Barry M. Leff v. Rossana Larez

• Court: District Court of Appeal of Florida
• Decided: October 15, 2025
• Docket: 3D2025-0293
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 15, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D25-0293 Lower Tribunal No. 24-6878-CA-01 ________________

Barry M. Leff, et al., Appellants,

vs.

Rossana Larez, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jason Emilios Dimitris, Judge.

Barry M. Leff, P.A., and Barry M. Leff (Hollywood), for appellants.

Mark T. Blake, LL.M. P.A., and Mark T. Blake (Winter Park), for appellee.

Before LINDSEY, MILLER, and LOBREE, JJ.

PER CURIAM. Appellants, Barry M. Leff and Barry M. Leff, P.A. (collectively “Leff”),

appeal a final judgment after a judicial default. We affirm the lower court’s

judgment because Leff’s did not properly preserve its arguments on appeal.

On April 16, 2024, Appellee, Rosanna Larez, filed a complaint against

Leff for breach of fiduciary duty, conversion, civil theft, accounting and

recoupment, and cancellation of a promissory note. Two days later, Leff filed

responsive pleadings to the complaint, none of which were an answer or

motion to dismiss. One month later, Leff filed a motion for extension of time

to respond to the complaint. The trial court granted Leff’s motion and required

Leff to file a response by June 11, 2024. The trial court inserted self-

executing default language in the order:

This deadline may not be extended by agreement and the mere filing of a Motion for Rehearing/Reconsideration and/or Motion to Extend this deadline will NOT toll the time to fully comply with this Order. The failure to timely comply will result in the entry of a Court Default without further Notice, Hearing, or opportunity to be heard. This is the only Notice the parties will receive.

Leff did not file his response by the deadline, so the trial court entered

a default on June 12, 2024. On the same day, Leff then filed a Motion to Set

Aside the Default. In that motion, Leff argued that the default should be set

aside because Leff’s failure to answer the complaint was a result of

2 excusable neglect; that Leff has a meritorious defense to the complaint; and

that Leff acted diligently after entry of the default.

At the hearing on the motion, the trial court denied Leff’s motion

arguing that Leff failed to provide a meritorious defense to the allegations of

the complaint. We have no transcript of this hearing. On January 15, 2025,

the trial court entered final judgment against Leff. Leff then moved for

rehearing raising, for the first time, that the trial court erred in failing to

provide notice of application for default as set out under Florida Rule of Civil

Procedure 1.500(b). The trial court summarily denied that motion. Leff timely

appealed.

Leff was entitled to notice of application for a default, which the trial

court never delivered. See Fla. R. Civ. P. 1.500(b) (“When a party against

whom affirmative relief is sought has failed to plead or otherwise defend as

provided by these rules or any applicable statute or any order of court, the

court may enter a default against such party; provided that if such party has

filed or served any document in the action, that party must be served with

notice of the application for default.”); see also Iglesias v. Iglesias, 279 So.

3d 878, 878 (Fla. 3d DCA 2019). But Leff failed to properly preserve that

issue on appeal.

At no time before the final judgment did Leff object to the self-executing

default language. And because there was no objection, we are constrained

3 to affirm. See Garrison v. PHH Mortg. Corp., 298 So. 3d 116, 118 (Fla. 1st

DCA 2020) (citation omitted) (“Accordingly, while the magistrate’s automatic

default language violated the requirements of the default rule, Appellant's

failure to file exceptions waived the magistrate's error. Thus, the default issue

was not preserved for our review.”); see also Rangel v. MidFirst Bank, 187

So. 3d 289, 291 (Fla. 4th DCA 2016) (“We nonetheless hold that by failing to

provide this Court with a transcript from the hearing on the Bank's motion to

strike the answer, and by further failing to appear at trial, we have no record

to indicate that Homeowner notified the trial court that it erred in striking his

answer on the basis of default. Thus, Homeowner did not preserve the

error.”).

Leff’s Motion to Set Aside the Default does not argue failure to give

notice of an application for a default, and we have no transcript to verify if

Leff orally raised this issue at the hearing for that motion. So we must affirm.

“In appellate proceedings the decision of a trial court has the presumption of

correctness, and the burden is on the appellant to demonstrate error.”

Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.

1979). “An appellant has the burden to present a record that will overcome

the presumption of the correctness of the trial court’s findings.” Zarate v.

Deutsche Bank Nat’l Tr. Co., 81 So. 3d 556, 558 (Fla. 3d DCA 2012).

As our Supreme Court explained in Applegate:

4 Without a record of the trial proceedings, the appellate court can not 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 judge so misconceived the law as to require reversal.

377 So. 2d at 1152.

As this Court has stated in the past, “[w]here there is no record of the

testimony of witnesses or of evidentiary rulings, and where a statement of

the record has not been prepared pursuant to Florida Rule of Appellate

Procedure 9.200(a)(3) or (b)[4], a judgment which is not fundamentally

erroneous on its face must be affirmed.” Zarate, 81 So. 3d at 558; see also

GMAC Mortg., LLC v. Palenzuela, 208 So. 3d 181, 183 (Fla. 3d DCA 2016).

It is true that “even without a trial transcript, reversal is appropriate

‘where an error of law is apparent on the face of the judgment.’” Rojas v.

Otero, 399 So. 3d 1160, 1162 (Fla. 3d DCA 2024) (quoting Diaz v. Diaz, 300

So. 3d 767, 770 (Fla. 3d DCA 2020)). Still, an appellant must properly raise

these errors below to preserve the issue on appeal. See RM & Assocs.

Consulting, Inc. v. People’s Tr. Ins. Co., 336 So. 3d 762, 763 (Fla. 3d DCA

2021); Est. of Herrera v. Berlo Indus., Inc., 840 So. 2d 272, 273 (Fla. 3d DCA

2003) (citation omitted) (“[Appellant] seeks to raise issues which were not

raised in the trial court. However, issues not presented in the trial court

5 cannot be raised for the first time on appeal. Thus, [appellant] is precluded

from raising new arguments on appeal.”).

Leff did eventually argue he was entitled to notice of an application for

default. But this argument is not preserved for review because it was raised

for the first time in Leff’s motion for rehearing. We have consistently held that

“[a] trial court does not abuse its discretion in denying a motion for

reconsideration or rehearing which raises an issue that could have [been],

but wasn't, raised in the initial motion or at the initial hearing.” Bank of Am.,

N.A. v. Bank of N.Y. Mellon, 338 So. 3d 338, 341 n.2 (Fla. 3d DCA 2022);

see also Prime Prop. & Cas. Ins. v. Allied Trucking of Fla., Inc., 388 So. 3d

868, 868–69 (Fla. 3d DCA 2023) (collecting cases); Montalvo v. Rovirosa,

386 So. 3d 974, 975 (Fla. 3d DCA 2023). As such, “[a]n argument raised for

the first time in a motion for rehearing will not preserve the argument for

appellate review.” Buyer’s Choice Auto Sales, LLC v. Palm Beach Motors,

LLC, 391 So. 3d 463, 468 (Fla. 4th DCA 2024). Leff had abundant time to

raise this issue before the trial court entered the final judgment. But Leff failed

to do so. Thus, we are constrained to affirm.

Affirmed.