DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TARA EZER, on a derivative basis as a member of

HOLLYWOOD STATION CONDOMINIUM ASSOCIATION, INC., 

a Florida not-for-profit corporation,

Appellant,

v.

JACQUELINE HOLDACK, DAN TUBRIDY, VICTOR ROCHA,

PATRICIA GUTIERREZ, MARIA PAULA DIAZ, FRANK COLON, and

HOLLYWOOD STATION CONDOMINIUM ASSOCIATION,

a Florida not-for-profit corporation,

Appellees.

No. 4D21-3528

[March 1, 2023]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Jack B. Tuter, Judge; L.T. Case No. CACE20-16861(07).

Gregory R. Elder and Beverly D. Eisenstadt of the Law Offices of 

Gregory R. Elder, PLLC, Boca Raton, for appellant.

Therese A. Savona of Cole, Scott & Kissane, P.A., Orlando, for appellees.

WARNER, J.

Appellant Tara Ezer appeals the final dismissal with prejudice of her 

derivative lawsuit against Hollywood Station Condominium Association 

(the “Association”), and six of the board of directors. Appellant claimed 

that the directors had violated the Association by-laws by taking out 

unapproved loans to fund the Association’s improvements. The court 

dismissed the action pursuant to section 617.07401(3)(b), Florida Statutes 

(2020), because an independent investigation determined that pursuit of 

the derivative claim was not in the Association’s best interests. While 

appellant challenges the independence of the committee appointed to 

investigate, the trial court concluded that the committee was appropriately 

appointed, independent, and conducted a good faith investigation. We 

agree and affirm.
2

Appellant’s derivative claims accuse the director defendants of violating 

three of the Association’s bylaws. She alleged that, at the director 

defendants’ direction, the Association made material alterations to the 

common elements; took out an unapproved loan to fund the improvements 

and alterations; executed an unapproved contract to make the 

improvements and alterations; and, misrepresented how the Association 

would pay for the project. Appellant requested equitable relief by way of a 

declaratory judgment, an injunction, and appointment of a receiver. On 

the association’s behalf, she also sought damages from defendant directors 

for breach of fiduciary duties, civil conspiracy and aiding and abetting

fraud.

In September 2020, appellant served the association board of directors 

with a written letter summarizing her claims and demanding that the 

board, on the Association’s behalf, sue the directors. Although section 

617.07401(2) provides that a member must give a board of directors ninety

days’ notice prior to the filing of a derivative claim, appellant filed her first 

complaint in October. She claimed the Association would suffer 

irreparable damage without action within ninety days. See § 

617.07401(2), Fla. Stat. (2020) (stating that an association member may 

not bring a derivative complaint unless a demand made to obtain action 

by the board was refused or ignored for ninety days, “unless irreparable 

injury to the corporation would result by waiting for the expiration of the 

90-day period”).

In accordance with section 617.07401(3), the Association commenced 

an investigation into the allegations of the complaint. That section 

provides:

(3) The court may dismiss a derivative proceeding if, on 

motion by the corporation, the court finds that one of the 

groups specified in paragraphs (a)-(c) has made a good faith 

determination after conducting a reasonable investigation 

upon which its conclusions are based that the maintenance 

of the derivative suit is not in the best interests of the 

corporation. The corporation has the burden of proving the 

independence and good faith of the group making the 

determination and the reasonableness of the investigation. 

The determination shall be made by:

. . . .

(b) A majority vote of a committee consisting of two or more 

independent directors appointed by a majority vote of 
3

independent directors present at a meeting of the board of 

directors, whether or not such independent directors 

constitute a quorum[.]

§ 617.07401(3)(b).

In December, the majority of Association’s board members who were 

not named defendants in the complaint voted to appoint two directors, also 

not defendants, to the committee pursuant to section 617.07401(3)(b). 

Both committee members filed sworn declarations with the trial court as 

to their noninvolvement in any of the conduct described in the complaint.

The investigation continued, and the committee issued a report which 

was circulated to all Association members together with a notice of a 

special meeting to be held telephonically. The notice informed the 

Association members that the meeting’s purpose was to vote on whether 

maintaining appellant’s derivative lawsuit was in the Association’s best 

interest. At that meeting, the members overwhelmingly approved the 

report which concluded that continuing the derivative lawsuit was not in 

the Association’s best interest.

