              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                        IN THE DISTRICT COURT OF APPEAL

                                        OF FLORIDA

                                        SECOND DISTRICT

RANDALL GUNNING, individually,        )
CASTLE CONSULTING I LTD., INC., a     )
Florida corporation; and RIVER OF     )
LIFE INTERNATIONAL OUTREACH           )
CENTER, INC., a Florida corporation,  )
                                      )
              Appellants,             )
                                      )
v.                                    )      Case No. 2D16-2214
                                      )
EQUESTLEADER.COM, INC., a             )
Virginia corporation; and DONALD      )
PIERCE, individually and president of )
Equestleader.Com, Inc.,               )
                                      )
              Appellees.              )
________________________________ )

Opinion filed October 13, 2017.

Appeal from the Circuit Court for
Pinellas County; Thomas H. Minkoff,
Judge.

Walter E. Smith of Meros, Smith,
Lazzara, Brennan, Brennan & Olney,
P.A., St. Petersburg, for Appellants.

Eric E. Ludin and Amy Ray of Tucker &
Ludin, P.A., St. Petersburg, for
Appellees.


NORTHCUTT, Judge

             Equestleader.com, Inc., recovered a judgment for civil trespass damages
against Randall Gunning, Castle Consulting I Ltd, Inc., and River of Life International

Outreach Center, Inc. We reverse because, as a matter of law, none of the appellants

committed a trespass.

              This dispute arose from an unorthodox, June 2006 real estate transaction

wherein Gunning purchased real property from Equestleader subject to existing

mortgages. The property consisted of two contiguous lots that shared the same

address in Pinellas Park. Situated on lot 3501 were a stable and a barn. On lot 3508

was a house. The parties' contract provided that Gunning would receive possession

upon the execution of the contract and that Equestleader would "net no proceeds from

the sale." The contract further stated: "Seller authorizes buyer to negotiate with

Wachovia Bank regarding payoff or settlement of account and accepts title subject to

mortgage."

              The day after the execution of the sales contract, the parties entered into a

separate agreement under which Equestleader and its president, Donald Pierce, would

furnish consulting services in exchange for $250,000 and a yacht owned by Gunning.

The consulting agreement incorporated by reference the contract for sale of the Pinellas

Park property and also provided that if Gunning successfully negotiated with Wachovia

Bank to reduce the mortgage to less than the amount owed at time of closing on the

contract for sale, Gunning would remit to Equestleader and Pierce half the resulting

savings.

              On September 1, 2006, Pierce executed a warranty deed conveying the

property to Gunning. However, he signed the deed in his individual capacity instead of

as president of Equestleader, the property owner. Four years later, on August 31, 2010,

                                           -2-
Gunning's attorney contacted Pierce's attorney in regard to the error in the deed.

Subsequently, Pierce refused to sign a corrected deed as president of Equestleader,

complaining that the mortgages on the property were not current. However, on August

2, 2010, a tax deed had been recorded showing that appellant Castle Consulting had

purchased lot 3501 at a tax sale on July 28, 2010. Gunning testified at trial that he later

purchased lot 3501 from Castle Consulting.

              On December 2, 2011, Equestleader filed suit seeking to eject the

occupants from the Pinellas Park property. Pierce later testified that he had personally

gone onto the property and asked the occupants to leave. However, there was no

testimony as to the date this occurred, other than that it was after the error in the

warranty deed was discovered.

              Meanwhile, Wachovia Bank, N.A., had obtained a summary final judgment

foreclosing its mortgage on lot 3508 on June 10, 2010. On April 4, 2013, an amended

final summary judgment of foreclosure was entered nunc pro tunc to that date—

Gunning testified at trial that he had made no mortgage payments between late 2008

and 2010. D W Homes purchased the property at a foreclosure sale for $75,500, and

the certificate of title was issued on December 3, 2013. The next day, D W Homes

transferred lot 3508 to appellant River of Life by quitclaim deed. The trial testimony

established that River of Life was a company controlled by Gunning. He testified that D

W Homes had outbid him at the foreclosure sale and that he then had paid $85,000 for

lot 3508.

