other invitee occupying
a unit.
§ 718.303(1), Fla. Stat. (2025).
The Legislature has provided guidance as to how to interpret Chapters
617 and 718. See § 617.1703, Fla. Stat. (2025). Chapter 617 applies to
corporations that operate under Chapter 718—but only to the extent that it
does not conflict with, or yield to a specific provision in, the applicable
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community-association statute. Id. Simply stated, if there is any conflict
between the two chapters, Chapter 718 controls.
Yet there is no conflict here. These two statutes can be read in
harmony without rendering either one superfluous or contradictory. See
generally Antonin Scalia & Bryan Garner, Reading Law: The Interpretation
of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in
a way that renders them compatible, not contradictory.”); Forsythe v.
Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992)
(“Where possible, courts must give full effect to all statutory provisions and
construe related statutory provisions in harmony with one another.”).
Section 718.303(1), Florida Statutes, provides a cause of action for
certain condominium-related violations, while section 617.07401, Florida
Statutes, governs the procedures for bringing derivative actions. A claim
under section 718.303(1), Florida Statutes, may or may not be derivative
depending on the nature of the right asserted and the injury alleged. Thus,
section 718.303(1), Florida Statutes, establishes the substantive cause of
action, while section 617.07401, Florida Statutes, supplies the procedural
prerequisites for pursuing that claim derivatively.
Although section 718.303(1), Florida Statutes, authorizes a unit owner
to sue a condominium association, it does not follow that every action
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brought under that provision is direct in nature or exempt from the procedural
requirements governing derivative proceedings. Our sister courts have
reached similar conclusions. See Iezzi Fam. Ltd. P’ship v. Edgewater Beach
Owners Ass’n, Inc., 254 So. 3d 584, 585 (Fla. 1st DCA 2018); Mineo v. Do,
435 So. 3d 1058, 1060 (Fla. 4th DCA 2026).
So the remaining question is whether this lawsuit is derivative. We
answer in the affirmative. See Dinuro Invs., LLC v. Camacho, 141 So. 3d
731, 738–41 (Fla. 3d DCA 2014) (holding that Florida requires a direct harm
and special injury to a corporation member, or a special duty owed, for a
member to maintain an individual action compared to a derivative one);
Braun v. Buyers Choice Mortg. Corp. ex rel. McAloon, 851 So. 2d 199, 203
(Fla. 4th DCA 2003) (holding that the claims were derivative because the
body of the complaint alleged injuries that equally affected other corporation
shareholders). The allegations of the complaint and the wherefore clause
demonstrate this is an action in which a unit owner seeks to enforce a right
existing in the corporation. The injury sustained by the unit owner is the very
same injury sustained by other unit owners. Leppert v. Lakebreeze
Homeowners Ass’n, Inc., 500 So. 2d 250, 252 (Fla. 1st DCA 1986).
Labeling it a direct action does not change this analysis. “[P]laintiffs
may not decide that they are not subject to statutory requirements merely by
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labeling their allegations in an effort to avoid them.” Iezzi Fam. Ltd. P’ship,
254 So. 3d at 586. It is the substance of the complaint that controls. And
the substance here shows this is derivative.
Because the complaint alleges derivative claims, Perez and Gonzalez
were required to comply with the presuit requirements of section 617.07401,
Florida Statutes. The trial court departed from the essential requirements of
the law. Therefore, we grant the petition and quash the order.
Petition granted; order quashed.
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