Malone v. City of Satellite Beach , 1998 Fla. App. LEXIS 11312 ( 1998 )

HARRIS, Judge.

A previous appeal between the parties hereto resulted in an attorney’s fee award on behalf of the City of Satellite Beach. On remand, the court scheduled a hearing at the request of the City. Although the certificate of service reflects that notice was given Malone, his lawyer, after an ex parte hearing resulting in a judgment was held, filed an affidavit claiming that he had not received notice. He filed a motion for stay pending appeal which both parties hereto recognize as a 1.540 motion for relief.

Appellee claims that the motion is improper because Malone could have appealed the judgment. However, without evidence being taken on the issue of notice, the record would be insufficient for this court to rule. We do not know whether Malone can offer sufficient evidence to rebut the presumption of service created by the certificate of service, but we have previously ruled that one in his position should have the opportunity to try. See Liberty Mut. Ins. Co. v. Lyons, 622 So.2d 621 (Fla. 5th DCA 1993).

REVERSED and REMANDED.

GRIFFIN, C.J., and THOMPSON, J., concur.