              Following the foreclosure sale, Equestleader dropped its ejectment action

and filed a third amended complaint against Gunning, Castle Consulting, and River of

                                            -3-
Life, claiming damages for civil trespass on both lots 3501 and 3508. The complaint

alleged: "Throughout the time between September 1, 2006 and December 2013 or

January 2014, the Defendants trespassed on the Plaintiff's property, occupying the

property without lawful right or authority and without compensation to the Plaintiff."

              After a nonjury trial, the trial court entered judgment for Equestleader. The

court found that "[o]n October 31, 2010, the parties discovered the error with the Deed

and the Plaintiff's consent to the Defendants' occupancy of the properties was revoked."

The court ruled that the use and occupancy of the premises after consent to possession

had been revoked was a trespass. It awarded damages against the three defendants

based on the value of the property, measured by the price the defendants paid

respectively to buy the one lot at the tax sale and to buy the other lot from the winning

bidder in the foreclosure. This was error; the proper measure of damages for a

trespass is the value of the loss of use and enjoyment of or the injury to the land

trespassed upon. Daniel v. Morris, 181 So. 3d 1195, 1199 (Fla. 5th DCA 2015).

However, we need not delve further into this issue or remand for a recalculation of

damages because there was no trespass here to begin with.

              Civil trespass to real property occurs when there is an injury to or use of

the land of another by one having no right or authority. Winselman v. Reynolds, 690

So. 2d 1325, 1327 (Fla. 3d DCA 1997). To sue and recover for a trespass, the plaintiff

must have been the owner or rightfully in possession of the land at the time of the

trespass. Vincent v. Hines, 84 So. 614, 616 (Fla. 1920). Neither was the case here.

              Gunning became the equitable owner of the property when he and

Equestleader entered into the contract for purchase and sale of the property, and that

                                            -4-
ownership continued notwithstanding the defective execution of the warranty deed. "[A]

contract to sell real property establishes the vendee 'as the beneficial owner of the

property, with the vendor retaining only naked legal title in trust for the vendee.' "

Desmosthenes v. Girard, 955 So. 2d 1189, 1191 (Fla. 3d DCA 2007) (quoting B.W.B.

Corp. v. Muscare, 349 So. 2d 183, 184 (Fla. 3d DCA 1977)). Further, as recited by the

Desmosthenes court:

              Thus, when Better Homes contracted in 2002 to sell the unit
              at issue to Girard, and certainly when it accepted payment
              for that unit and issued the first, albeit defective, warranty
              deed to him, Girard became the beneficial or equitable
              owner of the unit. This is so even if legal title did not
              effectively pass to him by virtue of the first defective warranty
              deed.

Id.

              Indeed, Equestleader acknowledged and the trial court found that Gunning

was authorized to occupy the property as its equitable owner at least until Equestleader

"revoked" permission for Gunning to do so. But even if Equestleader rightfully could

have unilaterally and extra-judicially revoked the fully executed purchase and sale

transaction, this did not take place until sometime after August 31, 2010, when

Equestleader's attorney was made aware of the defect in the original deed.

              By that time, Equestleader had no interest, legal or equitable, in lot 3501;

that property had been conveyed by tax deed to Castle Consulting. See Sullivan v.

Woodward, 582 So. 2d 31, 33 (Fla. 1st DCA 1991). Thereafter, Castle Consulting had

the right to occupy lot 3501 and Equestleader had no right to claim a trespass as to it.

Thus, Castle Consulting's sale of the lot to Gunning was free of any claim by

Equestleader.

                                             -5-
              As for lot 3508, it is doubtful that Equestleader even could have asserted

an equity of redemption following the June 2010 foreclosure judgment in favor of

Wachovia. Regardless, even assuming such an interest, it was of no greater gravity

than Gunning's equitable interest in the property, and it could not have given

Equestleader any greater right to occupy the property than Gunning's. And, of course,

any such interest was extinguished when D W Home purchased the property at the

foreclosure sale and obtained a certificate of title. Again, as a matter of law, River of

Life purchased the lot from D W Home free of any interest that might have been claimed

by Equestleader.

              It is clear, then, that during the timeframe at issue (1) none of the

defendants occupied the subject property without authority and (2) Equestleader had no

interest in the property sufficient to support a trespass claim. Accordingly, we reverse

the judgment and remand the case to the trial court, which shall enter judgment for the

defendants.

              Reversed and remanded with directions.


SALARIO and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                            -6-
