JOSEPH CARROZZA, APPELLANT,

v.

TAMMY STOWERS, APPELLEE

Fla. 2d DCA | 2014-12-12

No. 2D13-5701

KHOUZAM and MORRIS, JJ., Concur.

153 So. 3d 340 Florida District Court of Appeal, Second District (2014) Positive Treatment

Cited by 6 cases

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Holding

The court held that the trial court erred in summarily denying the motion to dissolve the injunction without a hearing.

Headnotes

[1] A motion to dissolve a final judgment of injunction alleging a change in circumstances is facially sufficient and requires a hearing, even if the underlying allegations w…

[2] Due process requires that a movant be given an opportunity to be heard on a request to dissolve an injunction and that such a motion should not be summarily disposed of w…

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Facts & Procedural History

Joseph Carrozza appealed the denial of his motion to dissolve a final judgment of injunction entered in 2006. Carrozza alleged a change in circumstanc…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Motion To Dissolve Injunction Right To A Hearing Change In Circumstances Due Process

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Opinion of the Court

CRENSHAW, Judge.

Joseph Carrozza appeals the trial court’s order summarily denying his motion to dissolve a final judgment of injunction. We reverse and remand for further pro-. ceedings because Carrozza is entitled to a hearing on his facially sufficient motion.

According to the underlying order and motion, a final judgment of injunction was entered against Carrozza in 2006 prohibiting him from having contact with Tammy Stowers.1 The allegations against Carroz-za included that he was “a violent criminal with multiple prison sentences, and [made] threats to kill,” as summarized by the court. On October 7, 2013, Carrozza filed a motion to dissolve the injunction, alleging a change in circumstances.

In his motion, Carrozza stated that he participated in a number of relevant prison programs, including instruction oh anger management, parenting, behavioral issues, and substance abuse. Carrozza explained that he is currently imprisoned on unrelat-' ed charges, has not contacted Stowers since 2006, has no intention to contact her in the future except regarding “matters relating to the health and welfare of the parties’ daughter,” and stated that the injunction is preventing him from participating in certain prison work programs. See Baker v. Pucket, 139 So.3d 954, 955 (Fla. 4th DCA 2014) (“[W]e [previously] found that the appellant had sufficiently alleged a change in circumstances by alleging ‘the injunction has served its purpose; he had not attempted to contact his ex-girlfriend for years; he has been incarcerated on unrelated charges; and the injunction was impacting his ability to participate in certain prison work programs.’ ” (quoting Colarusso v. Lupetin, 28 So.3d 238, 239 (Fla. 4th DCA 2010))). The trial court summarily denied Carrozza’s motion on Octo*341ber 10, 2013, a mere three days later, citing “the serious nature of the [underlying] allegations.”2

The trial court erred by denying Carroz-za’s motion without a hearing. See McCormick v. Shannon, 32 So.3d 787, 788 (Fla. 2d DCA 2010); Baker, 139 So.3d at 955; Reed v. Reed, 816 So.2d 1246, 1247 (Fla. 5th DCA 2002). As the court stated in Reed, “[d]ue process requires that [the movant] be given [an] opportunity to be heard on his request and that his motion should not be summarily disposed of within three days after it is filed. We express no opinion on the merits of [the] motion.” 816 So.2d at 1247; see § 741.30(6)(c), (10), Fla. Stat. (2013); Betterman v. Kukelhan, 977 So.2d 702, 703 (Fla. 4th DCA 2008). Accordingly, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

KHOUZAM and MORRIS, JJ., Concur.

. In its order the trial court also expressed the following concern:

F.S. 741.30(6)(c) generally authorizes any party to move to amend/dissolve an injunction at any time without making specific allegations (facts can vary). There is no language limiting how soon after a Final Judgment is entered, or how often, such a motion can be filed....

