Delgado v. Hearn
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ZENEN D. DELGADO,
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Appellant,
v.
TAMA P. HEARN, MARJORIE
SCHMOYER, ESQUIRE, TERENCE
J. QUINN, ESQUIRE,
Appellees.
Case No. 2D00-5048
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Opinion filed December 19, 2001.
Appeal from the Circuit Court for
Manatee County;
Scott M. Brownell, Judge.
Zenen D. Delgado, pro se.
Marjorie A. Schmoyer,
Sarasota, for Appellees.
STRINGER, Judge.
Zenen D. Delgado appeals from an order dismissing his complaint and an
order imposing sanctions. We affirm the order dismissing his complaint without comment
but reverse the order imposing sanctions. The trial court did not follow the proper
procedure when it determined that Delgado could no longer appear as a pro se litigant in
the Twelfth Judicial Circuit in any legal proceedings against appellees.
Delgado and Tama Hearn were divorced in 1986, but as too often happens,
the divorce was just the beginning of their litigious journey which has spanned fifteen years
and two states. According to appellees’ motion for sanctions, “the index to the docket in
the Sarasota County dissolution case consumed 35 pages through December 22, 1997.”
No matter how litigious the former husband and former wife may have been, the only
postjudgment litigation initiated by the former husband was the instant action filed in July
2000. The former husband filed a complaint against the former wife and two of her
attorneys, alleging abuse of process, malice, slander, libel, and malicious prosecution.
Attached to the complaint was a letter dated November 1995 addressed to the former wife
wherein, in speaking of the former wife’s relatives and their financial contribution to her, the
former husband wrote, “I assume that they will not mind to find all these financial means
tied up in well deserved, endless and costly litigation[.]” Referencing this language from
the letter, appellees filed a motion for sanctions asking the court to enjoin the former
husband from appearing pro se in any further legal proceedings in the Twelfth Judicial
Circuit.
The judge previously assigned to the case granted the former husband’s
motion to disqualify on September 18, 2000, and the case was reassigned to a new judge
by an order entered on September 21, 2000. On September 27, 2000, without conducting
a hearing, the newly assigned judge entered an order finding that the former husband’s
letter was a threat to “file endless and costly litigation against the [former wife]” and
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ordered the sanction which is the subject of this appeal. Prior to entering the order
however, the trial court failed to issue an order to show cause as to why the sanction
should not be imposed, nor did the court give the former husband notice of the proposed
sanction.
While it is clear that a litigant’s right to access the courts may be restricted
upon a showing of egregious abuse of the judicial process, see, e.g. Attwood v. Singletary,
661 So. 2d 1216 (Fla. 1995), due process requires that courts first provide notice and an
opportunity to respond before imposing this extreme sanction. Spencer v. State, 751 So.
2d 47 (Fla. 1999). Providing such notice and an opportunity to respond will serve to create
a more complete record. “If the litigant is thereafter denied further pro se access to the
courts, the appellate courts will have an enhanced ability to determine whether the denial of
access is an appropriate sanction under the circumstances.” Spencer, 751 So. 2d at 49.
We therefore reverse the order imposing sanctions, and if, on remand, the
trial court is still of the opinion that the former husband should be sanctioned, it shall issue
an order to show cause as to why the sanction should not be imposed and allow the former
husband a reasonable time to respond.
Reversed in part and remanded.
ALTENBERND, A.C.J., and DAVIS, J., Concur.
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