       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                    JACK TOWNSEND III, Trustee,
                            Appellant,

                                   v.

  C.T. BOX, Trustee, MARIA BOWMAN, NANCY TOWNSEND, and
REPUBLIC CONSUMER LENDING GROUP, INC., a Florida Corporation,
                          Appellees.

                             No. 4D18-3004

                          [February 12, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Barbara W. Bronis, Judge; L.T. Case No.
432002CA000491CAAXMX.

   Richard W. Glenn, Jupiter, for appellant.

  Jonathan Jacobson and Zachary Ullman of Aldridge|Pite, LLP, Delray
Beach, for appellee Republic Consumer Lending Group, Inc.

KUNTZ, J.

   Jack Townsend III appeals the circuit court’s final summary judgment
for the lender, Republic Consumer Lending Group, Inc., in Townsend’s
action to quiet title. We reverse and remand for further proceedings.

                              Background

   Townsend petitioned to quiet title on property based on a quitclaim
deed executed in August 1997 by Maria Bowman to Townsend and C.T.
Box as trustees. The quitclaim deed granted Townsend an undivided
one-third interest in the subject property. But the deed was not recorded
until October 2001.

   In 1998, after the quitclaim deed was executed but before it was
recorded, Bowman executed a mortgage on the property. The mortgage
was recorded on the same day it was executed.
    In 2000, still before the recording of the quitclaim deed to Townsend,
the lender’s assignee filed a foreclosure lawsuit against Bowman.
Townsend was not named as a defendant. The lender also filed a notice
of lis pendens in 2000 and an amended notice of lis pendens in 2002.
The court in that separate foreclosure case entered a final judgment in
2002.

   After the court in the foreclosure case entered final judgment,
Townsend sought to intervene in the foreclosure case. When that motion
was denied, Townsend filed this action to quiet title. The lender moved
for summary judgment, arguing that (1) because Townsend failed to
record the deed, the lender’s interest in the subject property was
protected by the lis pendens and the certificate of title issued in the
foreclosure case; and (2) Townsend failed to intervene before judgment
was entered in the foreclosure case as required by the lis pendens
statute. Townsend’s counter-affidavits filed in opposition indicated that
he had been in open and continuous possession of the subject property
since 1997 when it was conveyed to him. He therefore argued that his
possession granted him an interest superior to the mortgage and that his
interest was not affected by the foreclosure suit because he was not
named a party in that suit.

   The court held a hearing on the lender’s motion for summary
judgment and noted that Townsend failed to file anything in the separate
foreclosure case. The court stated that Townsend should be unable to
“come back and get another bite at the apple because he didn’t take the
action when he should have. . . . He knew about [the foreclosure suit].
The clock was ticking, and he didn’t take action that he needed to take to
stop that lawsuit and assert his rights.” The court rejected Townsend’s
arguments and granted the lender’s summary judgment motion.

                                  Analysis

    i. A Disputed Issue of Material Fact Precludes the Entry of Summary
                                 Judgment

   The lender properly concedes that the circuit court erred in
concluding that Townsend’s possession of the property before the
execution of the mortgage was not relevant. 1

1The lender argues that we should affirm under the tipsy-coachman doctrine,
see Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999),
despite the concession on this legal issue. We disagree.


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   “In determining the priority of interests in real property, Florida is a
‘notice’ state.” Barton v. MetroJax Prop. Holdings, LLC, 207 So. 3d 304,
306 (Fla. 3d DCA 2016) (citations omitted); see also § 695.01(1), Fla.
Stat. (1998). To determine whether the recording statute applies, “three
types of notice must be considered”:

      Actual notice arises from personal “knowledge of the fact in
      question.” Regions Bank v. Deluca, 97 So. 3d 879, 884 (Fla.
      2d DCA 2012) (quoting McCausland v. Davis, 204 So. 2d
      334, 335–36 (Fla. 2d DCA 1967)). “‘Implied notice’ is [a]
      factual inference of such knowledge, inferred from the
      availability of a means of acquiring such knowledge when
      the party charged therewith had the duty of inquiry.” Id.
      (quoting McCausland, 204 So. 2d at 335–36).            Finally,
      “‘[c]onstructive notice’ is the inference of such knowledge by
      operation of law, as under a recording statute.” Id. (quoting
      McCausland, 204 So. 2d at 335–36).

Harkless v. Laubhan, 278 So. 3d 728, 733 (Fla. 2d DCA 2019)
(alterations in ogirinal).

   The summary judgment evidence established that Townsend had been
in actual, open, and continuous possession of the subject property since
1997 when the deed was conveyed to him until the present. This was
not disputed.

   Based on the undisputed facts at the summary judgment stage of the
proceeding, the lender was required to inquire into the rights of the
occupants when the property was mortgaged. See Fla. Land Holding
Corp. v. McMillen, 186 So. 188, 191 (Fla. 1938) (“Where at the time
property is mortgaged it is actually occupied by others than the
mortgagor, the mortgagee is thereby put upon notice to inquire as to the
rights of the occupants.”).

