       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 22, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-298
                          Lower Tribunal No. 16-6507
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                       Zenith Insurance Company,
                                    Appellant,

                                        vs.

                           Metrobank S.A., et al.,
                                    Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.

     Greenberg Traurig, P.A., and David O. Batista and Courtney M. Keller (Fort
Lauderdale) and Julissa Rodriguez and Stephanie L. Varela; Walters Levine &
Lozano, and Thomas C. Valentine (Sarasota), for appellant.

      Capote Law, P.A., and Susan Capote, for appellees.


Before SUAREZ, C.J., and ROTHENBERG and SALTER, JJ.

      SALTER, J.
      Zenith Insurance Company (“Zenith”) appeals a final order denying Zenith’s

motion to intervene in a mortgage foreclosure case brought by the

appellee/plaintiff, Metrobank, S.A. (“Metrobank”), against a group of obligors

(collectively, “Welo”)1 regarding 17 properties in nine Florida counties.       We

affirm the order denying intervention and vacate our temporary stay in this case for

the reasons which follow.

      Zenith’s alleged claims against certain Welo entities (and 13 of the 17

properties subject to Metrobank’s mortgage liens) are based on a judgment lien

entered against those entities in December 2015 for approximately $1.8 million—

just before Metrobank’s mortgage lien was recorded, and three months before

Metrobank’s foreclosure action began—and a related but subsequent judgment lien

for attorney’s fees for some $973,000 obtained and recorded by Zenith in

December 2016.

      When Metrobank commenced its foreclosure action, it joined Zenith as a

defendant based on the first and larger judgment recorded by Zenith. Zenith

moved to dismiss based on its alleged lien priority, and its counsel threatened

sanctions under section 57.105, Florida Statutes (2016), if Metrobank persisted in

its joinder of Zenith. Metrobank voluntarily dismissed Zenith from the action in

May 2016.

1  These entities were formerly known as companies within the “Farm Stores”
group.

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      Metrobank filed a motion for final summary judgment of foreclosure and

scheduled the motion for hearing on December 12, 2016. Zenith’s second final

judgment against Welo, for approximately $973,000 in attorney’s fees, was entered

December 1, 2016 (in Zenith’s separate lawsuit).        After business hours on

December 11, 2016 (the day before the hearing on Metrobank’s motion for a final

summary judgment of foreclosure against Welo), Zenith moved to intervene in the

Metrobank foreclosure case. The court granted the final summary judgment of

foreclosure (for approximately $6.9 million) in favor of Metrobank but did not

enter an order on Zenith’s motion to intervene.

      On February 9, 2017, the court heard Zenith’s supplemental motion to

intervene and denied it. This appeal by Zenith followed. The trial court reset the

foreclosure sale for March 28, 2017. Zenith moved to expedite this appeal; we

granted that motion and entered a temporary stay of the foreclosure sale pending

further order of this Court.

      Analysis

      The trial court did not abuse its discretion in denying Zenith’s motion to

intervene—a motion filed only hours before the hearing scheduled on Metrobank’s

pending motion for a final summary judgment of foreclosure. See Fla. R. Civ. P.

1.230 (intervention to be in subordination to the main proceeding); Union Cent.




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Life Ins. Co. v. Carlisle, 593 So. 2d 505 (Fla. 1992); Havanatur, S.A. v. 747 Travel

Agency, Inc., 463 So. 2d 404 (Fla. 3d DCA 1985).

      In the present case, Zenith’s right to enforce the approximately $1.8 million

judgment lien against Welo is unaffected by Metrobank’s enforcement of its later-

recorded mortgage lien. Indeed, Zenith itself sought and obtained dismissal from

the action (in May 2016) based on that claim some seven months before it changed

position and sought to intervene.

      As to Zenith’s post-mortgage judgment lien for approximately $973,000.00

in attorney’s fees, Zenith has sought collection of that judgment in other

proceedings,2 and its judgment lien for that amount post-dates the lis pendens filed

by Metrobank in the present case.3 Because Zenith was initially a defendant in

Metrobank’s foreclosure suit, it could have counterclaimed in mid-2016 to assert

that its remaining claim for attorney’s fees was entitled to priority over

Metrobank’s lien, and it could have sought to foreclose its own allegedly-superior

judgment liens against Welo and Metrobank in the case, but it did not. Zenith

remains free to pursue any of its claims against Metrobank in its separately-


2On December 23, 2016, Zenith filed a separate action, still pending, against
Metrobank and Welo.
3 Zenith’s judgment for its attorney’s fees against Welo was entered months after
the 30-day intervention deadline (following recordation of Metrobank’s lis
pendens) specified in section 48.23(1)(d), Florida Statutes (2016).


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pending circuit court lawsuits, though we express no opinion regarding those

claims.

        Affirmed.4




4   We have vacated our temporary stay of the foreclosure sale by separate order.

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