Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Nos. 1D17-2741 1D17-2914 1D17-4751 _____________________________ PENSACOLA BEACH, L.L.C., PENSACOLA BEACH, INC., and DAVID A. BRANNEN, Appellants, v. AMERICAN FIDELITY LIFE INSURANCE COMPANY, SANTA ROSA ISLAND AUTHORITY, and MICHAEL J. STEBBINS, Appellees. _____________________________ Nos. 1D17-4132 1D18-0907 _____________________________ PENSACOLA BEACH, INC. and PENSACOLA BEACH, L.L.C., Appellants, v. VIA DE LUNA CORPORATION, AMERICAN FIDELITY LIFE INSURANCE COMPANY, and SANTA ROSA ISLAND AUTHORITY, Appellees. _____________________________ On appeal from the Circuit Court for Escambia County. Gary L. Bergosh, Judge. April 15, 2020 KELSEY, J. These consolidated appeals involve a complex array of parties, proceedings, and issues arising from a commercial real estate mortgage default and foreclosure. The primary issues involve Appellants’ attempts to redeem the property. After considering all arguments raised, we affirm for the reasons set forth below. We begin by setting forth the factual and procedural history. I. Overview. The relevant property is the Marriott SpringHill Suites Hotel on Santa Rosa Island. Escambia County owns the island, and leased it to Appellee Santa Rosa Island Authority (SRIA) under a renewable 99-year lease. 1 SRIA entered a long-term ground lease with Appellant Pensacola Beach Incorporated (PBI), covering the land to be used for the hotel plus some additional land. The lease between SRIA and PBI requires PBI to develop a “hotel/motel with related facilities,” and sets forth related terms and conditions in great detail. PBI and a related entity, 1 See Straughn v. Camp, 293 So. 2d 689, 690–92 (Fla. 1974) (explaining creation of SRIA and the statutory framework and purpose governing the island leases); see also Ward v. Brown, 919 So. 2d 462, 463 (Fla. 1st DCA 2005) (noting county ownership of land, leased for automatically-renewable 99-year periods to SRIA, which can then sublease the property); Quietwater Entm’t, Inc. v. Escambia Cty., 890 So. 2d 525, 526 (Fla. 1st DCA 2005) (noting that Escambia County owns the land in fee simple and SRIA collects lease fees). 2 Appellant Pensacola Beach Limited Liability Company (PBLLC), then entered an agreement titled as a sublease. Appellant Mr. Brannen is the managing member of both PBI and PBLLC. 2 The sublease covered less land than the master lease between SRIA and PBI, but otherwise was identical to the master lease. The sublease imposed on PBLLC all of the hotel-related obligations imposed on PBI in the master lease. These obligations included developing the hotel property and business, and paying all necessary expenses including mortgage payments, taxes, and fees. The sublease from PBI to PBLLC also provided that PBLLC would mortgage the hotel property; and authorized PBI to terminate the sublease and take back the property, after providing notice and an opportunity to cure, if PBLLC defaulted on its obligations. PBLLC mortgaged the property to Appellee American Fidelity Life Insurance Company (AmFi). PBI is not a party to the mortgage nor mentioned therein. The property descriptions referenced in and attached to the mortgage were identical to those of the sublease to PBLLC. In the mortgage, PBLLC conveyed to AmFi the tract of land for the hotel buildings and operations; all buildings and improvements on the land including those yet to be erected; all “right, title and interest of [PBLLC] in and to all leases or subleases covering the Premises or any portion thereof now or hereafter existing or entered into”; “any greater estate in the Premises owned or hereafter acquired”; “[a]ll easements, rights-of-way and rights used in connection therewith”; and many other broad provisions to the same effect. PBLLC further covenanted that PBLLC was “indefeasibly seized of said Premises as to leasehold interest” and had “full power and lawful right to convey the same as to leasehold interest.” PBLLC 2 Mr. Brannen has not filed or adopted an initial brief in these proceedings, although adopting one argument in a reply brief. Thus, he has waived any of his individual claims not controlled by those of PBI or PBLLC. See Tri-Cty. Produce Distribs,, Inc. v. Ne. Prod. Credit Ass’n, 147 So. 2d 587, 587–88 (Fla. 1st DCA 1962) (discussing appellants’ obligation to file or formally adopt a brief to present arguments). 