DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

HOLLY BONDAR and ALEXANDER BONDAR,

Appellants,

v.

TOWN OF JUPITER INLET COLONY,

Appellee.

No. 4D19-2118

[May 5, 2021]

Appeal and cross-appeal from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Gerald Joseph Curley, Jr., Judge; 

L.T. Case No. 50-2009-CA-001377-XXXX-MB.

Bradley S. Gould of GrayRobinson, P.A., Miami, for appellants.

Michael T. Burke and Hudson C. Gill of Johnson, Anselmo, Murdoch, 

Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellee.

CONNER, J.

The appellants, Holly and Alexander Bondar (“the Owners”), appeal the 

dismissal of their counterclaims against the appellee, Town of Jupiter Inlet 

Colony (“the Town”), for lack of prosecution. The Owners argue that the 

trial court erred in dismissing their counterclaims because the Florida 

Rule of Civil Procedure 1.420 notice which triggered the dismissal was 

entered by a recused judge. We agree and reverse. The Town crossappeals, arguing that the trial court erred in denying its motion for 

summary judgment as to four of the counterclaims raised by the Owners. 

As to two of those counterclaims (inverse condemnation and intentional 

interference with an advantageous business relationship), we affirm 

without discussion the denial of summary judgment. However, as to the 

two counterclaims alleging violations of substantive due process and equal 

protection, we reverse the denial of summary judgment.

Background

The Owners owned one and leased two residences located within the 

Town. All three properties were acquired with the specific purpose of 
2

renting them to others on a short-term basis. The Owners intended to 

eventually purchase the leased properties. The Owners listed the

properties on various rental websites. From 2007 through 2009, the 

Owners rented the homes over 150 times, for periods ranging from one

week to one month. 

The Town had a single zoning designation: “RS Single-Family Dwelling 

District.” There were no commercial, industrial, multi-family or other 

zoning districts located within the Town.

In 2008, a neighbor to one of the properties complained to the Town 

commission about the “short-term” manner in which the Owners were 

renting the property. In October 2008, the Town issued notices of violation 

to the Owners for each of the three properties, claiming that the Owners 

were renting the properties in a manner that violated the Town’s Code of 

Ordinances.

The Declaratory Relief Action

In January 2009, the Town filed a declaratory relief action against the 

Owners (“the Dec Action”). The Town alleged that “the Town’s Zoning Code 

provides that ‘every residence shall be used only as a single-family dwelling 

. . . and no business activity is permitted except as allowed under the 

definition of home occupation.’” The Town further alleged that the Owners

registered and utilized the properties as a “public lodging establishment” 

and “resort dwelling,” and advertised the properties for rental on a shortterm basis. The Town stated that it was seeking a judicial determination 

as to whether the Owners’ use of the properties violated the Town’s Zoning 

Code. The Owners counterclaimed, as discussed further below. However, 

in order to “streamline” the case resolution, the parties agreed that the 

Owners’ counterclaims would be dismissed without prejudice, pending the 

trial court’s resolution of whether the Owners’ use of the properties 

violated the Town’s Zoning Code.

Both parties moved for summary judgment in the Dec Action. In 

January 2011, the trial court entered partial summary judgment, denying 

the Town’s motion for summary judgment and granting the Owners’

motion. The trial court found “that the [Owners’] use of the residential 

dwelling for ‘rental’ purposes was not prohibited under the [Town’s Zoning] 

Code.” It found that it was “clear, [that] no restrictions on the length or 

frequency of the rental of property within the Town limits were set out in 

th[e relevant] provision.”
3

Upon prevailing in the Dec Action, the Owners refiled their 

counterclaims. Relevant to this appeal, the Owners raised four 

counterclaims for damages based on: (1) inverse condemnation; (2) 

substantive due process violations prohibited by 42 U.S.C. § 1983; (3) 

equal protection violations prohibited by 42 U.S.C. § 1983; and (4) 

intentional interference with an advantageous business relationship. The 

Town filed a motion for summary judgment as to all four counterclaims. 

The trial court denied the Town’s motion, which is the subject of the 

Town’s cross-appeal.

