REBECCA BLAYLOCK, APPELLANT,
v.
RANDAL S. ZELLER, APPELLEE

Fla. 5th DCA | 2006-06-09
No. 5D05-3820
PLEUS, C.J. and SAWAYA, J., concur.
932 So. 2d 479 Florida District Court of Appeal, Fifth District (2006) Caution
Cited by 9 cases

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Synopsis

Blaylock appeals a final injunction for protection against repeat violence issued under Florida's repeat violence statute. The court affirms the injunction but strikes the firearms prohibition as unsupported by the evidence and conceded error by the appellee.


Holding

The trial court provided sufficient procedural due process; Blaylock received a hearing before an impartial decision-maker with fair notice and opportunity to present her case. The court strikes the firearms prohibition portion of the injunction as not requested by Zeller and not discussed at hearing, but affirms the remainder of the injunction.


Headnotes

[1] A party is afforded procedural due process in an injunction hearing when they receive a hearing before an impartial decision-maker, fair notice of the allegations, and an…

[2] A party's agreement to most of the terms of an injunction renders those terms unobjectionable on appeal.

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Key Quotes

“The record reveals that Blaylock and Zeller testified and each could have cross-examined the other.”

Establishes that sworn testimony occurred and cross-examination was available, refuting Blaylock's due process claim

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Facts & Procedural History

Zeller sought an injunction against Blaylock, alleging she stalked him and his wife, trespassed on their property, took photographs, made threatening …

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Opinion of the Court
THOMPSON, J.

THOMPSON, J.

Rebecca Blaylock timely appeals a final injunction entered against her. Randal S. Zeller sought ex parte a temporary injunction against Blaylock for protection against repeat violence under section 784.046, Florida Statutes (2004), which the court issued. The court conducted a final hearing on the petition, for which Blaylock had notice. On appeal, she contends the trial court made two errors. First, she claims she was denied due process of law because no sworn testimony was presented and she was not given an opportunity to cross-examine or present witnesses. Second, the court prohibited her from possessing or using firearms when no evidence was presented that she was a danger to Zeller or herself. We affirm the order granting an injunction, but require that the trial court strike the portion of the injunction that prohibits Blaylock from possessing or using firearms or ammunition.

In his sworn petition, Zeller alleged that Blaylock continued to stalk his wife and him, and that they feared for their lives. She repeatedly watched the couple, trespassed on their property, took photographs of them and their home, made complaining phone calls to his employer, stated that she would burn down their house, and stated that she would do whatever it took to get rid of them and have them fired. Zeller attached to his petition an incident report from the Orange County Sheriffs Office concerning similar actions by Blay-lock against Zeller. Blaylock and Zeller were sworn and testified at the final hearing.1 Although Blaylock denied Zeller’s allegations, she explicitly agreed to most of the conditions in the injunction. The court entered an order granting the final judgment of injunction for protection against repeat violence and ordered Blaylock not to possess or use firearms or ammunition.

Blaylock did not seek modification or dissolution of the injunction under section 784.046(11), but now appeals. She argues she was denied due process, and that her constitutional rights were infringed by the firearms prohibition. Zeller confesses error on the firearm prohibition and does not object to this court vacating the portion of the injunction prohibiting the use or possession of firearms. Thus, the only issue on appeal is whether Blaylock was denied due process.

Blaylock alleged that, at the injunction hearing, there was no sworn testimony, and she was denied an opportunity to cross-examine Zeller or present witnesses. The record does not support the allegations. The record shows Blaylock received procedural due process, which required (1) a hearing (2) before an impartial decision-maker, after (3) fair notice of the charges and allegations, (4) with an opportunity to present one’s own case. Zureikat v. Shaibani, 31 Fla. L. Weekly D758, — So. 2d -, 2006 WL 565907 (Fla. 5th DCA Mar. 10, 2006). The record reveals that Blay-lock and Zeller testified and each could have cross-examined the other. More important, Blaylock stated she had witnesses at the hearing, but she elected not to call them to testify; the trial court did not ignore them. Fair notice of Zeller’s allegations and petition was afforded to Blay-lock, who was given the opportunity to present her case at a hearing before an impartial decision maker; she was entitled to no more. Id; see also Exceletech, Inc. v. Williams, 579 So. 2d 850, 852-53 (Fla. 5th DCA 1991).

Also, we find no error because Blaylock agreed to most of the terms of the injunction, which are unobjectionable. See, e.g., Goosen v. Walker, 714 So. 2d 1149, 1149-50 (Fla. 4th DCA 1998) (affirming a judgment under section 784.046, Florida Statutes (1997), that enjoined neighbor from photographing or videotaping his neighbors). As to the firearms prohibition, Zeller concedes he did not ask for such a prohibition and the issue was not presented or discussed during the hearing. Thus, we strike that portion of the injunction prohibiting the use or possession of firearms or ammunition and requiring Blaylock to surrender any firearms or ammunition in her possession.

AFFIRMED in part, REVERSED in part and REMANDED.

PLEUS, C.J. and SAWAYA, J., concur. . Although Blaylock stated she had four witnesses available to testify, she never called them. Further, she did not attempt to cross-examine Zeller.


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Citator

Cited By

  • In the Interest of A.B. v. R.B., 186 So. 3d 544 (Fla. 2d DCA 2015)
    …ing reasons for not allowing hearsay testimony in criminal trials.”). Instead, at the very least the right to procedural due process required that the Father receive “fair notice of the charges' and allegations” made against him. Blaylock v. Zeller, 932 So. 2d 479, 480-81 (Fla. 5th DCA 2006). And further, as the trial court stated, A.B. testified during the videotaped interview “to more than the situation that was brought up [at the hearing].” If the trial court had allowed the Father to attend an interview w…
  • Clement v. Lanelle Ziemer, 953 So. 2d 700 (Fla. 5th DCA 2007)
    …esent his case and was denied “procedural due process, which required (1) a hearing (2) before an impartial decision-maker, after (3) fair notice of the charges and allegations, (4) with an opportunity to present one’s own case.” Blaylock v. Zeller, 932 So. 2d 479, 480-81 (Fla. 5th DCA 2006). After thorough review of the hearing transcript, we agree. Clement lacked an impartial decision-maker and the opportunity to present his case and is entitled to reversal on that issue alone. Moreover, this case is contr…
  • Hobart Owen Harrison v. Dep't OF Corr., 965 So. 2d 1276 (Fla. 1st DCA 2007)
    …ida Statutes (2005), the circuit court improperly imposed a lien upon petitioner’s inmate trust account for payment of court costs and fees. See Brooks, v. Florida Parole Comm’n, 948 So. 2d 801 (Fla. 1st DCA 2006); Spaziano v. Florida Parole Comm’n, 932 So. 2d 479, 2006 WL 1565289 (Fla. 1st DCA June 9, 2006); Cox v. Crosby, 31 Fla. L. Weekly D310, — So. 2d -, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006), rev. granted sub nom., McDonough v. Cox, 924 So. 2d 809 (Fla.2006); see also Schmidt v. Crusoe, 878 So. 2d 3…

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