HOLLY BONDAR and ALEXANDER BONDAR v. TOWN OF JUPITER INLET COLONY

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 cross-

appeals, 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

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 short-

term 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.”

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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

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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 cross-

appeal.

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

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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

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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.

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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

2We 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.

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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

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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

9

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 state-

created 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

10

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’

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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

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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.

* * *

Not final until disposition of timely filed motion for rehearing.

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