PETER CLEMENT, APPELLANT,
v.
LANELLE ZIEMER, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court erred by denying the appellant procedural due process, specifically lacking an impartial decision-maker and the opportunity to present his case.
[1] A party is denied procedural due process when the trial court fails to provide an impartial decision-maker and an opportunity to present one's case.
[2] Allegations of threats, without more, are insufficient to support an injunction for repeat violence unless accompanied by overt acts indicating an ability to carry out th…
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 intelligenceLanelle Ziemer petitioned for an injunction against Peter Clement due to disputes over an easement. During the hearing, Clement's attorney's objection…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Repeat Violence cases and more on FLexlaw
PER CURIAM.
Peter Clement appeals the imposition of a final injunction against repeat violence resulting from Lanelle Ziemer’s petition. Their dispute revolves around a ten-foot wide easement on Ziemer’s property that allows Clement access to a lake. The issue is whether Clement was afforded due process. Finding he was not, we reverse.
Some facts are pertinent to the conduct of the hearing. Ziemer alleged that Clement: cut down trees on the easement; claimed squatter’s rights; said she would be sorry if she did not back down; “terrorized” the neighborhood; drove past her home several times; and accused her of stealing his property. In 2003, one of her workers was allegedly hit by Clement. Clement phoned Ziemer and told her she would be sorry and drove like a madman through the property. Moreover, Clement argued with the sheriffs department and screamed obscene names at his wife. During the hearing, dementis attorney objected to Ziemer’s hearsay statements concerning two .threats allegedly made to third parties, but his objections were ignored.
The conduct of the hearing was disorganized and one-sided. Ziemer made diverse allegations and spoke at length. When Clement’s attorney objected, the objections were spoken through or ignored. When Clement’s attorney attempted to respond to Ziemer’s allegations, the trial court cut him short:
This is the bottom line.
You can use the easement, but you can .only use 10 feet (sic) of it. I don’t want you stopping on that easement. I don’t want you watching them. I don’t want anything. The only thing you’re going to use that easement for is back and forth. Nothing else; There’s no reason to yell out. There’s no reason for any of that and, if I hear it, I’m going to throw you in jail....
If you yell out your window at them, I will consider that a violation of the injunction. If you stop your car and start ^taring at them or harass them in any manner whatsoever, I will consider that a violation of the injunction.... There’s going to be no speeding. There’s going to be no harassing. There’s not going to be anything.
When Clement asked if he could speak, the court responded “[pjrobably not,” and then warned him: “If you want to, you say it at your own peril.” When Clement’s attorney mentioned the lack of opportunity to present his case, he was cut off: “You had plenty of opportunity to put on your case. Don’t start playing games like that with me.” Toward the end of the hearing when Clement’s attorney sought clarifica tion on use of the easement, this exchange occurred:
CLEMENT’S ATTORNEY: Okay. That’s on the file for the injunction, your honor. On the easement itself, your honor, if we need additional clarification on the easement from the judge who granted the easement—
THE COURT: Do you want me to just go ahead and grant a flat injunction with no access to the easement?
CLEMENT’S ATTORNEY: No, your honor. THE COURT: Then don’t argue with me because I can do that, too. I can say he gave up his right to. the -easement.
Clement argues he was not allowed to present his case and was denied “procedural due process, which required (1) a hearing (2) before an impartial decision-maker, after (3) fair notice of the charges and allegations, (4) with an opportunity to present one’s own case.” Blaylock v. Zeller, 932 So. 2d 479, 480-81 (Fla. 5th DCA 2006). After thorough review of the hearing transcript, we agree. Clement lacked an impartial decision-maker and the opportunity to present his case and is entitled to reversal on that issue alone.
Moreover, this case is controlled by Santiago v. Towle, 917 So. 2d 909, 910 (Fla. 5th DCA 2005) which discussed requisites for an injunction from section 784.046, Florida Statutes (2005). Among other things, each of at least two qualifying violent incidents must be proven by competent,- substantial evidence. Santiago, 917 So. 2d at 910, accord Sorin v. Cole, 929 So. 2d 1092, 1094 (Fla. 4th DCA 2006). The allegations in the case before us are insufficient because they do not encompass overt acts justifying a belief that violence was imminent.
Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction .... Even a representation that the offender owns a gun and is not afraid of using it is insufficient to support an injunction absent an overt act indicating an ability to carry out the threat or justifying a belief that violence is imminent.
Sorin, 929 So. 2d at 1094 (citing Santiago, 917 So. 2d at 910-11). Similarly, Clement’s threats that Ziemer would be sorry may have placed her in fear, but, without more, are not qualifying acts of violence. See id. Much like Santiago and its acrimonious dispute over a fence, this is an acrimonious dispute over an easement. Ziemer’s allegations, even if believed, do not constitute competent, substantial evidence that two qualifying acts of violence occurred under section 784.046.
Accordingly, we REVERSE and REMAND with instructions to vacate the injunction.
PLEUS, C.J., THOMPSON and SAWAYA, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Russell v. Deidra L. Doughty, 28 So. 3d 169 (Fla. 1st DCA 2010)…any other person.” § 784.046(l)(a), Fla. Stat. Competent, substantial evidence must support the trial court’s finding that two incidents of repeat violence occurred. See Shocki v. Aresty, 994 So. 2d 1131, 1132 (Fla. 3d DCA 2008); Clement v. Ziemer, 953 So. 2d 700, 702 (Fla. 5th DCA 2007); Santiago v. Towle, 917 So. 2d 909, 910 (Fla. 5th DCA 2005). The trial court must find that two incidents of violence occurred. See Terrell v. Thompson, 935 So. 2d 592, 593 (Fla. 1st DCA 2006). Appellant admits that the tr…
-
Shocki v. Aresty, 994 So. 2d 1131 (Fla. 3d DCA 2008)…on evidence are reviewed for an abuse of discretion, and we also consider Shocki’s contentions that the hearing denied him due process because he was not afforded fair notice of the charges or given an opportunity to address them. Clement v. Ziemer, 953 So. 2d 700, 702 (Fla. 5th DCA 2007). Initial Petition The proceedings below began when Ar-esty filed a verified petition for ex parte injunction for protection against repeat violence. The petition alleged that, the day before the filing, Shocki had “banged…1 / 2
-
Aron C. Tash v. Aaron Rogers and o/b/o Minor Child E.R., 246 So. 3d 1304 (Fla. 1st DCA 2018)
Authorities Cited
- Sorin v. Cole, 929 So. 2d 1092 (Fla. 4th DCA 2006)
- Santiago v. Towle, 917 So. 2d 909 (Fla. 5th DCA 2005)
- Blaylock v. Zeller, 932 So. 2d 479 (Fla. 5th DCA 2006)