2D06-3335 / Porter v. Hoeft

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State: Florida

Court: Florida Southern District Court

Docket No: 2D06-3335

Case Date: 03/07/2007

Plaintiff: 2D06-3335 / Porter

Defendant: Hoeft

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
SHIRLEY PORTER,                                                                                )
)
Appellant,                                                                                     )
)
v.                                                                                             )   Case No. 2D06-3335
)
ALICIA R. HOEFT,                                                                               )
)
Appellee.                                                                                      )
________________________________ )
Opinion filed March 7, 2007.
Appeal from the Circuit Court for
Pinellas County; David Seth Walker,
Senior Judge.
Wesley R. Stacknik, Seminole,
for Appellant.
Alicia R. Hoeft, pro se.
NORTHCUTT, Judge.
On Alicia Hoeft's petition, the circuit court issued a permanent injunction
against repeat violence by the paternal grandmother of Hoeft's child, Shirley Porter.   We
reverse.
According to Hoeft's petition, the parties have experienced substantial
difficulty when they meet to pass the child for visitation.   Hoeft alleged two incidents of
violence by Porter, one of which allegedly occurred within six months of the petition.
See § 784.046, Fla. Stat. (2006) (authorizing protective injunction when respondent has

directed two incidents of violence towards the petitioner and one incident occurred
within six months of the petition).   When there is an immediate and present danger of
violence, a court may enter an ex parte temporary injunction based solely on the
allegations in the verified pleading.                                                        § 784.046(6).   But the court must then conduct a full
evidentiary hearing before it may enter a final injunction.                                  § 784.046(6)(c); see Brand v.
Elliott ex rel. Elliott, 610 So. 2d 37 (Fla. 5th DCA 1992) (stating that full hearing
contemplates opportunity to be heard and present evidence).
At the hearing in this case, Porter testified about the most recent episode
that had been described in the petition, and she disputed Hoeft's allegation that she was
the aggressor.   But Porter was not allowed to call other witnesses.   Rather, the circuit
court questioned Hoeft very briefly, without asking about the alleged incidents of
violence.   Then it abruptly announced that the injunction was granted based on the
petition's allegations and the court's credibility determination.
Given the summary manner in which the court conducted the hearing, it is
not surprising that the record lacks competent, substantial evidence showing the
grounds required for the injunction.   For this reason, we are compelled to reverse.   See
Russell ex rel. Russell v. Hogan ex rel. Hogan, 738 So. 2d 1003 (Fla. 2d DCA 1999).
Moreover, even if sufficient evidence had been introduced, we would still find it
necessary to reverse because the circuit court erred in refusing to hear testimony from
Porter's witnesses.   See Brand, 610 So. 2d at 38 (reversing final injunction because
circuit court had refused to consider respondent's evidence).
Reversed and remanded for new hearing.
ALTENBERND and VILLANTI, JJ., Concur.
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