DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LAVERNE SHELDON TUCKER,
Appellant,
v.
LNV CORPORATION,
Appellee.
No. 4D22-984
[May 24, 2023]
Appeal from the Circuit Court of the Seventeenth Judicial Circuit,
Broward County; Andrea Gundersen, Judge; L.T. Case No. CACE21-
011076.
Catherine A. Riggins, Miami, for appellant.
David Rosenberg of Robertson, Anschutz, Schneid, Crane & Partners,
PLLC, Boca Raton, for appellee.
FORST, J.
Appellant Laverne Sheldon Tucker appeals the summary final
judgment of foreclosure and an award of attorney’s fees in favor of Appellee
LNV Corporation (“LNV”). Tucker raises several issues with the trial
court’s entry of summary judgment itself, none of which have merit and
which we therefore affirm. Tucker also argues the trial court failed to
adequately state on the record its reasons for granting summary judgment.
However, because Tucker did not file a motion for rehearing with the trial
court, this issue has not been preserved for appellate review. Finally,
Tucker claims the trial court erred in its calculation of attorney’s fees when
it accepted untimely evidence as to the reasonableness of LNV’s requested
fees. We agree and reverse and remand for further proceedings with
respect to the attorney’s fee award.
Background
On March 9, 2022, the trial court entered “Summary Final Judgment
of Foreclosure” in LNV’s favor. Tucker did not file a motion for rehearing.
Only after the entry of the final judgment did LNV file an “Affidavit as to
Reasonable Attorneys Fees” on March 11, 2022. This appeal timely
followed.
Analysis
“A ruling on a motion for summary judgment is subject to de novo
review.” Fla. Bar v. Greene,
926 So. 2d 1195, 1200 (Fla. 2006).
A. Compliance with Rule 1.510(a)
Effective May 1, 2021, the Florida Supreme Court substantially revised
Florida’s summary judgment rule. See In re: Amends. to Fla. Rule of Civ.
Proc. 1.510,
317 So. 3d 72, 74 (Fla. 2021). Pertinent to this appeal, the
revised rule states that a trial court ruling on a summary judgment motion
“shall state on the record the reasons for granting or denying the motion.”
Fla. R. Civ. P. 1.510(a). “[T]he court’s obligation in this regard is
mandatory.” In re: Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So. 3d at
77. The trial court can satisfy this requirement by stating its reasons in
the order granting final summary judgment or by oral pronouncement.
See Simmons v. Pub. Health Tr. of Miami-Dade Cnty.,
338 So. 3d 1057,
1062 (Fla. 3d DCA 2022) (“Thus, the transcripts of the two hearings the
trial court held on [the defendant’s] motion reflect that at both hearings,
the trial court stated its reason for granting [the defendant’s] motion for
summary judgment with sufficient specificity . . . .”).
Tucker contends the trial court failed to satisfy this obligation, offering
only “a conclusory statement that there is or is not a genuine dispute as
to a material fact.” In re: Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So.
3d at 77. However, we are precluded from reaching the merits of this
issue. First, the record does not include a transcript from the February
28, 2022 summary judgment hearing. “The most salient impediment to
meaningful review of the trial court’s decision is not the absence of
findings, but the absence of a transcript.” Esaw v. Esaw,
965 So. 2d 1261,
1264 (Fla. 2d DCA 2007). Without a transcript, we cannot determine
whether the trial court satisfied the “state[ment] on the record”
requirement via oral pronouncement. Fla. R. Civ. P. 1.510(a).
Second, to the extent Tucker argues that the trial court failed to make
required findings of fact on the face of the final judgment, this contention
was not preserved by the filing of a motion for rehearing. In re: Amends.
to Fla. Rule of Civ. Proc. 1.530 & Fla. Fam. L. Rule of Proc. 12.530, No.
SC2022-0756,
2023 WL 3104357, at *1 app. (Fla. Apr. 27, 2023) (amended
language of the rule) (“To preserve for appeal a challenge to the failure of
the trial court to make required findings of fact, a party must raise that
2
issue in a motion for rehearing under this rule.”). 1 “[W]here an error by
the court appears for the first time on the face of a final order, a party
must alert the court of the error via a motion for rehearing or some other
appropriate motion in order to preserve it for appeal.” Williams v. Williams,
152 So. 3d 702, 704 (Fla. 1st DCA 2014). Because Tucker failed to do so,
this issue is not preserved, and we must affirm.
B. Compliance with Rule 1.510(b)
The new summary judgment rule also requires the summary judgment
movant to file its motion and supporting factual position at least 40 days
prior to hearing on the motion. Fla. R. Civ. P. 1.510(b). “[S]ummary
judgment based on untimely summary judgment evidence upon which the
movant relies is subject to reversal.” Suarez v. Space Coast Credit Union,
150 So. 3d 1246, 1247 (Fla. 3d DCA 2014). In addition, an award of
attorney’s fees must be supported by competent, substantial evidence.
Brewer v. Solovsky,
945 So. 2d 610, 611 (Fla. 4th DCA 2006). This must
include evidence as to the number of hours worked and expert testimony
“as to reasonableness of the rates and fees.” Henderson v. OneWest Bank,
FSB,
217 So. 3d 209, 210 (Fla. 1st DCA 2017). “If the record reflects some
evidence supporting the fee award, but not testimony from the lawyer or
law firm or an expert, the proper remedy is to remand for further
proceedings.”
Id.
Tucker complains the trial court erroneously accepted two untimely
affidavits in support of LNV’s attorney’s fee award. The first, LNV’s
“Amended Affidavit as to Time, Effort, and Costs,” was filed only eleven
days before the summary judgment hearing. But any error as to this
affidavit is waived because Tucker failed to raise this argument below. See
Lloyd v. State,
876 So. 2d 1227, 1228 (Fla. 4th DCA 2004) (“It is well settled
that arguments raised for the first time on appeal are not preserved and
are therefore waived.”).
The second challenged affidavit, addressing the reasonableness of
LNV’s attorney’s fees, was filed two days after entry of summary final
judgment. As LNV rightly confesses, the trial court erred in considering
that untimely submitted affidavit. Suarez,
150 So. 3d at 1247.
Nevertheless, because some competent, substantial evidence supported
awarding LNV’s fees, we reverse and remand for the trial court to take
additional evidence as to the reasonableness of the award.
Conclusion
1As our Supreme Court has stated, because the amendment to rule 1.530 merely
clarifies existing law, we apply the amended rule here. See Jackson v. City of
South Bay,
358 So. 3d 18, 22 n.1 (Fla. 4th DCA 2023).
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As set forth above, we affirm the trial court’s final judgment of
foreclosure on the merits without discussion. Tucker did not preserve his
Rule 1.510(a) challenge to the trial court’s failure to set forth detailed
findings in support of summary judgment, and he also failed to preserve
his challenge to one affidavit concerning LNV’s motion for attorney’s fees.
LNV concedes error with respect to a second affidavit, and we thus remand
the matter of the reasonableness of LNV’s attorney’s fees request for
further proceedings.
Affirmed in part, reversed in part, and remanded with instructions.
GROSS and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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