In the meantime, appellant sought to amend her complaint to add the 

two directors appointed to the investigation committee. In the proposed 

amendment, she alleged that they were on the board when some of the 

loan draws which she contested were made. The trial court granted 

appellant’s motion to amend her complaint, but provided that service on 

the two directors would be abated pending resolution of any challenges to 

the newly amended complaint.

The Association filed a motion to dismiss the derivative action, arguing 

that the committee was independent and that its report was reasonably 

investigated and done in good faith. The Association also argued that 

dismissal was warranted due to an overwhelming majority vote to abandon

appellant’s lawsuit. Appellant filed a response in opposition, contending 

that the committee was not independent, and its report was neither 

reasonable nor made in good faith.

The trial court dismissed the derivative action with prejudice. The court 

determined it was not required to evaluate whether the committee’s 

recommendation was reasonable, but instead whether the committee was 

independent, acted in good faith, and conducted a reasonable 

investigation.
4

The court found the committee was appropriately appointed pursuant 

to section 617.07401(3)(b). The committee was at all times independent.

The committee members were not defendants and had not been served as 

defendants until after appellant amended her complaint. The court further 

found that the committee’s investigation was reasonable, and that the 

report’s in-depth event timeline was specific and narrowly tailored to 

appellant’s allegations, demonstrating that the committee had carefully 

reviewed the relevant documents. The court also noted that the majority 

of the association members voted in line with the committee report’s 

recommendation that continuation of the derivative lawsuit was not in the 

Association’s best interest. Based upon all of the circumstances, the court 

found the decision to abandon appellant’s derivative action was made in 

good faith. Appellant then filed this appeal.

A mixed standard of review applies to the court’s determination to 

dismiss a derivative lawsuit against a corporation. “‘[M]ixed questions of 

law and fact . . . require us to employ a mixed standard of review: we defer 

to the trial court’s factual findings (to the extent they are supported by 

competent, substantial evidence), but we review the trial court’s legal 

conclusions de novo.’” Batur v. Signature Props. of N.W. Fla., Inc., 903 So. 

2d 985, 995 (Fla. 1st DCA 2005) (alteration in original) (quoting Dillbeck v. 

State, 882 So. 2d 969, 972–73 (Fla. 2004)).

A trial court “may dismiss a derivative proceeding” if the court finds “[a] 

majority vote of a committee consisting of two or more independent 

directors appointed by a majority vote of independent directors present at 

a meeting of the board of directors” have “made a good faith determination 

after conducting a reasonable investigation upon which its conclusions are 

based” that to maintain the derivative suit is not in the corporation’s best 

interests. § 617.07401(3)(b), Fla. Stat. (2020).

The corporation has the burden of proving the committee is 

independent, acted in good faith, and has a reasonable and objective basis 

for its report. § 617.07401(3), Fla. Stat. (2020); see also De Moya v. 

Fernandez, 559 So. 2d 644, 645 (Fla. 4th DCA 1990) (“[A] trial court must 

make a determination that the committee recommending dismissal is 

independent, acting in good faith and has a reasonable and objective basis 

for its report.”) (citing Zapata Corp. v. Maldonado, 430 A.2d 779 (Del. 

1981)). However, section 617.07401 does not define what makes a director 

“independent,” and neither does the general chapter’s “definitions” statute.

Where Florida law has not spoken as to a corporate term or statute, 

courts often look to Delaware law. See Williams v. Stanford, 977 So. 2d 

722, 727 (Fla. 1st DCA 2008) (“To date, no Florida court has had occasion 
5

to interpret the governing provisions of section 607.1302 in its 2003 form. 

As is often true, however, Delaware case law provides guidance to our 

construction of the statute[.]”); Int’l Ins. Co. v. Johns, 874 F.2d 1447, 1459 

n.22 (11th Cir. 1989) (“We rely with confidence upon Delaware law to 

construe Florida corporate law. The Florida courts have relied upon 

Delaware corporate law to establish their own corporate doctrines[.]”); 

Boettcher v. IMC Mortg. Co., 871 So. 2d 1047, 1052 n.5 (Fla. 2d DCA 2004) 

(observing that Florida courts routinely consult Delaware case law when 

construing Florida statutory law governing corporations).

