# 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

2occurred. 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.

3record 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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