AQUASTAR HOLDINGS LLC

v.

PECKAR & ABRAMSON P.C.

Third District Court of Appeal State of Florida

Opinion filed June 18, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-0335 Lower Tribunal No. 22-10100 ________________

Aquastar Holdings LLC, Appellant,

vs.

Peckar & Abramson P.C., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge.

The Law Offices of Kristin Vivo, and Kristin Vivo, and Alicia Gale Windsor (Palm Beach), for appellant.

Peckar & Abramson, P.C., and Adam P. Handfinger, Freddy X. Munoz, Anne-Solenne Rolland, and Alexandra McKissick, for appellee.

Before LINDSEY, GORDO, and GOODEN, JJ.

LINDSEY, J.

I.

BACKGROUND

The underlying proceeding is a mortgage foreclosure action and concerns the priority of recorded instruments. However, this proceeding cannot be understood without discussion of a prior, separate breach of contract action that resulted in the May 2022 Sheriff’s sale. In the prior proceedings, Aquastar sued Avant Design Group, Inc. for breach of contract, obtained a money judgment, executed its judgment via a Sheriff’s sale, and purchased the Property at that sale. In the underlying proceeding here, Peckar filed an action against Aquastar to foreclose a mortgage that Avant had given it on the same Property. We discuss each proceeding in turn.

When Aquastar attempted to execute on its Judgment Lien on May 27, 2021, the Clerk of Court declined to issue a Writ of Execution because “[t]he language in the judgment does not address the let execution issue [sic] nor do[es] it give the interest rate.” The trial court then amended Aquastar’s Judgment by way of a handwritten notation to include the words “for which let execution issue” as well as the statutory interest rate, nunc pro tunc. On

1 This Court affirmed the judgment in Avant Design Group, Inc. v. Aquastar Holdings LLC, 351 So. 3d 62 (Fla. 3d DCA 2022). 2 Peckar’s Mortgage purported to serve as security for Avant’s unpaid fees for Peckar’s legal services.

Aquastar then executed on its Judgment Lien against Avant by way of a Sheriff’s sale of the Property on May 25, 2022. Aquastar purchased all of Avant’s “estate, right, title and interest” in the Property at the Sheriff’s sale for $300.3 The Sheriff’s Deed entitled the holder to Avant’s interest as of the date of sale. The Underlying Foreclosure Proceeding On June³, 2022, Peckar filed the underlying foreclosure action against Aquastar. Peckar also sought attorney’s fees pursuant to the terms of its Mortgage. Aquastar answered that its Judgment Lien had priority over Peckar’s Mortgage and further contended it was not liable for attorneys’ fees as a non-party to Peckar’s Mortgage. It also counterclaimed for quiet title, declaratory judgment, and fraudulent transfer.

Both Peckar and Aquastar moved for summary judgment. After a hearing and supplementary briefing on lien priority, the trial court granted summary judgment in favor of Peckar, concluding that Aquastar purchased the property “subject to all liens of record”, or alternatively that Peckar’s Mortgage was superior to Aquastar’s Judgment Lien because the Judgment

3 It is undisputed that Aquastar purchased the Property subject to a senior mortgage owned by non-party TD Bank.

Aquastar timely appealed.

II.

ANALYSIS

We review an order granting final summary judgment de novo. E.g. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). We review orders determining entitlement to attorney’s fees and costs de novo, and those setting amount for an abuse of discretion. State Farm Mut. Auto. Ins. Co. v. Best Med. Treatments, Inc., 354 So. 3d 612, 613 (Fla. 3d DCA 2023). On appeal, Aquastar claims that its Judgment Lien was superior to Peckar’s Mortgage, and therefore it purchased title to the Property unencumbered by Peckar’s Mortgage. Aquastar further asserts that it cannot be liable for contractual attorney’s fees as it is not a party to the contract. Peckar raises several arguments in response. First, Peckar claims that Aquastar’s Judgment was defective and therefore did not create a judgment lien senior to Peckar’s Mortgage. Second, Peckar claims that the nunc pro tunc amendment of Aquastar’s Judgment in October 2021 should not be treated as having been in effect since the date Aquastar’s Judgment was rendered. Third, it argues that Aquastar took title at the Sheriff’s sale

See also Martinez v. Reyes, 405 So. 2d 468, 469 (Fla. 3d DCA 1981) (“In order to create a lien on real property, a certified copy of a judgment or decree must be recorded in the official records of the county where the property is located.” (citations omitted)); In re Whelan, 325 B.R. 462, 463 (Bankr. M.D. Fla. 2005) (“Under Florida law, the impact of the recordation of a judgment on real property owned by the judgment debtor creates a judgment lien on the debtor’s property, which grants the judgment creditor a secured status.” (citing B.A. Lott, Inc. v. Padgett, 114 So. 2d 667, 668-69 (Fla. 1943))).

