IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
BANK OF AMERICA, N.A.,
Appellant,
v. Case No. 5D17-2541
JAMES EASTRIDGE AND JENNIFER
EASTRIDGE,
Appellees.
________________________________/
Opinion filed August 10, 2018
Appeal from the Circuit Court
for Seminole County,
Jessica J. Recksiedler, Judge.
Elizabeth Ann Henriques, and Tricia J.
Duthiers, of Liebler, Gonzalez & Portuondo,
Miami, for Appellant.
James Eastridge, and Jennifer Eastridge,
Oviedo, pro se.
EDWARDS, J.
This case involves obtaining ownership of real property by squatters’ rights, i.e.
adverse possession. Bank of America, N.A. (“BOA”), appeals the final default judgment
that extinguished BOA’s mortgage and title to the subject property and awarded
unencumbered title to Appellees, James and Jennifer Eastridge, based on their
convincing, but incorrect, assertion that seven years of actual and continuous adverse
possession is no longer required by section 95.18, Florida Statutes (2016). We find that
the trial court erred by: (1) ruling that because a clerk’s default had been entered, BOA
could not oppose entry of judgment by asserting failure to state a cause of action, (2)
finding that section 95.18 no longer required seven continuous years of adverse
possession, (3) concluding that Appellees met the requirements of section 95.18, and (4)
denying BOA’s motion for rehearing. Accordingly, we reverse the final judgment and
remand the cause to the trial court with instructions to dismiss Appellees’ complaint
without prejudice
BOA obtained a mortgage on the subject property when it issued a home equity
line of credit to the Clairs, previous owners who subsequently abandoned the property.
BOA obtained title to the property by obtaining a quit-claim deed from the homeowners
association that foreclosed its lien on the subject property for the Clairs’ unpaid
association fees. Appellees asserted their claim of adverse possession by filing a
complaint to quiet title in February 2017. As an exhibit to their complaint, Appellees
attached their Return of Real Property in Attempt to Establish Adverse Possession
Without Color of Title (“Return”), in which they claimed they began their possession of the
subject property less than four-and-one-half years prior to filing suit.
When BOA was one day late responding to the complaint, Appellees sought and
obtained a clerk’s default. BOA’s counsel appeared and filed a motion for extension of
time, one day after the default had been entered. Five days post-default, BOA filed its
verified motion to set aside the default, which the trial court denied. Appellees then moved
the trial court to enter a final judgment. In a written memorandum filed prior to entry of
final judgment, BOA opposed entry of judgment, claiming that Appellees’ complaint failed
2
Accordingly, the final default judgment is reversed in its entirety and the case is
remanded to the trial court with instructions to dismiss Appellees’ complaint with leave to
file an amended complaint within twenty days if they can do so in good faith.3 Should
Appellees file an amended complaint, BOA will be entitled to timely respond.
REVERSED and REMANDED with instructions.
SAWAYA and ORFINGER, JJ., concur.
3 Given Appellees’ previous statements of when their possession commenced,
they may find themselves unable to plead compliance with section 95.18(1) without
subjecting themselves to sanctions.
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18, 2017). However, Florida allows a squatter or adverse possessor to “tack” or combine
his/her period of adverse possession with the period of a prior adverse possessor in order
to meet the statutory time requirement. See, e.g., Supal v. Miller, 455 So. 2d 593, 594
(Fla. 5th DCA 1984) (finding that “tacking can be used to establish a prescriptive
easement” to meet the full prescriptive period).
Although tacking was not involved here, the statutory provisions regarding tacking
were used to create confusion in this case. Section 95.18(1) speaks to the possessory
accomplishments of both the claimant and the claimant’s predecessors. Here, BOA,
Appellees, and the trial court all agreed that the 2012 version of this statute required
Appellees to prove that they, or their predecessors, had actually and continuously
occupied the subject property for seven years. Under the 2012 version, Appellees’ time
of possession would have fallen short of the requirement by approximately thirty months.
However, Appellees argued and the trial court found, despite BOA’s disagreement, that
a legislative change in 2013 eliminated the seven-year possessory requirement. To
determine if such a change was made, we will examine both versions.
