84 So. 3d 1174
Fla. Dist. Ct. App.2012Background
- Trial court entered final injunction for protection against repeat violence against Cirillo upon Jones's petition.
- Two incidents of violence alleged: first incident in which Cirillo confronted Jones, cursed, threatened, poked, and spat on him; Cirillo attempted to call his minor son as a witness which the court refused to admit.
- Second incident occurred at a homeowners association board meeting where Cirillo allegedly said, 'I will kill you or sue you' and Jones testified he repeated it; Cirillo claimed he meant 'I will sue you and kill you in court' but the phrase 'in court' was not uttered.
- Evidence did not show Cirillo made overt acts indicating ability to carry out threats or imminent violence at the board meeting.
- Trial court precluded Cirillo from calling his sixteen-year-old son, raising due process concerns.
- Court reversed, concluding the second incident did not constitute violence and there was a due process violation which, combined with the lack of proven two incidents, warranted reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second confrontation constitutes violence. | Jones argues Cirillo's threat suffices as violence. | Cirillo argues no overt act showing ability to carry out threat; not two incidents. | Two incidents not proven; violence not shown. |
| Whether excluding Cirillo’s witness violated due process. | Cirillo asserts right to be heard and present witnesses. | Trial court properly limited testimony? (circuits) | Due process violation found; reversal on injunction overall. |
Key Cases Cited
- Titsch v. Buzin, 59 So.3d 265 (Fla. 2d DCA 2011) (each violence incident must be proven by competent, substantial evidence)
- Pope v. Pope, 901 So.2d 352 (Fla. 1st DCA 2005) (due process requires opportunity to be heard and present witnesses)
- Ohrn v. Wright, 963 So.2d 298 (Fla. 5th DCA 2007) (full hearing required; witnesses must be sworn and cross-examination allowed)