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.
2

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 

1 We need not decide whether the counterclaim was properly dismissed, as the 

homeowner has not appealed the dismissal.
3

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.