Opinion
Case No. 5D21-1433
03-11-2022
Peppe PARK, Appellant, v. Glen PARK, Bron Park, Barri Park, David McCaslin and The Estate of Flo Jeanette McCaslin, Appellees.
Peppe Park, Palm Bay, pro se. No Appearance for Appellees.
Peppe Park, Palm Bay, pro se.
No Appearance for Appellees.
PER CURIAM.
Affirmed without prejudice to timely file and pursue a motion pursuant to Florida Rule of Civil Procedure 1.540(b). See Rose v. Partners Fed. Credit Union , 312 So. 3d 1041 (Fla. 5th DCA 2021).
AFFIRMED.
EVANDER and EISNAUGLE, JJ., concur.
EDWARDS, J., concurs and concurs specially, with opinion.
EDWARDS, J., concurring specially.
Because the record on appeal is incomplete, I concur in the majority opinion. Peppe Park ("Appellant") appeals the Order of Summary Administration that was entered following a noticed telephonic hearing. Appellant had filed specific written objections to certain aspects of the petition for summary administration. Appellant asserts that although he received notice of the hearing, when he called in at the designated hearing time on the only phone number provided in the notice of hearing, he was not able to participate in the call. The court entered the above-referenced order following the telephonic hearing which Appellant claims he tried to but was unable to attend.
This hearing took place in the midst of the COVID-19 pandemic during which most courthouses were physically closed to the public and hearings took place by phone or virtually using various internet media services.
Flo Jeanette McCaslin was the mother of Appellant and four other sons. When she passed away intestate, one of her sons, Glen Park, through counsel for Ms. McCaslin's estate, filed a petition for summary administration which proposed an equal five-way split of the estate's only asset, the decedent's house, with each son getting a twenty-percent share.
Appellant filed his objections to certain portions of the petition for summary administration, claiming inter alia that he had personally paid for certain funeral expenses and expenses related to the maintenance or repair of their mother's house; none of which had been reimbursed to him by any of his four brothers. Appellant also objected to the extent that the petition requested that the estate's attorney be paid from estate assets. The estate's attorney prepared and served a notice of telephonic hearing on all five brothers, including Appellant.
At least one other brother objected to the request for attorney's fees to be paid from the estate.
The notice of telephonic hearing advised that the subject matter of the hearing would be the petitions for summary administration and determination of homestead. The notice also stated that the hearing would be called up before the judge by phone at a given date and time and provided the specific phone number followed by "option 2." No other attendance or participation information was contained in the notice.
Appellant asserts that when he tried to participate in the hearing by calling the designated number, he was not made part of the hearing. He further claims that the judge's assistant advised him that she did not know how he could participate in the hearing. Appellant contends that he later learned that if more than one person was to participate in a telephonic hearing, all such participants must first join in a conference call and then call the designated number, so that everyone would be on a single line of the judge's phone system. No such information was provided in the notice of hearing, although it is available if one perused that judge's web page.
JACS POLICIES AND PROCEDURES FOR CIVIL JUDGE GEORGE T. PAULK ~ DIVISION M, https://flcourts18.org/docs/bre/JUDGE_PAULKS_JACS_POLICIES_AND_PROCEDURES.pdf (last visited Feb. 28, 2022).
Following the telephonic hearing, the court entered its order that divided the estate equally among the five brothers but made no mention of Appellant's objections. Appellant timely appealed.
Appellant argues that he was denied due process in that he was not actually given the opportunity to participate in the telephonic hearing. There has been no responsive briefing or refutation of Appellant's assertions by any of the Appellees; however, Appellees have no obligation or burden to do so. The record on appeal is insufficient to confirm what transpired.
Analysis
The basic due process guarantee of the Florida Constitution provides that "[n]o person shall be deprived of life, liberty or property without due process of law." Art. I, § 9, Fla. Const. The Fifth Amendment to the United States Constitution guarantees the same. As this Court explained in Department of Law Enforcement v. Real Property , 588 So. 2d 957, 960 (Fla. 1991), "[p]rocedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue." Procedural due process requires both fair notice and a real opportunity to be heard. See id . As the United States Supreme Court explained, the notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity
to present their objections. 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." Mullane v. Central Hanover Bank & Trust Co ., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (citations omitted). Further the opportunity to be heard must be "at a meaningful time and in a meaningful manner." Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ; accord Fuentes v. Shevin , 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (stating that procedural due process under the Fourteenth Amendment of the United States Constitution guarantees notice and an opportunity to be heard at a meaningful time and in a meaningful manner).
The specific parameters of the notice and the opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding. See Gilbert v. Homar , 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) ; see also Mullane , 339 U.S. at 313, 70 S.Ct. 652, 94 L.Ed. 865 (stating that notice and opportunity for hearing need only be appropriate to the nature of the case). As the Supreme Court has explained, due process, "unlike some legal rules, is not a technical concept with a fixed content unrelated to time, place and circumstances." Cafeteria & Restaurant Workers Union, Local 473, AFL–CIO v. McElroy , 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Instead, "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer , 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
Henderson v. Dep't of Health, Bd. of Nursing , 954 So. 2d 77, 80 (Fla. 5th DCA 2007) (quoting Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth. , 795 So. 2d 940, 948 (Fla. 2001) ).
A notice of hearing is improper where it does not inform a party how to properly attend the hearing. See E.P. v. Lakeland Police Dep't , 328 So. 3d 1033, 1035 (Fla. 2d DCA 2021). In E.P ., the appellant was given a notice of hearing that stated the hearing would take place in the courthouse. Id . at 1034. He arrived at the courthouse at the proper time but was not allowed into the courtroom. Id . at 1035. He was not informed in the notice that the hearing was virtual or how he could attend the hearing virtually. Id .
Here, the notice only informed Appellant of the date, time, phone number, and menu option to choose for the hearing. Despite allegedly following those instructions, Appellant was not included in the telephonic hearing. Because the notice of hearing failed to advise Appellant what had to been done in order for him to participate in the hearing, it was inadequate and deprived him of the right to be heard. If the facts indeed are as Appellant asserts, Appellant may have been denied due process. Those facts can be explored, and any possible denial of due process can be addressed in the rule 1.540 hearing referred to above if Appellant pursues that avenue. If appropriate, the appealed order can be set aside, and a new in-person hearing can be duly noticed and conducted on the motion for summary administration, Appellant's objections, and other related matters.