NANCI HUBSCH, APPELLANT,
v.
HOWELL CREEK RESERVE COMMUNITY, ETC., ET AL., APPELLEES
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Nanci Hubsch appealed a summary judgment foreclosing a homeowner's association lien, arguing she was denied due process when the trial court failed to allow her to appear telephonically despite her timely motion. The appellate court reversed, holding that an incarcerated party who properly requests telephonic appearance has a right to be heard and the trial court erred by conducting the hearing without accommodating her request.
The trial court violated Hubsch's due process rights by conducting the summary judgment hearing without giving her an opportunity to appear telephonically, despite her timely motion requesting such appearance. An incarcerated party in civil litigation who properly preserves the issue by requesting telephonic appearance has a right to be heard through that mechanism.
[1] A trial court denies an incarcerated party due process by failing to allow a telephonic appearance after a timely and proper motion is filed.
[2] A non-attorney cannot legally represent a party in civil litigation.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Ms. Hubsch properly apprised the trial court of her desire to attend the summary judgment hearing telephonically. The trial court erred by conducting the hearing without giving her an opportunity to appear by telephone.”
States the core holding that the trial court violated due process by not accommodating the properly requested telephonic appearance.
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Join FLexlaw to unlock all legal intelligenceHowell Creek Reserve Community Association filed a complaint to foreclose a lien for unpaid association assessments against Nanci Hubsch, who was inca…
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Nanci Hubsch appeals a final summary judgment foreclosing a homeowner’s association lien. She argues that she was denied due process when the trial court failed to allow her to appear telephonieally for the summary judgment hearing despite filing a proper and timely motion for a telephonic appearance. We agree and reverse.
Howell Creek Reserve Community Association, Inc. filed a complaint seeking to foreclose a lien for unpaid association assessments. Ms. Hubsch filed a pro se answer from prison where she currently resides, generally denying Howell Creek’s complaint. However, Ms. Hubsch’s daughter also filed an answer, allegedly on her mother’s behalf, admitting the claim and seeking a workout arrangement. Howell Creek then filed a motion for summary judgment and noticed the motion for hearing. Ms. Hubsch responded by filing a motion to continue the summary judgment hearing, and, failing that, to appear telephonieally. The motion for continuance was denied without a hearing but the trial court took no action on Ms. Hubsch’s motion for telephonic hearing even though both motions were filed at the same time.
Apparently, the summary judgment hearing took place as scheduled, and Ms. Hubsch’s daughter appeared as, according to the trial court, her “representative,” and agreed to the entry of a final judgment. Of course, as a non-attorney, Ms. Hubsch’s daughter had no authority to act for her mother in any capacity. Notwithstanding, the trial court entered a final summary judgment of foreclosure and Ms. Hubsch timely filed a motion for rehearing and a motion for relief from judgment. Following the denial of those motions, this appeal followed.
Ms. Hubsch properly apprised the trial court of her desire to attend the *476summary judgment hearing telephonically. The trial court erred by conducting the hearing without giving her an opportunity to appear by telephone. See Johnson v. Johnson, 992 So.2d 399, 401 (Fla. 1st DCA 2008). As Judge Warner observed in her special concurrence in Rogers v. Rogers, 977 So.2d 687, 687 (Fla. 4th DCA 2008):
Unlike the state’s obligation in criminal cases to ensure the defendant’s presence at critical stages of proceedings, in civil court no corresponding duty is imposed on the state. A prisoner involved in civil litigation ... has the right to be heard but must take the initiative to secure the opportunity to appear and present his version of the facts. In other words, the prisoner must bring to the court’s attention his desire to appear personally or telephonically at hearing or trial.
When the issue is preserved, the right is clear. See, e.g., Waugh v. Waugh, 679 So.2d 1, 2 (Fla. 2d DCA 1996) (holding that trial court denied incarcerated husband due process by conducting final dissolution hearing in husband’s absence where husband had filed motions for transport and to testify at hearing).
Ms. Hubsch apprised the court of her desire to participate telephonically at the summary judgment hearing by filing an appropriate and timely motion. The trial court’s failure to accord her that right denied her due process. Accordingly, we reverse the final judgment and remand for further proceedings.
REVERSED and REMANDED.
WALLIS and LAMBERT, JJ, concur.
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Rodriguez v. Rodriguez, 176 So. 3d 1283 (Fla. 5th DCA 2015)…n inmate, properly apprised the trial court of his desire to attend the final hearing telephonically. The trial court erred by conducting the hearing without giving him an opportunity to appear by telephone. See Hubsch v. Howell Creek Reserve Cmty., 155 So. 3d 474 (Fla. 5th DCA 2015); Johnson v. Johnson, 992 So. 2d 399, 401 (Fla. 1st DCA 2008). This denied him due process. Accordingly, we reverse the final judgment and remand for further proceedings. REVERSE and REMANDED for further proceedings. ORFINGER,…
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Garcia v. R. A. G., 229 So. 3d 882 (Fla. 5th DCA 2017)…, and. the trial court denied the requested relief. Had Appellant. timely appealed that ruling, we likely would have concluded that the failure to grant Appellant’s request for a telephone hearing was error. See Hubsch v. Howell Creek Reserve Cmty., 155 So. 3d 474 (Fla. 5th DCA 2015) (holding that trial court denied incarcerated homeowner due process by failing to allow him to appear telephonieally at summary judgment hearing). When Appellant sought to file an untimely appeal, claiming that he was not served…
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Carter v. Palm Beach Cnty. Sheriff's Off. (15th Cir. Ct. App. Div. 2002)…2d DCA 2003) (holding that a trial court erred by not directing the Department of Corrections to allow an incarcerated inmate to appear telephonically at a hearing on a motion to set aside a dismissal); see also Hubsch v. Howell Creek Reserve Cmty., 155 So. 3d 474, 475-76 (Fla. 5th DCA 2015) (holding that a trial court erred in holding a summary judgment hearing without giving the incarcerated litigant an opportunity to appear telephonically). Carter informed the trial court fifteen days before the hearing o…
Authorities Cited
- Dawson-Knapp v. State, 679 So. 2d 1 (Fla. 2d DCA 1995)
- Waugh v. Caren Waugh, 679 So. 2d 1 (Fla. 2d DCA 1996)
- Johnson v. Shakira Johnson, 992 So. 2d 399 (Fla. 1st DCA 2008)
- Rogers v. Rogers, 977 So. 2d 687 (Fla. 4th DCA 2008)