3 assigned and transferred to AmFi “all leases [and] subleases” of the mortgaged property, expressly calling the assignment “absolute.” The mortgage provided that PBLLC’s failure to perform as required would constitute a default, as would the filing of a petition in bankruptcy by PBLLC or any guarantor or surety of the related note. In 2009, PBLLC defaulted on the mortgage payments and failed to pay property taxes. We will expand on the ensuing proceedings, but the short summary is that after some litigation delay, AmFi successfully foreclosed, bought the property, and received the certificate of title. The property foreclosed upon was described in the foreclosure proceedings and judgment as identical to that described in both the sublease and the mortgage. The certificate of title issued to AmFi on December 3, 2013. AmFi immediately transferred the property to a wholly owned subsidiary, Appellee Via De Luna Corporation (named after the property’s street address), which has assumed the duties set forth in the lease from SRIA to PBI and in the sublease from PBI to PBLLC. The heart of the litigation below, and these appeals, is PBI’s attempt to redeem the property, and to keep its original leasehold interest and the equity in the hotel land and improvements—all free and clear of the mortgage. PBI’s multiple pleadings below consistently alleged that PBI retained the leasehold interest in the hotel land and improvements, and that the foreclosure judgment incorrectly encompassed that land and improvements. 3 PBI also alleged, without ever providing any supporting evidence other than Mr. Brannen’s conclusory affidavit, that it terminated 3 PBI unsuccessfully attempted to intervene in the foreclosure case, raising the same arguments it later pursued in its declaratory judgment action, but did not appeal the denial of its motion to intervene. PBLLC and Mr. Brannen appealed the foreclosure judgment, arguing only that the lower tribunal abused its discretion in two interlocutory procedural rulings. We affirmed. Pensacola Beach LLC v. Am. Fid. Life Ins. Co., 106 So. 3d 933 (Fla. 1st DCA 2013) (Case No. 1D12-894) (the “Foreclosure Appeal”). 4 PBLLC’s interests before the foreclosure and in that additional manner retained an independent and exclusive right of redemption. Nevertheless, both PBI and PBLLC attempted to redeem the property. Mr. Brannen and two new entities were identified as borrowers in a proposed financing agreement with a third party not involved here. That agreement presumably would have made redemption economically feasible. As conditions of the new financing, PBI and PBLLC asked SRIA to correct what they described as a title error, and to enter a new ground lease. SRIA’s attorney, Appellee Mr. Stebbins, conducted research and advised SRIA about these issues. SRIA declined to comply with PBI’s and PBLLC’s requests. The foreclosure process became final with issuance of the certificate of title, and the litigation proceeded. 4 4 These five consolidated appeals arise from two circuit court cases that were consolidated below. Three appeals came from Escambia County Circuit Court Case No. 2013-CA-002311: our Case Nos. 1D17-2741, 1D17-2914, and 1D17-4751. Two appeals came from the same court’s Case No. 2016-CA-00111: Case Nos. 1D17-4132 and 1D18-907. The orders and judgments appealed are as follows: Case No. 1D17-2741 (June 26, 2017, partial final judgment for Amfi, SRIA, and Mr. Stebbins, dismissing with prejudice all of PBLLC’s claims asserted in both of the consolidated underlying cases); Case No. 1D17-2914 (June 19, 2017, order dismissing with prejudice all of PBLLC’s claims against SRIA and Mr. Stebbins); Case No. 1D17-4751 (October 27, 2017, order entering summary declaratory judgment that the PBI-to-PBLLC sublease was an assignment in legal effect); Case No. 1D17-4132 (August 29, 2017, order dismissing with prejudice all claims of PBI and PBLLC against AmFi, and dissolving and releasing lis pendens that PBI and PBLLC had placed on the property); and Case No. 1D18-907 (January 31, 2018, final summary judgment for Via De Luna as to claims by PBI and PBLLC). The lower tribunal also entered a partial final judgment on February 1, 2017, in its Case No. 2013-CA-002311, dismissing with prejudice all claims of PBI as a sanction for discovery violations. PBI appealed that judgment, and we dismissed the appeal because the judgment did not qualify as an immediately 5 II. The Litigation. Before the judicial sale occurred and the