JAMES E. KLAVER, APPELLANT,
v.
ROSEBURY ALBERT MANDER, III, APPELLEE
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Florida appellate court affirmed the circuit court's transfer of an incarcerated plaintiff's civil action to county court, holding that the plaintiff's due process rights were not violated despite his absence from the motion to dismiss hearing.
An incarcerated plaintiff has no constitutional right to be present at a hearing on a motion to dismiss when the trial court provides alternative means to participate, such as the opportunity to file a brief in opposition.
[1] An incarcerated plaintiff in a civil action is not entitled to be present at a hearing on a motion to dismiss when the trial court provides written notice and opportunity…
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Join FLexlaw to unlock all legal intelligenceAn incarcerated plaintiff filed a civil action and was not present at a hearing on the defendant's motion to dismiss. The trial court provided the pla…
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LEHAN, Judge.
We affirm the circuit court’s transfer to the county court of this civil action by an incarcerated plaintiff.
Plaintiff contends that he was entitled to be present at the hearing on defendant’s motion to dismiss, citing Baker v. Baker, 403 So. 2d 1111 (Fla. 2d DCA 1981) and McKay v. Jenkins, 405 So. 2d 287 (Fla. 1st DCA 1981). We disagree. Although Baker and McKay express concern over the opportunity of an incarcerated defendant to appear in person or through counsel, neither involves a situation, as here, where the incarcerated person is plaintiff. In fact, McKay specifically distinguishes the situation in which the person is plaintiff in a civil suit. 405 So. 2d at 289.
Plaintiffs due process rights were not violated. The trial court recognized plaintiff’s situation, wrote the plaintiff, and specifically gave him the opportunity to file a brief in opposition to the motion. The trial court also suggested that if plaintiff desired representation, he should obtain an attorney. After the hearing on the motion to dismiss, the trial court again wrote to plaintiff and gave him time to respond. Plaintiff did respond by filing a brief. Six weeks later the trial court transferred the case to the county court, finding that the amount in controversy was not the amount requisite for circuit court jurisdiction.
Affirmed.
CAMPBELL, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Leone v. Fla. Power Corp. & GAB Bus. Servs., Inc., 567 So. 2d 992 (Fla. 1st DCA 1990)…procedures of the Department of Corrections; whether oral argument is generally accorded others without motion; the impact of court-ordered transportation and lodging on the state and sheriff; and any other relevant factors.[3] In Klaver v. Mander, 468 So. 2d 261 (Fla. 2d DCA 1985), the court held that plaintiff’s due process rights were not violated, despite the prisoner’s inability to be present at hearing, where the court recognized the prisoner’s situation, wrote him specifically to give him the opportun…
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In re Forfeiture OF the Following Described Prop. $2 v. State, 559 So. 2d 717 (Fla. 1st DCA 1990)…nnot appear for trial via counsel. We hold that, under these circumstances, the entry of an order of default in favor of the plaintiff/state is violative of due process. Compare McKay v. Jenkins, 405 So. 2d 287 (Fla. 1st DCA 1981); Klaver v. Mander, 468 So. 2d 261 (Fla. 2nd DCA 1985). Finally, we would note that, because of the absence from the record on appeal of some of the early pleadings, it is not entirely clear as to whether these consolidated cases were initiated via petition for rule to show cause or…
Authorities Cited
- Baker v. Baker, 403 So. 2d 1111 (Fla. 2d DCA 1981)
- Pegues v. State, 405 So. 2d 287 (Fla. 1st DCA 1981)
- McKAY v. Jenkins, 405 So. 2d 287 (Fla. 1st DCA 1981)