Disqualification

In July 2015, the Owners filed a motion to disqualify the trial judge 

(“the Recused Judge”). The Recused Judge entered an order recusing 

himself, resulting in the case being reassigned.

In January 2018, the Recused Judge was reassigned to the division in 

which the instant case was pending. Between January 8, 2018 and 

December 21, 2018, there was no record activity in the case. Apparently 

not remembering his prior order of recusal, on December 21, 2018, the 

Recused Judge entered a “Notice of Lack of Prosecution, Court’s Motion to 

Dismiss, and Order Setting Hearing” (“the Court’s Notice”). The Court’s 

Notice stated that there had been no activity in the case for ten months, 

and that, pursuant to Florida Rule of Civil Procedure 1.420(e), if there was 

no activity within sixty days of the notice, the trial court would dismiss the 

case on its own motion or upon the motion of an interested party. It also 

scheduled a hearing for March 1, 2019. The Court’s Notice stated that, if 

there were no filings within the sixty-day grace period, then the Owners 

must file a showing of good cause, no less than five days prior to the March 

1 hearing. 

There was no record activity until February 28, 2019, when the Owners

filed a motion to enforce the Recused Judge’s prior recusal order and an 

emergency motion to cancel the hearing set for the following day. The 

same day the motions were filed, the Recused Judge entered two orders: 

(1) recusing himself again and reassigning the case; and (2) denying the 

Owners’ emergency motion to reschedule the hearing scheduled for the 

following day as moot, stating that the hearing “has been cancelled based 

on” his recusal and reassignment of the case.

Motion to Dismiss

On March 20, 2019, the Town filed a motion to dismiss for lack of 

prosecution in accordance with rule 1.420(e). In the motion, the Town 
4

argued that after the Recused Judge entered the Court’s Notice, the 

Owners had sixty days to file record activity, and if not, then they had five 

days prior to the March 1, 2019 hearing to show good cause. It argued 

that the Owners did not satisfy either requirement in the requisite time 

period. The Town argued that since the Owners failed to meet the 

deadlines, the case must be dismissed.

The trial court held a hearing on the Town’s motion. The Owners

argued that the Court’s Notice was entered by the Recused Judge, who 

they argued “essentially . . . abandoned” the notice because the Recused 

Judge “also entered an order on a motion to continue basically saying it 

was moot.” The Town argued that even though it was entered by the 

Recused Judge, the Court’s Notice was valid, because it was simply a 

ministerial notice tracking the language of rule 1.420(e).

The trial court entered an order dismissing the Owners’ counterclaims 

for lack of prosecution. The trial court found that there had been no record 

activity within the ten months prior to the Court’s Notice, and no record 

activity within the sixty days after. The trial court further stated that the 

fact that the Recused Judge entered the Court’s Notice, even after he had 

previously recused himself, did not alter the outcome, because the Court’s 

Notice was simply a ministerial act.

The Owners gave notice of appeal, and the Town gave notice of crossappeal.

Appellate Analysis

Dismissal of Counterclaims for Lack of Prosecution

On appeal, the Owners argue that the trial court erred in dismissing 

their counterclaims because the Recused Judge entered the Court’s 

Notice, which essentially initiated the dismissal procedure set forth in rule 

1.420(e). The Town argues that the Court’s Notice, although entered by 

the Recused Judge, was a ministerial act, and therefore, was validly

entered. We agree with the Owners and reverse.

Rule 1.420(e) states:

(e) Failure to Prosecute. In all actions in which it appears 

on the face of the record that no activity by filing of pleadings, 

order of court, or otherwise has occurred for a period of 10 

months, and no order staying the action has been issued nor 

stipulation for stay approved by the court, any interested 
5

person, whether a party to the action or not, the court, or the

clerk of the court may serve notice to all parties that no such 

activity has occurred. If no such record activity has occurred 

within the 10 months immediately preceding the service of 

such notice, and no record activity occurs within the 60 days 

immediately following the service of such notice, and if no stay 

was issued or approved prior to the expiration of such 60-day 

period, the action shall be dismissed by the court on its own 

motion or on the motion of any interested person, whether a 

party to the action or not, after reasonable notice to the 

parties, unless a party shows good cause in writing at least 5 

days before the hearing on the motion why the action should

remain pending. Mere inaction for a period of less than 1 year 

shall not be sufficient cause for dismissal for failure to 

prosecute.

