Built Green Corp. v. Environ Condominium II, Association, Inc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT BUILT GREEN CORP., Appellant, v. ENVIRON CONDOMINIUM II, ASSOCIATION, INC., a Florida not for profit corporation, Appellee. No. 4D2025-1055 [September 23, 2026] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case No. 062021CA020887AXXXCE. Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale, for appellant. Beth G. Lindie and Jeremy M. Zubkoff of Esler & Lindie, P.A., Fort Lauderdale, and Michele K. Feinzig of Michele K. Feinzig, P.A., Coral Springs, for appellee. KLINGENSMITH, J. Appellant Built Green Corp., the purchaser of a condominium unit at a tax deed sale, appeals a final summary judgment entered for Appellee Environ Condominium II Association, Inc., (hereinafter “the Association”) which oversees the property. That judgment not only denied Appellant’s request for declaratory relief and an accounting but also—after Appellant’s counsel withdrew—awarded money damages to the Association. Appellant contends the trial court erred in awarding the money damages for two primary reasons: (1) before Appellant had retained new counsel, the trial court proceeded with a summary judgment hearing which led to the monetary award; and (2) a monetary award had not been requested in the Association’s pleadings or tried by consent. As discussed below, on the first argument, we affirm, but on the second argument, we reverse. In light of that disposition, we do not comment on Appellant’s remaining challenges to the monetary award.  Background Appellant acquired the condominium unit through a tax deed sale in October 2019. The Association’s declaration and related condominium documents continued to govern the unit after the sale. Shortly after acquiring title, Appellant failed to timely pay special-assessment installments that came due in the following months. The Association then began collection activity, including a demand for rent directed to the unit’s tenants. The parties disagreed over how the tax deed affected the Association’s rights. Appellant maintained that the tax deed extinguished the Association’s preexisting interest in the property and requested a partial release. In February 2020, Appellant filed a quiet title action against the Association and the unit’s former owner, seeking to eliminate obligations which Appellant contended had been extinguished by the tax deed, including installments of a special assessment levied before the sale but coming due afterward. The trial court in the quiet title case entered judgment in Appellant’s favor as to pre-tax-deed debts and liabilities. The judgment, however, expressly preserved any right, claim, or interest which the Association had in surplus proceeds from the tax deed sale and any unpaid assessments, special assessments, or other charges that accrued or came due after the date of the tax deed. The judgment also recognized that the Association’s declaration and related documents continued to encumber the unit. After the quiet title judgment, the dispute continued. The Association repeatedly provided Appellant with statements identifying the amount which the Association claimed was due. Appellant continued to dispute the amount, including the Association’s treatment of post-tax-deed assessments, interest, attorney’s fees, costs, and tax-deed surplus proceeds. In November 2021, two years after the tax deed sale, Appellant filed the underlying action. The operative complaint contained two counts. Count I sought declaratory relief concerning the amount owed, the effect of the tax deed and surplus proceeds, and the Association’s entitlement to attorney’s fees. Count II sought an accounting. The Association answered and raised affirmative defenses alleging, among other things, that Appellant had been delinquent in paying assessments. The answer also generally requested such other relief as the trial court deemed just and 2 proper. The answer did not assert a counterclaim or otherwise plead a cause of action for a money judgment against Appellant. After approximately three years of litigation, both parties moved for summary judgment. The Association’s motion contended that Appellant’s account had never been current, Appellant had repeatedly failed to pay assessments when due, and the Association had incurred interest, attorney’s fees, and costs in attempting to collect the delinquency. Appellant’s motion repeated that the Association had improperly treated extinguished pre-tax-deed debt as Appellant’s obligation, had misapplied tax-deed surplus proceeds, and had improperly included other items in the account balance. Appellant’s attorney—its third during the litigation—moved to withdraw one month before the summary judgment hearing was scheduled. The trial court granted the motion and gave Appellant twenty days to obtain new counsel. Before that deadline, Appellant’s president filed a motion requesting an additional twenty days. That motion was not set for hearing, and the trial court did not enter an order on the motion. The trial court did, however, reset the summary judgment hearing by five days. Appellant’s president appeared at the hearing without counsel. Although