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holding that even if service of notice of a hearing were deficient, the appellant's due process rights were not violated because he had actual knowledge of the date of that hearing and was aware of the proceeding but "simply failed to appear as required"
Summary of this case from Chamberlain v. DegnerOpinion
Nos. 3D18-2560 3D18-2561
08-28-2019
Jack STONE, Appellant, v. Elizabeth Helen GERMANN, and Peter Edward Germann, Appellees.
Jack Stone, in proper person. No Appearance for appellees.
Jack Stone, in proper person.
No Appearance for appellees.
Before EMAS, C.J., and LOGUE and GORDO, JJ.
GORDO, J.
Appellant, Jack Stone, appeals the trial court's decision granting a Final Judgment of Injunction for Protection Against Domestic Violence to Appellees, Elizabeth Helen Germann and Peter Edward Germann, as well as the trial court's denial of Appellant's Motion to Vacate the Final Injunctions. Appellant contends that he was not properly noticed of the proceeding for the final injunctions, which took place on November 15, 2018, and that the trial court therefore violated his constitutional due process rights.
On October 9, 2018, Appellees filed petitions for domestic violence injunctions against Appellant. The same day, the trial court granted temporary injunctions against Appellant. Appellant was properly served, via personal service by law enforcement, with the petitions and temporary injunctions, also on October 9, 2018. On October 23, 2018, following a motion by Appellant requesting a continuance of the final injunction hearing date, the trial court extended the temporary injunctions and re-set the final injunction hearing for November 15, 2018. In the interim between the filing of the petitions and the granting of Appellant's Motion for Continuance, Appellant moved from the jurisdiction to Japan. It is the November 15, 2018 hearing of which Appellant states he received no notice.
Presumably, the trial court set the final hearing for November 15, 2018, because Appellant repeatedly advised the trial court in his filings that he intended to return to the jurisdiction by November 11, 2018.
Pursuant to Florida Statutes section 741.30(8)(a) 3, which governs domestic violence injunctions, "[a]ll orders issued, changed, continued, extended, or vacated subsequent to the original service of documents" shall be mailed by the clerk via certified mail to the last known address of the parties, where service at the hearing is not possible. "Service by mail is complete upon mailing." § 741.30(8)(a)3, Fla. Stat. (2019). The relevant orders include notices of hearing and temporary injunctions. § 741.30(8)(a) 1, Fla. Stat. Section 741.30(8)(a) 3 goes on to state:
If the respondent has been served previously with the temporary injunction and has failed to appear at the initial hearing on the temporary injunction, any subsequent petition for injunction seeking an extension of time may be served on the respondent by the clerk of the court by certified mail in lieu of personal service by a law enforcement officer.
Prior to entry of the permanent injunctions, Appellant was personally served with the temporary injunctions. This is undisputed. As a result, subsequent changes or extensions to those injunctions need only have been mailed by the clerk of courts to Appellant's last known address in order to properly effectuate service. See § 741.30(8)(a)1, 3, Fla. Stat. The clerk of courts did, in fact, mail copies of the relevant documents to Appellant—a fact which Appellant concedes. Therefore, service of the notice of final injunction hearing was properly effectuated upon the mailing by the clerk of courts. See § 741.30(8)(a)3, Fla. Stat. Appellant then failed to appear at the final hearing on the injunctions despite having had notice and knowledge of the proceedings.
Assuming arguendo that service of notice of the November 15, 2018 hearing was deficient, the trial court still did not violate Appellant's constitutional due process rights because Appellant had actual knowledge of the date of the final injunction hearing. See Bevilacqua v. U.S. Bank, N.A., 194 So. 3d 461, 465 (Fla. 3d DCA 2016) (finding that appellant, who was living in Italy, could not demonstrate a due process violation where the record affirmatively established that he had knowledge and was aware of the proceedings); Puigbo v. Medex Trading, LLC, 209 So. 3d 598, 602 (Fla. 3d DCA 2014) (holding that actual knowledge of the proceedings by a defendant in Venezuela was sufficient to "apprise [the defendant] of the pendency of the action" and satisfy constitutional due process). In his brief to this Court, Appellant admits that he spoke with the trial judge's chambers prior to the final injunction hearing and states that he spoke with several officials from the family court. Moreover, prior to the final hearing, Appellant filed numerous motions in the trial court. These filings demonstrate Appellant's awareness and knowledge of the proceedings. Appellant knew that the final hearing was set to proceed on November 15, 2018, and simply failed to appear as required. Because Appellant was properly noticed and had actual knowledge of the hearing on the final injunctions, the trial court did not violate his due process rights. Thus, the trial court did not err either in granting the final injunctions or in denying Appellant's Motion to Vacate the final injunctions.
Affirmed.