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Carmona v. Wal-Mart Stores, East, LP

Florida Court of Appeal, Second District

November 18, 2011

Osanna S. CARMONA and Nelson L. Carmona, Appellants,
v.
WAL-MART STORES, EAST, LP, Appellee.

Rehearing Denied March 5, 2012.

Page 462

Osanna S. Carmona and Nelson L. Carmona, pro se.

Traci T. McKee of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellee.

KHOUZAM, Judge.

Osanna S. and Nelson L. Carmona, proceeding pro se, appeal the denial of their motion for relief from judgment after summary judgment was granted in Wal-Mart's favor. They argue that they were denied procedural due process at the summary judgment hearing because they did not receive a meaningful opportunity to be heard. Because the Carmonas were given both proper notice and a full and fair chance to argue their case, their rights to procedural due process were not violated and we affirm.

On April 29, 2009, Mrs. Carmona was shopping at a Wal-Mart store in Cape Coral. A Wal-Mart loss prevention officer watched Mrs. Carmona place merchandise in the back compartment of her shopping cart and then place her purse over it. At the self-pay checkout register, Mrs. Carmona paid for the items located in the large front compartment but did not scan or pay for the items beneath her purse.

After Mrs. Carmona passed the last point of sale in the store, the loss prevention officer approached her, identified himself, and asked to search her belongings. The search revealed the unpaid merchandise, which Mrs. Carmona explained had been mistakenly overlooked in the checkout process. The loss prevention officer contacted the police, who arrested Mrs. Carmona for theft. Mrs. Carmona was

Page 463

charged by information with petit theft, but the Assistant State Attorney later entered a nolle prosequi in the case because the arresting officer was unavailable to testify on the date scheduled for trial.

After the criminal case was dismissed, the Carmonas, acting pro se, filed a civil action against Wal-Mart, ultimately alleging five causes of action. Mrs. Carmona's claims included malicious prosecution, slander, intentional infliction of emotional distress, and negligent hiring and retention. Mr. Carmona's claim was essentially for loss of consortium. Wal-Mart moved for summary judgment on all five claims on October 13, 2010, and on the following day served the Carmonas with a notice of hearing scheduled for January 10, 2011. The Carmonas did not object to the scheduling or amount of time allotted for the hearing.

At the hearing on the motion for summary judgment, each side received an opportunity to present its case. Wal-Mart began and focused on the dispositive issue of probable cause. Specifically, Wal-Mart relied on an affidavit Mrs. Carmona had prepared for the criminal case against her, in which she admitted to leaving the checkout area with unpaid merchandise. Wal-Mart also argued that because the Carmonas had not filed any affidavits or other evidence in support of their claims, it was entitled to summary judgment.

After Wal-Mart had addressed each claim, Mr. Carmona spoke on behalf of both plaintiffs. He conceded that Mrs. Carmona had left with unpaid merchandise and therefore that Wal-Mart had probable cause to detain her. But he asserted that the loss prevention officer had included some of the paid items on the list of unpaid ones. According to Mr. Carmona, this misclassification should preclude granting summary judgment on Wal-Mart's behalf. Once Mr. Carmona had described the plaintiffs' position, the judge interrupted him to explain the evidentiary implications of a summary judgment proceeding and his view that the issue of probable cause was dispositive.

The judge then allowed each side to respond once more. After each party adhered to its original arguments, the judge granted summary judgment in favor of Wal-Mart because the dispositive issue of probable cause had been conceded and no evidence was filed in opposition to Wal-Mart's affidavits. The hearing lasted approximately thirty minutes, and the Carmonas did not request more time to prepare or explain their case. The Carmonas later filed a Motion for Relief from Judgment under Florida Rule of Civil Procedure 1.540(b), arguing that the court violated their procedural due process rights at the summary judgment hearing by denying them a meaningful opportunity to be heard. The motion was denied, and the Carmonas timely brought this appeal.

The trial court did not err in denying the Carmonas' motion for relief from judgment because their rights to procedural due process were not violated. " Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue." Dep't of Law Enforcement v. Real Prop.,588 So.2d 957, 960 (Fla.1991). Procedural due process requires that each litigant be given proper notice and a full and fair opportunity to be heard. See, e.g., Vollmer v. Key Dev. Props., Inc.,966 So.2d 1022, 1027 (Fla. 2d DCA 2007); Cnty. of Pasco v. Riehl,635 So.2d 17, ...


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