Wolfe v. Newton

• Decision Date: 11 December 2020
• Docket Number: Case No. 2D20-1994
• Citation: 310 So.3d 1077
• Parties: Terence K. WOLFE, Petitioner, v. Lisa L. NEWTON, Respondent.
• Court: Florida District Court of Appeals

310 So.3d 1077

Terence K. WOLFE, Petitioner,

v.Lisa L. NEWTON, Respondent.

Case No. 2D20-1994

District Court of Appeal of Florida, Second District.

Opinion filed December 11, 2020.

Terence K. Wolfe, pro se.

No appearance for Respondent.

LUCAS, Judge.

Terence K. Wolfe has filed a petition for certiorari in this court challenging the circuit court's ruling that he must attend a post-final order hearing and give testimony before he can retrieve his shotgun, semiautomatic pistol, and ammunition from the custody of the Hillsborough County Sheriff's Office. We treat his petition as a petition for a writ of prohibition and grant it.

I.

Lisa Newton and Mr. Wolfe lived on the same street in Tampa. Apparently, Mr. Wolfe became concerned with the manner in which Ms. Newton was keeping her dog and using an adjoining lot. Ms. Newton, in turn, became concerned with the manner in which Mr. Wolfe was monitoring her and her property. On March 17, 2020, Ms. Newton filed a petition for injunction for protection against stalking in the Hillsborough County Circuit Court, alleging that Mr. Wolfe had driven and walked around her house on a few occasions over the past year and recorded her on his mobile phone.

After reviewing Ms. Newton's petition, a circuit judge entered an ex parte temporary injunction for protection against stalking against Mr. Wolfe. In addition to ordering Mr. Wolfe to have no contact with or come within 500 feet of Ms. Newton, her home, or her place of employment, the ex parte injunction required Mr. Wolfe to surrender all of his firearms and ammunition to the Hillsborough County Sheriff's Office. Mr. Wolfe complied with the terms of the ex parte injunction and attended the return hearing that was set for March 25, 2020.

At the conclusion of that hearing, the circuit court entered two orders, both of which contained the same substantive finding. One order denied Ms. Newton's petition; the second order dismissed it. Both orders stated "[t]he [c]ourt does not find evidence of stalking as defined by Florida Statute[ ] section 784.048 and interpreted by the appellate courts."¹

Later that same day, March 25, Mr. Wolfe filed an "Amended [Verified] Motion for Return of Firearms." In his verified motion, he pointed out that the court had both denied and dismissed the petition that had given rise to the ex parte temporary injunction against him. He requested the circuit court enter an order so that the Sheriff's Office would return his firearms and ammunition to him.² He did not request a hearing within his motion, nor (as we will explain) should he have needed to. By its own terms, the ex parte temporary injunction was only in effect "until the hearing" that had just concluded in his favor.

Nevertheless, Mr. Wolfe attempted to schedule a hearing with the presiding judge's judicial assistant to facilitate the entry of the order he was told he needed to obtain. Mr. Wolfe informs us that he was unable to obtain a date at that time, but six days later, on March 31, the court sua sponte set a hearing on his motion for June 4, 2020.

The day before the hearing, Mr. Wolfe received an email from the presiding judge's judicial assistant informing him that, due to current public health restrictions, he would need to appear by video conference for his hearing through the "Zoom" website application.³ Mr. Wolfe replied that he did not have the capability to appear by Zoom, but that he could appear by telephone. The court's judicial assistant responded with an email stating that the presiding judge

has to swear you in and take testimony from you under oath[ ] about the return of the firearm. It is an evidentiary hearing by law. If you can't utilize the Zoom Video app. then the Motion will be continued for another date. You were mailed the notice of hearing and the Zoom instructions so you have the information.

Her email concluded by emphasizing that this process was per the judge's order. Mr. Wolfe promptly sent an email in response, which stated, in pertinent part:

I am unaware of any opposition to the motion which, in my opinion, should not even require a hearing, and which should have been granted as soon as it was filed, two months ago. The relief it seeks is entirely ministerial, and not discretionary. ...

I am unaware of any need for the taking of evidence at a hearing on an uncontested motion, therefore, there is no need, and you have identified none, for the swearing in of anyone. ...

....

I do not consent to the continuation of anything, as there is no legitimate grounds on which to do so. I, who prevailed in the indicated matter, have waited more than long enough for the return of my property.

Kindly produce the telephone number to call in for tomorrow's hearing. Or the [c]ourt may, if it pleases, have me draft a proposed order compelling the Sheriff immediately to release my property to me, an order to which the Sheriff already has communicated to the [c]ourt he has no objection.

