       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                    WACHOVIA MORTGAGE CORP.,
                            Appellant,

                                    v.

PAUL J. POSTI, JR., THE UNKNOWN SPOUSE OF PAUL J. POSTI, JR.,
   BELLA TERRA COMMUNITY ASSOCIATION, INC., ANY AND ALL
 UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER AND AGAINST
   THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT
 KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES
MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISES, GRANTEES,
  OR OTHER CLAIMANTS, TENANT #1, TENANT #2, TENANT #3, and
     TENANT #4 the names being fictitious to account for parties in
                           possession,
                            Appellees.

                              No. 4D14-419

                            [ June 17, 2015 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard H. Harrison, Senior Judge; L.T. Case No.
502009CA024722AW.

  Michael K. Winston, Dean A. Morande and Alana Zorrilla-Gaston of
Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellant.

   Jeffrey Harrington and Adriana C. Clamens of Harrington Law
Associates, PLLC, West Palm Beach, for Appellee-Paul J. Posti, Jr.

TAYLOR, J.

   Wachovia Mortgage Corporation appeals a final judgment entered in
the homeowner’s favor after a bench trial in this mortgage foreclosure
action. The trial court ruled that the parties had an enforceable agreement
to modify the loan, and ordered Wachovia to deliver to the homeowner a
permanent loan modification with specific terms regarding the principal
balance, monthly payment, and interest rate. We reverse because the trial
court lacked jurisdiction to award the homeowner relief that was not
requested in the pleadings or tried by consent.
   A trial court is without jurisdiction to award relief that was not
requested in the pleadings or tried by consent. See S. Indus. Tire, Inc. v.
Chicago Indus. Tire, Inc., 541 So. 2d 790, 791 (Fla. 4th DCA 1989) (citation
omitted); see also Mullne v. Sea-Tech Constr. Inc., 84 So. 3d 1247, 1249
(Fla. 4th DCA 2012). Thus, “a judgment which grants relief wholly outside
the pleadings is void.” Bank of New York Mellon v. Reyes, 126 So. 3d 304,
309 (Fla. 3d DCA 2013). Further, granting relief which was neither
requested by appropriate pleadings, nor tried by consent, is a violation of
due process. Brickell Station Towers, Inc. v. JDC (Am.) Corp., 549 So. 2d
203, 203 (Fla. 3d DCA 1989).

    Here, the final judgment was void because it awarded affirmative relief
that was not requested in the pleadings or tried by consent. Before trial,
the court dismissed the homeowner’s counterclaim seeking a HAMP
modification of the loan.1 The homeowner never sought to amend the
counterclaim, and instead proceeded to trial on his defenses to the
mortgage foreclosure action. The homeowner’s affirmative defenses to the
foreclosure action did not allege the existence of a permanent loan
modification or request that the court order a permanent loan
modification. Nonetheless, the trial court ruled that the parties had an
enforceable agreement to modify the loan and required the plaintiff to enter
into a permanent loan modification with the homeowner. In doing so, the
trial court awarded affirmative relief that was not specifically pled in the
homeowner’s operative answer.

    Contrary to the trial court’s ruling, the relief awarded is not
encompassed within the homeowner’s unclean hands defense. The
homeowner’s unclean hands defense failed to allege the existence of a
permanent loan modification, and instead alleged only that the plaintiff
had not informed the homeowner of a decision regarding the requested
loan modification. The homeowner’s pleading of an unclean hands defense
to foreclosure was insufficient to permit the trial court to award the
affirmative relief of a permanent loan modification. This provision in the
final judgment went well beyond merely avoiding the plaintiff’s foreclosure
claim. Moreover, the homeowner’s operative answer did not request an
order requiring the plaintiff to enter into a permanent loan modification.
Instead, the homeowner’s answer requested a dismissal of the foreclosure
complaint—relief that is purely defensive in nature.

   Finally, although there was no trial transcript, the transcript of the
hearing on Wachovia’s motion for rehearing shows that the issue was not

1We need not decide whether the counterclaim was properly dismissed, as the
homeowner has not appealed the dismissal.

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tried by consent. See United Am. Lien & Recovery Corp. v. Primicerio, 924
So. 2d 848, 851 (Fla. 4th DCA 2006) (finding that the issue of damages
was not tried by implied consent, despite the absence of a hearing
transcript, where the transcript of a subsequent hearing clearly showed
that the issue was not tried by implied consent). Here, the record is clear
that the trial court awarded the affirmative relief not because the issue
was tried by consent, but instead because the court believed that the issue
was encompassed within the homeowner’s unclean hands defense.

    Because we are reversing the final judgment and remanding for a new
trial,2 we need not address the remaining issues raised by Wachovia in
this appeal.

    Reversed and Remanded.

DAMOORGIAN, C.J., and MAY, J., concur.

                             *        *         *

    Not final until disposition of timely filed motion for rehearing.




2 Because this court does not have a trial transcript, we find that it would be
inappropriate to grant Wachovia its preferred relief of remanding the case for
entry of a judgment in its favor.

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