### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

JOHN RICHARDS
, Appellant,

v.

ASHLEY DALE CROWDER
,

Appellee

.

No. 4D 15

- 4034

[ May 10, 2016 ]

Appeal of a non

- final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Michael G. Kaplan , Judge; L.T. Case No. 2015DR005884AX (59)

.

Michele K. Feinzig and Jeremy Dicker of Law Offices of Robin Bresky, Boca Raton, and Lawrence W. Livoti of Lawrence W. Livoti, P.A., Fort Lauderdale, for appellant.

No appearanc e for appellee.

P ER C URIAM

.

John Richards appeals a trial court order denying his motion for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540.

This c ourt has jurisdiction. Fla. R. App. P. 9.130(a)(5). We reverse and

remand for the reasons below.

This cause arose from a petition for injunction for protection against stalking that appellee Ashley Crowder filed against Richards , her former boyfriend. The trial court entered a temporary injunction and set for evidentiary hearing the matter of whether a final injunction should be imposed. Richards did not appear at the hearing but Crowder did. The

trial court heard her testimon y and entered a final judgment of injunction,

which Richards did not appeal.

Instead, Richards retained counsel and filed a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(1). He alleged he had low

- to

- average intellig ence wit h an overall IQ of 88, and his verbal and comprehension deficits rendered him unable to understand the2

meaning of the temporary injunction and notice of evidentiary hearing

served on him. H e claimed he did not attend the evidentiary hearing in

par t due to fear of losing his job, as he could not find a substitute on short notice. He said he was attempting to reconcile with Crowder but was avoiding personal contact with her

. Richards said the final judgment of injunction resulted in permanent, damaging consequences to his life, job and relationships.

Attached to the motion were supporting affidavits from Richards and

his mother. His mother stated that Richards was born at a low birt h weight, had difficulty with reading and verbal comprehension, a low vocabulary

, and a deficient memory. Crowder filed no response to this motion for relief from judgment. The trial court summarily denied the

motion without an evidentiary hearing.

A tr ial court order on a motion to vacate judgment is reviewed for abuse

of discretion. Schuman v. Int’l. Consumer Corp ., 50 So. 3d 75 , 76 (Fla. 4th DCA 2010); Shiver v. Wharton , 9 So. 3d 687 , 689 (Fla. 4th DCA 2009). The

trial court abused its discretion in denying Richards ’s motion for relief from judgment without first conducting an evidentiary hearing. The motion and supporting affidavits stated a claim of “colorable entitlement to relief” in order to require an evidentiary hearing. Schleger v. Stebelsk y , 957 So. 2d 71, 73 (Fla. 4th DCA 2007) (quoting Smith v. Smith , 903 So. 2d 1044, 1045 (Fla. 5th DCA 2005)). Florida courts have recognized that illness or psychological conditions, a s well as difficulties with reading and comprehending

, can form the bas is of a finding of excusable neglect warranting relief from judgment. See

, e.g. , Paul v. Wells Fargo Bank, N.A.

, 68 So. 3d 979, 985 (Fla. 2d DCA 2011); Franklin v. Franklin , 573 So. 2d

401 , 403 (Fla. 3d DCA 1991); Rosenblatt v. Rosenblatt , 528 So. 2d 74, 75

- 76 (Fla. 4th DCA 1988).

We therefore reverse and remand for an evidentiary hearing.

Reversed and remanded for further proceedings.

W ARNER
, F ORST and K LINGENSMITH

, JJ., concur

.

* * *

Not final until disposition of timely filed motion for rehearing.