Fla. R. Civ. P. 1.420(e) (emphases added). There is no question that there 

was no record activity for a period of ten months prior to the Court’s Notice 

and no record activity within the sixty days immediately following the 

notice.

“Rule 1.420(e) has been interpreted as ‘a mandatory rule’” and ‘“[u]nless 

a party can satisfy the exceptions provided for in the rule,’” the case shall 

be dismissed. Publicidad Vepaco, C.A. v. Mezerhane, 290 So. 3d 974, 977 

(Fla. 3d DCA 2019) (quoting CPI Mfg. Co. v. Industrias St. Jack’s, S.A. de 

C.V., 870 So. 2d 89, 91 (Fla. 3d DCA 2003)). However, since the applicable 

time periods are calculated with reference to the date of entry of a notice 

of no activity for a stated period, such notice to all parties is a crucial and 

necessary step in initiating the dismissal procedure contemplated by rule 

1.420(e). See Fla. R. Civ. P. 1.420(e). Therefore, if the Court’s Notice was 

validly entered, dismissal pursuant to rule 1.420(e) was required; but, if 

the Court’s Notice was invalidly entered, then dismissal under the rule was 

improper. To determine this, we look to the rules regarding 

disqualification.

The general rule is that “once an order disqualifying a judge is entered, 

the judge is prohibited from any further participation in the case.” Lea v. 

Wigton, 705 So. 2d 723, 723 (Fla. 5th DCA 1998). “Any order entered by 

a recused judge is void,” not merely voidable, and thus “has no force or 

effect and is a nullity.” Goolsby v. State, 914 So. 2d 494, 496-97 (Fla. 5th 

DCA 2005). However, there is an exception to this rule:

While disqualification of the judge generally requires that the 

judge take no further action in the case, there is an exception 
6

to this rule. The exception is where the trial judge orally 

announces [a] ruling, subsequently enters an order of recusal, 

and thereafter performs the ministerial act of simply entering 

a written order or judgment reflecting [the] prior oral ruling.

Plaza v. Plaza, 21 So. 3d 181, 182 (Fla. 3d DCA 2009). 

The Town argues that the Court’s Notice, filed by the Recused Judge, 

fits this exception, asserting the notice was simply a ministerial act,1 and 

therefore, dismissal based on the notice was proper. We disagree.

“A ministerial act is distinguished from a judicial act in that in the 

former the duty is clearly prescribed by law, the discharge of which can be 

performed without the exercise of discretion.” City of Coral Gables v. State 

ex rel. Worley, 44 So. 2d 298, 300 (Fla. 1950); see also Act, Black’s Law 

Dictionary (11th ed. 2019) (defining “ministerial act” as “[a]n act performed 

without the independent exercise of discretion or judgment”). Here, the 

Court’s Notice entered by the Recused Judge involved discretion, and 

therefore, was not a ministerial act.

Our supreme court has interpreted rule 1.420 according to its plain 

meaning. See Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 790 (Fla. 

2011) (interpreting rule 1.420 according to “its plain meaning”). Rule 

1.420(e) states: 

In all actions in which it appears on the face of the record that 

no activity by filing of pleadings, order of court, or otherwise 

has occurred for a period of 10 months, . . . the court, or the

clerk of the court may serve notice to all parties . . . .

(emphasis added). “The word ‘may’ when given its ordinary meaning 

denotes a permissive term rather than the mandatory connotation of the 

1 One of the disagreements between the parties is whether a trial court has the 

authority to perform any ministerial act after recusal, or only the specific 

ministerial act mentioned above – entering a written order conforming with a prior 

oral ruling. Our supreme court has found at least one other ministerial act that 

a recused judge could properly perform. See Parker v. State, 873 So. 2d 270, 

293-94 (Fla. 2004) (holding that the actions taken by a disqualified judge as part 

of the judge’s administrative duties as the chief judge of the circuit were not void 

because “the actions taken by [the judge] after [the] recusal were purely 

ministerial in nature and resulted in no substantive rulings on [the appellant’s]

case”). However, with this opinion, we do not decide the scope of the exception 

to the general rule regarding void orders entered by a recused judge.
7

word ‘shall.’” Fla. Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002). We 

find that the term “may” within rule 1.420 is discretionary, in two ways.

