Opinion
No. 1D21-3249.
03-08-2023
Sandra E. JAMES, Appellant, v. Saeed TEYMORZADEH, Appellee.
Christine A. Kelly , Lynchard & Seely, Milton, for Appellant. Saeed Teymorzadeh, pro se, Appellee.
Christine A. Kelly , Lynchard & Seely, Milton, for Appellant.
Saeed Teymorzadeh, pro se, Appellee. B.L. Thomas, J.
Appellant, Sandra James, appeals an order determining rent, writ of possession, and corrected final judgment in an ejectment action. Because the orders were entered in violation of Appellant's due process rights, we reverse.
Appellant and Appellee were parties to a real estate agreement titled "Lease Contract Agreement." Under the agreement, Appellant was to pay $1,100.00 a month for 6 months, from October 1, 2020, until the termination of the lease on March 31, 2021. The agreement specified that the "lessee" was to purchase the home for $165,000 in April 2021. Appellant was to also pay a non-refundable "down payment" of $6,600.00 toward the purchase price. The parties did not close as specified in the agreement and negotiations collapsed.
Appellee filed an eviction complaint in county court. The county court record reflects Appellant actively participated in the case. The county court, citing § 83.42(2), Florida Statutes, determined that because Appellant had paid a down payment on the property exceeding 5% of its purchase price, the eviction complaint was not cognizable under the Florida Residential Landlord and Tenant Act. The court's order transferred the case to circuit court and provided Appellee 60 days in which "to file any additional paperwork necessary and pay any additional fees required to complete the transfer of the case."
Appellee then filed a document in Circuit Court that was docketed as a Complaint for Ejectment. It did not contain a certificate of service.
A hearing was apparently set for September 14, 2021; however, there is no record of notice of hearing and no hearing event listed on the docket. The day before the hearing Appellee filed documents he wished to be admitted at the September 14th hearing, but he failed to include a certificate of service.
Following the hearing the trial court entered an Order Determining Rent and set a final hearing for Friday, September 17, 2021. The order listed service to Appellant via an email address, even though she had not filed a designation of primary email address with the court. Importantly, the email address contained an additional "s" than the email address found in the county court documents.
On September 17 the Circuit Court issued a Writ of Possession and a Final Judgment in favor of Appellee. Both documents again reflected service to Appellant via the email address containing an additional "s."
On September 20, 2021, the court issued its corrected final judgment listing the correct street address for the property and serving Appellant at the email address containing an additional "s." On the same day, counsel for Appellant filed a notice of appearance for the first time.
Whether a trial court has complied with the guarantees of due process is subject to de novo review. Dep't of Revenue ex. rel. Poynter v. Bunnell, 51 So.3d 543, 546 (Fla. 1st DCA 2010).
In Bunnell, this Court explained:
The constitutional guarantee of due process, "`which extends into every proceeding, requires th[at] the opportunity to be heard be full and fair, not merely colorable or illusive.'" See Edelman v. Breed, 836 So.2d 1092, 1094 (Fla. 5th DCA 2003) (quoting Pelle v. Diner's Club, 287 So.2d 737, 738 (Fla. 3d DCA 1974)). The right to be heard "has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." See Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
At the time of these proceedings, the Florida Rules of General Practice and Judicial Administration required "[s]ervice on and by all parties who are not represented by an attorney and who do not designate an e-mail address ... must be made by delivering a copy of the document or by mailing it to the party ... at their last known address." Fla. R. Gen. Prac. & Jud. Admin. 2.516(b)(2) (2021).
In this case, there is no indication that Appellant received service of a notice of hearing or service of any filing or order in the circuit court case. Thus, because the trial court proceedings deprived Appellant of the due process guarantee of notice and an opportunity to be heard, we reverse and remand for further proceedings.
REVERSED and REMANDED.
Kelsey and Long, JJ., concur.