BERGEN v. KOPPEL DPM (2019)

District Court of Appeal of Florida, First District.

Jennifer Van BERGEN, Appellant, v. Scott T. KOPPEL, DPM, Appellee.

No. 1D18-4817

Decided: August 30, 2019

Jennifer Van Bergen, pro se, Appellant. Joseph E. Brooks and Jami M. Kimbrell of Brooks Law, Tallahassee, for Appellee.

Upon Appellee's proper concession of error, we reverse the trial court's order summarily denying Appellant's motion for relief from judgment and remand for an evidentiary hearing on the motion. In her motion for relief from judgment, Appellant contended that she did not receive timely notice of the Summary Judgment Order the trial court entered on May 1, 2018, due to an issue with the trial court's email system. We agree that this was a colorable claim under rule 1.540(b), and that an evidentiary hearing was needed to determine whether Appellant had timely received the order and whether she had an opportunity to seek a timely appeal. See Yasir v. Forman, 199 So. 3d 1037 (Fla. 4th DCA 2016); Smith v. Smith, 903 So. 2d 1044, 1045 (Fla. 5th DCA 2005); Seal v. Brown, 801 So. 2d 993, 995 (Fla. 1st DCA 2001).

Reversed and Remanded for further proceedings.

Per Curiam.

Lewis, Osterhaus, and M.K. Thomas, JJ., concur.

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