First, the rule is discretionary as to who may serve the notice. The rule 

allows any interested person, or the trial court or the clerk of court to serve

the notice.2 Second, the rule is discretionary as to if and when the notice 

is served. Although the rule fixes a minimum amount of time that must 

pass before such a notice is served (ten months), it does not require that 

the notice must be served at exactly ten months after record activity. For 

example, in this case, the trial court waited until a period of eleven months

of no record activity before serving the notice. So, the trial court chose to 

serve the notice, and chose to do so eleven months after no record activity. 

Thus, the trial court exercised discretion in serving the Court’s Notice, and 

therefore, the notice and its issuance was not a ministerial act. See TBOM 

Mortg. Holding, LLC v. Brown, 59 So. 3d 322, 324 (Fla. 3d DCA 2011)

(Salter, J., dissenting) (“The word ‘may’ connotes a discretionary, not 

ministerial act . . . .”).

Notably, the case relied upon by the trial court, Whack v. Seminole 

Memorial Hospital, Inc., 456 So. 2d 561 (Fla. 5th DCA 1984), is not 

determinative here. The trial court cited to Whack for the proposition that 

a trial judge may partake in the ministerial act of “making a record of the 

previously entered oral pronouncement” even after recusal. Id. at 564. 

However, again, the action taken by the Recused Judge in this case was 

neither the act of reducing a previous oral pronouncement to writing, nor 

a ministerial act.

Therefore, we determine that the Court’s Notice was not a ministerial 

act and was thus void when entered by the Recused Judge. This means 

that the Court’s Notice “ha[d] no force or effect.” Goolsby, 914 So. 2d at 

496. Since the Court’s Notice had no force or effect, it cannot serve as 

proper notice pursuant to rule 1.420(e) and does not support dismissal 

pursuant to the rule. Cf. Campos v. Campos, 230 So. 3d 553, 557 (Fla. 

1st DCA 2017) (“This makes the point that if a final judgment, decree, or 

order is void, then all proceedings based on that void order are themselves 

void and nullities.”). Thus, in this case, the requirements of rule 1.420(e)

were not satisfied, and the trial court’s order dismissing the Owners’ 

counterclaims must be reversed. We therefore reverse the trial court’s 

2 We do not determine here if dismissal would have been proper if the Recused 

Judge was reassigned to the case, but either an interested person or the clerk of 

court entered the operative notice.
8

order dismissing the Owners’ counterclaims for lack of prosecution, and 

remand for further proceedings consistent with this opinion. 

Denial of the Town’s Motion for Summary Judgment

On cross-appeal, the Town challenges the trial court’s order denying its 

motion for summary judgment as to all four counterclaims. As stated

above, we affirm without discussion the denial as to two of the 

counterclaims but reverse the denial as to the remaining two 

counterclaims alleging violations of substantive due process and violations 

of equal protection.

The two counterclaims were filed pursuant to 42 U.S.C. § 1983 alleging 

violations of Fourteenth Amendment protections of substantive due 

process and equal protection. By its terms, 42 U.S.C. § 1983 provides for 

a cause of action for “person[s] within the jurisdiction” who have been 

“depriv[ed] of any rights, privileges, or immunities secured by the 

Constitution and laws” by a person acting “under color of any statute, 

ordinance, regulation, custom, or usage, of any State.” 42 U.S.C. § 1983

(2011).

“The general ‘standard of review governing a trial court’s ruling on a 

motion for summary judgment posing a pure question of law is de novo.’” 

Shaw v. Tampa Elec. Co., 949 So. 2d 1066, 1069 (Fla. 2d DCA 2007) 

(quoting Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 

2001)).