In determining the independence of an investigative committee which 

recommended dismissal of a shareholder derivative suit, the Delaware 

supreme court has stated:

[Director’s] presence on the Board does not establish a lack of 

independence on the part of the Committee. The mere fact 

that a director was on the Board at the time of the acts alleged 

in the complaint does not make that director interested or 

dependent so as to infringe on his ability to exercise his 

independent business judgment of whether to proceed with 

the litigation. Even a director’s approval of the transaction in 

question does not establish a lack of independence.

Kaplan v. Wyatt, 499 A.2d 1184, 1189 (Del. 1985) (emphasis added) 

(citations omitted).

Applying Kaplan, the trial court’s determination that the committee was 

composed of independent board members is supported by competent 

substantial evidence. The two members were not on the board when the 

transactions in question in the original complaint were approved. They

also filed affidavits to attest to their lack of involvement in the transactions 

and their independence. Moreover, appellant’s amended complaint only 

alleges their limited involvement. One of the two members signed off on 

the unapproved contract as the board’s treasurer, and both members were 

on the board when it approved material alterations to the common 

elements and some draws from the improper line of credit. Therefore, the 

two members’ involvement was at most approval, and as in Kaplan, even 

a director’s approval of a transaction may not necessarily show a lack of 

independence. Id. Through their affidavits, the committee members 

showed that they had been appointed to the board after the majority of the 

events upon which the complaint was based. Nothing in the record 

showed any relationship between the committee members and the named 

defendants to suggest control over the committee members. Nor did the 

court find that appellant’s attempt to amend her complaint to add them 
6

as defendants impacted their independence. The trial court did not err in 

concluding that the investigative committee was independent.

Appellant also claims the court erred in determining that the 

investigation was reasonable and made in good faith. She maintains that 

the court was required to address the accuracy of the report’s substantive 

findings. We disagree that the court must independently assess the 

validity of the report’s conclusions.

Section 617.07401(3) permits the court to dismiss a derivative lawsuit 

when the investigative committee “has made a good faith determination 

after conducting a reasonable investigation upon which its conclusions are 

based that the maintenance of the derivative suit is not in the best 

interests of the corporation.” Section 617.07401(3)(b)’s plain language

does not require courts to question a special committee’s recommendation 

as long as the court found the committee was independent and conducted 

its investigation reasonably and in good faith. Atkins v. Topp Comm, Inc., 

874 So. 2d 626, 627 (Fla. 4th DCA 2004)1 (“We conclude that trial courts 

in this state are not required to evaluate the reasonableness of an 

independent investigator’s final recommendation[.]”); see also Cornfeld v. 

Plaza of the Ams. Club, Inc., 273 So. 3d 1096, 1099–1100 (Fla. 3d DCA 

2019) (“[T]he independent investigator in this case . . . examined the merits 

of the proposed claims and concluded that the derivative suit was not in 

the corporation’s best interest. . . . The trial court did not abuse its 

discretion by adopting [the investigator’s] factual findings and legal 

conclusions, and finding that the report was reasonable and conducted in 

good faith[.]”). The court is not required to apply its own business 

judgment to assess the merits of the committee’s conclusions.

The trial court thoroughly evaluated how the investigative committee 

conducted its review of the allegations and the steps it took to ascertain 

whether the derivative suit was in the Association’s best interest. The 

court found that the investigation was thorough and conducted in good 

faith. The court complied with the statutory directive.

For the foregoing reasons, we affirm the dismissal of the derivative suit 

pursuant to section 617.07401(3), Florida Statutes.

Affirmed.

1 Atkins concerned section 607.07401(3)(b), Florida Statutes (2004), but section 

617.07401(3)(b), Florida Statutes, contains identical language except that the 

statute applies to “members” of a non-profit corporation instead of “shareholders” 

of a business corporation.
7

CIKLIN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.