              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT



LINDA CAGWIN,                               )
                                            )
             Appellant,                     )
                                            )
v.                                          )        Case No. 2D16-1698
                                            )
THRIFTY RENTS, INC.,                        )
                                            )
             Appellee.                      )
                                            )

Opinion filed June 9, 2017.

Appeal from the Circuit Court for
Hillsborough County; Elizabeth G. Rice,
Judge.

Michael P. Fuino and Matthew D. Weidner
of Weidner Law, P.A., St. Petersburg, for
Appellant.

Erin M. Berger of Kelley Kronenberg,
Tampa, for Appellee.


CASANUEVA, Judge.

             Linda Cagwin appeals a final judgment of foreclosure entered in favor of

Thrifty Rents, Inc., on Thrifty Rents' motion for summary judgment. We reverse and

remand for further proceedings.
                         I. FACTS AND PROCEDURAL HISTORY

              Ms. Cagwin and Claude Miranda1 executed a promissory note and

mortgage in favor of Thrifty Rents. Thrifty Rents filed a foreclosure complaint on

May 28, 2014, alleging that the loan was in default and all payments were due and

owing since December 1, 2011. The borrowers filed an answer and affirmative

defenses, including an allegation that payments had been made and the amount

claimed as owed was incorrect.

              Thrifty Rents filed a motion for summary judgment and affidavits in support

of the summary judgment. Ms. Cagwin responded with an affidavit in opposition

alleging, among other things, that she was entitled to a credit in the amount of $100,000

and that Thrifty Rents had failed to properly apply that credit. The trial court entered a

uniform final judgment of foreclosure following a hearing on the motion for summary

judgment. We have no transcript of the summary judgment hearing. Ms. Cagwin filed a

motion for rehearing, which was denied without a hearing. For the reasons discussed

below, we conclude that the trial court abused its discretion by denying Ms. Cagwin's

motion for rehearing, and we reverse and remand for further proceedings.


                                      II. ANALYSIS

              We review a ruling on summary judgment de novo. Gonzalez v. Deutsche

Bank Nat'l Tr. Co., 95 So. 3d 251, 253 (Fla. 2d DCA 2012) (quoting Taylor v. Bayview

Loan Servicing, LLC, 74 So. 3d 1115, 1116-17 (Fla. 2d DCA 2011)). The movant must

establish the absence of a genuine issue of material fact and must refute the affirmative




              1Mr.   Miranda has made no appearance in this appeal.
                                          -2-
defenses or establish that they are legally insufficient. Id. We view every possible

inference in favor of the nonmoving party. Id. "If the record reflects the existence of any

genuine issue of material fact, or the possibility of an issue, or if the record raises even

the slightest doubt that an issue might exist, summary judgment is improper." Coral v.

Garrard Crane Serv., Inc., 62 So. 3d 1270, 1273 (Fla. 2d DCA 2011) (quoting Christian

v. Overstreet Paving Co., 679 So. 2d 839, 840 (Fla. 2d DCA 1996)).

              Thrifty Rents filed an affidavit in support of summary judgment identifying

the amounts alleged to be due and owing. While Ms. Cagwin questions whether the

affiant had sufficient knowledge to attest to the matters set forth in the affidavit, we

cannot determine whether such a challenge was properly raised or addressed at the

summary judgment hearing because we have no transcript. See Zarate v. Deutsche

Bank Nat'l Tr. Co., 81 So. 3d 556, 557-58 (Fla. 3d DCA 2012) (citing Applegate v.

Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979)). Accordingly, we cannot say

that the trial court erred in relying on the affidavit executed by Thrifty Rents' president.

              In response to the motion for summary judgment, Ms. Cagwin filed a reply

and objection to the motion, as well as an affidavit in opposition raising at least one

issue of material fact. See Bair v. City of Clearwater, 196 So. 3d 577, 583 (Fla. 2d DCA

2016) (stating that once the movant establishes that there was no genuine issue of

material fact, the burden shifts to the nonmovant to establish that a genuine issue of

material fact does exist). She alleged that she transferred property to Thrifty Rents in

2011 in partial payment of the loan, she was entitled to a credit in the amount of

$100,000 based on that transfer, and the amount was not properly applied, resulting in

improper penalties and interest. A copy of the deed was attached to the affidavit.

