Carlos Pantoja v. The Bank of New York Mellon

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
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, J AMES, Associate Judge, concurs with separate opinion.
SHERMAN, J AMES, 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

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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.

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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.