CHARLES E. SMITH, APPELLANT,
v.
PATRICIA A. SMITH, APPELLEE
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Charles Smith appealed the trial court's summary denial of his rule 1.540(b) motion to vacate an order denying his motion for rehearing. The appellate court reversed, holding that the trial court abused its discretion by summarily denying the motion without an evidentiary hearing when Smith alleged the order was mailed to an incorrect address, depriving him of timely notice.
The trial court abused its discretion by summarily denying the motion to vacate without an evidentiary hearing. A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless the allegations and accompanying affidavits fail to show colorable entitlement to relief. Here, husband's allegations that the order was mailed to the wrong address and that neither he nor counsel received it until after the appeal period expired entitled him to an evidentiary hearing and, if proven, would warrant vacation of the order under rule 1.540(b).
[1] A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations fail to allege colorable entitlement to relief.
[2] Failure to provide proper notice of an order denying a motion for rehearing may entitle a party to vacation of the order under rule 1.540(b) to permit the timely filing o…
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Join FLexlaw to unlock all legal intelligence“A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege 'colorable entitlement' to relief.”
Establishes the standard for evaluating rule 1.540(b) motions and requires an evidentiary hearing unless the motion clearly lacks entitlement to relief.
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Join FLexlaw to unlock all legal intelligenceIn post-dissolution proceedings, the trial court rendered a final judgment in favor of Patricia Smith (wife) on August 10, 2004. Charles Smith (husban…
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GRIFFIN, J.
This is an appeal of an order denying a rule 1.540(b) motion to vacate. We reverse.
This case involves post-dissolution proceedings brought by Patricia Smith [“wife”] against her former husband, Charles Smith [“husband”], to enforce the provisions of a final judgment of dissolution. The trial court rendered a final judgment in favor of the wife on August 10, 2004. Husband timely moved for rehearing, and his motion was denied by an order rendered on August 31, 2004. The order reflects on its face that conformed copies were furnished to husband’s counsel at an address listed as “1200 Plantation Dr., South” in St. Augustine, Florida.
On November 4, 2004, husband filed a rule 1.540(b) motion to vacate the order on rehearing, alleging that neither he nor his attorney received a copy of the order denying his motion until after the time for taking an appeal had run. The motion alleged that the order had obviously been sent to an incorrect address, as the correct address for husband’s counsel’s is “1200 Plantation Island Drive South.” The trial court summarily denied the motion to vacate, and husband has appealed.
On appeal, wife does not dispute that husband was not given proper notice of the order denying his motion for rehearing.' She therefore agrees that husband’s November 22, 2004, notice of appeal was sufficient to invoke this court’s jurisdiction and argues only the merits of the trial court’s ruling.
However, the time for taking an appeal is jurisdictional and cannot be altered by the agreement of the parties. Mekertin v. Winn Dixie Stores, Inc., 869 So. 2d 1286 (Fla. 4th DCA 2004); see also Pennington v. Waldheim, 669 So. 2d 1158 (Fla. 5th DCA 1996). Because husband failed to file a notice of appeal within thirty days of rendition of the order denying his motion for rehearing, this court lacks jurisdiction of the issues raised by the August 10, 2004, order on the merits and the August 31, 2004, order denying husband’s motion for rehearing.
The only issue properly before this court concerns whether the trial court abused its discretion by the summary denial of husband’s motion to vacate the' order on rehearing.
We conclude it did. A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege “color-able entitlement” to relief. See In re Guardianship of Schiavo, 800 So. 2d 640 (Fla. 2d DCA 2001); Dynasty Express Corp. v. Weiss, 675 So. 2d 235 (Fla. 4th DCA 1996).
Here, husband alleged that the order denying his motion for rehearing was mailed to the wrong address, and that neither he nor his counsel received the order until after the time for taking an appeal had run. Absent more, this would entitle him to vacation of the order under rule 1.540(b) and to entry of a new order which would permit him to take an appeal. Broward County v. Eller Drive Ltd. Partnership, 873 So. 2d 534 (Fla. 4th DCA 2004); Rosso v. Golden Surf Towers Con do. Ass’n, 711 So. 2d 1298 (Fla. 4th DCA 1998); Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980); Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971).
The trial court should have granted an evidentiary hearing on husband’s claims.
REVERSED AND REMANDED.
PETERSON and PLEUS, JJ„ concur.
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Citator
Cited By (12 total)
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Schuman v. Int'l Consumer Corp., 50 So. 3d 75 (Fla. 4th DCA 2010)…uld not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief.” Schleger v. Stebelsky, 957 So. 2d 71, 73 (Fla. 4th DCA 2007) (quoting Smith v. Smith, 903 So. 2d 1044, 1045 (Fla. 5th DCA 2005)). Clearly, in the present case, the motion for relief from judgment stated a claim of “colorable entitlement to relief’ that would require the trial court to conduct an evidentiary hearing before dismissing the motion. We r…
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Schleger v. Stebelsky, 957 So. 2d 71 (Fla. 4th DCA 2007)…earing on his motion to vacate. “A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief.” Smith v. Smith, 903 So. 2d 1044, 1045 (Fla. 5th DCA 2005). In his motion to vacate, Schleger alleged that Stebelsky made numerous misrepresentations to the trial court in terms of the law and the facts of the case. We conclude that the trial court should have granted an evidentia…
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Ferguson v. Ferguson, 921 So. 2d 796 (Fla. 5th DCA 2006)…ries a heavier burden. E.g., Pimm v. Pimm, 601 So. 2d 534, 537 (Fla.1992). An evidentiary hearing is not required on a motion where the allegations and supporting documents fail to allege a colorable entitlement to relief. See, e.g., Smith v. Smith, 903 So. 2d 1044 (Fla. 5th DCA 2005); Smith v. Cuban American Nat. Found., 657 So. 2d 86 (Fla. 3d DCA 1995). The court’s decision to modify alimony is reviewed on appeal for abuse of discretion. E.g., Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). We have revi…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Robert M. Gibson et ux. v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980)
- Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971)
- In re Guardianship OF Theresa Marie Schiavo v. Schiavo, 800 So. 2d 640 (Fla. 2d DCA 2001)
- Dynasty Express Corp. v. Bernie T. Weiss, 675 So. 2d 235 (Fla. 4th DCA 1996)
- Vandairy Cleckley v. State, 869 So. 2d 1286 (Fla. 4th DCA 2004)
- Guerra v. Selsdon Mar. Corp., 711 So. 2d 1298 (Fla. 3d DCA 1998)
- Rosso v. Golden Surf Towers Condo. Ass'n, 711 So. 2d 1298 (Fla. 4th DCA 1998)
- Broward Cnty. v. Eller Drive Ltd. P'ship, 873 So. 2d 534 (Fla. 4th DCA 2004)
- Pennington v. Eddie C. Waldheim, Jr., M.D., 669 So. 2d 1158 (Fla. 5th DCA 1996)