8

Here, Aquastar recorded a certified copy of Aquastar’s Judgment with the Clerk of Court for Miami-Dade County on January 22, 2021, along with an affidavit providing Aquastar’s address as required by the statute. It is undisputed that Avant owned the Property on that date and that the Property is in Miami-Dade County. Thus, Aquastar’s Judgment became a secured judgment lien on the Property on that January 22, 2021. “A valid money judgment which has been duly recorded and entered as a lien against land ‘must be accorded its legal effect until it is satisfied by payment (see § 55.141, Fla. Stat.) or the lien thereof expires as provided by law (see §§ 55.081 and 55.10, Fla. Stat.) or judicial relief from judgment is properly granted a party or his legal representative for a reason recognized in law (see Fla. R. Civ. P. 1.540).’” Lamchick, Glucksman & Johnston, P.A. v. City Nat. Bank of Fla., 659 So. 2d 1118, 1120 (Fla. 3d DCA 1995) (quoting Sharpe v. Calabrese, 528 So. 2d 947, 950 (Fla. 5th DCA 1988)). Peckar argues that the January 22 recordation of Aquastar’s Judgment did not create a perfected lien because the statutory interest rate and the words “for which let execution issue” were omitted from the Judgment. We disagree. Compliance with the § 55.10(1) requirement to record a certified copy of a judgment and a valid address affidavit is all that is necessary to perfect a judgment lien on a judgment debtor’s real property. See Sharpe, 528 So. 2d at 949-50 (“If the judgment debtor had an interest in the Wingfield

4 Aquastar’s Judgment was recorded at Book 32305, page 2288. Peckar’s note and mortgage were recorded at Book 32311, page 4017.

Here, the two certified judgments prompting the execution sales were recorded after the judgment debtor acquired title, and many years before

Accordingly, as both the reconveyance of the property back to the judgment debtor, following the recordation of mortgage, and the title derived from the execution sales, relating back to the date of the judgment liens, extinguished any other encumbrances on the property, we conclude the trial court correctly determined appellee is endowed with paramount title. Thus, we affirm.

Like the prevailing Appellee in Young Land USA, Aquastar is the holder of a title derived from an execution sale that relates back to the date of a judgment lien. Its purchase of that title at the Sheriff’s sale extinguished all encumbrances on the Property inferior to the priority of Aquastar’s Judgment Lien. Thus, it extinguished Peckar’s Mortgage. d. Sheriff’s Deed and Notice of Sale Peckar next argues that because Aquastar’s Sheriff’s Deed specifies that the holder takes “all the estate, right, title, and interest which [Avant held] on the 25 day of May, A.D., 2022, or at any time afterwards” and Peckar’s Mortgage was recorded prior to that sale date, the sale did not extinguish Peckar’s Mortgage. However, the language on the Sheriff’s Deed is boilerplate. It does not mention liens, liabilities, or claims by anyone other than Avant, instead stating that it conveys to Aquastar what it “can or should convey by virtue of said execution and the laws relating thereto.” Thus, the language in the Sheriff’s Deed does not support Peckar’s position.

Id. McAlice compels reversal. The Sheriff “makes no representations or warranties as to title” at a Sheriff’s sale–the “interest of the judgment debtor as of the time the judgment became a lien upon the real property” passes to the purchaser despite a Sheriff’s representation in a Notice of Sale that he is selling “all right, title and interest of the judgment debtor . . . . as of the date of the sale[.]” Id.; see also Sperling v. United States, 994 So. 2d 1139, 1140 (Fla. 3d DCA 2008) (“[T]he title under [a] sheriff’s deed ‘relates back’ to the priority of the recorded judgment that is the basis for execution and sale.”). Pursuant to Young Land USA, Sperling, and McAlice, Aquastar, as the purchaser at the Sheriff’s execution sale, took the “interest of the judgment debtor [Avant] as of the time the judgment became a lien upon the real property[,]” not Avant’s liabilities as of the day of the sale. As explained

III.

CONCLUSION

The trial court erred in finding that Aquastar purchased Avant’s interest in the property subject to Peckar’s Mortgage because a purchaser at an execution sale takes title subject only to liens that existed at the time the judgment executed upon was recorded. Thus, Aquastar’s Judgment against Avant created a valid Judgment Lien when it was recorded on January 22, 2021; Aquastar’s purchase of the Property pursuant to the execution of that Judgment Lien extinguished Peckar’s Mortgage. Accordingly, we reverse the Final Judgment in favor of Peckar and remand for entry of summary judgment in favor of Aquastar on Peckar’s foreclosure claim and Aquastar’s counterclaim for quiet title. The trial court’s order granting summary judgment in favor of Peckar on Aquastar’s declaratory judgment counterclaim is reversed and remanded with instructions to dismiss. We affirm the trial court’s order granting summary judgment in favor of Peckar on Aquastar’s fraudulent transfer counterclaim. The award of attorney’s fees to Peckar is reversed. Reversed in part and remanded.