It is axiomatic that procedures regarding expending finite Court resources must have a reasonable basis. An interpretation that, for example, automatically allows a Respondent additional hearings to repeatedly object after an adverse ruling is untenable. This court is concerned as to the issue of legislative encroachment of the Court’s [article V powers to regulate procedure if the Court cannot impose reasonable procedural requirements.... Multiple districts [ ] have actually interpreted legislative language to require a reasonable and basic application of other premises of law.

It is worth acknowledging the court’s concern about the wording of section 741.30(6)(c) which provides: “Either party may move at any time to modify or dissolve the injunction. No specific allegations are required.” See State v. Raymond, 906 So.2d 1045, 1048 (Fla.2005) ("It is a well-established principle that a statute which purports to create or modify a procedural rule of court is constitutionally infirm.”); TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 611 (Fla.1995). As further noted in the same order, however, courts applying section 741.30(6)(c) have indicated that a motion to modify or dissolve an injunction should allege some basis upon which relief may be granted, as was done in this case. See Baker, 139 So.3d at 955. Regardless, the issue of the constitutional validity of section 741.30(6)(c) is not before this court.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Bork v. Pare, 252 So. 3d 394 (Fla. 2d DCA 2018)

…ve it at any time without making any specific allegations. "[C]ourts applying section 741.30(6)(c) have indicated that a motion to modify or dissolve an injunction should allege some basis upon which relief may be granted." Carrozza v. Stowers, 153 So. 3d 340, 341 n.2 (Fla. 2d DCA 2014). To obtain relief, a party seeking dissolution of an injunction must prove that there has been a change of circumstances. Spaulding v. Shane, 150 So. 3d 852, 853 (Fla. 2d DCA 2014). "This requires the movant to 'dem…
Peaslee v. Perrine, 202 So. 3d 974 (Fla. 1st DCA 2016)

…641, 642 (Fla. 1st DCA 2011), we hold that the trial court erred in not affording Appellant a meaningful opportunity to be heard before summarily denying his motion. See Bennett v. Abdo, 167 So. 3d 522, 522 (Fla. 5th DCA 2015); Carrozza v. Stowers, 153 So. 3d 340, 341 (Fla. 2d DCA 2014); Ramirez v. Teutsch, 134 So. 3d 995 (Fla. 1st DCA 2012); Goodwin v. Whitley, 103 So. 3d 932, 932 (Fla. 1st DCA 2012); Kugler v. Joosten, 58 So. 3d 323 (Fla. 1st DCA 2011); Colarusso v. Lupetin, 28 So. 3d 238, 239 (Fla. 4th DC…
Palm v. Palm, 214 So. 3d 792 (Fla. 5th DCA 2017)

…urt erred in summarily denying the petition and that the trial court should have held a hearing. We agree. See Reed v. Reed, 816 So. 2d 1246, 1247 (Fla. 5th DCA 2002); Baker v. Pucket, 139 So. 3d 954, 955-56 (Fla. 4th DCA 2014); Carrozza v. Stowers, 153 So. 3d 340, 341 (Fla. 2d DCA 2014). Thus, we reverse [*793] the order under review and remand with instructions for the trial court to hold a hearing on Palm’s petition. REVERSED and REMANDED. COHEN, C.J., SAWAYA and LAMBERT, JJ., concur.…

Authorities Cited

TGI Friday's, Inc. v. Dvorak, 663 So. 2d 606 (Fla. 1995)
State v. Marti Cassandra Raymond, 906 So. 2d 1045 (Fla. 2005)
Colarusso v. Lupetin, 28 So. 3d 238 (Fla. 4th DCA 2010)
Reed v. Reed, 816 So. 2d 1246 (Fla. 5th DCA 2002)
Betterman v. Kukelhan, 977 So. 2d 702 (Fla. 4th DCA 2008)
McCORMICK v. Shannon, 32 So. 3d 787 (Fla. 2d DCA 2010)
Ranisha Baker v. Cartessma Pucket, 139 So. 3d 954 (Fla. 4th DCA 2014)

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