DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
JESSICA MARLETTE,
Petitioner,
v.
ROXANNE M. CARULLO,
Respondent.
No. 2D22-547
September 30, 2022
Petition for Writ of Certiorari to the Circuit Court for Hillsborough
County; Paul Huey, Judge.
Sheila M. Lake of Lake Law Firm, P.A., St. Petersburg, for
Petitioner.
No appearance for Respondent.
VILLANTI, Judge.
Jessica Marlette petitions this court for certiorari review of the
trial court's January 23, 2022, order granting Roxanne M. Carullo's
ore tenus motion to bifurcate the legal and equitable issues for trial
in the action below. We have jurisdiction. See Fla. R. App. P.
9.030(b)(2)(A). Because the trial court departed from the essential
requirements of the law, as discussed below, we grant Marlette's
petition and quash the January 23, 2022, order with regard to the
bifurcation of issues only.
I.
Marlette and Carullo own adjoining properties in Odessa,
Hillsborough County, Florida. The properties were at one time
owned together as one contiguous property by Thomas and Venetta
Colson.1 The Colsons built a home on the property now owned by
Marlette. Over the years, they also installed on their property an
unpaved driveway and an underground well to supply their home
with water.
In 1995, the Colsons sold the parcel now constituting
Carullo's property to Nicholas and Shirley Carullo, respondent
Carullo's in-laws. In 1997, the Colsons sold the property now
1 The Colsons originally owned three parcels: Lots 47, 48, and
49. They lived on all three as one contiguous property, and later
split the three lots evenly between the Carullos and Alderman.
Marlette's property is Lot 49 and the east half of Lot 48. Carullo's
property is Lot 47 and the west half of Lot 48.
2
constituting Marlette's property to Ronald Alderman. At around
that time, it was discovered that the two parcels had been
incorrectly divided and that the driveway and well installed by the
Colsons years earlier, which were intended for the benefit of the
property owned by Alderman (and subsequently Marlette)
encroached upon the Carullos' property. Thus, Alderman and the
Carullos executed an easement agreement (the Agreement),
granting Alderman a "perpetual easement on, over, under and
across [the Carullos'] Property for the continued use, operation and
maintenance of the well and driveway as constructed and
maintained by [Alderman] as of the date of the execution of this
Easement.'' Pursuant to the Agreement, the easement was to "run
with the land in perpetuity" and "bind and inure to the parties, their
successors, and assigns and legal representatives" unless
terminated in writing by both parties and recorded in the official
records of Hillsborough County. The Agreement was executed on
May 8, 1997, and recorded in the Hillsborough County official
records on May 22, 1997.
Alderman's mortgagor, Wells Fargo, foreclosed upon his parcel
in 2010 and took title to the property following the foreclosure sale.
3
Wells Fargo subsequently sold the property to Marlette, also in
2010. The Carullos conveyed their property to respondent Carullo
in 2018. Carullo's property was vacant until July 2020, when
construction of her home commenced.
Marlette alleges that in 2019, apparently in anticipation of
constructing her home, Carullo confronted Marlette's husband
about their use of the driveway and threatened to tap into the well
and "run it dry," thereby forcing Marlette to move it. Carullo also
applied for a septic permit that contained a diagram of the intended
septic tank accessing the existing well. Marlette, fearing that
Carullo intended to utilize the existing well for the new septic tank
rather than installing her own, contacted Environmental Health
Services (EHS), the state agency charged with issuing septic tank
permits. She provided EHS with a copy of the Agreement and was
advised that the septic tank permit would not be approved until the
easement dispute is resolved.
Marlette also alleges that Carullo deliberately parks her
vehicles in the driveway in such a manner that it blocks Marlette
and her husband from accessing their property and has verbally
threatened and harassed them in an effort to prevent them from
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using the driveway. Hearing transcripts from the proceedings below
reflect that Carullo has on numerous occasions parked her vehicle
on Marlette's property, directly behind Marlette's vehicle, to "block"
her into her backyard.
