KEVIN LEIGH BERKLEY
v.
BRANDA ROY
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The appellate court reversed a final judgment of injunction for protection against stalking, finding that the trial court denied the appellant a full and fair hearing. The case emphasizes the due process right of parties to present evidence and address allegations before an injunction is issued.
Yes, the trial court erred by issuing the injunction without allowing the appellant a meaningful opportunity to present his defense. Parties are entitled to a full hearing before a permanent injunction is issued.
[1] Due process in stalking injunction proceedings requires that the respondent be afforded a reasonable opportunity to address the petitioner's allegations, including the ri…
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Join FLexlaw to unlock all legal intelligence“Parties are entitled to a full hearing prior to the trial court issuing a permanent injunction.”
Establishes the fundamental right to a hearing before an injunction is granted.
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Join FLexlaw to unlock all legal intelligenceThe trial court issued an injunction against the appellant for stalking after a brief hearing where the parties were sworn and questioned. The appella…
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PER CURIAM.
Appellant appeals a final judgment of injunction for protection against stalking. He argues that the trial court entered the injunction without allowing him the opportunity to address Appellee’s allegations at the hearing. We agree and reverse for a new hearing.
“Parties are entitled to a full hearing prior to the trial court issuing a permanent injunction.” Furry v. Rickles, 68 So. 3d 389, 390 (Fla. 1st DCA 2011); see also § 784.0485(4)–(6), Fla. Stat. (2019). “Just as the petitioner has the right to allege and prove the grounds for injunctive protection at a full and fair evidentiary hearing, the respondent is entitled to a fair hearing and protection from the effects of a final judgment of injunction that lacks any evidentiary support.” Newsom v. Newsom, 221 So. 3d 1265, 1266 (Fla. 1st DCA 2017) (quoting Johns v. Johns, 101 So. 3d 377, 378 (Fla. 1st DCA 2012)). “Due process requires that each party have a ‘reasonable opportunity to address the allegations in the petition.’” Id. “This includes allowing relevant testimony of pertinent, noncumulative witnesses who are present and cross-examination of the parties.” Furry, 68 So. 3d at 390.
At the brief evidentiary hearing held in this case, the trial court swore in the parties, who were both pro se, and asked some questions. It posed two questions to Appellee and then briefly questioned Appellant before issuing the injunction. In the course of answering questions, Appellant indicated that he had documents, a videotape, and witnesses ready to present in defense of the allegations. But the court did not give Appellant the opportunity to present his evidence, hear from Appellant’s two witnesses, or give Appellant the opportunity to cross-examine Appellee about the petition allegations. See Parise v. Selph, 175 So. 3d 389, 390 (Fla. 1st DCA 2015) (reversing injunction and concluding the appellant was not afforded due process when the trial court denied his request to present a witness).
Because the court did not allow Appellant a meaningful opportunity to present his defense, we REVERSE the injunction and REMAND for further proceedings consistent with this opinion.
B.L. THOMAS, OSTERHAUS, and BILBREY, JJ., concur. _____________________________
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Furry v. Rickles, 68 So. 3d 389 (Fla. 1st DCA 2011)
- Johns v. Johns, 101 So. 3d 377 (Fla. 1st DCA 2012)
- Newsom v. Newsom, 221 So. 3d 1265 (Fla. 1st DCA 2017)