Appellant has not provided a hearing transcript, Appellant’s later motion for rehearing and supporting affidavit alleged Appellant’s president, at the summary judgment hearing, had requested additional time to obtain counsel, but the trial court nonetheless proceeded with the hearing. The trial court entered final summary judgment for the Association. The trial court concluded Appellant was responsible for maintenance and special assessments which came due during Appellant’s ownership, and Appellant had repeatedly failed to pay those obligations in full and on time. The trial court determined Appellant owed the Association $66,704.03 in assessments, interest, attorney’s fees, and costs, after crediting payments received. The judgment also rejected Appellant’s request for declaratory relief and accounting. Appellant subsequently obtained new counsel, moved for rehearing, and, after rehearing was denied, pursued this appeal. We review a final summary judgment de novo. You Restorations LLC v. First Protective Ins. Co., 417 So. 3d 358, 363 (Fla. 4th DCA 2025). Summary judgment is appropriate only when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(a). Questions of statutory interpretation are likewise reviewed de novo. Valencia Rsrv. Homeowners Ass’n, Inc. v. Boynton Beach Assocs. XIX, LLLP, 278 So. 3d 714, 716 (Fla. 4th DCA 2019). A ruling on a continuance and the denial of rehearing are reviewed 3 for abuse of discretion. Orfanos v. 45 Ocean Condo. Ass’n, Inc., 368 So. 3d 995, 996 (Fla. 4th DCA 2023); Cargile-Schrage v. Schrage, 908 So. 2d 528, 529 (Fla. 4th DCA 2005). I. The Trial Court’s Decision to Proceed with the Summary Judgment Hearing Appellant first contends that the trial court abused its discretion by proceeding with the summary judgment hearing before Appellant, a corporate entity unable to represent itself, had secured replacement counsel. We find no reversible error for two reasons. A. Preservation A party ordinarily must obtain a trial court’s ruling to preserve an issue for appellate review. P.D.K., Inc. v. Madeline, 291 So. 3d 134, 136 (Fla. 4th DCA 2020). Consistent with that rule, we agree with the Third District that a claimed error in failing to continue a summary judgment hearing is not preserved where the movant never obtained an order denying its motion to continue. Tien v. Akerman LLP, 320 So. 3d 309, 312–13 (Fla. 3d DCA 2021). Appellant’s written motion for additional time to retain new counsel was never set for hearing and never ruled upon. Nor does the appellate record contain a transcript establishing a ruling on any renewed oral request at the summary judgment hearing. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”). On this record, Appellant has not demonstrated a preserved ruling denying its written request for additional time to retain new counsel. B. No Error in Conducting the Summary Judgment Hearing Even assuming the issue is properly before us, the circumstances do not establish an abuse of discretion. A corporation cannot appear in court except through counsel. Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So. 2d 247, 248 (Fla. 3d DCA 1985). For that reason, when a court permits counsel for a corporate litigant to withdraw, the corporation must receive a reasonable opportunity to obtain substitute counsel. Yacht Assist, Inc. v. CRP LMC PROP Co., LLC, 353 So. 3d 65, 68 (Fla. 4th DCA 2022). 4  But withdrawal does not create an absolute right to a continuance. Cargile-Schrage, 908 So. 2d at 529. The relevant considerations include whether denial creates an injustice, whether the reason for the requested continuance was unforeseeable and not the product of dilatory conduct, and whether a continuance would prejudice or inconvenience the opposing party. Id. (quoting Fleming v. Fleming, 710 So. 2d 601, 603 (Fla. 4th DCA 1998)). Our recent decisions in Yacht Assist and Lamaze v. Guthrie, 411 So. 3d 16 (Fla. 4th DCA 2025), illustrate the concern that animates this rule. In each case, the trial court permitted counsel to withdraw and then immediately proceeded with an adversarial hearing that produced dispositive relief against the newly unrepresented party. Yacht Assist, 353 So. 3d at 67–68; Lamaze, 411 So. 3d at 21–24. The defect in those cases was not withdrawal alone, but the absence of any meaningful interval in which the party could obtain substitute counsel before the court adjudicated matters with dispositive consequences. That is not what occurred here. When the trial court granted counsel’s motion to withdraw, the trial court expressly allowed Appellant twenty days to obtain replacement counsel. The summary judgment hearing did not occur until approximately one month after withdrawal was granted. Appellant also had been represented by counsel for roughly six weeks after the Association had filed its summary judgment motion and, during the same litigation, Appellant had filed its own summary judgment motion. The record also does not permit us to conclude that proceeding with the summary judgment hearing produced the kind of injustice present in Yacht Assist or Lamaze. Without a hearing transcript, we cannot determine the full substance of the requests made, the arguments presented, or