         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D16-4911
                  _____________________________

US BANK NATIONAL
ASSOCIATION, as Trustee for
CSFB Heat 2006-7,

    Petitioner,

    v.

JASON TRANUMN and D'HONOUR
TRANUMN,

    Respondents.
               _____________________________


Petition for Writ of Certiorari—Original Jurisdiction.

                         January 2, 2018


WINOKUR, J.

     The Petitioner, US Bank National Association (US Bank),
challenges the circuit court’s “Final Judgment in the Amount of
$80,587.17” (Final Judgment). This Court found that the Final
Judgment is not an appealable non-final order due to pending
counterclaims. Therefore, US Bank filed a petition for writ of
certiorari requesting that the Final Judgment be quashed
because the trial court: 1) severed the Respondents’
counterclaims, even though they were inextricably intertwined
with their affirmative defenses; 2) granted relief that was not
pled; 3) engrafted a “face-to-face” meeting requirement into the
Note and Mortgage as a condition precedent to foreclosure; 4)
issued a money judgment that purports to be immediately
executable, even though the proceedings below are not final
because of a pending counterclaim; and 5) issued a judgment
granting attorneys’ fees directly in favor of the Respondents’
counsel and refused to permit US Bank to offset that judgment
against its money judgment. We grant US Bank’s petition, and
write to address the trial court’s severance of the Respondents’
counterclaims.

                               I.

      On March 31, 2006, Respondents, D’Honour Tranumn and
Jason S. Tranumn (the Tranumns), executed a promissory note
and mortgage for property located in Duval County. US Bank
has the right to enforce the mortgage. In June 2010, the
Tranumns were notified that their mortgage was in default due
to non-payment of their November 2009 installment, as well as
subsequent monthly installments and late fees. The Tranumns
paid an $11,835.32 reinstatement fee and the mortgage was
taken out of foreclosure. The reinstatement fee made the
mortgage current, and the next payment was due in July 2010.
However, the Tranumns missed their July payment and
subsequently defaulted again on their mortgage. The Tranumns
received a letter dated August 15, 2010, indicating that they
would have to pay $4,615.10 by September 14, 2010, in order to
prevent immediate acceleration, as well as foreclosure. The
Tranumns made no further payments.

      Consequently, US Bank filed a complaint against the
Tranumns to foreclose on the mortgaged property. US Bank
alleged that the Tranumns owed a principal balance of
$176,402.03, plus interest. The Tranumns filed Amended
Answers, Affirmative Defenses, and Counterclaims.

      At a bench trial, US Bank elicited testimony that the
principal balance owed by the Tranumns was $176,402.03, and
the total amount owed including interest, fees, and taxes was
$237,509.68. After US Bank and the Tranumns rested, the trial
court inquired as to any pending counterclaims. Tranumns’
counsel stated that a prior judge had dismissed a jury trial
demand for the counterclaims with prejudice. Counsel for US


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Bank then began to speak on the issue, but was cut off by the
trial court:

         [US BANK]: If I may, they’re inextricably
    intertwined with the affirmative defenses raised—

         THE COURT: Well, that’s the reason—we don’t
    handle—when a counterclaim is filed in a foreclosure
    action, we bifurcate the cases. We keep the foreclosures.
    The counterclaim goes to the civil division judges that
    this case is assigned to.

         We go forward on the foreclosure unless he enters
    the stay order staying the foreclosure proceeding
    because it’s integrated into the counterclaim. But I’m
    just asking that. I’m not addressing that.

         Do you have any other witnesses?

         [TRANUMNS]: No, I do not.

         THE COURT: Okay. So we’re concluded with the
    testimony?

         [TRANUMNS]: Yes, sir.

      The trial court stated that it was going to deny US Bank
the relief of foreclosure. However, the trial court found that the
Tranumns owed US Bank monthly payments from August 2010
through June of 2014. The trial court did not immediately issue a
money judgment in favor of US Bank, but rather reserved
jurisdiction and ordered both parties to communicate and finalize
the amount owed by the Tranumns to US Bank. The trial court
also reserved ruling on the issue of awarding attorneys’ fees to
the Tranumns as the prevailing party.

