Clement v. Ziemer

• Citation: 953 So.2d 700
• Decision Date: 05 April 2007
• Docket Number: No. 5D06-2501.,5D06-2501.
• Parties: Peter CLEMENT, Appellant, v. Lanelle ZIEMER, Appellee.
• Court: Court of Appeal of Florida (US)

953 So.2d 700

Peter CLEMENT, Appellant, v. Lanelle ZIEMER, Appellee.

No. 5D06-2501.

District Court of Appeal of Florida, Fifth District.

April 5, 2007.

David G. Hutchison and Vincent J. Tubiana, of Law Offices of David G. Hutchison, Key Largo, for Appellant.

Lanelle Ziemer, St. Cloud, pro se.

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 sheriff's department and screamed obscene names at his wife. During the hearing, Clement's 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 staring 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 "[p]robably 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 clarification 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...