The Bank of New York Mellon, f/k/a The Bank of New York as Trustee for the Holders of the Certificates, First Horizon Mortgage Pass-Through Certificate Series FHAMS v. One Seagrove Place Owners Association, Inc., Richard W. Sneed, Inwood Investments, LLC, Stephen G. Kynio, and Stephen ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1482
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THE BANK OF NEW YORK
MELLON, f/k/a The Bank of New
York as Trustee for the Holders
of the Certificates, First Horizon
Mortgage Pass-Through
Certificate Series FHAMS 2005-
AA90, by First Horizon Home
Loans, a Division of Tennessee
Bank National Association,
Master Servicer, in its Capacity
as Agent for the Trustee Under
the Pooling and Servicing
Agreement,
Appellant,
v.
ONE SEAGROVE PLACE OWNERS
ASSOCIATION, INC., RICHARD W.
SNEED, INWOOD INVESTMENTS,
LLC, STEPHEN G. KYNIO, AND
STEPHEN J. KYNIO,
Appellees.
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On appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.
July 22, 2019
PER CURIAM.
The Bank of New York Mellon appeals an order denying its
motion to vacate a foreclosure judgment entered in favor of
Appellee One Seagrove Place Owners Association. The Bank
moved for relief from judgment under Florida Rule of Civil
Procedure 1.540, alleging that the judgment was void for lack of
personal jurisdiction based on improper service of process. The
Bank argued that the Association’s affidavit of diligent search to
support service of process by publication was legally insufficient.
The trial court concluded that the judgment was voidable, not void,
and because the Bank’s argument was raised more than one year
after rendition of the final judgment, the court denied the Bank’s
motion as untimely.
We are constrained to affirm the trial court’s order because
the Bank failed to provide a transcript of the hearing on its motion.
See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.
1979); Estes v. Sassano, 47 So. 3d 383, 385 (Fla. 1st DCA 2010)
(“Without an adequate record of the proceedings below, this court
cannot reasonably conclude that the trial court so misconceived the
law as to require reversal.”). Where a party moving under rule
1.540 sets forth a colorable claim for relief, the trial court is
required to hold an evidentiary hearing. See Saloon Sao v. Wells
Fargo Bank, N.A., 109 So. 3d 896 (Fla. 1st DCA 2013). The Bank’s
motion set forth a colorable claim, and the trial court held an
evidentiary hearing. But the Bank furnished no transcript of the
hearing in the appendix filed in this appeal. In the absence of a
transcript, we must presume that the trial court’s order denying
the Bank’s motion “was based on additional evidence adduced at
the hearing.” Snowden v. Wells Fargo Bank, 172 So. 3d 506, 508
(Fla. 1st DCA 2015). We thus AFFIRM the order denying relief
from the foreclosure judgment.
LEWIS, ROWE, and BILBREY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Nancy M. Wallace of Akerman LLP, Tallahassee; and William P.
Heller and Henry H. Bolz of Akerman LLP, Fort Lauderdale, for
Appellant.
John M. Stratton of Becker & Poliakoff, P.A., Fort Walton Beach,
for Appellee One Seagrove Place Owners Association, Inc.; Michael
J. Henry of Dunlap & Shipman, P.A., Santa Rosa Beach, for
Appellee Inwood Investments, LLC.
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