Risch v. Bank of America, National Ass'n Ex Rel. Lasalle Bank, N.A.

72 So. 3d 161, 2011 Fla. App. LEXIS 12147, 2011 WL 3303483

• Court: District Court of Appeal of Florida
• Decided: August 3, 2011
• Docket: 2D10-4882
• Status: Published

Opinion

BLACK, Judge.

Janice M. Risch appeals the trial court’s denial of her emergency motion for rehearing or, in the alternative, for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540. The record shows that the trial court conducted a hearing on Ms. Risch’s motion; however, there was no evidence presented. Since Ms. Risch’s motion asserted allegations of misrepresentation, which might give rise to relief pursuant to rule 1.540(b)(3), and since she attached an affidavit and records which could support her claim, we reverse and remand for an evidentiary hearing. See S. Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986) (“[Wjhere the moving party’s allegations raise a colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.”); see also Rosenthal v. Ford, 443 So.2d 1077, 1078 (Fla. 2d DCA 1984) (“The credibility of appellant’s allegations should only be determined by the trial court after an evidentiary hearing thereon.”).

Reversed and remanded.

SILBERMAN, C.J., and DAVIS, J., Concur.