         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.


                                            10
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




                                              6
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.



                                               9
       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