The relevant portion of the 2012 version reads:
When the occupant has, or those under whom the occupant
claims have, been in actual continued occupation of real
property for 7 years under a claim of title exclusive of any
other right, but not founded on a written instrument, judgment,
or decree, the property actually occupied is held adversely if
the person claiming adverse possession made a return, as
required under subsection (3), of the property by proper legal
description to the property appraiser of the county where it is
located within 1 year after entering into possession and has
subsequently paid, subject to s. 197.3335, all taxes and
matured installments of special improvement liens levied
against the property by the state, county, and municipality.
4
§ 95.18(1), Fla. Stat. (2012) (emphasis added). After the amendment in 2013, which the
2016 version reflects, the statute now reads:
(1) When the possessor has been in actual continued
possession of real property for 7 years under a claim of title
exclusive of any other right, but not founded on a written
instrument, judgment, or decree, or when those under whom
the possessor claims meet these criteria, the property actually
possessed is held adversely if the person claiming adverse
possession:
(a) Paid, subject to s. 197.3335, all outstanding taxes and
matured installments of special improvement liens levied
against the property by the state, county, and municipality
within 1 year after entering into possession;
(b) Made a return, as required under subsection (3), of the
property by proper legal description to the property appraiser
of the county where it is located within 30 days after complying
with paragraph (a); and
(c) Has subsequently paid, subject to s. 197.3335, all taxes
and matured installments of special improvement liens levied
against the property by the state, county, and municipality for
all remaining years necessary to establish a claim of adverse
possession.
§ 95.18(1), Fla. Stat. (2016) (emphasis added).
Appellees argued and the trial court determined that the 2016 version of section
95.18(1) required either actual, continuous possession for seven years or, in the
alternative, compliance with the requirements listed in subsections 95.18(1)(a)–(c)
without seven years of possession. The court’s interpretation of the statute is incorrect for
three reasons: (1) the language allowing combined consideration of the activities of the
possessor and its predecessors clearly and unambiguously applies only to the
requirement of actual, continuous possession; (2) the court’s interpretation would render
portions of the statute meaningless; and (3) the court’s interpretation would lead to an
absurd result.
5
Both the 2012 and the 2016 versions set forth minimum seven-year actual and
continuous occupancy or possessory requirements that can be met by the claimant alone
or that can be met through tacking by considering the actions of the claimant and the
claimant’s predecessors. We will refer to the statutory language regarding the claimant’s
predecessor’s actions as the tacking phrase. In the 2012 version, the tacking phrase was
found at the beginning of the section: “When the occupant has, or those under whom the
occupant claims have, been in actual continued occupation of real property for 7 years
under a claim of title exclusive of any other right, but not founded on a written instrument,
judgment, or decree.” § 95.18(1), Fla. Stat. (2012) (emphasis added). In this context, the
language clearly and unambiguously indicates that either the occupant or its predecessor
must have actually and continually occupied the property for seven years and must also
be without color of title.
The 2016 version contains substantially the same tacking phrase, even though the
phrase was shifted and now appears after the requirement of possession for seven years
without color of title: “When the possessor has been in actual continued possession of
real property for 7 years under a claim of title exclusive of any other right, but not founded
on a written instrument, judgment, or decree, or when those under whom the possessor
claims meet these criteria . . . .” § 95.18(1), Fla. Stat. (2016) (emphasis added). It is
because of this shift in location that the court apparently reached its interpretation that
seven years of continuous and actual possession of the property was but one alternative
way of obtaining ownership through adverse possession. However, in so construing, the
court ignored simple sentence structure—the phrase “or when those under whom the
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possessor claims meet these criteria” clearly only refers back to the criteria or
requirements of actual, continuous possession without color of title.
Furthermore, both versions have additional requirements or tasks that address the
open, notorious, and adversary nature of possession of “the property actually occupied”
or “possessed” which only the claimant can accomplish, such as filing a return and paying
outstanding taxes and liens. Thus, the tacking phrase applies only to the possessory
requirement and not to the additional adverse qualities of the possession required to
perfect a claim for section 95.18(1). Since the language is clear and unambiguous, there
is no need to look beyond the plain language of the statute. See Daniels v. Fla. Dep’t of
Health, 898 So. 2d 61, 64 (Fla. 2005). The plain language of the statute clearly requires
the claimants/possessors, here Appellees, individually or in combination with their
predecessors to meet the criteria of actual, continuous possession for seven years
without color of title. The requirement of actual possession, which can be accomplished
by the claimant or its predecessor adverse possessors, is in addition to, rather than as an
alternative to, the requirement of establishing the adverse nature of the possession which
must be personally accomplished by the claimant/current possessor.
