Third District Court of Appeal

State of Florida 

Opinion filed August 28, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D23-1928

Lower Tribunal No. 21-7060

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Leslie Gratz, etc.,

Appellant,

vs.

1750 James Condominium Association, Inc., et al.,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Vivianne del 

Rio, Judge.

Perez Mayoral P.A., and Michael P. Mayoral, for appellant.

Mitrani, Rynor, Adamsky & Toland, P.A., and Sheryl S. Natelson 

(Weston), for appellees Esther Carpio, Lynton Gardiner, Francesca Losito, 

Dragan Pavlovic, and Lucas Silva; Vernis & Bowling of Miami, P.A., and 

Evelyn Greenstone Kammet and Mark Leonard Erdman, for appellees 1750 

James Condominium Association, Inc., and Valerie Froumentin Leonias.

Before EMAS, LINDSEY and BOKOR, JJ. 

EMAS, J.
2

Leslie Gratz appeals the trial court’s order dismissing with prejudice his 

derivative action filed against 1750 James Condominium Association, Inc.

(the Association) and various former and current board members. Following 

Gratz’s filing of the action, the trial court appointed Russell M. Robbins as an 

“independent panelist” pursuant to section 617.07401(3)(c), Florida Statutes

(2021), to investigate Gratz’s claims and to submit a report addressing 

whether maintaining the derivative action is in the best interest of the 

Association and its members.1

 

Upon Robbins’ submission of his report, the trial court held an 

evidentiary hearing during which Robbins testified to the breadth of his 

investigation and the findings supporting his recommendation of dismissal. 

The trial court adopted Robbins’ findings, including his primary finding that 

“maintaining the derivative action is not in the best interest of the Association 

and its members.” The trial court also concluded, pursuant to section 

617.07401(3), that Robbins’ determination was “made in good faith and 

1 Section 617.07401(3)(c), Florida Statutes, provides that a trial court may 

dismiss a derivative proceeding if it finds that the court-appointed “panel of 

one or more independent persons . . . 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.” 
3

based on a reasonable investigation.” The trial court adopted Robbins’ 

recommendation and dismissed, with prejudice, Gratz’s derivative action.

On appeal, Gratz contends generally that the trial court erred in 

adopting Robbins’ findings because Robbins failed to conduct a reasonable 

investigation; for example, he contends Robbins applied incorrect law in 

concluding the board members were immune from suit under the business 

judgment rule, and failed to “explore all relevant information” by, inter alia, 

conducting interviews with other unit owners. Gratz further contends the trial 

court erred in awarding the Association attorney’s fees under section 

617.07401(5), Florida Statues (2021), because there was no showing “that 

the proceeding was commenced without reasonable cause”—a threshold 

requirement under that statute.2

2 Section 617.07401(5), Florida Statutes, provides:

Upon termination of the proceeding, the court may require the 

plaintiff to pay any defendant's reasonable expenses, including 

reasonable attorney's fees, incurred in defending the proceeding 

if it finds that the proceeding was commenced without 

reasonable cause.

(Emphasis added).

The trial court also found the Association was entitled to attorney’s fees 

under the terms of Article 14(2) of the Association’s Declaration of 

Condominium, as “prevailing party.” Further, the Association was entitled to 

costs (including the costs of the independent investigator) pursuant to 

section 57.041(1), Florida Statutes (2022) (“The party recovering judgment 
4

Applying a hybrid standard of review, see Ezer v. Holdack, 358 So. 3d 

429, 432 (Fla. 4th DCA 2023) (“[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.”) 

(quotation omitted), we hold the trial court committed no reversible legal 

error. There is competent substantial evidence to support the trial court’s 

extensive and detailed findings and conclusions, including the determination 

that Robbins was independent and conducted his investigation reasonably 

and in good faith, and the ultimate determination that maintaining the 

derivative action is not in the best interest of the Association and its 

members. See § 617.07401(3), Fla. Stat. (2021) (“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 

shall recover all his or her legal costs and charges which shall be included in 

the judgment. . . .”) Because we affirm the award of attorney’s fees under the 

Declaration, and the award of costs under section 57.041(1), we need not 

reach the question of whether the trial court properly concluded that the 

derivative action was “commenced without reasonable cause.” 
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proving the independence and good faith of the group making the 

determination and the reasonableness of the investigation. The 

determination shall be made by: . . . (c) A panel of one or more independent 

persons appointed by the court upon motion by the corporation.”); 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.”) See 

also Ezer, 358 So. 3d at 433-34 (rejecting the contention that “the court must 

independently assess the validity of the report’s conclusions” and holding 

that “[s]ection 617.07401(3)(b)’s plain language does not require courts to 

question [an investigator’s] recommendation as long as the court found the 

[investigator] was independent and conducted its investigation reasonably 

and in good faith. The court is not required to apply its own business 

judgment to assess the merits of the committee's conclusions.”) (internal 

citations omitted).

Affirmed.