Carrozza v. Stowers , 2014 Fla. App. LEXIS 20189 ( 2014 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOSEPH CARROZZA, )
)
Appellant, )
)
v. ) Case No. 2D13-5701
)
TAMMY STOWERS, )
)
Appellee. )
)
Opinion filed December 12, 2014.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Sarasota County;
Robert W. McDonald, Jr., Judge.
Joseph Carrozza, pro se.
No appearance by Appellee.
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
proceedings 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 Carrozza 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 on anger management, parenting, behavioral
issues, and substance abuse. Carrozza explained that he is currently imprisoned on
unrelated 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 October 10, 2013, a mere three
days later, citing "the serious nature of the [underlying] allegations."2
1
The appendix provided by Carrozza is very limited. It only contains
Carrozza's motion to dissolve injunction, Carrozza's motion requesting leave to appear
telephonically, and the order denying the motion to dissolve injunction without a hearing.
The appendix is sufficient, however, to address Carrozza's argument, which implicates
basic due process requirements. See Fla. R. App. P. 9.130(e), 9.220(a).
2
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
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The trial court erred by denying Carrozza'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.
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 [a]rticle
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.
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