Ramos v. Ventures Trust , 2015 Fla. App. LEXIS 1804 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed February 11, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-161
Lower Tribunal No. 09-71430
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Michael A. Ramos,
Appellant,
vs.
Ventures Trust,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Sarah I. Zabel,
Judge.
Robin F. Hazel (Pembroke Pines), for appellant.
Kahane & Associates and H. Michael Muniz (Plantation), for appellee.
Before SUAREZ, EMAS, and LOGUE, JJ.
SUAREZ, J.
Michael A. Ramos appeals from a final judgment of foreclosure. We
affirm.
In 2009, BankUnited, FSB filed its complaint in foreclosure against Ramos.
At the same time, it filed a lost Note claim. The case was set for trial on December
19, 2013. On the day of trial, the Plaintiff Bank moved to substitute parties (now
Venture Trust) and withdrew its affidavit of lost Note because it had found the
original Note indorsed to Venture Trust. Ramos’s attorney was a no-show at trial.
Ramos asked the trial court to continue the trial, but the trial court did not. The
next day, the trial court rendered the final judgment of foreclosure. On appeal,
Ramos argues that due process requires a reversal and a remand to allow him to be
represented by counsel at trial, in order to challenge the Bank’s evidence of the
original Note. The standard of review for the denial of a motion for continuance is
abuse of discretion. Williams v. Gunn, 279 So. 2d 69 (Fla. 1st DCA 1973); Fasig
v. Fasig, 830 So. 2d 839 (Fla. 2d DCA 2002); Taylor v. Mazda Motor of Am., Inc.,
934 So. 2d 518, 520 (Fla. 3d DCA 2005). An appellate court will not interfere
with a trial judge's discretion, Diaz v. Diaz, 258 So. 2d 37 (Fla. 3d DCA 1972),
unless abuse is clearly shown. Buckley Towers Condo. Inc. v. Buchwald, 340 So.
2d 1206 (Fla. 3d DCA 1976). We hold that Ramos has not demonstrated an abuse
of discretion by the trial judge below.
At issue is whether the trial court abused its discretion when it failed to
continue the foreclosure bench trial because the defendant/homeowner’s attorney
failed to attend. The appellant has the burden of demonstrating the error he argues
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occurred. There is, however, no transcript of the foreclosure trial proceedings and
thus no record of the appellant’s alleged oral motion for continuance. There is no
follow-up written motion of continuance, or any written order denying
continuance. There is also no post-hearing statement of the proceedings made
pursuant to Florida Rule of Appellate Procedure 9.200(b)(4), which governs the
preparation of a record when no transcript of the proceedings is available.1
Further, the appellant did not seek any rehearing or reconsideration.
Thus, our review is really limited to just the pleadings, the final judgment of
foreclosure and the record (which does not provide any insight to the issue on
appeal). In the absence of an adequate transcript on appeal, a judgment that is not
fundamentally erroneous must be affirmed. Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150 (Fla. 1979). As the Florida Supreme Court said in
Applegate:
When there are issues of fact the appellant necessarily asks the
reviewing court to draw conclusions about the evidence. Without a
1 Fla. R. App. P. 9.200 (b) (4) provides,
If no report of the proceedings was made, or if the transcript is
unavailable, a party may prepare a statement of the evidence or
proceedings from the best available means, including the party's
recollection. The statement shall be served on all other parties, who
may serve objections or proposed amendments to it within 10 days of
service. Thereafter, the statement and any objections or proposed
amendments shall be filed with the lower tribunal for settlement and
approval. As settled and approved, the statement shall be included by
the clerk of the lower tribunal in the record.
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record of the trial proceedings, the appellate court cannot properly
resolve the underlying factual issues so as to conclude that the trial
court's judgment is not supported by the evidence or by an alternative
theory. Without knowing the factual context, neither can an appellate
court reasonably conclude that the trial court so misconceived the law
as to require a reversal.
377 So. 2d at 1152. No reversible error is demonstrated on this record; the trial
court did not render its final judgment of foreclosure until the following day, after
the original Note had been submitted. The appellant does not argue that the Final
Judgment is erroneous. We therefore affirm the final judgment of foreclosure.
Affirmed.
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