the trial court’s reasons for proceeding. See G & S Dev. Corp. v. Seitlin, 47 So. 3d 893, 895 (Fla. 3d DCA 2010). And unlike the immediate-withdrawal cases of Yacht Assist and Lamaze, Appellant had a meaningful period after the withdrawal order to secure counsel. VME Group International, LLC v. Grand Condominium Association, Inc., 347 So. 3d 461 (Fla. 3d DCA 2022), does not require a different result. There, a verified continuance motion documented newly arising evidentiary issues and a sudden, life-threatening medical condition affecting the movant’s counsel. Id. at 465. A physician’s letter presented to the court confirmed that immediate treatment was necessary. Id. The Third District emphasized the settled rule that a continuance is required when undisputed facts show that counsel’s or a client’s physical condition prevents fair and adequate presentation. Id. at 468 (quoting Ziegler v. 5 Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991)). Nothing comparable appears in this record. Appellant has not shown that the trial court abused its discretion by proceeding with the scheduled summary judgment hearing. We therefore affirm the trial court’s handling of the continuance issue and its denial of rehearing on that ground. II. A Claim for Relief is a Prerequisite to Obtaining a Money Judgment The dispositive error in the entry of the final judgment lies elsewhere. Appellant alleges the judgment did more than deny Appellant the declarations and accounting which Appellant had requested. The judgment improperly entered a $66,704.03 award for the Association when the Association never pleaded a counterclaim seeking that relief. We agree that Florida pleading rules serve the basic functions of notice and fair opportunity to defend. As we explained in Schneider v. First American Bank, 336 So. 3d 43, 47 (Fla. 4th DCA 2022), modern pleading requirements notify the opposing party of the claims asserted and prevent unfair surprise. A trial court therefore may not award relief that was neither requested in the pleadings nor tried by consent. Id.; Wachovia Mortg. Corp. v. Posti, 166 So. 3d 944, 945 (Fla. 4th DCA 2015). A judgment granting relief wholly outside the pleadings is void, and granting unpleaded relief not tried by consent also violates due process. Schneider, 336 So. 3d at 47; see Bank of N.Y. Mellon v. Reyes, 126 So. 3d 304, 309 (Fla. 3d DCA 2013). The distinction between an affirmative defense and a counterclaim is central here. A counterclaim is an independent cause of action through which a defendant seeks affirmative relief, while an affirmative defense defeats or avoids the plaintiff’s claim. Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 733 (Fla. 1991). Under Florida Rules of Civil Procedure 1.100(a) and 1.110(b), a party seeking affirmative relief must plead a claim stating the ultimate facts establishing entitlement to that relief and demand the judgment sought. Bank of Am., N.A. v. Nash, 200 So. 3d 131, 135 (Fla. 5th DCA 2016). The Association’s answer did not do so. The answer alleged only that Appellant was delinquent, Appellant had received account information, and the Association had incurred attorney’s fees incident to collection. Those allegations could defeat Appellant’s request for a declaration that nothing was owed or support other defenses to Appellant’s claims. But the Association did not label or plead any count seeking to recover unpaid assessments, interest, costs, or collection fees as an affirmative judgment 6 against Appellant. The Association’s prayer for judgment in its favor, attorney’s fees, and other just and proper relief did not transform its defenses into an unpleaded cause of action. See Ruckdeschel v. People’s Tr. Ins. Co., 327 So. 3d 311, 314 (Fla. 4th DCA 2021) (“[I]n its affirmative defenses to the declaratory judgment, appellee alleged that appellants had breached the contract . . . and appellee requested judgment in its favor on appellants’ declaratory judgment. [Appellee] never sought the relief that the trial court ultimately ordered. A motion seeking this relief does not substitute for the assertion of the right to such relief in a pleading.”). Nor does Appellant’s request for declaratory relief supply the missing pleading. Appellant placed the parties’ legal relationship and the correctness of the Association’s account at issue for purposes of deciding Appellant’s claims. That did not relieve the Association of the obligation to plead a counterclaim if it sought an enforceable money judgment. Schneider is instructive. There, the bank could not obtain a personal deficiency judgment against a party where the bank’s complaint and summary judgment motion had not sought that relief against the opposing party, even though the litigation concerned the same loan and mortgage relationship. 