When Mr. Wolfe did not make a video appearance as the court directed, the court entered an order continuing his hearing. That order read:

Respondent's Motion for Return of Firearms is continued. Both parties appeared via Zoom audio pursuant to COVID-19 advisories. The court required video or live appearance to administer an oath and inquire of Respondent before granting a motion for return of firearms. The matter is reset for June 30, 2020 at 1:00 p.m. for a live hearing for Respondent to appear. Petitioner was advised she may appear if she chooses. However, the inquiry would pertain to the pending motion. The motion is not a vehicle for appeal or re-litigating the underlying matter.

Mr. Wolfe then filed the petition now before us.

II.

Mr. Wolfe has cast a wide net for the appropriate writ to obtain redress, and we can't fault him for doing so. His petition asks for certiorari relief, but in the alternative, he requests a writ of mandamus, prohibition, or quo warranto. His argument is fairly straightforward: the only ostensible basis for seizing his firearms was the ex parte injunction entered on Ms. Newton's petition;⁴ when the court later dismissed and denied her petition, that injunction was dissolved; since there was no lawful basis for the sheriff to continue holding his firearms, and since his case was over, he should not have to attend an evidentiary hearing to have his property returned to him. His argument touches aspects within each of the extraordinary writs, but since we can resolve this case fully on the basis of prohibition (and thereby avoid extending our extraordinary writ jurisdiction unnecessarily), that is the writ through which we will examine his argument, an argument that we find to be well taken.

Article V, section 4 of the Florida Constitution gives this court the power to issue a writ of prohibition. The First District summarized when a writ of prohibition may be appropriate if a lower tribunal attempts to exercise judicial power it does not have:

"Prohibition is an extraordinary writ by which a superior court may prevent an inferior court or tribunal, over which it has appellate and supervisory jurisdiction, from acting outside its jurisdiction." Mandico v. Taos Constr., Inc., 605 So. 2d 850, 853 (Fla. 1992). Subject matter jurisdiction is the "[p]ower of a particular court to hear the type of case that is then before it" or "jurisdiction over the nature of the cause of action and relief sought." Fla. Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988) (quoting Black's Law Dictionary 767 (5th ed. 1979)). It "means no more than the power lawfully existing to hear and determine a cause." Malone v. Meres, 91 Fla. 709, 109 So. 677, 684 (1926). Although a writ of prohibition is meant to be employed "with great caution and utilized only in emergencies," English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977), it "may be granted when a trial court acts outside of its jurisdiction." Scott v. Francati, 214 So. 3d 742, 749 (Fla. 1st DCA 2017).

Scott v. Hinkle, 259 So. 3d 982, 984 (Fla. 1st DCA 2018).

Prohibition may be appropriate where, as here, a trial court that had subject matter jurisdiction attempts to exercise an unreserved power to adjudicate further substantive matters when a case has definitively concluded. See, e.g., Baden v. Baden, 260 So. 3d 1108, 1114-15 (Fla. 2d DCA 2018) (granting prohibition where trial court, after declaring a voluntary dismissal "a nullity," attempted to retain jurisdiction over a dispute in the management of a trust); Aurora Bank v. Cimbler, 166 So. 3d 921, 927 n.4 (Fla. 3d DCA 2015) ("However, continuing to exercise jurisdiction over the [postjudgment] case for the purpose of compelling a nonparty mediator's discovery requests was an improper and unlawful exercise of the trial court's jurisdiction for which relief by prohibition is proper."); Tobkin v. State, 777 So. 2d 1160, 1164-65 (Fla. 4th DCA 2001) (granting prohibition to prevent trial court from ordering a husband and wife to attend a domestic violence center after they had voluntarily dismissed their underlying domestic violence and dissolution of marriage petitions). This is so because "[t]he rule is firmly established in this State that the trial Court loses jurisdiction of a cause after a judgment or final decree has been entered and the time for filing petition for rehearing or motion for new trial has expired or same has been denied." Travelers Cas. & Sur. Co. of Am. v. Culbreath Isles Prop. Owners Ass'n, 103 So. 3d 896, 899 (Fla. 2d DCA 2012) (quoting Liberty Ins. Corp. v. Milne, 98 So. 3d 613, 615 (Fla. 4th DCA 2012) ). The trial court may hold some degree of "case" jurisdiction after a final decree has become final, see Baden, 260 So. 3d at 1111, but only "to conclude ancillary matters involved in the case such as outstanding and unresolved motions for attorney's fees and costs, and similar issues," Tobkin, 777 So. 2d at 1163 ; cf. Santiago v. U.S. Bank Nat'l Ass'n, 257 So. 3d 1145, 1148 (Fla. 5th DCA 2018) (holding that trial court could convene a...