DeMaio v. Starr , 2000 Fla. App. LEXIS 10175 ( 2000 )

WARNER, C.J.

Appellant sued appellee for injunctive relief and damages and filed a motion for temporary injunctive relief. In the motion appellant alleged that he feared physical violence from appellee and that she would attempt to have him arrested on false charges. At the hearing, and without any testimony, the trial court entered a mutual restraining order, over appellant’s objection, restraining both parties from coming within 500 feet of the other. Appellant appeals the mutual nature of the restraining order, which was entered without proper pleading by appellee or testimony. We agree and reverse.

Without pleadings to support a request for relief and the right to be heard on the issue, the entry of a temporary injunction in favor of appellee over appellant’s objection was error. See Alaban v. Town of Lake Park, 617 So.2d 872, 873 (Fla. 4th DCA 1993). In the instant case, appellant refused to stipulate to any facts. He complained at the hearing that entry of a restraining order against him harmed him in that he alleged in his own motion that appellee may make false charges against him. With a restraining order in place, appellee may now follow through with that threat by falsely charging him with violating the restraining order.

Upon proper pleading and a hearing in compliance with rule 1.610(a) of the Florida Rules of Civil Procedure, when notice is not given, or upon mutual agreement, a mutual restraining order may be appropriate. In this case, however, entering such an order was contrary to the rules and violated appellant’s due process right to be heard on the issues.

Reversed and remanded for further proceedings.

POLEN and TAYLOR, JJ., concur.