JAMES LEVOY WATERS, APPELLANT,
v.
PAM CHILDERS, CLERK AND COMPTROLLER, ESCAMBIA COUNTY, FLORIDA, APPELLEE
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An inmate sought relief from judgment after failing to timely appeal an order denying his mandamus petition because he did not receive notice of the order denying his motion for rehearing. The court reversed the trial court's summary denial, holding that the inmate's motion was facially sufficient and supported by evidence that he did not receive the order, requiring an evidentiary hearing or grant of relief.
A party may seek relief under rule 1.540(b) when he or she does not receive a copy of an order entered by the court until after the time for filing an appeal has expired. When a motion for relief from judgment is facially sufficient and not refuted by the record, the trial court must either hold an evidentiary hearing or grant relief.
[1] A party may seek relief from judgment under Florida Rule of Civil Procedure 1.540(b) when they do not receive a copy of a court order until after the time for filing an a…
[2] A motion for relief from judgment based on non-receipt of an order is facially sufficient if its allegations are not refuted by the record.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A party can seek relief under rule 1.540(b) when he or she does not receive a copy of an order entered by the court until after the time for filing an appeal has expired.”
Establishes the legal standard for when relief under rule 1.540(b) is available
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Join FLexlaw to unlock all legal intelligenceIn February 2004, appellant filed a mandamus petition against the clerk and comptroller of Escambia County. The petition was denied in March 2015, and…
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Appellant, an inmate, seeks review of the order denying his motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b). For the reasons that follow, we reverse and remand for further proceedings.
In February 2004, Appellant filed a mandamus petition against Appellee. The petition was denied in March 2015 and Appellant thereafter filed a timely motion for rehearing. In June 2015, Appellant sent a notice of inquiry to the clerk of the lower tribunal regarding the status of the motion for rehearing. The clerk informed Appellant that an order denying the motion had been entered in early April 2015.
Thereafter, Appellant filed a motion for relief from judgment under rule 1.540(b) in which he asserted that he did not receive a copy of the April 2015 order denying his motion for rehearing. The motion asked the trial court to vacate and reenter that order so Appellant could appeal the underlying order denying his mandamus petition. Attached to the motion was a copy of the incoming mail log from the prison where Appellant is being held showing that he did not receive any mail from the clerk of the lower tribunal in April 2015. The trial coúrt summarily denied the motion, and this appeal followed.
A party can seek relief under rule 1.540(b) when he or she does not receive a copy of an order entered by the court until after the time for filing an appeal has expired. See Newell v. Moore, 789 So.2d 538, 539 (Fla. 1st DCA 2001); Griffin v. Fla, Parole Comm’n, 727 So.2d 1092 (Fla. 1st DCA 1999); Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998); Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971). If the motion is facially sufficient and not refuted by the record, the trial court should either hold an evi-dentiary hearing on the motion or grant relief. See Newell, 789 So.2d at 539 (“The appellant’s motion is ... facially sufficient and may warrant relief if the allegations therein are established as accurate and true.”).
Here, Appellant’s motion for relief from judgment is facially sufficient and not refuted by the limited record presented to this court. Accordingly, we reverse the order denying the motion and remand for the trial court to either hold an evidentiary hearing on the motion or grant relief.
REVERSED and REMANDED.
ROBERTS, C.J., WOLF and WETHERELL, JJ., concur.
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Citator
Cited By
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Purdue v. R. J. Reynolds Tobacco Co., 259 So. 3d 918 (Fla. 2d DCA 2018)…ed to relief under rule 1.540(b)(1) because her motion was untimely under that subsection. It is true that "[a] party can seek relief under rule 1.540(b) when he or she does not receive a copy of an order entered by the court." Waters v. Childers, 198 So. 3d 1007, 1008 (Fla. 1st DCA 2016); see also Liberty Mut. Ins. Co. v. Lyons, 622 So. 2d 621, 622 (Fla. 5th DCA 1993) ("Generally, a prior judgment, decree or order must be set aside where there is excusable neglect in the - 6 - form of a litigant's failure…
Authorities Cited
- Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971)
- Nugent Hutchins v. Gale Indus. & Scibal Assocs. of Fla., Inc., 708 So. 2d 1041 (Fla. 1st DCA 1998)
- Brown v. State, 708 So. 2d 1041 (Fla. 1st DCA 1998)
- Griffin v. Fla. Parole Comm'n, 727 So. 2d 1092 (Fla. 1st DCA 1999)
- Rayburn v. David A. Caro, M.D., 789 So. 2d 538 (Fla. 1st DCA 2001)
- Newell v. Moore, 789 So. 2d 538 (Fla. 1st DCA 2001)