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Umana v. Citizens Property Insurance Corp.

Florida Court of Appeals, Third District

September 25, 2019

Manuel Umana and Nubia Umana, Appellants,
v.
Citizens Property Insurance Corporation, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 17-4470, Mavel Ruiz, Judge.

          The 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 appellee.

          Before EMAS, C.J., and SALTER and LOBREE, JJ.

          EMAS, C.J.

         In this 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:

         First, 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 evidence.

         Philip J. Padovano, Florida Appellate Practice, § 18:3 (2018 ed.)

         In the 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.[1]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 DCA 2017).[2]

         Second, 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).

         Finally, 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).[3]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 ...


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