Substantive Due Process Violation

The Owners’ counterclaim alleging violations of substantive due 

process pled that the Town’s actions in issuing notices of violation and 

filing the declaratory action resulted in substantial interference and 

substantial deprivation of their “fundamental or constitutionally protected 

right to own, possess, use, dispose of, and transfer property.”

The Due Process Clause of the Fourteenth Amendment has been 

interpreted to provide a “substantive component . . . that protects 

individual liberty against ‘certain government actions regardless of the 

fairness of the procedures used to implement them.’” Collins v. City of 

Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 

U.S. 327, 331 (1986)). “As a general matter, the Court has always been 

reluctant to expand the concept of substantive due process because 

guideposts for responsible decisionmaking in this unchartered area are 

scarce and open-ended.” Id. “It is important, therefore, to focus on the 
9

allegations in the complaint to determine how petitioner describes the 

constitutional right at stake and what the [government] allegedly did to 

deprive [petitioner] of that right.” Id. Moreover, because “[s]ection 1983 

‘is not itself a source of substantive rights,’ . . . [t]he first step in any such 

claim is to identify the specific constitutional right allegedly infringed.” 

Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 

443 U.S. 137, 144 n.3 (1979)); see also Chakra 5, Inc. v. City of Miami 

Beach, 254 So. 3d 1056, 1066 (Fla. 3d DCA 2018).

“[S]ubstantive due process has two strands—one that protects against

deprivation of fundamental rights and one that protects against arbitrary 

legislation.” Hillcrest Prop., LLP v. Pasco Cnty., 915 F.3d 1292, 1297 (11th 

Cir. 2019). Regarding fundamental rights, the Eleventh Circuit has 

observed:

The Due Process Clause protects “fundamental rights found 

to be deeply rooted in our legal tradition,” Washington v. 

Glucksberg, 521 U.S. 702, 722, 117 S. Ct. 2258, 2268, 138 L.

Ed. 2d 772 (1997), “that is, rights that are ‘implicit in the 

concept of ordered liberty,’” [McKinney v. Pate, 20 F.3d 1550, 

1556 (11th Cir. 1994)] (quoting Palko v. Connecticut, 302 U.S. 

319, 325, 58 S. Ct. 149, 152, 82 L. Ed. 288 (1937)). Absent a 

“compelling state interest” and an infringement “narrowly 

tailored” to serve that interest, the government may not violate 

those rights “at all, no matter what process is provided.” 

Glucksberg, 521 U.S. at 721, 117 S. Ct. at 2268 (quoting Reno 

v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 1447, 123 L.

Ed. 2d 1 (1993)). These rights include “most—but not all—of 

the rights enumerated in the Bill of Rights” and “certain 

unenumerated rights (for instance, the penumbral right of 

privacy[)].” McKinney, 20 F.3d at 1556.

Id. (second alteration in original). Notably, “fundamental rights in the 

constitutional sense, do not include ‘state-created rights.’” Id. Thus, 

“areas in which substantive rights are created only by state law . . . are 

not subject to substantive due process protection under the Due Process 

Clause because ‘substantive due process rights are created only by the 

Constitution.’” McKinney, 20 F.3d at 1556 (quoting Regents of Univ. of 

Mich. v. Ewing, 474 U.S. 214, 229 (1985) (Powell, J., concurring)). 

“Property interests . . . are not created by the Constitution[, but rather] 

. . . by existing rules or understandings that stem from an independent 

source such as state law.” Kentner v. City of Sanibel, 750 F.3d 1274, 1279 

(11th Cir. 2014) (second and third alterations in original) (quoting Bd. of 

Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). Important to 
10

the resolution of this case is the principle that “land use rights, as property 

rights generally, are state-created rights.” Hillcrest Prop., LLP, 915 F.3d at 

1298 (quoting DeKalb Stone, Inc. v. Cnty. of DeKalb, 106 F.3d 956, 959

(11th Cir. 1997)).