certificate of title issued to AmFi, PBI filed a declaratory judgment action against AmFi, primarily seeking a declaration that the mortgage between AmFi and PBLLC did not encumber PBI’s leasehold interest in the hotel property, and thus the foreclosure judgment did not extinguish PBI’s interest. PBI later filed a Notice of Lis Pendens. This prompted Via De Luna to file a slander of title action against PBI and PBLLC. Several years of extensive motion and pleading practice culminated in the operative pleadings now before us. In what was titled a third amended complaint, PBI, PBLLC, and Mr. Brannen alleged that PBI had terminated PBLLC’s interest in the hotel property before the foreclosure; that PBI retained an unencumbered interest in the hotel property; and that PBI had arranged third-party financing to redeem the property, but the tortious concerted actions of AmFi, SRIA, and Mr. Stebbins thwarted the financing and redemption. That complaint alleged tortious interference (four counts), civil conspiracy, abuse of process, and violation of the Florida Antitrust Act. PBI and PBLLC also counterclaimed in Via De Luna’s slander of title action, asserting the same claims alleged in their declaratory judgment action; and they brought a third- party claim against AmFi and SRIA. In the declaratory judgment action, the lower tribunal struck the claims of PBI and Mr. Brannen as a sanction for repeated discovery violations. This left PBLLC as the sole plaintiff, with claims pending against AmFi, SRIA, and Mr. Stebbins. AmFi moved to dismiss those claims, arguing that PBLLC lacked appealable partial final judgment under Florida Rule of Appellate Procedure 9.110(k). Pensacola Beach, Inc. v. Am. Fid. Life Ins. Co., 221 So. 3d 1289, 1289 (Fla. 1st DCA 2017) (Case No. 1D17- 714). The Court also declined to review that judgment through our certiorari jurisdiction, because the petition was not filed timely. Id. at 1290. We also dismissed a subsequent appeal as not reviewable under Rule 9.110(k). Pensacola Beach, LLC v. Am. Fid. Life Ins. Co., 236 So. 3d 1195, 1196 (Fla. 1st DCA 2018) (Case No. 1D17-2439). 6 standing to pursue them. AmFi also argued that PBLLC had inconsistently and thus improperly asserted both that its interest in the hotel property had been terminated, and that it still had a right of redemption. SRIA and Mr. Stebbins joined in this motion to dismiss. The lower tribunal dismissed PBLLC’s claims with prejudice and denied its request to amend. After a subsequent hearing, at which PBLLC did not renew its motion to amend, the lower tribunal entered a partial final judgment dismissing PBLLC’s claims against AmFi, SRIA, and Mr. Stebbins. After dismissal of PBLLC’s claims in the declaratory judgment action, AmFi moved for summary judgment against PBI, PBLLC, and Mr. Brannen. AmFi argued that the agreement between PBI and PBLLC, although titled a sublease, was functionally an assignment as to the hotel property, and therefore it did not reserve for PBI the right to redeem the property. PBI, PBLLC, and Mr. Brannen maintained that the document was a sublease, because PBI had retained a convenience store that was not part of the hotel property, as well as a reversionary interest. PBI, PBLLC, and Mr. Brannen also argued for the first time that AmFi lacked standing to seek a declaratory judgment. After a hearing, the lower tribunal entered summary judgment for AmFi. Parallel to the declaratory judgment action, Via De Luna’s slander of title claim was litigated, including the PBI/PBLLC counterclaim and third-party claim against AmFi and SRIA. The counterclaim and third-party claim were predominantly the same as the claims PBI and PBLLC had asserted in the third amended complaint for declaratory judgment, which the lower tribunal had stricken as to PBI and Mr. Brannen. PBI and PBLLC also alleged in this action that Via De Luna was part of the conspiracy against them, in that it was a product of the conspiracy. PBI, PBLLC, and Mr. Brannen further argued that although SRIA did not participate in the slander of title proceeding, it remained a named party subject to their claims. PBI, PBLLC, and Mr. Brannen sought a declaratory judgment resolving the assignment/sublease issue. Via De Luna argued that res judicata barred all of these claims, and that the claims constituted improper collateral attacks on the long-since-final foreclosure 7 judgment. After a hearing, the lower tribunal