Rigoli v. Preserve at Bay Hill Estates: When a Pre-Suit Mediation Settlement Unravels, Fees Wait for a Final Judgment

A landscaping dispute in a Palm Beach County community has produced a short appellate opinion with a long lesson for association counsel. On April 1, 2026, Florida’s Fourth District Court of Appeal reversed an attorney’s fee award to The Preserve at Bay Hill Estates Homeowners Association as premature and dismissed the homeowners’ appeal of a summary judgment order that was never reduced to a final judgment ¹. A concurring opinion by Judge Gross went further, explaining how the case “became more legally complex than it needed to be” ¹.

From Pre-Suit Mediation to Litigation

According to the concurrence, the conflict started in 2022 over how the homeowners were keeping up their property ¹. Following a pre-suit mediation in March 2023, the parties signed a settlement agreement with landscaping requirements, deadlines and procedures ¹. If both sides performed, the association would waive all fines, and each side would bear its own fees and costs. If the owners breached, the association could seek all fines imposed, and the prevailing party in any litigation could recover fees ¹.

The settlement fell apart. In August 2023, the association sued for breach of the settlement agreement, breach of the governing documents and injunctive relief, seeking among other things to collect all fines imposed ¹. The owners defended in part by arguing that some violations were procedurally or substantively incorrect ¹. A later mediated settlement also fell through, and the owners’ lawyer withdrew ¹.

The trial court then granted the association’s summary judgment motion “as the case is moot,” based on its counsel’s statements that the association was satisfied with the repairs and alterations, and later awarded the association fees and costs ¹.

What the Court Held

The majority opinion is brief. An order that merely grants summary judgment, without entering judgment or dismissing the case, is not a final, appealable order ¹. Because the fee order was entered before any final order disposing of the lawsuit, it was premature and was reversed in its entirety ¹.

Judge Gross wrote separately, noting that his concurrence is not binding, in the hope of curtailing further litigation ¹. Among his observations:

• Voluntary dismissal was a more direct path. A determination on the merits is not required for prevailing-party fees, and courts look to the substance of the outcome rather than procedural maneuvers ¹.
• Mootness was doubtful. The association’s damages claim for fines, and the owners’ defense that the fines were improperly imposed, remained live after the landscaping was finished ¹.
• Fee entitlement under the settlement turned on breach. The settlement’s fee provision depended on a finding that the owners breached it, which was never adjudicated ¹.
• “Uncompromisingly” obtaining relief matters. He questioned whether the association had obtained all the relief it sought, given that it declared the case moot about a year after the repairs were done ¹.

Lessons for Pre-Suit Mediation Agreements

Section 720.311 requires a demand for pre-suit mediation before an association or owner files suit over covenant enforcement and use of a parcel, among other disputes ². The statute carves out two categories that matter here: the collection of any assessment, fine or other financial obligation, and any action to enforce a prior mediation settlement agreement ². It also provides that when an issue settled at pre-suit mediation later becomes the subject of an enforcement action, the prevailing party may seek all costs and fees incurred in the pre-suit mediation process ².

That framework puts weight on the drafting done at the end of a mediation session. Practitioners may want to address:

• Fines. State whether fines are waived outright, held in abeyance or revived on breach, and how they will be computed.
• Cure and notice. Build in a written notice of default and a cure period before either side can declare a breach.
• Completion. Define how compliance is confirmed, by whom, and by what date, so “satisfied with the repairs” has an agreed meaning.
• Endgame. Provide for a stipulated dismissal or agreed judgment on completion, so neither side is left litigating fees after the work is done.

Tony Roca, a Florida Supreme Court Certified Circuit Civil Mediator, mediates homeowners’ association and condominium disputes, including pre-suit mediation required under section 720.311. Counsel and boards can check his live availability and book a mediation.