DIAZ ANSELMO & ASSOCIATES CELEBRATES ANOTHER APPELLATE WIN BASED ON PROCEDURAL DEFICIENCIES WITH BORROWERS’ APPEAL

The Third DCA recently affirmed the lower court’s entry of a summary final judgment of foreclosure in favor of Bank of New York Mellon (“BNY Mellon”) in Hardison v. Bank of New York Mellon, No. 3D23-1675, 2024 WL 4897372, at *1 (Fla. 3d DCA Nov. 27, 2024)[i]. Although the DCA affirmed BNY Mellon’s judgment, it did not consider or discuss the merits of the case due to two procedural deficiencies with the Hardisons’ appeal.

On appeal, the Hardisons claimed reversal of the summary judgment was required because the trial court failed to comply with the mandatory requirement of rule 1.510(a) to “state on the record the reasons for granting or denying” summary judgment.[ii] The DCA explained that this requirement can be satisfied by including specific findings in the judgment or through oral announcements that are reflected in the transcript.

However, to preserve this issue for appellate review, the Hardisons were required to bring any deficiency in the summary judgment to the trial court’s attention via a motion for rehearing. Although the Hardisons moved for rehearing, the motion did not alert the trial court that the judgment lacked sufficient factual findings. Because the Hardisons failed to give the lower court an opportunity to correct the alleged error the issue was not preserved for appellate review and the DCA was “compelled” to affirm the summary judgment.

The Court also explained it was obliged to affirm the judgment for a second procedural deficiency in the appeal. Namely, since the trial court could satisfy the factual finding requirement of rule 1.510(a) by making an oral pronouncement during the proceedings, the Hardisons’ failure to include a copy of the hearing transcript in the appellate record was fatal. The Court acknowledged that a transcript is not always required for appellate review of a summary judgment, but under the facts of this case the lack of a transcript was a “salient impediment to meaningful review.”[iii]

The Court’s explanation of the procedural deficiencies in the Hardison’s appeal and the favorable outcome are both welcome developments. However, this holding is also an important reminder of the significant impact the recent changes to rule 1.510 have on appeals and what must be done for a party to preserve issues for a full review on appeal.

[i] All references to this case are to this citation unless indicated otherwise.

[ii] This requirement was a recent addition to rule 1.510 based on amendments to the rule that took effect in May 2021. Fla. R. Civ. P. 1.510.

[iii] Hardison, at *1 (quoting Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA 2007)).