entered summary judgment for AmFi, Via De Luna, and SRIA. All of this brings us these five appeals for resolution. Three arise from Appellants’ original lawsuit, focused mainly on the redemption issue (Case Nos. 1D17-2741, 1D17-2914, and 1D17- 4751). The other two arise from Via De Luna’s slander of title action, in which Appellants re-asserted their redemption arguments (Case Nos. 1D17-4132 and 1D18-907). Two broad categories of issues are before us. First is whether PBI retained both an interest in the hotel property free of the mortgage encumbrance and the right to redeem the property. Second is whether PBLLC alleged any valid tort claims against AmFi, SRIA, Mr. Stebbins, and Via De Luna. After evaluating each of the many arguments raised in these appeals, we conclude that the lower tribunal properly ruled against Appellants on all issues, and we therefore affirm in each appeal. III. Analysis. PBI argues that the sublease to PBLLC was a sublease in legal effect; that is, that it preserved for PBI a superior right in the leasehold property and hotel improvements, unencumbered by the mortgage between PBLLC and AmFi. After PBI’s claims were stricken below, it re-asserted them in a declaratory judgment count as to which PBLLC was also a plaintiff, and as to which the lower tribunal entered judgment for AmFi on other grounds. PBI maintains that it retained the right of redemption and is still entitled to exercise the rights of ownership; or alternatively, that it retained the right to pursue tort claims against Appellees for having been deprived of those rights. We reject these arguments as procedurally barred once the certificate of title issued. PBI could have appealed the final order denying its intervention, seeking our review of its alleged rights and thus delaying issuance of the certificate of title, but it failed to appeal that order. Even if PBI’s claims were still viable, though, we would reject them on their merits. The language of the sublease reveals that it was an assignment in legal effect. Further, the terms of the mortgage encompassed the interest that PBI argues it retained; and therefore PBI had no remaining 8 claim as against AmFi’s interest acquired through the mortgage. Finally, we conclude that the lower tribunal correctly dismissed the tort claims against the Appellees. A. Preclusion. As we noted earlier (supra n.3), PBI sought to intervene in the foreclosure action, raising the same arguments there that it later asserted in the post-foreclosure litigation and raises again here. 5 The lower tribunal denied PBI’s motion to intervene, but PBI did not appeal. An order denying intervention is a final, appealable order as to the party seeking to intervene. See, e.g., City of Sunrise v. Town of Davie, 472 So. 2d 458, 459 (Fla. 1985); Y.H. v. F.L.H., 784 So. 2d 565, 567–68 (Fla. 1st DCA 2001). We have held that a party failing to appeal the denial of its motion to intervene cannot properly raise the claimed intervention rights on appeal from a subsequent merits judgment in the cause. Soclof v. State Rd. Dept., 169 So. 2d 510, 512 (Fla. 1st DCA 1964) (finding unpreserved tenant’s claim of entitlement to part of eminent domain damages awarded to owner); see also YHT & Associates, Inc. v. Nationstar Mortg. LLC, 177 So. 3d 641, 642 (Fla. 2d DCA 2015) (On Motion for Rehearing) (holding that 5 PBI restated its intervention arguments to the lower tribunal in support of its declaratory judgment action, and filed in this record the hearing transcript from its motion to intervene in the foreclosure case. The record thus confirms that PBI raised there the same arguments it raised in the declaratory judgment action below and raises on appeal. Even if PBI had not placed in this record its intervention claims and hearing transcript, we could take judicial notice of our own records in the Foreclosure Appeal. See Hillsborough Cty. Bd. of Cty. Comm’rs v. Pub. Emp. Relations Comm’n, 424 So. 2d 132, 134 (Fla. 1st DCA 1982) (holding that appellate courts may take judicial notice of their own records); see also Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (stating that the “tipsy coachman” doctrine allows an appellate court to affirm a trial court that “reaches the right result, but for the wrong reasons” so long as “there is any basis which would support the judgment in the record”). 