Additionally, the trial court’s interpretation of the statute renders portions of the
statute meaningless, which courts should avoid doing. See Forsythe v. Longboat Key
Beach Erosion Control Dist., 604 So. 2d 452, 456 (Fla. 1992). Here, the trial court
presumably reached its conclusion by ignoring the following statutory language found in
section 95.18(1): “the property actually possessed is held adversely if the person claiming
adverse possession . . . .” That phrase not only reiterates the “actual possession”
requirement in a short-hand manner, it states that the statute only considers specific
7
actions (making a return, paying taxes and liens) of “the person claiming adverse
possession” to determine whether the possession was adverse. Neither version of the
statute permits or considers whether a claimant’s predecessor made a return, paid
outstanding taxes, or paid outstanding liens. See Scherer v. Volusia Cty. Dep’t of Corr.,
171 So. 3d 135, 139 (Fla. 1st DCA 2015) (finding that no part of a statute, “not even a
single word,” should be ignored or rendered meaningless). Thus, for this reason as well,
the trial court erred.
Moreover, the court’s statutory interpretation would lead to absurd results. If one
employed the trial court’s interpretation, a person claiming adverse possession of a
property with six years’ outstanding taxes could successfully obtain ownership through
adverse possession under section 95.18 simply by paying the outstanding taxes, filing
the return, and then paying the current year’s taxes without ever entering into possession
of the property. Given the statute’s title and clear requirement of seven years’ possession
by the claimant and/or its predecessors, this hypothetical result would be absurd. As
courts should avoid interpretations rendering the result absurd, the court’s interpretation
was in error. See M.M. v. State, 187 So. 3d 300, 304 (Fla. 5th DCA 2016).
Third, the trial court erred by concluding that Appellees met the requirements of
section 95.18, as it should have considered whether Appellees’ complaint contained well-
pled allegations that Appellees were in actual, continuous possession of the subject
property for seven years as required by section 95.18(1), Florida Statutes (2016).
Appellees’ complaint generally asserts compliance with the statute. However, the only
specific statement regarding when Appellees commenced possession is found in their
Return which they attached to the complaint. Their Return states that they entered into
8
possession of the subject property on September 24, 2012, which means that only four
years, four months, and thirty days elapsed from first possession to the filing of their
complaint—a period far short of the statutory seven-year requirement.1 Because the date
provided in the Return which Appellees’ attached to their complaint contradicts the
general averment of compliance with the statute, the date set forth in the Return controls.
“Where a document on which the pleader relies in the complaint directly conflicts with the
allegations of the complaint, the variance is fatal and the complaint is subject to dismissal
for failure to state a cause of action.” Appel, 29 So. 3d at 379. Given that Appellees’
complaint failed to state a cause of action under section 95.18, under both the 2012 and
2016 versions, the lower court erred both by ignoring BOA’s efforts to raise that defense
and by entering the default final judgment.2
Fourth, the trial court erred by denying BOA’s motion for rehearing. A trial court’s
denial of a motion for rehearing is usually subject to an abuse of discretion standard of
review; however when the motion only addresses issues of law the standard of review is
de novo. Randall v. Walt Disney World Co., 140 So. 3d 1118, 1119–20 (Fla. 5th DCA
2014) (quoting Mistretta v. Mistretta, 31 So. 3d 206, 208 (Fla. 1st DCA 2010)). As the
issues of law raised in BOA’s motion for rehearing should have been decided in BOA’s
favor, the trial court erred in denying BOA’s motion for rehearing.
1 Appellees assert in their answer brief that their possession of the subject property
commenced one month later, on October 24, 2012, which is even less time than reported
in their Return.
2
BOA argues that the Return and complaint disclose that Appellees failed in other
ways to comply with section 95.18; however, because of the remand, we need not
address those issues at this time.
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Accordingly, the final default judgment is reversed in its entirety and the case is
remanded to the trial court with instructions to dismiss Appellees’ complaint with leave to
file an amended complaint within twenty days if they can do so in good faith.3 Should
Appellees file an amended complaint, BOA will be entitled to timely respond.
REVERSED and REMANDED with instructions.
SAWAYA and ORFINGER, JJ., concur.
3 Given Appellees’ previous statements of when their possession commenced,
they may find themselves unable to plead compliance with section 95.18(1) without
subjecting themselves to sanctions.
10