   Whether the lender inquired into Townsend’s interest is a disputed
question of fact that must be resolved on remand. See Harkless, 278 So.
3d at 733 (“What will amount to a due inquiry must largely depend upon
the circumstances of each case.” (quoting Sapp v. Warner, 141 So. 124,
129 (Fla. 1932))).

      ii. Townsend did not have to Intervene in the Foreclosure Suit

   The lender also argues that Townsend had to intervene in the

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separate foreclosure lawsuit. But because Townsend was in possession
of the property, the lis pendens statute did not require him to intervene.

   In Florida, a notice of lis pendens carries more weight than it did at
common law. U.S. Bank Nat’l Ass’n v. Quadomain Condo. Ass’n, 103 So.
3d 977, 979 (Fla. 4th DCA 2012). “A lis pendens serves two main
purposes: (1) to give notice to and thereby protect any future purchasers
or encumbrancers of the property; and (2) to protect the plaintiff from
intervening liens.” Jallali v. Knightsbridge Vill. Homeowners Ass’n, 211
So. 3d 216, 218 (Fla. 4th DCA 2017) (citing Fischer v. Fischer, 873 So. 2d
534, 536 (Fla. 4th DCA 2004)).

   But a lis pendens also affects unrecorded instruments. The statute
states:

        (b) Except for the interest of persons in possession or
        easements of use, the filing for record of such notice of lis
        pendens shall constitute a bar to the enforcement against
        the property described in said notice of lis pendens of all
        interests and liens including but not limited to federal tax
        liens and levies, unrecorded at the time of filing for record
        such notice of lis pendens unless the holder of any such
        unrecorded interest or lien shall intervene in such
        proceedings within 20 days after the filing and recording of
        said notice of lis pendens. If the holder of any such
        unrecorded interest or lien does not intervene in the
        proceedings and if such proceedings are prosecuted to a
        judicial sale of the property described in said notice of lis
        pendens, the property shall be forever discharged from all
        such unrecorded interests and liens. . . .

§ 48.23(1)(b), Fla. Stat. (2002) (emphasis added). 2            We have even

2   The statute was amended and renumbered in 2009. The statute now reads:

        (d) Except for the interest of persons in possession or
        easements of use, the recording of such notice of lis pendens,
        provided that during the pendency of the proceeding it has not
        expired pursuant to subsection (2) or been withdrawn or
        discharged, constitutes a bar to the enforcement against the
        property described in the notice of all interests and liens,
        including, but not limited to, federal tax liens and levies,
        unrecorded at the time of recording the notice unless the holder of
        any such unrecorded interest or lien moves to intervene in such
        proceedings within 30 days after the recording of the notice and

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explained that “the only way to enforce a property interest that is
unrecorded at the time the lis pendens is recorded is by timely
intervening in the suit creating the lis pendens—all other actions are
barred.” Quadomain Condo. Ass’n, 103 So. 3d at 979 (citing Giffen
Indus. of Jacksonville, Inc. v. Se. Assocs., Inc., 357 So. 2d 217, 219 (Fla.
1st DCA 1978); Baron v. Aiello, 319 So. 2d 198, 200 (Fla. 3d DCA 1975)).

    But, of course, our explanation does not tell the entire story. Not
relevant in Quadomain is the first clause of the statutory section, which
states “[e]xcept for the interest of persons in possession.” § 48.23(1)(b),
Fla. Stat. That clause cannot be ignored and indicates that what follows
applies to all situations except for those removed through the words of
the statute. At issue here is the interest of a person in possession, and
“[t]he twenty-day window allowed for intervention under the statute does
not apply to parties in possession of the subject property.” Adhin v. First
Horizon Home Loans, 44 So. 3d 1245, 1248 n.2 (Fla. 5th DCA 2010).

   The lender concedes Townsend did not need to intervene within
twenty days. Instead, the lender argues the second sentence of section
48.23(1)(b) applies to all holders of unrecorded interests, including one in
possession of the property. We conclude that the language at the start of
the second sentence, “any such recorded interest or lien,” refers to those
interests discussed in the first sentence. See § 48.23(1)(b), Fla. Stat. As
a result, the second sentence also excludes an unrecorded instrument
held by a person in possession.

   The first sentence explains the effect of a lis pendens on an
unrecorded instrument and sets a deadline for intervention, and the
second sentence explains what happens to the unrecorded interest if the
holder of that unrecorded interest fails to intervene.   But neither
sentence applies when dealing with “the interest of persons in
possession.”

   The    summary      judgment     evidence     established    that   Townsend


      the court ultimately grants the motion. If the holder of any such
      unrecorded interest or lien does not intervene in the proceedings
      and if such proceedings are prosecuted to a judicial sale of the
      property described in the notice, the property shall be forever
      discharged from all such unrecorded interests and liens. . . .

§ 48.23(1)(d), Fla. Stat. (2020). For purposes of this appeal, we use the statute
in effect at the time the notice of lis pendens was filed. All citations to section
48.23 in this opinion are to the version in effect in 2002.

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possessed the property when the mortgage was signed and when the lis
pendens was filed. As a result, he did not have to intervene in the
separate foreclosure lawsuit.

                              Conclusion

   The court’s final summary judgment is reversed, and the case is
remanded for further proceedings.

   Reversed and remanded.

CIKLIN and CONNER, JJ., concur.

                          *       *        *

   Not final until disposition of timely filed motion for rehearing.




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