In November 2020, Marlette filed an eight-count lawsuit
against Carullo, seeking declaratory judgments of easement rights
under the Agreement with regard to the well and driveway,
declaratory judgments in the alternative for prescriptive easements
with regard to the well and driveway, permanent injunctions with
regard to the well and driveway, breach of the Agreement, and
nuisance. The trial court entered a temporary injunction
prohibiting either party from blocking the other's use of the
driveway or preventing ingress/egress upon same. The trial court
further ruled that Marlette's easement rights pertaining to the
driveway were nonexclusive and that the easement was intended to
grant her access to her lot because there was no room for a
driveway on the other side of her property. It was established at the
injunction hearing that the driveway is Marlette's sole access to her
carport, which is located at the back of her property. The trial court
also reserved ruling on all issues pertaining to the well until further
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fact-finding could be made regarding the well's condition and
capacity.
In June 2021, Marlette amended her complaint to add a count
of trespass and a count for damages by diminution of value. The
trial court set a two-day jury trial for November 2021, which was
subsequently continued to January 2022 upon stipulation of both
parties. In the meantime, after a hearing in December 2021, the
trial court granted Carullo's motion for judgment on the pleadings
with regard to Marlette's claims for a declaratory judgment for
exclusive easement rights of the driveway and for prescriptive
easements for the driveway and for the well.
When the parties convened for trial on January 10, 2022,
Carullo made her ore tenus motion to continue trial again due to
the unavailability of witnesses2 and to bifurcate the legal and
equitable issues. The trial court granted the ore tenus motion,
noting in its written order that with regard to the latter, the trial
court is the appropriate factfinder for Marlette's claims for
injunctive and equitable relief.
2 Two essential witnesses were reported to have Covid, and an
expert witness had a family emergency.
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II.
A party "seeking a writ of common law certiorari must
establish (1) a departure from the essential requirements of the law,
(2) resulting in material injury for the remainder of the trial (3) that
cannot be corrected on postjudgment appeal." Rogan v. Oliver,
110
So. 3d 980, 982 (Fla. 2d DCA 2013) (quoting Parkway Bank v. Fort
Myers Armature Works, Inc.,
658 So. 2d 646, 648 (Fla. 2d DCA
1995)). "The second and third elements are jurisdictional, and the
failure to establish those elements requires dismissal of the petition
without considering the merits." Choi v. Auto-Owners Ins. Co.,
224
So. 3d 882, 883 (Fla. 2d DCA 2017).
The relevant transcript reflects that the trial court ordered
bifurcation of the equitable and legal issues out of concern about
available jury trial dates and the parties' evident discord affecting
their respective access to their properties and to water via the well.
Marlette argues, however, that bifurcating the issues below departs
from the essential requirements of the law because the facts
underlying both are inextricably intertwined and that trying the
issues separately may lead to inconsistent verdicts or preclude the
jury from deciding the legal claims of the case altogether.
7
A trial court generally has broad discretion to sever or
bifurcate claims to avoid inconvenience or prejudice to a party
pursuant to Florida Rule of Civil Procedure 1.270(b). See Rooss v.
Mayberry,
866 So. 2d 174, 176 (Fla. 5th DCA 2004). However,
"[w]here the facts and issues underlying the claims are intertwined,
the trial court should conduct a single trial." Bethany Evangelical
Covenant Church of Miami, Fla., Inc. v. Calandra,
994 So. 2d 478,
479 (Fla. 3d DCA 2008); see also Rooss,
866 So. 2d at 176
("[B]ecause the issues . . . in this case are related and necessarily
have an 'important bearing' on one another, a unified trial is
required to affect substantial justice."). While the trial court's
concern for efficiency is evident, the proper procedure instead is for
the trial court to first proceed with the jury trial, and then to apply
the jury's factual findings to determine whether Marlette has
established entitlement to her equitable claims. See Kavouras v.
Mario City Rest. Corp., 88 So. 3d 213, 214 (Fla. 3d DCA 2011).
