44 Fla. L. Weekly D2422a
282 So. 3d 933

Insurance — Homeowners — Trial court did not abuse discretion in entering summary judgment for insurer — Absence of transcript prevents meaningful review of whether trial court abused discretion by striking insureds’ counter-affidavit at summary judgment hearing as untimely — Trial court did not abuse discretion by denying motion for rehearing premised upon new evidence

MANUEL UMANA and NUBIA UMANA, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd District. Case No. 3D18-1760. L.T. Case No. 17-4470. September 25, 2019. An Appeal from the Circuit Court for Miami-Dade County, Mavel Ruiz, Judge. Counsel: 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 left of the summary judgment procedure”)); Les Chateaux, 219 So. 3d at 108; Lufthansa German Airlines Corp. v. Mellon, 444 So. 2d 1066, 1067 (Fla. 3d DCA 1984) (holding that “the trial court was well within its discretion in declining to consider this affidavit on the ground that it was untimely filed in violation of Fla. R. Civ. P. 1.510(c)”).

Affirmed.

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¹We note that the insureds contend in their brief that “the trial court’s denial of Plaintiffs’ ore tenus motion to continue the hearing to allow for additional evidence” was erroneous. However, as discussed supra, the insureds have failed to provide any transcript of the hearing at which this ore tenus motion was made. Further, the order on appeal reflects (and the insureds concede) that “[b]oth parties agreed to go forward today waiving any discovery issues.” The insureds’ claim that the trial court abused its discretion in not continuing the hearing is therefore without merit.

²To the extent that the question of timeliness can be resolved by simple math (and reviewed de novo), we find the trial court properly determined the filing was untimely. See Fla. R. Civ. P. 1.510(c) (2018) (providing: “The adverse party must identify, by notice served pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies”).

³While there are cases finding an abuse of discretion in light of “exigent circumstances” or “compelling reasons” to explain a late-filed counter-affidavit, see, e.g., AC Holdings 2006, Inc. v. McCarty, 985 So. 2d 1123 (Fla. 3d DCA 2008); Dalrymple v. Franzese, 944 So. 2d 1240 (Fla. 4th DCA 2006), this case presents no such circumstances. Indeed, the only explanation offered by the insureds involved discovery-related issues, which the insureds concede were expressly waived. In addition, the motion for summary judgment was filed in April, and on June 5 the notice of hearing was issued for a hearing to be held eight weeks later, on July 30. This provided more than adequate time for the insureds to address and resolve any outstanding matters prior to the hearing.