LARRY K. DOBSON AND LAURIE M. DOBSON, Appellants,
U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE, SUCCESSOR IN INTEREST TO WACHOVIA BANK, N.A., AS INDENTURE TRUSTEE, FOR MERRILL LYNCH MORTGAGE INVESTORS TRUST, SERIES 2005-A9, ET AL., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Lawrence Kirkwood,
H. Sudbury, of Apellie Legal Services, Orlando, for
Kimberly N. Hopkins, of Shapiro, Fishman & Gache, LLP,
Tampa, for Appellee, U.S. Bank National Association.
Appearance for other Appellees.
and Laurie Dobson timely appeal the Final Judgment of
Foreclosure entered in favor of U.S. Bank National
Association. We find merit in the Dobsons' claim that the
trial court violated their due process rights when it ended
the trial without allowing them to present evidence in their
defense. Accordingly, we reverse.
a trial court has violated a party's due process rights
is subject to de novo review. VMD Fin. Servs., Inc. v. CB
Loan Purchase Assocs., 68 So.3d 997, 999 (Fla. 4th DCA
2011) (quoting Dep't of Rev. ex rel. Poynter v.
Bunnell, 51 So.3d 543, 546 (Fla. 1st DCA 2010)). Due
process requires that each litigant be given a "full and
fair opportunity to be heard." Vollmer v. Key Dev.
Props., Inc., 966 So.2d 1022, 1027 (Fla. 2d DCA 2007)
(citing Cty. of Pasco v. Riehl, 635 So.2d 17, 18
(Fla. 1994)). "The right to be heard at an evidentiary
hearing includes more than simply being allowed to be present
and to speak. Instead, the right to be heard includes the
right 'to introduce evidence at a meaningful time and in
a meaningful manner.'" Id. (quoting
Baron v. Baron, 941 So.2d 1233, 1236 (Fla. 2d DCA
2006)). Thus, "[d]ue process requires that a party be
given the opportunity . . . to testify and call witnesses on
his behalf, and the denial of this right is fundamental
error." Pettry v. Pettry, 706 So.2d 107, 108
(Fla. 5th DCA 1998) (citation omitted).
trial, Bankʹs attorney presented several witnesses, who
were thoroughly cross-examined by the Dobsons. When Bank
rested its case, the Dobsons moved for involuntary dismissal
based, in part, on Bank's failure to comply with
paragraph 22 of the mortgage. After Bank responded, the trial
court denied the motion. Immediately thereafter, the trial
court informed the parties that it was entering final
judgment in favor of Bank and asked Bank to submit a proposed
final judgment. At that time, the Dobsons' attorney
attempted to move a document into evidence, but the trial
court refused to allow him to do so. When counsel protested,
the trial court responded by saying: "[j]udgment has
been entered. Judgment has been entered, " and the
hearing immediately ended.
record shows the Dobsons wanted to offer at least one piece
of evidence for the trial court to consider before ruling,
but the court refused to allow them to do so. They were also
precluded from presenting closing arguments. This was error.
as the trial court's refusal to allow the Dobsons to
present evidence violated their due process rights, we are
compelled to reverse the final judgment and remand for a new
trial. See Beltran v. Kalb, 982 So.2d 24, 26 (Fla.
3d DCA 2008) (finding trial court denied appellantsʹ
right to due process of law when it summarily denied motions
without giving appellants reasonable opportunity to be heard
(citing Fuentes v. Shevin, 407 U.S. 67 (1972)));
Edelman v. Breed, 836 So.2d 1092, 1093-94 (Fla. 5th
DCA 2003) (holding trial court committed reversible error and
denied party due process when it directed verdict against
party before he presented his case); Pettry, 706
So.2d at 108 (noting that due process requires party be given
opportunity to be heard, to testify, to call witnesses on his
behalf, and to present closing argument (citing Vazquez
v. Vazquez, 626 So.2d 318 (Fla. 5th DCA 1993);
Strong v. Mt. Dora Growers Coop., 495 So.2d 1238
(Fla. 5th DCA 1986))).
and EDWARDS, JJ., and JACOBUS, ...