336 So. 3d at 47. The point is not whether the opposing party knew that a claim for money was disputed. The point is whether the party seeking affirmative judicial relief invoked the trial court’s authority through an appropriate pleading and afforded the opposing party notice of the claim to be adjudicated. The Association’s answer did not cross that line to become a counterclaim. The answer alleged that Appellant had been delinquent, had received account breakdowns, and owed assessments and attorney’s fees incident to collection. Those allegations supported the Association’s defense to Appellant’s request for declarations that nothing was owed and to Appellant’s demand for an accounting. Those allegations did not state an independent cause of action for a money judgment. The answer’s concluding request that the court “enter judgment in [the Association’s] favor” and award attorney’s fees was also insufficient to create the missing claim. A general prayer for judgment cannot substitute for the ultimate facts and demand for affirmative relief required of a counterclaim. Ruckdeschel, 327 So. 3d at 314. The Association responds that Appellant itself placed the amount owed at issue by seeking declaratory relief, and therefore the trial court merely declared the correct balance based on the summary judgment evidence. That argument conflates determination of a defense with entry of affirmative relief. The trial court could have rejected Appellant’s requested 7 declaration that its balance was zero, determined that Appellant was not entitled to the accounting which it had sought, and entered judgment against Appellant on its own claims. But an adjudication that Appellant failed to prove entitlement to its requested relief is not the same thing as a judgment compelling Appellant to pay the Association $66,704.03. The latter imposes an affirmative obligation and provides the Association a monetary remedy which it had never pleaded. That distinction is not a mere technicality. Pleadings define the claims to be adjudicated, identify the relief at stake, and permit the opposing party to shape discovery, defenses, and trial strategy accordingly. See State Farm Mut. Auto. Ins. Co. v. Davis, 336 So. 3d 392, 398 (Fla. 5th DCA 2022) (“[I]ssues in a cause are made solely by the pleadings[.]”) (citation omitted). A plaintiff who seeks a declaration about an account does not, merely by doing so, consent to a defendant’s unpleaded action for collection of the entire alleged debt. Nor does a summary judgment motion enlarge the pleadings. See Assad v. Mendell, 550 So. 2d 52, 54 (Fla. 3d DCA 1989) (“The function of a motion for summary judgment is to determine if the respective parties can produce sufficient evidence in support of the operative issues made in the pleadings.”). Summary judgment resolves those claims properly before the court, but does not create a cause of action that the movant never pleaded. While the Association emphasizes that its answer requested attorney’s fees and such other relief as the trial court deemed just and proper, that general prayer does not cure the defect. A request for attorney’s fees found in an answer is not a pleaded cause of action to recover the underlying assessment debt. And an omnibus request for equitable or proper relief cannot substitute for the ultimate facts and demand for judgment required to state an affirmative claim. Otherwise, the notice function of pleadings would disappear whenever a defendant included a generic prayer for relief. A motion for summary judgment is a procedural vehicle for resolving claims and defenses that are properly before the court. A motion for summary judgment is not a pleading for affirmative relief under rule 1.100(a). See Nash, 200 So. 3d at 135. Thus, evidence establishing the amount which the Association claimed was due could support summary judgment only on relief which the Association was procedurally entitled to seek. The evidence could not create a counterclaim that had never been pleaded. Our decision in Cohn v. Mutti, 384 So. 3d 199 (Fla. 4th DCA 2024), and the authorities applied in Schneider and Wachovia reinforce that limitation. Relief must remain tethered to a pleaded claim or to an issue 8 actually tried by consent. Cohn, 384 So. 3d at 199. Nothing before us shows that Appellant consented to trial of an unpleaded collection counterclaim. To the contrary, Appellant expressly argued in its motion that the Association had not asserted a claim through which it could obtain affirmative monetary relief. The judgment therefore exceeded the issues framed by the pleadings when the judgment ordered Appellant to pay the Association $66,704.03. Because the monetary award rests on an unpleaded claim, that award cannot stand. See Schneider, 336 So. 3d at 47; Wachovia, 166 So. 3d at 945. We accordingly reverse the final judgment insofar as it grants affirmative monetary relief to the Association, and remand for further proceedings consistent with this opinion. Conclusion We affirm the trial court’s decision to proceed with the summary judgment hearing. We reverse the final judgment insofar as it awards the Association affirmative monetary relief that the Association did not request by counterclaim or other pleading, and we remand for further proceedings consistent with this opinion. As a result, we need not comment on Appellant’s remaining challenges to the now-vacated monetary award. Affirmed in part, reversed in part, and remanded. LEVINE, J., and SIPERSTEIN, CARYN, Associate Judge, concur. * * * Not final until disposition of timely-filed motion for rehearing. 9