As noted above, the first step in the analysis is to identify the 

fundamental right the substantive due process counterclaim alleges was 

violated. Although the Owners asserted below and on appeal that the 

fundamental right violated was the “right to own, possess, use, dispose of, 

and transfer property,” a close review of the counterclaim reveals 

otherwise. Under the plain facts alleged in the counterclaim, it cannot be 

said that the actions of the Town (issuing notice of violations and filing the 

Dec Action) impeded upon the Owners’ right to themselves “own, possess, 

use, dispose of or transfer” a fee ownership interest in any of the three 

properties. What the Town was seeking to preclude was the ability of the 

Owners to allow others to use the properties, which is an incidental 

property right controlled by state law.

In rejecting the argument that “the right to freely use one’s property is 

fundamental and implicit in the concept of ordered liberty,” the Eleventh 

Circuit has said:

It is true that property rights have been important common 

law rights throughout history and that they are protected in 

many situations by procedural due process. Nevertheless, 

common law rights are not equivalent to fundamental rights, 

which are created only by the Constitution itself. See, e.g., 

Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.

Ct. 507, 515, 88 L. Ed. 2d 523 (1985) (Powell, J., concurring); 

McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en 

banc), cert. denied, 513 U.S. 1110, 115 S. Ct. 898, 130 L. Ed.

2d 783 (1995). Any right in the nonconforming use is a statecreated right. As a result, Appellant’s fundamental rights 

argument fails.

DeKalb Stone, 106 F.3d at 959 n.6. The Owners have not cited any cases 

that hold that the right to rent property to others is a fundamental right 

in the constitutional sense, and we have been unable to find any such 

authority. Instead, the cases cited by the Owners on appeal address 

principles applicable to the Fifth Amendment and other constitutional 

rights, rather than fundamental rights in the context of the Fourteenth 

Amendment. Thus, we conclude the Owners’ counterclaim alleging a 

violation of substantive due process fails because they cannot demonstrate 
11

the Town violated a fundamental right protected by the Fourteenth 

Amendment.

But the substantive due process violation analysis does not end there

because the Eleventh Circuit has acknowledged that there is an exception 

to the general rule that there are no substantive due process claims for 

non-fundamental rights. “Where a person’s state-created rights are 

infringed by a ‘legislative act,’ the substantive component of the Due 

Process Clause generally protects that person from arbitrary and irrational 

governmental action.” Kentner, 750 F.3d at 1279–80. Stated another way, 

the Eleventh Circuit has said that “conduct by a government actor will rise 

to the level of a substantive due process violation only if the act can be 

characterized as arbitrary or conscience shocking in a constitutional 

sense.” Waddell v. Hendry Cnty. Sheriff’s Office, 329 F.3d 1300, 1305 

(11th Cir. 2003).

Although the delineation between which actions are executive and 

which are legislative can sometimes be difficult to discern, the Eleventh 

Circuit has noted that “[e]xecutive acts typically arise from the ministerial 

or administrative activities of the executive branch and characteristically 

apply to a limited number of people, often to only one,” and typically 

include zoning enforcement, whereas “[l]egislative acts, on the other hand, 

generally apply to a larger segment of—if not all of—society” and “involve[]

policy-making rather than mere administrative application of existing 

policies.” Kentner, 750 F.3d at 1280 (citations omitted).

In the substantive due process counterclaim, the Owners alleged that 

the Town Council directed its police chief to issue the notices of violation 

and subsequently filed the Dec Action. Those actions by the Town Council 

as a legislative body were executive actions, rather than legislative actions 

because: (1) the actions sought enforcement of the zoning code; and (2) the 

actions affected only the Owners and not a larger segment of society. Such 

executive actions by the Town Council would only be substantive due 

process violations if they were “arbitrary and irrational governmental 

action[s]” or “arbitrary or [conscience] shocking in a constitutional sense.” 

Id. at 1279–80; Waddell, 329 F.3d at 1305. Here, the Owners failed to 

present sufficient evidence of such characteristics to survive summary 

judgment in favor of the Town on the counterclaim alleging substantive 

due process violations.

Equal Protection Violation

Next, we address the Town’s contention that the trial court erred in 

denying its summary judgment motion regarding the Owners’ 
12

counterclaim alleging equal protection violations. The counterclaim 

alleges the equal protection violation as improper selective enforcement. 