       The trial court entered an order finding that US Bank was
entitled to a money judgment in the amount of $80,587.17 and
that the Tranumns’ defense counsel, Schuler & Lee, P.A., was
entitled to $33,441.75 in attorneys’ fees and costs. In addition,
the order denied US Bank’s request to offset both judgments and
awarded the attorneys’ fees directly to Schuler & Lee, P.A.
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Accordingly, the trial court entered a “Final Judgment in the
Amount of $80,587.17” in favor of US Bank. It also filed a “Money
Judgment In Favor of Schuler & Lee, P.A. Against Plaintiff” in
the amount of $33,441.75.

     US Bank filed a timely Notice of Appeal of both of the
judgments entered by the trial court. * On October 19, 2016, this
Court found that the Final Judgment was not an appealable non-
final order due to a pending counterclaim, and granted US
Bank’s request for the Court to invoke its certiorari jurisdiction to
review the Final Judgment.

                                 II.

     The Constitution of the State of Florida grants authority for
a District Court of Appeal to grant a petition for writ of certiorari.
Art. V, § 4, Fla. Const. Florida Rule of Appellate Procedure
9.130(a)(3) limits the types of non-final orders that can be
appealed to a District Court of Appeal. As a result, a party may
petition for certiorari review of non-final orders that are not
appealable under Rule 9.130(a)(3). Keck v. Eminisor, 104 So. 3d
359, 364 (Fla. 2012). However, in order to qualify for certiorari
review, “[t]he order must depart from the essential requirements
of law and thus cause material injury to the petitioner
throughout the remainder of the proceedings below, effectively
leaving no adequate remedy on appeal.” Martin-Johnson, Inc. v.
Savage, 509 So. 2d 1097, 1099 (Fla. 1987), superseded by statute
on other grounds, § 768.72, Fla. Stat. (1989).

     The material injury element needed for certiorari review
requires a showing of “irreparable harm.” Martin-Johnson, Inc.,
509 So. 2d at 1099. This Court has found that “the time, trouble,
and expense of an unnecessary trial are not considered
‘irreparable injury.’” State v. Lozano, 616 So. 2d 73, 75 (Fla. 1st
DCA 1993). Similarly, whether a court departed from the

    * This case only deals with the “Final Judgment in the
Amount of $80,587.17.” A separate direct appeal of the “Money
Judgment in Favor of Schuler & Lee, P.A. Against Plaintiff” is
pending before this Court. US Bank v. Tranumn, et al., Case No.
1D16-2577.

                                  4
essential requirements of law requires something more than just
a legal error. See Williams v. Oken, 62 So. 3d 1129, 1133 (Fla.
2011) (noting that “[o]nce the district court has granted the
petition for writ of certiorari . . . ‘the district courts of appeal
should not be as concerned with the mere existence of legal error
as much as with the seriousness of the error’” (quoting Haines
City Cmty. Dev. v. Heggs, 658 So. 2d 523, 528 (Fla. 1995))).

    This Court has already found that the Final Judgment is
not an appealable non-final order due to the pending
counterclaims. As a result, the question before this Court is
whether the Final Judgment constitutes a departure from the
essential requirements of law causing US Bank irreparable harm
with no adequate remedy on appeal.

                                III.

      The rules of civil procedure address severance of claims as
follows: “The court in furtherance of convenience or to avoid
prejudice may order a separate trial of any claim, crossclaim,
counterclaim, or third-party claim, or of any separate issue or of
any number of claims, crossclaims, counterclaims, third-party
claims, or issues.” Fla. R. Civ. P. 1.270(b). Florida courts have
found that “[c]ertiorari is an appropriate remedy for orders
severing or bifurcating claims which involve interrelated factual
issues because severance risks inconsistent outcomes.” Kavouras
v. Mario City Rest. Corp., 88 So. 3d 213, 214 (Fla. 3d DCA 2011).
Similarly, this Court, in granting certiorari relief, has held that
“[i]t is improper to sever a counterclaim and affirmative defenses
from the plaintiff’s claim, when the facts underlying the claims of
the respective parties are inextricably interwoven.” Maris
Distrib. Co. v. Anheuser-Busch, Inc., 710 So. 2d 1022, 1024 (Fla.
1st DCA 1998); see also Yost v. Am. Nat. Bank, 570 So. 2d 350,
353 (Fla. 1st DCA 1990).

                                IV.

     The Tranumns argue that US Bank, by failing to make a
contemporaneous objection to the court’s severance of the
counterclaims and affirmative defenses, did not preserve this
issue for review. “Generally, a petitioner cannot raise in a
petition for writ of certiorari a ground that was not raised below.”