"Certiorari is an appropriate remedy for orders severing or
bifurcating claims which involve interrelated factual issues because
severance risks inconsistent outcomes." Choi, 224 So. 3d at 883
(quoting Minty v. Meister Financialgroup, Inc.,
97 So. 3d 926, 931
8
(Fla. 4th DCA 2012)); see also Ludeca, Inc. v. Alignment & Condition
Monitoring, Inc.,
276 So. 3d 475, 481 (Fla. 3d DCA 2019) ("[A]s the
claims are necessarily intertwined, bifurcation threatens
inconsistent outcomes and could serve to eviscerate petitioner's
cause of action."). Marlette argues that her claims—aside from
those for a prescriptive easement3—all arise from the Agreement
and that trying the equitable and legal claims separately poses the
threat of inconsistent verdicts because the same evidence is needed
to establish her claims in both trials. She contends that the
exhibits and witnesses she must present to establish her claim for
injunctive relief are the same as needed to substantiate her legal
claims of breach of contract, nuisance, and trespass. Because the
majority of Marlette's claims indeed arise from or substantially
3 To establish a prescriptive easement, the claimant must
show the following: (1) actual, continuous, and uninterrupted use
by the claimant or any predecessor in title for twenty years; (2) that
use has been either with the actual knowledge of the owner or so
open, notorious, and visible that knowledge of the use is imputed to
the owner for twenty years; (3) that the use was of a definite route;
and (4) that use has been adverse to the lawful owner for twenty
years. See Dana v. Eilers, 279 So. 3d 825, 827–28 (Fla. 2d DCA
2019). The trial court entered judgment on the pleadings in favor of
Carullo on Marlette's prescriptive easement counts based on the
existence of the executed and recorded Agreement.
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involve the easement rights in the Agreement, fact-finding for both
legal and equitable issues would involve common witnesses and
exhibits that would, for example, establish a foundation for the
original placement and use of the driveway and well, the division of
the parcels, and the execution and intent of the Agreement by the
Carullos and Alderman. It is clear that the underlying facts of both
legal and equitable claims here are intertwined and that the trial of
such claims separately may lead to inconsistent verdicts. Thus,
certiorari review is appropriate in this case. See Choi, 224 So. 3d at
884.
Further, the order on appeal set the nonjury trial for equitable
issues for March 2021, with the jury trial on legal issues to take
place at a later date. However, litigants have the right to a trial by
jury guaranteed by article I, section 22 of the Florida Constitution.
"Unless waived, a jury must make findings concerning all facts
which are common to the legal and equitable claims before the trial
court may consider granting an equitable remedy." Billian v. Mobile
Corp.,
710 So. 2d 984, 992 (Fla. 4th DCA 1998). "[I]t is well settled
that where mixed equitable and legal claims are presented on
interrelated facts, the trial court first must have a jury decide the
10
case so as to preserve the parties' right to a jury trial." Kavouras,
88 So. 3d at 214. And when the issues of fact decided by a jury in
an action at law are inextricably woven with the issues of fact in an
equitable claim, the trial court is bound to the findings of fact by
the jury. Billian,
710 So. 2d at 992; cf. Marshall v. Sprecher,
559
So. 2d 1280, 1281 (Fla. 2d DCA 1990) ("A threshold factual
determination by the trial court in the equitable aspect of this
matter, i.e. that the covenant was or was not breached, would bind
a subsequent jury through collateral estoppel and thus deny the
defendant a trial by jury in the resolution of the claim for
damages."). "[W]here a determination by the first factfinder would
necessarily bind the later factfinder, such issues may not be tried
non-jury by the court because to do so would deprive the litigant of
his constitutional right to trial by jury." Magram v. Raffel, 443 So.
2d 396, 397 (Fla. 3d DCA 1984).
Marlette did not waive her constitutional right to a jury trial—
in fact, she made a timely request for trial by jury on all triable
issues. Therefore, the trial court's order to bifurcate poses the risk
of violating Marlette's right to a jury trial if the trial court makes
findings of fact that preclude a jury from deciding her legal claims.
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This constitutes a departure from the essential requirements of the
law resulting in a material injury that cannot be remedied on
appeal.
III.
Because Marlette has sufficiently established that the trial
court's order bifurcating her claims constitutes a departure from
the essential requirement of the law that claims involving
intertwined issues of fact may not be severed and that trying such
claims separately may result in material injury that cannot be
corrected on postjudgment appeal, certiorari review is appropriate
in this case. We grant Marlette's petition and quash the January
23, 2022, order with regard to its bifurcation of issues.
Petition granted, order quashed.
NORTHCUTT and SLEET, JJ., Concur.
Opinion subject to revision prior to official publication.
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