                                             -3-
              While we have no transcript of the hearing, the parties seem to agree that

the trial court rejected Ms. Cagwin's affidavit as deficient because it was acknowledged

rather than sworn to. Nonetheless, Ms. Cagwin argues that she corrected this error with

a properly sworn affidavit attached to her motion for rehearing.

              The difference between "acknowledged" and "sworn to" is discussed in

Pina v. Simon-Pina, 544 So. 2d 1161 (Fla. 5th DCA 1989).

                     Confusion often arises between an affidavit and an
              acknowledgment. Both memorialize acts done before a
              notary. But, in an affidavit, . . . the person swearing before
              the notary must under oath assert that the facts set forth in
              the document are true. In an acknowledgment, the person
              merely declares that he executed and signed the document.

                      Where an affidavit is called for, an acknowledgment
              will not suffice.

Id. at 1162 (footnotes omitted).

              We note that the document in this case contains several attributes of an

affidavit. The document was titled "Affidavit," it was made by Ms. Cagwin as "Affiant,"

and the introductory sentence states: "COMES NOW the undersigned Affiant who, after

taking an oath, states . . . ." Several cases have found similar documents sufficient to

constitute an affidavit despite the erroneous use of the term "acknowledged" rather than

the proper "sworn to" in the signature block. See Gaynor Hill Enters., Inc. v. Allan

Enters., LLC, 113 So. 3d 933, 937 (Fla. 5th DCA 2013) (concluding that "[t]he wording

of the notary block [wa]s not sufficient to vitiate the document's effectiveness as an

affidavit" when read in conjunction with the rest of the document); Bell v. Renar Dev.

Co., 811 So. 2d 780, 782 (Fla. 4th DCA 2002) (concluding that contractor's affidavit was




                                           -4-
sufficient for purposes of the statute where it was clearly intended as a final contractor's

affidavit, despite use of the term "acknowledged" rather than "sworn").

              However, as we have no transcript, we do not know what argument was

presented to the trial court regarding the deficiency of the document presented as an

affidavit. We do know, however, that Ms. Cagwin filed a motion for rehearing and

attached a properly sworn affidavit alleging that the $100,000 credit was not properly

applied.

              In Fatherly v. California Federal Bank, FSB, 703 So. 2d 1101, 1102 (Fla.

2d DCA 1997), this court concluded that the trial court erred in granting summary

judgment for two reasons. First, the court erred in granting summary judgment when

the bank failed to conclusively disprove the assertion that the bank had not properly

credited the borrower's payments, an allegation that was asserted as an affirmative

defense. Id. Second, the court abused its discretion in denying the borrower's motion

for rehearing. Id. The borrower's original counsel failed to submit an affidavit in

opposition to summary judgment, but the borrower hired new counsel who filed a sworn

motion for rehearing containing the borrower's allegations of disputed fact. Id.

              This court noted that a trial court has broad discretion to grant a rehearing

"when the party seeking rehearing submits matters that would have created an issue

precluding summary judgment if they had been raised prior to the hearing on the

motion." Id. Finding that the allegations in the sworn motion would have prevented

summary judgment and may have even precluded foreclosure, this court concluded that

the trial court abused its discretion in refusing to consider the sworn allegations on

rehearing. Id. at 1103; see also Petrucci v. Brinson, 179 So. 3d 398, 401-02 (Fla. 1st

                                            -5-
DCA 2015) (concluding that the trial court abused its discretion in denying defendant's

motion for rehearing and not considering his affidavit in opposition to summary

judgment, which presented a genuine issue of material fact).


                                       III. CONCLUSION

               In this case, while the first affidavit was technically deficient, the affidavit

attached to the motion for rehearing cured that deficiency and presented a dispute of

material fact. We conclude that it was an abuse of discretion to deny the motion for

rehearing and that summary judgment was improper in light of Ms. Cagwin's amended

affidavit.2 Accordingly, we reverse the final judgment and remand for further

proceedings.

               Reversed and remanded with directions.



BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.




               2In   light of this reversal, we decline to address Ms. Cagwin's remaining
arguments.
                                              -6-
