Risch v. Bank of America, National Ass'n Ex Rel. Lasalle Bank, N.A. , 72 So. 3d 161 ( 2011 )

72 So. 3d 161 (2011)

Janice M. RISCH, Appellant,
v.
BANK OF AMERICA, National Association, as Successor by Merger to Lasalle Bank, N.A. as Trustee For Zuni 2006-OA1, Appellee.

No. 2D10-4882.

District Court of Appeal of Florida, Second District.

August 3, 2011. Rehearing Denied August 18, 2011.

Bradley S. Donnelly of Treiser Collins, Naples, for Appellant.

Jeffrey T. Kuntz and Thomas H. Loffredo of Gray Robinson, P.A., Fort Lauderdale, for Appellee.

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) ("[W]here 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.