Wednesday, December 8, 2010

Denial Of Motion For Relief Of Judgment Without Evidentiary Hearing Reversed

In Schuman v. International Consumer Corporation, et al (4D09-951), the Fourth District reversed the trial court's order denying a motion for relief from judgment and held that "the trial court erred since the trial court should not have denied the motion without an evidentiary hearing where there was a 'colorable' claim of entitlement to relief."  Generally, the facts were stated as follows:
Appellant filed a motion for new trial and relief from the judgment, alleging that he did not receive notice of the trial. The counsel for appellant had just been retained and had not received any papers regarding the trial date. Further, prior counsel advised the new counsel only that there was an upcoming calendar call on this matter. The trial court denied appellant’s motion and this appeal ensues.
The court held that:
We conclude that the trial court abused its discretion by failing to hold an evidentiary hearing on the motion for relief from judgment. “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.”  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 reverse and remand for an evidentiary hearing.


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