Monday, July 11, 2011

Parties Must be Permitted an Opportunity to Address the Grounds for Dismissal Before the Court May Dismiss

Osburn v. Bott, 2011 UT App 138 (Utah Court of Appeals, May 5, 2011)
Girlfriend filed for, and was awarded an ex parte temporary stalking injunction against Wife.  Wife had allegedly sent several texts, emails, voicemails, and had vandalized Girlfriend's car.  Wife had filed for a Stalking Injunction before Girlfriend.
At the time of the hearing, the judge dismissed Girlfriend's petition stating that her claims should have been and were properly addressed in the previous hearing held before a different judge which addressed Wife's petition.  Girlfriend appealed.
The Court of Appeals reversed and remanded finding that the dismissal was inappropriate without providing Girlfriend an opportunity to address the alleged grounds for dismissal.  If she had been permitted to address the argument that the stalking injunction had been previously adjudicated she could have provided a transcript from the prior hearing, in which the other Judge refused to hear any evidence as to her claims because there were not before him.  Because Girlfriend was not permitted an opportunity to respond to the basis for the dismissal, she was denied due process.

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