Carlos Pantoja v. the Bank of New York Mellon

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           CARLOS PANTOJA,
                              Appellant,

                                    v.

                  THE BANK OF NEW YORK MELLON,
                             Appellee.

                            No. 4D2024-2894

                              [May 6, 2026]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Christopher W. Pole, Judge; L.T. Case No.
062022CA013422AXXXCE.

  Benjamin Weissman, David M. Chico, and Bryana Connors of Chico,
Connors and Weissman, Celebration, for appellant.

  Anthony J. Calenzo of Troutman Pepper Locke, Atlanta, GA, for
appellee.

PER CURIAM.

   Affirmed.

KUNTZ, C.J., and MAY, J., concur.
SHERMAN, JAMES, Associate Judge, concurs with separate opinion.

SHERMAN, JAMES, Associate Judge, concurring.

   This case concerns an appeal by Homeowner from a judgment for
Mortgage Holder following a non-jury foreclosure trial. I agree the
judgment should be affirmed, and write separately to address an issue that
warrants consideration given the prevalence of Zoom evidentiary hearings
and trials: the viability of an appeal raising only the failure to file the
evidence with the clerk and the proper procedure for correcting that
omission.

   The Bank of New York Mellon (“Mortgage Holder”) sued Carlos Pantoja
(“Homeowner”) seeking foreclosure of a residential mortgage. The case
went to a non-jury trial. Mortgage Holder’s counsel informed the trial
court that he had served a copy of all his exhibits on Homeowner’s
attorney.

    The proceeding was conducted in a hybrid manner, meaning that
Mortgage Holder appeared by Zoom and Homeowner appeared in person.
The trial transcript reflects that Mortgage Holder offered its exhibits into
evidence and the request was granted. During the trial, the court stated
it possessed the original note. Nothing in the record indicates that the
trial court did not see or review the exhibits. Homeowner did not object
that the exhibits were not being shown or presented. Homeowner
defended the case on the lone theory that Mortgage Holder forgave the debt
as a gift.

   Unsurprisingly, the court found Homeowner’s position implausible. At
the trial’s conclusion, the court ruled for Mortgage Holder. Given the
proceeding’s hybrid nature, Mortgage Holder may have been expected to
submit physical or digital copies of the evidence to the clerk for filing,
which Mortgage Holder failed to do.

    Homeowner raises two points on appeal, both of which focus on the
alleged failure to file the evidence introduced at trial with the clerk. To be
clear, Homeowner does not contend on appeal that the exhibits were never
presented at trial or ruled upon by the judge—only that Mortgage Holder
did not file the exhibits into the record after the trial concluded.
Homeowner argues that “[t]he failure to provide the evidence to the clerk
is functionally the same as the failure to introduce evidence at all.”

   I do not believe the failure of a party to file the documentary evidence
in the record below, in itself, can serve as an independent basis for
appellate review for two reasons.            First, the primary purpose of
maintaining the record below is to facilitate appellate review of errors that
occur in the trial court. If the failure to maintain the record is not coupled
with a claim of substantive or procedural error, the failure is necessarily
harmless.

    Second, the trial and appellate rules provide avenues for remedying the
failure by either filing a motion for rehearing below under Florida Rule of
Civil Procedure 1.530 or a motion to correct the record on appeal under
Florida Rule of Appellate Procedure 9.200(f). Although Rule 1.530(e)
relieves a party from the necessity of filing a post-trial motion in a non-
jury action to challenge “the sufficiency of the evidence to support the
judgment,” a stand-alone claim such as the one presented here does not
challenge the sufficiency of the evidence; it only identifies a clerical error.

                                      2
A timely post-trial motion would have obviated the need for this appeal
entirely, as would have a motion to relinquish jurisdiction to the trial court
to correct the omission.

   If a trial court determines the record is destroyed or cannot be
corrected, then an appellant may have a proper claim of error if the
inadequate record prevents review of a substantive or procedural claim.
See Werner v. Harper, 328 So. 2d 511 (Fla. 1st DCA 1976) (remanding for
new trial where inability to reconstruct a full record prevented review of
evidence that would have “materially influenced” the court’s opinion).

    The law places the burden to present an adequate record for appellate
review squarely on an appellant’s shoulders. See Applegate v. Barnett
Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979); Bolick v. Sperry, 82 So.
2d 374, 376 (Fla. 1955) (“Under our system of procedure the burden is
always upon the appellant to make reversible error clearly appear.”).
Appellants have the means to fulfill their obligation through the Florida
Rules of Civil Procedure and the Florida Rules of Appellate Procedure and
must avail themselves of those procedures. Compare Miranda v. RBS
Citizens, 253 So. 3d 746, 748-49 (Fla. 3d DCA 2018) (“[B]ecause
Appellants did not first attempt to reconstruct the record pursuant to Rule
9.200(b)(4), they have not laid the proper foundation to now argue that
they are entitled to a new trial due to the trial transcript . . . being lost
through no fault of their own.”). For those reasons, I believe the failure to
file admitted evidence into the record below cannot stand as an
independent claim of error.

                            *         *         *

    Not final until disposition of timely-filed motion for rehearing.




                                      3