County Civil Court: CIVIL PROCEDURE – Hearing – Incarcerated plaintiff did not have a right to appear telephonically to prosecute his civil case when the trial court allowed for his personal appearance.  Order affirmed.  David B. Lawson v. Robert Frank, No. 12-AP-000008-ES (Fla. 6th Cir. App. Ct. January 25, 2013).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

DAVID B. LAWSON,     

                        Appellant,

                                                                                    UCN:              2012AP000008XXXXES

v.                                                                                 Case No:       2012-AP-0008-ES

                                                                                    Lower No:    2010-CC-1215-ES

 

ROBERT FRANK,                                     

                        Appellee.                                                      

______________________________/

 

Appeal from Pasco County Court

 

County Judge Robert P. Cole  

 

David B. Lawson, Pro Se 

Appellant

 

Robert Frank, Pro Se   

Appellee

 

 

 

ORDER AND OPINION

            Appellant seeks the reversal of the trial court’s order denying his motion for telephonic hearing.  Appellant argues that the trial court abused its discretion when it denied his motion because he had a right to appear telephonically in lieu of personally appearing to prosecute his civil case.  We disagree.  Therefore, this court shall affirm the trial court’s order as set forth below. 


FACTUAL BACKGROUND

On March 10, 2010, Appellant David Lawson filed an emergency complaint against Appellee Robert Frank to recover possession of real property unlawfully or forcibly detained by Appellee.  Appellant claimed that Appellee was unlawfully squatting and withholding possession of the dwelling and surrounding property.  There was no written or oral lease.  Appellee had not paid any monies in rent of which Appellant claimed the fair market value to be $1,500 a month.  Appellant is an inmate at the Avon Park Correctional Institution.

Appellee responded to the complaint on November 2, 2010.  In his response, Appellee admitted to living at the residence since June of 2009.  Months prior to actually moving in, Appellant and Appellee discussed Appellee living there.  It was agreed that all Appellee would have to pay was his utilities.  Appellant wanted Appellee to move in to the house because Appellant thought he would be going to jail, and he did not want his family to take the house from him while he was incarcerated.  Appellant wanted Appellee to move in as soon as he could.  No lease or contract was drawn, but the terms remained that all Appellee would be required to pay was the utilities.  A couple of weeks later, Appellant was arrested on some burglary charges.  Appellee went with his father to inspect the residence while Appellant was detained in jail.  The property was a mess with feces because Appellant had three dogs, numerous cats, and birds in the house.  Before Appellee started cleaning, which took about a month, he took all of Appellant’s and his mother’s belongings and put them in his Appellant’s room.  Appellee did not give away or sell any of those items, and they remain there now.  Appellee had not only been paying the utilities as agreed, but he also gave Appellant’s power of attorney (Kenny Robertson) $300 per month to deposit into Appellant’s account, but this stopped once Appellant started sending him threatening letters.  Kenny Robertson also took possession of Appellant’s reptiles since he was licensed to keep such reptiles.  At the end of the response, Appellee stated that he planned to move out in December of 2010.

A hearing was scheduled before Judge Cole on April 28, 2011, which was continued.  Appellant filed a motion for telephonic hearing on May 5, 2011.  Appellant stated that he was incarcerated and that it would be a more economical use of resources, the correctional institution had the necessary equipment, Appellant’s presence was unnecessary, and Appellant was enrolled in self-betterment programs that he would miss by appearing personally.  On June 8, 2010, Appellant requested another hearing date and filed another similar motion for telephonic hearing.  Appellant filed a motion for default and a motion for hearing with another accompanying motion for telephonic hearing on August 18, 2011.  Appellant filed a motion to set case for trial and a motion for telephonic trial on December 21, 2011.  On March 12, 2011, the trial court issued an order scheduling the final hearing for April 25, 2012, denying Appellant’s motion for telephonic hearing, and transporting Appellant to the hearing.  Appellant filed a motion for reconsideration of the telephonic hearing on March 23, 2012.  The same day, Appellant filed a motion to withdraw his request for trial since he has since become aware of some documents that would help prove his case and would need time to evaluate them.  Appellant filed a Notice of Appeal on April 3, 2012.  Appellant filed a motion to stay proceedings pending appeal the next day.  The trial court granted Appellant’s motion to withdraw his request for hearing, but denied Appellant’s motion for reconsideration for telephonic hearing, on April 9, 2012.           

 

              

LAW AND ANALYSIS

Appellant contends that the trial court abused its discretion by denying his request to be heard telephonically in his civil claim.  Appellant relies upon Miranda v. Munoz-Ortiz, 75 So. 2d 843 (Fla. 2d DCA 2011) for the proposition that an incarcerated party to a civil matter has the right to be heard telephonically as long as it’s been brought to the court’s attention his desire to appear telephonically.  Appellant, however, misconstrued the case law.  What Miranda v. Munoz-Ortiz actually stands for is that an incarcerated party has a right to appear at least telephonically—not that the incarcerated party has a right to appear telephonically.  See also, Johnson v. Johnson, 992 So. 2d 399 (Fla. 1st DCA 2008).  Since the trial court entered an order to transport, which would have allowed Appellant to appear personally to prosecute his civil case, the trial court did not abuse its discretion by denying Appellant’s motion for telephonic hearing.  It is therefore,

 

            ORDERED that the trial court’s order is hereby AFFIRMED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 25th day of January 2013.

 

Original order entered on January 25, 2013 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.

 

 

 

 

 

 

 

 

 

 

 

 

 

Copies to:

David B. Lawson

Robert Frank