JOSEPH BARILE, APPELLANT,
v.
TONYA M. GAYHEART, APPELLEE
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The court held that the trial court erred by switching the type of injunction from repeat violence to domestic violence sua sponte without proper notice, thereby denying the appellant due process.
[1] A trial court denies a party due process when it sua sponte changes the legal basis for a hearing without providing notice and an opportunity to be heard on the new groun…
[2] A party must contemporaneously object to preserve an issue for appellate review.
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Join FLexlaw to unlock all legal intelligenceA former employer petitioned for an injunction against repeat violence. During the evidentiary hearing, the trial court, finding the evidence insuffic…
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Appellee Tonya M. Gayheart petitioned for an injunction against repeat violence against her former employer, Appellant Joseph Barile, to whom she is related neither by blood nor marriage. After an evidentiary hearing the trial court entered an injunction against domestic violence. Mr. Barile now appeals that injunction. We reverse based on a denial of Mr. Bar-ile’s right to due process.
Mr. Barile raises three issues in this appeal: (1) that the trial court failed to determine that he and Ms. Gayheart reside together or have resided together in the same dwelling; (2) that Ms. Gayheart did not present sufficient evidence to show that she was the victim of domestic violence or had reasonable cause to believe she was in imminent danger of domestic violence; and (3) that the trial court erred in sua sponte issuing an injunction against domestic violence when Ms. Gayheart sought an injunction against repeat violence. We decline to reach the first two issues because Mr. Barile has failed to *1087preserve them for review by contemporaneous objection. See Jarkesy v. Daniels, 58 So.2d 516 (Fla.1952). Mr. Barile’s third issue has merit and mandates reversal.
Ms. Gayheart’s petition claimed entitlement to an injunction based upon acts of repeat violence. See § 784.046, Fla. Stat. (2010).1 Early in the evidentiary hearing, the trial court properly observed that Ms. Gayheart’s evidence did not support the entry of a repeat violence injunction. Instead, the trial court unilaterally declared that the injunction hearing would continue on a claim for an injunction against domestic violence. The record shows that Ms. Gayheart did not seek to amend her pleading, that the trial court did not determine whether Mr. Barile objected to proceeding on an amended pleading, and that the trial court did not determine that its procedure resulted in no legal harm to Mr. Barile. As discussed below, we doubt whether the evidence Ms. Gayheart produced would have supported an injunction against domestic violence either, but we reverse for a more basic reason.
The notice for the hearing informed Mr. Barile that he would be defending himself against a charge of repeat violence towards Ms. Gayheart. As noted above, without notice, the trial court switched issues to one which Mr. Barile was not expecting and for which he was unprepared. Cf. Liton Lighting v. Platinum Television Group, Inc. 2 So.3d 366, 367 (Fla. 4th DCA 2008) (“When a trial judge sua sponte dismisses a cause of action on grounds ‘not pleaded,’ the trial judge denies the parties due process because the claim is being dismissed without ‘notice and an opportunity for the parties and counsel to be heard.’ ” (quoting Kerrigan, Estess, Rankin, & McLeod v. State, 711 So.2d 1246, 1249 (Fla. 4th DCA 1998))). Because the hearing went forward on Ms. Gayheart’s petition as amended on the spot by the trial court, Mr. Barile was denied due process and the injunction entered must be reversed and vacated.
As an aside, it is unlikely that Ms. Gayheart’s record evidence would have supported the granting of an injunction against domestic violence either as that term is defined in section 741.28, Florida Statutes (2010).2 In addition to failing to show acts of repeat violence, she also did not establish the other required statutory elements: that she and Mr. Barile (1) were spouses or former spouses or were related by blood or marriage; (2) had a child in common; or (3) currently resided together or had resided together in the past. There was evidence presented that she had once *1088stayed with Mr. Barile for two days. A one- or two-night interlude of staying together does not meet the statutory criterion of having resided together in the same dwelling. See Slovenski v. Wright, 849 So.2d 349, 350 (Fla. 2d DCA 2003) (“To establish standing under this [domestic violence] statute, something more than a romantic relationship with overnight visits is required.”).
Because Mr. Barile was denied due process, we reverse and remand with instructions to vacate the injunction.
Reversed and remanded with instructions.
WALLACE and LaROSE, JJ., Concur.
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Lawson v. Frank, 197 So. 3d 1269 (Fla. 2d DCA 2016)…ial judge sua sponte dismisses a cause of action on grounds ‘not pleaded,’ the trial judge denies the parties due process because the claim is being dismissed without ‘notice and an opportunity for the parties ... to be heard.’ ” Barile v. Gayheart, 80 So. 3d 1085, 1087 (Fla. 2d DCA 2012) (quoting Liton Lighting v. Platinum, Television Grp., Inc., 2 So. 3d 366, 367 (Fla. 4th DCA 2008)); see also Hancock v. Tipton, 732 So. 2d 369, 372 (Fla. 2d DCA 1999) (“Where an order adjudicates issues neither presented by…
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In re Est. OF Paula X. Assimakopoulos v. Nicolle Assimakopoulos-Panuthos, 228 So. 3d 709 (Fla. 2d DCA 2017)…nsidered at the hearing on the Alexanders’ motion for sanctions. And when a court considers issues not noticed for hearing, the court denies the litigant due process, and any ensuing order or judgment must be reversed. See, e.g., Barile v. Gayheart, 80 So. 3d 1085, 1087 (Fla. 2d DCA 2012); Minda v. Ponce, 918 So. 2d 417, 421-22 (Fla. 2d DCA 2006) (holding that due process was violated when the court considered issues not noticed for hearing in addition to those issues that were properly noticed); Golden v. Ba…
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Daniela Alves Zapiola v. Andraea Lynn Kordecki, 210 So. 3d 249 (Fla. 2d DCA 2017)…. However, because Ms. Zapiola does not challenge the applicability of the domestic violence injunction statute on this basis, Ms. Kordecki's failure to prove her status as a household member cannot be our basis for reversal. Cf. Barile v. Gayheart, 80 So. 3d 1085, 1086-87 (Fla. 2d DCA 2012).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kerrigan v. State, 711 So. 2d 1246 (Fla. 4th DCA 1998)
- Liton Lighting v. Platinum Television Grp., Inc., 2 So. 3d 366 (Fla. 4th DCA 2008)
- Thaddeus Slovenski v. Wright, 849 So. 2d 349 (Fla. 2d DCA 2003)