In order to prove improper selective enforcement under the equal 

protection clause:

[A] plaintiff must proffer sufficient factual allegations to show 

that: (1) plaintiff was treated differently from other similarly 

situated individuals, and (2) such differential treatment was 

based on impermissible considerations, such as race, religion, 

intent to inhibit or punish the exercise of constitutional rights, 

or malicious or bad faith intent to injure a person.

Lozman v. City of Riviera Beach, 39 F. Supp. 3d 1392, 1411 (S.D. Fla. 

2014). Alternatively, where a plaintiff does not allege membership in a 

class or group, the plaintiff can bring a “class of one” equal protection 

claim, “where the plaintiff alleges that she has been intentionally treated 

differently from others similarly situated and that there is no rational basis 

for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 

564 (2000). Since the Owners do not allege that they were discriminated 

against as part of a class or group, their claim constitutes a “class of one” 

equal protection claim.

As noted by the Second District, “[f]ederal courts have acknowledged 

that a property owner may raise an equal protection claim based on the 

application of a land use regulation.” City Nat’l Bank of Fla. v. City of 

Tampa, 67 So. 3d 293, 297 (Fla. 2d DCA 2011). To prove such a claim, 

“the plaintiff must show (1) that he was treated differently from other 

similarly situated individuals, and (2) that the defendant unequally applied 

a facially neutral ordinance for the purpose of discriminating against him.”

Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1307 (11th 

Cir. 2009). The claim may also be established by proof that the plaintiff 

“has been intentionally treated differently from others similarly situated 

and that there is no rational basis for the difference in treatment.” City 

Nat’l Bank of Fla., 67 So. 3d at 297 (quoting Vill. of Willowbrook, 528 U.S. 

at 564).

As to the first element, our review of the record reveals that the Owners

sufficiently pointed to similarly situated individuals, at least enough to 

raise a genuine issue of material fact. However, we find that there is no 

basis to conclude that the Town unequally applied the ordinance for the 

purpose of discriminating against the Owners or that there was no rational 

basis for the Town’s actions. The Owners alleged that the Town “targeted” 

them, “intentionally prosecuted” them, and “engaged in a spiteful effort to 

harm” them. However, we find no summary judgment evidence to support 
13

that the Town took any action with a discriminatory purpose. Cf. E & T 

Realty v. Strickland, 830 F.2d 1107, 1114 (11th Cir. 1987) (“Even arbitrary 

administration of a statute, without purposeful discrimination, does not 

violate the equal protection clause.”). Therefore, the trial court erred in 

denying the Town’s motion for summary judgment as to this counterclaim

as well.

Conclusion

The trial court erred in dismissing the Owners’ counterclaims for lack 

of prosecution, because the Recused Judge served the Court’s Notice. This 

rendered the Court’s Notice a nullity, and thus could not provide the 

requisite notice pursuant to rule 1.420(e). The trial court also erred in 

denying the Town’s motion for summary judgment as to the Owners’ 

separate counterclaims alleging 42 U.S.C. § 1983 violations of substantive 

due process and equal protection. As for the substantive due process 

violation counterclaim, the Owners’ right to rent the properties to others 

is not a fundamental right for purposes of substantive due process. 

Additionally, the executive actions by the Town were not arbitrary, 

irrational or conscience shocking so as to violate the Fourteenth 

Amendment. As to the equal protection violation counterclaim, the

Owners failed to demonstrate that the Town acted with a discriminatory 

purpose. For the foregoing reasons, we: (1) reverse the trial court’s order 

dismissing the Owners’ counterclaims for lack of prosecution; and (2) 

reverse the trial court’s order denying the Town’s motion for summary 

judgment as to the Owners’ separate counterclaims alleging substantive 

due process and equal protection violations. We remand for the trial court 

to enter partial summary judgments in favor of the Town as to those two 

counterclaims. We affirm the trial court’s denial of the Town’s motion for 

summary judgment as to the Owners’ counterclaims for inverse 

condemnation and intentional interference with an advantageous 

business relationship. We remand for further proceedings consistent with 

this opinion.

Affirmed in part, reversed in part, remanded for further proceedings.

CIKLIN and KLINGENSMITH, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.