9 party who buys property while foreclosure is pending “has no standing” to appeal foreclosure judgment if it failed to appeal the order denying its earlier motion to intervene in foreclosure proceeding). If PBI had appealed the order denying its motion to intervene, and we had found any merit in PBI’s arguments, those arguments could have been resolved before issuance of the certificate of title, as they should have been. The ensuing years of litigation on those issues should never have occurred, and we affirm the lower tribunal’s dismissal of PBI’s claims. PBLLC also failed to preserve its arguments as to right of redemption because it did not assert them in the Foreclosure Appeal, in which it was a party. Barring fraud, which PBLLC does not assert, the Foreclosure Appeal was the only and final opportunity to raise any issues affecting rights upon foreclosure, and the failure to raise such issues barred any future assertion of those claims. See Jenkins v. Lennar Corp., 972 So. 2d 1064, 1065 (Fla. 3d DCA 2008) (holding that a litigant was barred from attacking a final judgment of foreclosure when the court had affirmed foreclosure on direct appeal and the litigant’s issues either were previously decided on the merits or could have been raised in one of her four previous actions). Thus, we affirm the lower tribunal’s dismissal of PBLLC’s declaratory judgment claims. The claim that PBI retained a right of redemption was “forever barred” upon issuance of the certificate of title on December 2, 2013. The Final Judgment of Foreclosure states on its face, in typical language, as follows (emphasis added): On filing the Certificate of Title, the Defendants, and all persons claiming under or against them since the filing of the Notice of Lis Pendens shall be forever barred and foreclosed of any and all estate, claim, or equity in and to the above described property, and the sale shall stand confirmed and the purchaser at the sale shall be let into possession of the real and personal property described herein. This language in the Final Judgment of Foreclosure reflects the statutory bar established in section 45.0315, Florida Statutes, which governs the right of redemption and allows cure of the 10 mortgage indebtedness and prevention of a foreclosure sale “[a]t any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order or decree of foreclosure. . . ” (emphasis added). This section concludes with, “Otherwise, there is no right of redemption.” § 45.0315, Fla. Stat. (2013). This is definitive and unambiguous, and PBI and PBLLC did not take the necessary steps to obtain final adjudication of these issues before filing of the certificate of title, or to fall within the very narrow fraud exception to that finality. See Salazar v. HSBC Bank, USA, NA, 158 So. 3d 699, 702 & n.4 (Fla. 3d DCA 2015) (rejecting attempts to vacate foreclosure judgment where claimant failed to file a legally- sufficient claim under Fla. R. Civ. P. 1.540(b)); Vargas v. Deutsche Bank Nat’l Tr. Co., 104 So. 3d 1156, 1166 (Fla. 3d DCA 2012) (rejecting post-foreclosure-judgment attempts to require mortgagee to modify mortgagor’s loan, where attempts to modify loan were never completed and mortgagor filed no motion asserting viable grounds to vacate the judgment under Rules 1.530 or 1.540). These arguments were barred, so they provide no viable basis for relief on appeal. B. Sublease/Assignment and Scope of Mortgage. Even if we did not find PBI’s and PBLLC’s declaratory judgment claims procedurally barred, we reject them on their merits. PBI’s claims center on the argument that once PBLLC defaulted under the mortgage, the mortgage “evaporated” (PBI’s counsel’s choice of words below), and PBI retained all interests under the master lease from SRIA free of the mortgage. The governing documents do not support this argument. As a threshold matter, PBI was not a party to the mortgage, but in the sublease PBI conveyed to PBLLC the right to enter into a mortgage, in a provision identical to that in the master lease from SRIA giving PBI the right to enter a mortgage. PBLLC, having the right to enter a mortgage, did so, and was bound by its terms. The mortgage covered precisely the same property identified in the PBLLC sublease, as exactly the same property descriptions were attached to both the sublease and the mortgage. The mortgage conveyed to AmFi the hotel land, buildings, and improvements; an “absolute assignment” of all leases and subleases; “any greater estate in the Premises owned or hereafter 