                                 5
First Call Ventures, LLC v. Nationwide Relocation Servs., Inc.,
127 So. 3d 691, 693 (Fla. 4th DCA 2013). See also Hernando
HMA, LLC v. Erwin, 208 So. 3d 848, 849 (Fla. 5th DCA 2017).
However, an issue may be preserved without a contemporaneous
objection if “it appears from the record that the trial court may
have interrupted a proper objection.” Nieves v. State, 678 So. 2d
468, 470 (Fla. 5th DCA 1996).

     US Bank attempted to address the issue of severance when
the trial court stated that the counterclaim and affirmative
defenses would be severed from the foreclosure action. However,
the trial court cut off US Bank before counsel could raise an
objection. Notwithstanding the interruption, US Bank was able
to state that the counterclaims and affirmative defenses were
inextricably intertwined with the foreclosure action. Logically,
such a statement would have preceded an objection to said
severance if not for the trial court’s interruption. Thus, for
purposes of US Bank’s petition, we find that the issue has been
preserved.

     The decision in Minty v. Meister Financial Group, Inc., 97 So.
3d 926 (Fla. 4th DCA 2012), is particularly useful in analyzing
US Bank’s petition. In Minty, a lender brought suit against a
borrower and their counsel for violating a mortgage refinance
loan agreement. Id. at 928. The borrower filed counterclaims
alleging that the lender engaged in misconduct respecting the
loan agreement. Id. at 929. The court entered an order severing
the borrower’s counterclaims. Id.

     The Fourth District treated the lender’s appeal of the
severance order as a petition for writ of certiorari, and found that
the severance order departed from the essential requirements of
the law because the borrower’s claims were inextricably
intertwined with the lender’s claims. Id. at 931. “[I]f we allow the
borrower’s affirmative defenses and counterclaims to remain
severed, then a final judgment in the lender’s favor on its claim
will moot the borrower’s affirmative defenses and counterclaim,
leaving the borrower no adequate remedy on appeal.” Id.

     In this case, the Tranumns’ affirmative defenses and
counterclaims are inextricably intertwined with US Bank’s
foreclosure claim. The affirmative defenses include claims of

                                 6
failure to comply with conditions precedent, intentional
misrepresentation, and unclean hands. In addition, the three
pending counterclaims allege intentional misrepresentation,
violations of the Fair Debt Collections Practices Act, and violation
of the Florida Consumer Collection Practices Act. Both the
affirmative defenses and counterclaims arise from the mortgage
executed by the Tranumns. Therefore, they are inextricably
intertwined with the foreclosure proceedings.

     Consistent with the holdings of Kavouras and Minty, the
severance of the Tranumns’ counterclaims and affirmative
defenses leaves US Bank with no adequate remedy on appeal. It
is true that the final judgment here is in favor of the lender,
which is different from the procedural posture of Minty, where
the borrowers appealed the severance of their counterclaims.
However, the rationale is the same—the severance of
counterclaims that are inextricably intertwined with a plaintiff’s
claim risks disparate adjudication of issues which may lead to
unequal outcomes that render the counterclaims moot. As a
result, the trial court’s severance of the Tranumns’ counterclaims
and affirmative defenses constitutes irreparable harm.

     Moreover, an unequal outcome is not the only irreparable
harm facing US Bank. US Bank filed a complaint against the
Tranumns for defaulting on their mortgage. They sought
foreclosure as a remedy. The trial court denied foreclosure and
instead issued a money judgment in its favor. Furthermore, the
trial court denied US Bank the ability to levy against the
property, even in an effort to collect on the Final Judgment.
Thus, US Bank was denied the remedy it sought. By issuing its
Final Judgment, while a counterclaim is pending, US Bank has
no remedy on appeal to challenge the trial court’s ruling. US
Bank is effectively stripped of its right to foreclosure since appeal
is not possible. This also constitutes irreparable harm.

                                 V.

     The trial court departed from the essential requirements of
the law when it severed the Tranumns’ counterclaims and
affirmative defenses from US Bank’s foreclosure complaint
causing irreparable harm. Therefore, we grant US Bank’s
petition for writ of certiorari and quash the trial court’s Final

                                 7
Judgment. We remand the case with instructions to try all claims
together.

RAY and BILBREY, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Michael K. Winston and Dean A. Morande of Carlton, Fields,
Jorden, Burt, P.A., West Palm Beach, for Petitioner.

Brian J. Lee of Schuler & Lee, P.A., Jacksonville, for
Respondents.




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