Civil
procedure — Default — Relief from judgment — Error to deny rule 1.540(b)
motion without evidentiary hearing where motion alleged, with sworn affidavits,
that defendants did not receive notice of hearing on plaintiff’s motion for
summary judgment in time to attend the hearing

JAMES I. JONES, SR. and ALEXANDRIA DIAZ, Appellants, v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY AS A SUBROGEE OF LEE A. DAISE, Appellee.
4th District. Case No. 4D15-2585. May 25, 2016. Appeal of a non-final order
from the Circuit Court for the Seventeenth Judicial Circuit, Broward County;
Michael L. Gates, Judge; L.T. Case No. CACE14-021796. Counsel: James I. Jones,
Sr. and Alexandria Diaz, Fort Lauderdale, pro se. No brief for appellee.

(CONNER, J.) James I. Jones, Sr. and Alexandria Diaz, the
defendants below, appeal an order denying their motion filed pursuant to rule
1.540(b), Florida Rules of Civil Procedure. This Court has jurisdiction
pursuant to rule 9.130(a)(5), Florida Rules of Appellate Procedure. We reverse,
concluding the trial court abused its discretion in denying their motion
without an evidentiary hearing.

Following a hearing, the trial court entered a final summary
judgment (not a default judgment) in favor of GEICO, awarding it the amount of
damages it sought, plus costs and interest.

The defendants filed a pro se “motion to set aside default
and motion for rehearing,” specifically invoking rule 1.540(b). They explained
that, through mishandling of their mail, they first received notice of the
hearing set for 8:45 a.m. on May 5 at about 7:40 a.m. on the date of the hearing,
and appeared at 9:15 a.m.1 At that point, the judge told them
the case could not be discussed without both parties present. They requested a
new hearing on the merits.

The defendants explained their mail had been delivered to a
neighbor, whose name and address they provided in the motion. Among their
attachments was the neighbor’s affidavit in which he stated that on May 5,
2015, he gave Diaz mail that was addressed to Diaz and to Jones, but was
misdelivered to his (the neighbor’s) mailbox, and he had been riding around
with their mail for about three weeks. Diaz immediately opened it and showed
the neighbor a notice of hearing scheduled for the same date (May 5, 2015).
Jones’s affidavit also stated that on May 5, 2015, the neighbor gave Diaz the
mail addressed to the defendants and, due to the late notice, he arrived late
to court around 9:15.

The trial court summarily denied the defendants’ motion,
without explanation.

An order ruling on a rule 1.540(b) motion is reviewed for
abuse of discretion. Schuman v. Int’l Consumer Corp., 50 So. 3d 75, 76
(Fla. 4th DCA 2010).

“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.” Id.
at 77 (quoting Schleger v. Stebelsky, 957 So. 2d 71, 73 (Fla. 4th
DCA 2007)).

The defendants argue that the trial court abused its
discretion in not vacating the judgment and giving them a chance to be heard.
The sworn affidavits attached to the rule 1.540 motion stated that the
defendants did not receive notice of the hearing on the motion for summary judgment
until the morning of the hearing, too late to arrive in time to attend the
hearing.

“Lack of proper notice that a party is applying to the court
for a final judgment is a classic reason for setting a final judgment aside.” Weber
v. Shea, 742 So. 2d 443, 443 (Fla. 4th DCA 1999); see also Taylor v.
Bowles, 570 So. 2d 1093, 1093 (Fla. 4th DCA 1990) (reversing an order
denying the appellant’s motion for relief from final judgment where the
defendant had no notice of the trial date); Barry v. Barry, 324 So. 2d
644, 644 (Fla. 4th DCA 1976) (reversing an order denying a motion to set aside
a final judgment of dissolution of marriage where the record clearly
demonstrated that the appellant did not receive notice of the final hearing).

In Liberty Mutual Insurance Co. v. Lyons, 622 So. 2d
621 (Fla. 5th DCA 1993), one party moved for sanctions against the other for
actions taken during mediation. Id. at 622. The trial court granted a
hearing on the request for sanctions and served both parties with the order. Id.
The trial court imposed sanctions on Liberty at the hearing, at which Liberty
did not appear; Liberty moved for relief, claiming it did not receive notice of
the hearing. Id. The trial court denied the motion and the district
court reversed. Id. It explained, “Generally, a prior judgment, decree
or order must be set aside where there is excusable neglect in the form of a
litigant’s failure to receive notice of a pending hearing or trial.” Id.
The denial of receipt raised a fact issue which had to be resolved in an
evidentiary hearing. Id; accord Power v. Grow Grp., Inc., 697 So.
2d 1286, 1287 (Fla. 5th DCA 1997) (reversing order denying motion to vacate
final summary judgment in appellee’s favor, in which appellant claimed she
received no notice of the hearing; trial court could not determine credibility
of appellant’s claim without evidentiary hearing).

Here, the defendants’ rule 1.540 motion alleged, with sworn
affidavits, that they did not receive notice of the hearing on GEICO’s motion
for summary judgment in time to attend the hearing. We reverse the order
denying their motion and remand for an evidentiary hearing on their claim that
they did not receive notice of the hearing in time to attend it.

Reversed and remanded. (CIKLIN, C.J., and FORST, J.,
concur.)

__________________

1Other than the notice of hearing,
the defendants do not specify what other items of mail they did not receive
until May 5.

* *
*