Third District Court of Appeal State of Florida Opinion filed January 2, 2025.

Not final until disposition of timely filed motion for rehearing.

________________ No. 3D23-1888 Lower Tribunal No. 21-13084 ________________

16:9 Cinema LLC, Appellant, vs. Sergio F. Brok, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge.

Santiago J. Teran, for appellant.

Kula & Associates, P.A., and Elliot B. Kula, W. Aaron Daniel, and William D. Mueller; Roger Cabrera, P.A., and Roger Cabrera, for appellee.

Before LOGUE, C.J., and GORDO and LOBREE, JJ.

PER CURIAM.

Appellant 16:9 Cinema LLC appeals a final judgment setting aside and then modifying a final judgment. It had obtained the judgment ex parte pursuant to the terms of a settlement agreement, based on Appellee Sergio F. Brok’s default under the agreement. The Appellee’s motion to set aside the final judgment alleged that the Appellee had substantially complied with the settlement agreement and that Appellant had agreed to accept that compliance. Because these allegations are factual, and because the record before us contains no transcript of the specially set hearing which led to the modified final judgment under review, we are unable to determine if the trial court erred and therefore are constrained to affirm. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. 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.”).

Affirmed.