Peter Mineo and Diane Mineo v. Minh Binh Do and Mindy Hang Nguyen

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                   PETER MINEO and DIANE MINEO,
                            Appellants,

                                    v.

              MINH BINH DO and MINDY HANG NGUYEN,
                            Appellees.

                            No. 4D2024-3192

                              [May 6, 2026]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mark A. Speiser, Judge; L.T. Case No.
062022CA004206AXXXCE.

  Adam G. Rabinowitz of Moore Rabinowitz Law, Plantation, and Peter
Mineo, Jr., of The Mineo Salcedo Law Firm, Davie, for appellants.

   Alen H. Hsu and Jeremy S. Rosner of Weiss Serota Helfman Cole &
Bierman, P.L., Boca Raton, for appellees.

LEVINE, J.

   This case involves a dispute between two homeowners who live in the
same community. Appellants, who are not on the same street as
appellees, complain about appellees’ parked recreational vehicle
(“RV”). Appellants claim that the visible RV lowers the value of their home
and other homes in the community. Appellants assert that appellees are
not in compliance with the homeowners association (“HOA”) rules.
Appellants asked for injunctive relief under section 720.305, Florida
Statutes (2021), which allows members of an HOA to sue other HOA
members to redress injuries suffered by the member.

   Not so fast, say appellees. Appellees, relying on the HOA’s assurance,
respond that they were, in fact, in compliance with the HOA rules. In
moving for summary judgment, appellees argued that appellants have not
complied with section 617.07401, Florida Statutes (2021), which governs
derivative suits, where the injury is sustained by the HOA, rather than the
individual member. The trial court agreed with appellees, determining
that appellants lacked standing to proceed, finding that the alleged injury
was to all HOA members and not to just appellants. The trial court
concluded that this cause of action was a derivative suit and appellants
had failed to comply with the pre-suit requirements of section
617.07401. 1 The trial court is correct. Appellants’ claim was derivative
and, therefore, appellants needed to comply with section 617.07401. We
affirm.

  An order granting summary judgment is reviewed de novo. Maguire-
Ress v. Stettner, 268 So. 3d 171, 172 (Fla. 4th DCA 2019).

   On appeal, appellants contend that section 720.305 authorizes
members of an HOA to bring suit, at law or in equity, against another
member to redress noncompliance with the association’s governing
documents. Appellants maintain that because section 720.305 provides
this right, the requirements under section 617.07401 for a derivative
action do not apply.

    Section 720.305, Florida Statutes, provides HOA members with a
statutory right to bring individual actions, at law or in equity, against the
HOA or other members to redress failures to comply with chapter 720, the
association’s governing documents, or its rules. Courts have recognized
that actions brought under section 720.305 may proceed as individual
claims where the plaintiff seeks to remedy a personal injury. In Roebuck
v. Sills, 306 So. 3d 374, 377 (Fla. 1st DCA 2020), an HOA member sued a
neighbor for violating the association’s declaration by creating a nuisance
in a manner that directly affected his property when the neighbor installed
pool equipment directly below the member’s bedroom window. Because
the member sought relief for an injury personal to him, rather than an
injury to the association, which was unaffected by the installed equipment,
the action was brought as an individual claim under section 720.305. Id.
at 379.

   Section 617.07401, Florida Statutes, governs derivative actions
brought by members of not-for-profit corporations, including HOAs. See
also Udick v. Harbor Hills Dev., L.P., 179 So. 3d 489, 491 (Fla. 5th DCA
2015). A derivative action is one brought to enforce a right belonging to

1 On appeal, appellants argue that appellees failed to adequately raise the
affirmative defense of lack of standing based on non-compliance with section
617.07401. Because this argument was not raised below, appellants waived
appellate review. See Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985) (“[T]o be
preserved for further review by a higher court, an issue must be presented to the
lower court and the specific legal argument or ground to be argued on appeal or
review must be part of that presentation if it is to be considered preserved.”).

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the association and to redress an injury suffered by the association as a
whole, rather than by an individual member. Id.; see also Leppert v.
Lakebreeze Homeowners Ass’n, 500 So. 2d 250, 252 (Fla. 1st DCA 1986)
(defining a derivative action as one in which a member seeks to enforce a
right of the corporation where the injury is common to all members).
Section 617.07401 imposes strict pre-suit requirements, including a
written demand on the board of directors and a ninety-day waiting period,
unless irreparable injury would result. See Ezer v. Holdack, 358 So. 3d
429, 430-31 (Fla. 4th DCA 2023).

   We find that the injury presented here is derivative in nature. The
appellants have not alleged an injury separate and distinct from other
members of the HOA. The alleged injury of the parked RV is suffered by
the members of the HOA as a whole. Thus, the issue presented here is
whether a derivative action brought under section 720.305 requires
compliance with section 617.07401.

  Section 720.302(5), which sets out the purposes, scope, and
application of chapter 720, Homeowners’ Associations, provides:

      Unless expressly stated to the contrary, corporations that
      operate residential homeowners’ associations in this state
      shall be governed by and subject to part I of chapter 607, if
      the association was incorporated under that part, or to chapter
      617, if the association was incorporated under that chapter,
      and this chapter. This subsection is intended to clarify
      existing law.

Id. (emphasis added).

   Consequently, we read chapters 720 and 617 in pari materia. See Tsuji
v. Fleet, 366 So. 3d 1020, 1025 (Fla. 2023) (providing that when
interpreting multiple statutory provisions courts “must give full effect to
all statutory provisions and construe related statutory provisions in
harmony with one another”).

   In this regard, Iezzi Family Limited Partnership v. Edgewater Beach
Owners Ass’n, 254 So. 3d 584 (Fla. 1st DCA 2018), is instructive. There,
the First District addressed an analogous issue when a condominium unit
owner sued the directors of the association under section 718.303, Florida
Statutes. Id. at 585. Chapter 718 provides rights to condominium owners
similar to those afforded to HOA members under section 720.305. See §
718.303, Fla. Stat.


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   The court in Iezzi held that, although section 718.303 creates a cause
of action, it does not displace section 617.07401 when the substance of
the claim is derivative. 254 So. 3d at 589. Thus, where a claim is
derivative in nature, a plaintiff must still comply with the statutory pre-
suit requirements of section 617.07401. 2

   We find this reasoning equally applicable to actions brought under
section 720.305. While section 720.305 authorizes members to bring a
claim for personal injury, it does not eliminate the requirement to comply
with section 617.07401 when the claim asserted is derivative in nature.

   Here, we agree with the trial court that appellants’ claim is derivative
and that appellants failed to comply with the pre-suit requirements of
section 617.07401. 3 Accordingly, we affirm.

   Affirmed.

CONNER and SHEPHERD, JJ., concur.

                              *          *         *

   Not final until disposition of timely-filed motion for rehearing.




2 Appellants maintain that this case is distinguishable from Iezzi, where equitable

and legal relief was sought, because they seek only equitable relief. 254 So. 3d
at 585. This argument fails. The court in Iezzi did not rely on the type of relief
sought in reaching its holding. Id.
3 Because we find appellants do not have standing to proceed, we do not reach

the merits or offer any opinion on their suit.

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