11 acquired”; and all easements, rights-of-way, and rights used in connection with the hotel properties. The mortgage covenanted to AmFi that PBLLC was “indefeasibly seized of said Premises as to leasehold interest” and had “full power and lawful right to convey the same as to leasehold interest.” PBI retained no approval rights as to sale, lease, or mortgage of the property identified in the sublease. The express and unambiguous representations in the mortgage contradict PBI’s subsequent claims. As between itself and AmFi, and as a non-party to the mortgage, PBI had no authority or standing to assert that the mortgage did not mean exactly what it said. It appears that PBI sought to simultaneously authorize the mortgage and yet disavow its effect—a result AmFi would not have accepted and did not accept as a limitation on its mortgage interest. PBI also argues that AmFi’s mortgage rights cannot reach PBI’s original leasehold interest because the sublease to PBLLC was not an assignment. We reject this argument. The title of a document does not control; its legal effect controls. City of Pensacola v. Seville Harbour, Inc., 219 So. 3d 984, 987 (Fla. 1st DCA 2017). Further, such a transfer of all interest in a specific portion of land or legal rights is still a valid assignment as to what is transferred—even if other land or rights are retained. See id. at 987–98. In all respects material to the hotel property, the sublease from PBI to PBLLC was identical to the master lease from SRIA to PBI. The sublease transferred to PBLLC all rights and obligations related to the hotel property and business, constituting an assignment of those rights and obligations. The rights were then encumbered by the AmFi mortgage as authorized in the sublease. We agree with AmFi that at most, PBI retained a right of re-entry upon PBLLC’s default and PBI’s fulfilment of its obligations to provide written notice of default, opportunity to cure, and the intention to forfeit the sublease. Even assuming PBI performed those obligations, which this record does not establish, this provision does not defeat AmFi’s rights in the mortgaged property. See C.N.H.F., Inc. v. Eagle Crest Dev. Co., 128 So. 844, 845 (Fla. 1930) (quoted in City of Pensacola, 219 So. 3d at 987). The lower tribunal properly 12 rejected PBI’s arguments that PBI retained the hotel property and all rights therein unencumbered by the mortgage. C. Tort Claims. Only the tort claims remain: tortious interference, civil conspiracy, abuse of process, and violation of the Florida Antitrust Act. All of these claims presume that PBI or PBLLC had the legal right to redeem the property; and allege that but for Appellees’ actions and omissions, PBI or PBLLC would have exercised that right. PBI and PBLLC tried to avoid summary judgment on the tort claims by filing Mr. Brannen’s affidavit asserting that the Appellees, knowing that refinancing was essential, prevented it from succeeding. As to both PBI and PBLLC, this conclusory assertion was not legally sufficient to create a triable issue. See TSI Se., Inc. v. Royals, 588 So. 2d 309, 310 (Fla. 1st DCA 1991) (rejecting as legally insufficient mere conclusory allegations in an affidavit opposing summary judgment). The tort claims also fail as to PBI because they assume PBI had the right to redeem free and clear of the mortgage, an argument we have rejected just as the lower tribunal did. Our affirmance on the redemption issues leads to an affirmance on these. The lower tribunal properly entered judgment for the Appellees on all tort claims. IV. Conclusion. After review of all arguments raised in all of these consolidated appeals, we affirm in each appeal. AFFIRMED. ROWE and BILBREY, JJ., concur. 13 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Robert O. Beasley, Phillip A. Pugh, and DeWitt D. Clark, of Litvak, Beasley, Wilson & Ball, LLP, Pensacola; Jessica L. Scholl and W. David Jester, of Galloway, Johnson, Tompkins, Burr & Smith, Pensacola, for Appellants Pensacola Beach, Inc., Pensacola Beach, LLC, and David Brannen. Linda A. Hoffman, Brian W. Hoffman, and Robert S. Rushing, of Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, Pensacola, for Appellee American Fidelity Life Insurance Company. Michael J. Stebbins of Michael J. Stebbins, P.L., Pensacola, for Appellee Santa Rosa Island Authority. Matt E. Dannheisser of Matt E. Dannheisser, P.A., Pensacola, for Appellee Michael J. Stebbins. 14