Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT CHRISTINA DUBY, Appellant, v. BERNIE MARRERO, JR., Appellee. No. 4D2025-3112 [August 26, 2026] Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Michael David Porter, Judge; L.T. Case No. 562025DR002308AXXXHC. Christina Duby, Bismarck, ND, pro se. No appearance for appellee. PER CURIAM. Affirmed. GROSS and LEVINE, JJ., concur. FORST, J., dissents with opinion. FORST, J., dissenting. I respectfully dissent from the majority’s affirmance of the trial court’s order granting Appellee Marrero’s petition for an injunction for protection against stalking against Appellant Duby, following an in-person hearing that Appellant did not attend, as explained below. I take no position on the merits of the permanent injunction, finding only that Appellant was not afforded due process when denied a reasonable opportunity to attend the hearing. I would thus vacate the permanent injunction and remand for a new permanent injunction hearing with sufficient notice to the parties. Background In late August 2025, Appellee petitioned for an injunction for protection against stalking against Appellant. Appellee’s petition alleged that, for a prolonged period after a relationship between Appellant and Appellee had ended, Appellant sustained a course of long-distance harassment from her residence in Bismarck, North Dakota, directed at Appellee and his family, who resided in St. Lucie County, Florida. The trial court initially decided not to enter a temporary injunction against stalking, as “there is not a sufficient factual basis upon which the court can enter a Temporary Injunction for Protection Against Domestic, Repeat, Dating, or Sexual Violence or Stalking prior to a hearing.” A hearing on Appellee’s petition was held on October 7, 2025. Appellant was permitted to appear remotely by Zoom. Upon Appellant’s request, a continuance was granted and the hearing was continued to October 14, 2025. The order granting continuance stated that Appellant could file a motion if she was interested in appearing remotely. Before the scheduled hearing, Appellee filed a supplemental petition, alleging new acts of harassment that allegedly occurred subsequent to Appellee’s August 2025 petition. On October 10, the trial court announced it was not going to issue a temporary injunction, “but that an injunction may be entered after the [October 14 final] hearing, depending on the findings made by the court at that time.” On October 12, Appellant moved to appear at the final hearing by Zoom, noting that: Upon reviewing the cost of plane tickets, I am not able to afford travel at this time. I am on a fixed income, and my household has already paid our bills for the month. Traveling to Florida would require advance planning and additional expenses that are not possible within my current means. We previously had access to a discount airline in my area, but that option is no longer available, further increasing travel costs. I have submitted all of my exhibits and supporting materials through the Clerk’s office via the E-Filing Portal. For these reasons, I respectfully request that the Court permit me to attend the upcoming hearing by Zoom. The following day, October 13, the trial court denied Appellant’s motion to appear at the next day’s final hearing by Zoom, stating that “[t]he allegations presented in the Petition for Injunction for Protection Against Stalking are ill- suited for the presentation of evidence via Zoom.” The court’s order was the first notice that the next day’s hearing would be in-person only. That same day, the trial court, for a third time, declined to enter a temporary injunction. 2 Appellant did not appear at the October 14 hearing; Appellee appeared. The trial court found Appellee “is a victim of stalking” and entered an injunction to remain in effect until January 14, 2026. Appellant filed a motion for rehearing, arguing that a remote hearing was necessary as an accommodation for her disability and because “her income is limited.” The trial court denied Appellant’s rehearing motion. This appeal follows. Analysis Appellant lives in North Dakota. She had been permitted to appear by Zoom for prior proceedings, including the October 7 hearing that was scheduled as an evidentiary hearing. Once she received the notice of the October 14 in-person hearing, she timely filed a motion to appear by Zoom, as she had successfully done previously. In that motion, Appellant explained that she was unable to afford a flight from Bismarck to Port St. Lucie on such short notice. The trial court denied the motion on the literal eve of trial, notwithstanding Appellant’s notice that “[t]raveling to Florida would require advance planning and additional expenses that are not possible within my current means.” “Adequate notice is a fundamental element of the right to due process.” Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So. 2d 1231, 1235 (Fla. 1st DCA 1995). Here, the trial court’s October 13 order denying Zoom attendance at the following day’s hearing denied Appellant due process as she was not “afforded a real opportunity to be heard and defend.” Schneider v. Tirikian, 397 So. 3d 1070, 1073 (Fla. 3d DCA 2024) (citation omitted). “If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.” Id. (citations omitted). “Florida’s courts have routinely held that if service of notice is made to a party only a few days or less before an adversarial hearing on the merits, then the notice is not fair and reasonable.” Spencer v. Kelner, 357 So. 3d 166, 169 (Fla. 4th DCA 2023). “Generally, the absent party must make some effort to seek a continuance or otherwise inform the trial court of the party’s inability to attend the hearing and properly present his or her case.” Id. As noted above, Appellant informed the trial court of her inability to attend, in-person, the hearing scheduled for two days later, due to the short notice and prohibitive airfare costs. Although Appellant did not directly request a continuance, analysis of her no- show utilizing the methodology employed in addressing continuance denials is instructive. “We look at three factors when assessing denial of a continuance motion: whether the denial results in an injustice for the movant; whether the cause for the delay was unforeseen or whether the motion was based on dilatory 3 tactics; and whether the opposing party would be prejudiced.” McPherson v. Samuel, 392 So. 3d 565, 567 (Fla. 4th DCA 2024). Here, the “eve of trial” denial of Appellant’s motion to appear by Zoom at the final hearing resulted in an injustice for Appellant as she was unable to afford a same-or-next-day flight from North Dakota to Florida and thus was unable to appear at the final hearing. See id. (“[T]he denial resulted in an injustice to McPherson because McPherson was prevented from presenting any evidence or argument, thus allowing the permanent injunction to be primarily based on the petitioner’s uncontested allegations.”). Second, there is no basis to conclude that Appellant’s ability to attend the October 14 hearing was “based on dilatory tactics.” Appellant reasonably believed she would be able to appear remotely as she had previously done in this case. She received little time to adjust her finances to be able to purchase a last- minute flight ticket, if one was even available. Finally, the opposing party would not have been prejudiced if Appellee demonstrated ongoing or new incidents of harassment justifying a temporary injunction. See id. at 568 (“A temporary injunction has the effect of a permanent injunction, except that it is in place for only a limited amount of time.”). Thus, I would hold that the trial court erred in not giving sufficient notice to provide Appellant a real or meaningful opportunity to attend the in-person hearing. Accordingly, I respectfully dissent. * * * Not final until disposition of timely-filed motion for rehearing. 4