42
Fla. L. Weekly D944aTop of Form
Fla. L. Weekly D944aTop of Form
Civil
procedure — Summary judgment — In absence of transcript, appellate court
cannot review whether trial court abused discretion in denying request to
consider untimely affidavit in opposition to motion for summary judgment
procedure — Summary judgment — In absence of transcript, appellate court
cannot review whether trial court abused discretion in denying request to
consider untimely affidavit in opposition to motion for summary judgment
LES CHATEAUX AT INTERNATIONAL GARDENS
CONDOMINIUM ASSOCIATION, INC., Appellant, vs. CUEVAS & ASSOCIATES, P.A.,
Appellee. 3rd District. Case No. 3D15-2935. L.T. Case No. 14-3132. Opinion
filed April 26, 2017. An Appeal from the Circuit Court for Miami-Dade County,
Rosa I. Rodriguez, Judge. Counsel: Alba Varela, for appellant. Cuevas &
Garcia, Jose H. Garcia, Danial R. Moghani and Andrew Cuevas, for appellee.
CONDOMINIUM ASSOCIATION, INC., Appellant, vs. CUEVAS & ASSOCIATES, P.A.,
Appellee. 3rd District. Case No. 3D15-2935. L.T. Case No. 14-3132. Opinion
filed April 26, 2017. An Appeal from the Circuit Court for Miami-Dade County,
Rosa I. Rodriguez, Judge. Counsel: Alba Varela, for appellant. Cuevas &
Garcia, Jose H. Garcia, Danial R. Moghani and Andrew Cuevas, for appellee.
(Before SUAREZ, C.J., and ROTHENBERG
and EMAS, JJ.)
and EMAS, JJ.)
(PER CURIAM.) Upon our de novo
review, we affirm the trial court’s entry of final summary judgment. As to the
sub-claim that the trial court erred in denying appellant’s request to consider
its untimely affidavit in opposition to the motion for summary judgment, see
Florida Rule of Civil Procedure 1.510(c) (providing that evidence in opposition
to summary judgment must be served at least five days prior to the day of the
hearing or delivered no later than 5:00 p.m. two business days prior to the day
of the hearing), we affirm and note that, in the absence of a transcript of the
proceeding at which this request was made and denied, we cannot review whether
the trial court abused its discretion in this regard. See Applegate
v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). Finally,
appellant’s motion for rehearing, which was accompanied by a new affidavit, was
denied by the trial court, and we find no abuse of discretion in that ruling. See
Lufthansa German Airlines Corp. v. Mellon, 444 So. 2d 1066 (Fla. 3d DCA
1984); Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So.
2d 1 (Fla. 1982) (adopting Coffman Realty, Inc. v. Tosohatchee Game
Preserve, Inc., 391 So. 2d 1164 (Fla. 5th DCA 1980)).
review, we affirm the trial court’s entry of final summary judgment. As to the
sub-claim that the trial court erred in denying appellant’s request to consider
its untimely affidavit in opposition to the motion for summary judgment, see
Florida Rule of Civil Procedure 1.510(c) (providing that evidence in opposition
to summary judgment must be served at least five days prior to the day of the
hearing or delivered no later than 5:00 p.m. two business days prior to the day
of the hearing), we affirm and note that, in the absence of a transcript of the
proceeding at which this request was made and denied, we cannot review whether
the trial court abused its discretion in this regard. See Applegate
v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). Finally,
appellant’s motion for rehearing, which was accompanied by a new affidavit, was
denied by the trial court, and we find no abuse of discretion in that ruling. See
Lufthansa German Airlines Corp. v. Mellon, 444 So. 2d 1066 (Fla. 3d DCA
1984); Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So.
2d 1 (Fla. 1982) (adopting Coffman Realty, Inc. v. Tosohatchee Game
Preserve, Inc., 391 So. 2d 1164 (Fla. 5th DCA 1980)).
Affirmed.
* * *