final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 17-4470, Mavel Ruiz, Judge.
Mineo Salcedo Law Firm, P.A., and Peter Mineo, Jr. and Julian
S. Geraci (Davie), for appellants.
Hinshaw & Culbertson LLP, and Maureen G. Pearcy, for
EMAS, C.J., and SALTER and LOBREE, JJ.
residential insurance coverage dispute, the insureds Manuel
and Nubia Umana appeal the trial court's final summary
judgment in favor of the insurer, Citizens Property Insurance
Corporation. The insureds also appeal the order denying their
motion for rehearing. We affirm for the following reasons:
although the insureds contend that the trial court abused its
discretion by striking as untimely the counter-affidavit
filed in opposition to Citizens' motion for summary
judgment, they failed to provide a transcript of the relevant
hearing. And while it is true that the absence of a
transcript is not necessarily fatal to review of a trial
court's decision at a summary judgment hearing, see
Rollet v. de Bizemont, 159 So.3d 351, 357 (Fla. 3d DCA
2015); Seal Prods. v. Mansfield, 705 So.2d 973 (Fla.
3d DCA 1998), it is not the nature of the hearing, but rather
the nature of the alleged error, which dictates the adequacy
of the record on appeal:
Whether the absence of the transcript is fatal to the appeal
depends on the nature of the alleged error. The appellate
court may be able to correct an error of law without a
transcript of the testimony presented in the lower tribunal.
Likewise, the appellate court may be able to correct an error
that appears on the face of the record. In contrast, the
absence of a transcript is likely to present a serious
problem if the order is one that turns on an issue of fact or
the proper exercise of judicial discretion. In either of
these events, it may be impossible to evaluate the order
without reference to a full record of the testimony and other
J. Padovano, Florida Appellate Practice, § 18:3
instant case, the insureds seek review of the trial
court's decision, at the summary judgment hearing, to
strike their counter-affidavit as untimely. The absence of a
hearing transcript at which the trial court made this
decision prevents any meaningful review of whether the trial
court abused its discretion in this regard.See Applegate v. Barnett Bank of
Tallahassee, 377 So.2d 1150 (Fla. 1979); Barsan v.
Trinity Fin. Servs., LLC, 258 So.3d 516 (Fla. 3d DCA
2018); Rodriguez v. Lorenzo, 215 So.3d 631 (Fla. 3d
given this procedural posture, and upon our de novo review,
the trial court correctly determined there was no genuine
issue of material fact and properly entered judgment in favor
of Citizens. Wolentarski v. Anchor Prop. & Cas. Ins.
Co., 252 So.3d 277 (Fla. 3d DCA 2018); Les Chateaux
at Int'l Gardens Condo. Ass'n v. Cuevas &
Assocs., P.A., 219 So.3d 106 (Fla. 3d DCA 2017);
Deshazior v. Sch. Bd. of Miami-Dade Cty., Fla., 217
So.3d 151 (Fla. 3d DCA 2017).
we find no abuse of discretion in the trial court's
denial of the insureds' motion for rehearing premised
upon new evidence. "A trial court has the discretion to
refuse to consider a counter-affidavit presented for the
first time on a motion for rehearing of a summary judgment as
being too late. However, a trial court also has broad
discretion to grant a rehearing of a summary judgment when
the party seeking rehearing submits matters that would have
created an issue precluding summary judgment if they had been
raised prior to the hearing on the motion." Knowles
v. JPMorgan Chase Bank, N.A., 994 So.2d 1218, 1219-20
(Fla. 2d DCA 2008) (citations and quotations
omitted).See also Coffman Realty,
Inc. v. Tosohatchee Game Pres., Inc., 413 So.2d 1 (Fla.
1982) (adopting Coffman Realty, Inc. v. Tosohatchee Game
Pres., Inc., 381 So.2d 1164, 1167 (Fla. 5th DCA 1980)
(observing: "Were we to hold that affidavits could be
filed late and that a trial judge never had discretion to
refuse them, we would effectively destroy what little the
Appellate Courts have ...