RAYMOND GARCIA, APPELLANT,
v.
R. A. G. BY AND THROUGH MARY HURD, APPELLEE
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An incarcerated inmate appealed the summary denial of his motion to dissolve a domestic violence injunction, arguing he did not timely receive notice of the underlying order. The court reversed and remanded, holding that the trial court must conduct an evidentiary hearing on the merits of his Rule 1.540(b) motion and permit telephonic appearance.
The trial court erred by summarily denying the Rule 1.540(b) motion without a hearing. Because the motion was facially sufficient and set forth a colorable claim for relief, the trial court was required to conduct an evidentiary hearing to determine whether Garcia was entitled to relief based on whether he failed to receive the challenged order in a timely manner through no fault of his own.
[1] A trial court abuses its discretion by denying an incarcerated party's motion to dissolve an injunction without allowing a telephone hearing.
[2] A motion filed pursuant to Florida Rule of Civil Procedure 1.540(b) seeking to set aside an order for failure to receive timely notice requires an evidentiary hearing if…
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Join FLexlaw to unlock all legal intelligence“Because the rule 1.540(b) motion was facially sufficient, the trial court should have conducted an evi-dentiary hearing to determine whether Appellant was entitled to relief, the disposi-tive issue being whether Appellant failed to receive the challenged order in a timely manner through no fault of his own.”
Establishes the standard that a facially sufficient Rule 1.540(b) motion requires an evidentiary hearing on the threshold issue of timely notice.
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Join FLexlaw to unlock all legal intelligenceGarcia, an incarcerated inmate, filed a motion to dissolve a domestic violence injunction and simultaneously requested a telephone hearing. The trial …
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Appellant, an inmate at a correctional facility, filed a motion to dissolve an injunction for protection against domestic violence. Simultaneously with that filing, he filed a motion seeking a telephone hearing on his motion to dissolve. Instead of granting the telephone hearing, the trial court entered an order scheduling a hearing at which “both parties shall be present.” Due to his incarceration, Appellant did not appear at the hearing, and. the trial court denied the requested relief. Had Appellant. timely appealed that ruling, we likely would have concluded that the failure to grant Appellant’s request for a telephone hearing was error. See Hubsch v. Howell Creek Reserve Cmty., 155 So.3d 474 (Fla. 5th DCA 2015) (holding that trial court denied incarcerated homeowner due process by failing to allow him to appear telephonieally at summary judgment hearing). When Appellant sought to file an untimely appeal, claiming that he was not served with the challenged order until forty-eight days after it was entered, we advised him that his only course of action was to file a motion in the trial court pursuant to Florida Rule of Civil Procedure 1.540(b).1 See Snelson v. Snelson, 440 So.2d 477, 477 (Fla. 5th DCA 1983) (holding that where no notice of entry of order was given to parties, relief is through rule 1.540(b) motion filed in trial court coupled with request for entry of new order).
This appeal involves the summary denial of Appellant’s rule 1.540(b) motion, in which he alleged under oath that he did not receive the challenged order until forty-eight days after its entry.. Appellant sought to set aside the prior order and obtain a new order that he could timely appeal. The trial court denied the motion, without setting it for hearing. In its order, the trial court did not address the merits of Appellant’s contention that he did not receive the prior order in time to file an appeal. Instead, it addressed the merits of its original order. Because the rule 1.540(b) motion was facially sufficient, the trial court should have conducted an evi-dentiary hearing to determine whether Appellant was entitled to relief, the disposi-tive issue being whether Appellant failed to receive the challenged order in a timely manner through no fault of his own. See Cottrell v. Taylor, Bean & Whitaker *883 Mortg. Corp., 198 So.3d 688, 691 (Fla. 2d DCA 2016) (holding that where rule 1.540(b) motion sets forth colorable claim for relief, trial court should conduct evi-dentiary hearing to determine whether relief should be granted (citing Chancey v. Chancey, 880 So.2d 1281, 1282 (Fla. 2d DCA 2004))).
On remand, the trial court shall conduct a hearing on Appellant’s rule 1.540(b) motion, permitting Appellant’s attendance by telephone if he is still incarcerated.
REVERSED AND REMANDED.
ORFINGER, TORPY and WALLIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983)
- Chancey v. Chancey, 880 So. 2d 1281 (Fla. 2d DCA 2004)
- Cottrell v. Taylor, 198 So. 3d 688 (Fla. 2d DCA 2016)
- Nanci Hubsch v. Howell Creek Reserve Community, 155 So. 3d 474 (Fla. 5th DCA 2015)