Opinion
Case No. 2D19-2306
07-08-2020
Kevin WASHINGTON, Appellant, v. Willie BROWN, Appellee.
Shannon L. Haberle, Jacksonville, for Appellant. Willie Brown, pro se.
Shannon L. Haberle, Jacksonville, for Appellant.
Willie Brown, pro se.
VILLANTI, Judge.
Kevin Washington appeals the entry of a final judgment of injunction for protection against stalking (cyberstalking). Because the final judgment is not supported by competent, substantial evidence, we reverse.
This case grew out of a series of texts and social media messages and posts from Washington to Brown and others. The conflict between Brown and Washington began when Brown's girlfriend, who is also Washington's ex-wife, failed to respond to Washington's inquiries regarding their common children and blocked him on her social media and telephone. As a result, Washington attempted to communicate with his ex-wife via third parties such as Brown and others. Brown initially refused to respond to Washington's messages to him, but Washington continued to attempt to reach his ex-wife through other persons. In one or more of his messages, Washington made insulting comments about Brown. Brown retaliated by posting messages threatening Washington with physical harm, which led to Washington filing a petition for injunction for protection against stalking against Brown. Brown responded by filing his own petition for injunction for protection against stalking against Washington (to which a different case number was assigned). In his petition, in relevant part, Brown alleged the following:
• Washington "started cyberstalking me on social media. He had sent degrading comments to all of my friends & family including my 16 yr old daughter. I have asked him nicely to stop harassing me but he continued."
• Washington "kept creating numerous accounts" and "changed his telephone number to send me texts."
• Washington "falsified a complaint against me ... stating ... that I would kill his kids after school."
• Washington texted Brown, "telling me to stop threatening him."
• Washington texted Brown, "saying he had filed an injunction against me."
• "The reason for this counterinjunction is because I thought I can do the same thing that Kevin Washington did when he filed a counterinjunction against his ex-wife."
In support of his petition, Brown attached twenty-eight pages of screenshots of various Facebook messages, Whatsapp messages, Instagram posts, and text messages taken from Brown's cell phone.
The trial court considered both petitions at a combined hearing. At the hearing, the trial court stated: "This is pretty straightforward. You're both alleging that you're sending each other messages electronically, text messaging, social media, et cetera, that you're each alleging are uninvited and inappropriate. Doesn't seem like that difficult an issue for me to resolve." After hearing argument from the parties (during which no additional evidence was adduced helpful to our consideration of this appeal), the court announced: "Well, as I indicated before, it seemed like these were relatively straightforward matters. You're both alleging certain communications. You've both proven certain communications. They're inappropriate, going both directions. At this time, I find sufficient basis to warrant entry of permanent injunctions in both cases." The trial court entered final judgments of injunction for protection against stalking in both cases. Washington has appealed; Brown has not.
Section 784.0485(1), Florida Statutes (2018), provides for a civil cause of action for an injunction for protection against stalking, including cyberstalking. We interpret section 784.0485 with reference to the definitions found in section 784.048, which makes stalking under certain conditions a criminal offense, and refer to section 784.046 (providing for protective injunctions for victims of repeat violence) and the cases interpreting that statute for guidance. See Caterino v. Torello, 276 So. 3d 88, 92 (Fla. 2d DCA 2019) (" Section 784.0485 ... provides for injunctive relief from stalking. The pertinent statutory definitions are found in section 784.048."); Leach v. Kersey, 162 So. 3d 1104, 1106 (Fla. 2d DCA 2015) (" Section 784.0485 ... is analyzed with guidance from the statute governing injunctions against repeat violence, section 784.046."); Touhey v. Seda, 133 So. 3d 1203, 1203 (Fla. 2d DCA 2014) ("Given the statute's recent [enactment], support for our holding comes from cases analyzing allegations of stalking in the context of section 784.046 ....").
"A trial court has broad discretion to grant an injunction, and we review an order imposing a permanent injunction for a clear abuse of discretion. But the question of whether the evidence is legally sufficient to justify imposing an injunction is a question of law that we review de novo." Pickett v. Copeland, 236 So. 3d 1142, 1143-44 (Fla. 1st DCA 2018) (citations omitted). Thus, this court will affirm an injunction for protection against stalking under section 784.0485 if it is supported by competent, substantial evidence. See Touhey, 133 So. 3d at 1204 (citing Goudy v. Duquette, 112 So. 3d 716, 717 (Fla. 2d DCA 2013) ).
Section 784.048(1)(d) defines "cyberstalk" as "to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person causing substantial emotional distress to that person and serving no legitimate purpose." Thus, the elements of cyberstalking are (1) electronic communications, (2) directed to a specific person, (3) causing substantial emotional distress, and (4) serving no legitimate purpose.
Now section 784.048(1)(d)(1). The statute was amended by chapter 19-167, section 31, Laws of Florida.
In this case, six or seven of the messages that Brown attached to his petition were actually sent by Washington directly to Brown. Importantly, all of those messages simply asked Brown to pass inquiries concerning his children, visitation, and ongoing court proceedings to Washington's ex-wife. These messages, under the facts of this case, served a legitimate purpose and are therefore excluded from the definition of cyberstalking. See Leach, 162 So. 3d at 1106 (holding that the wife's telephone calls, messages, and Facebook friend requests to her husband's paramour served the legitimate purpose of telling the paramour to stay away from her husband); Hart v. Griffis, 288 So. 3d 770, 772 (Fla. 1st DCA 2020) (holding that the former wife's communications with the court administrator and State Attorney expressing her concerns about the couple's children and alleging that the former husband had committed fraud did not constitute stalking, even if they caused the former husband to suffer unnecessary anxiety); see also David v. Textor, 189 So. 3d 871, 875 (Fla. 4th DCA 2016) ("[W]hether a communication serves a legitimate purpose is broadly construed and will cover a wide variety of conduct.").
This is an estimate. Several of the photocopied screenshots overlap, some are duplicates, some are not dated, and the origin/sender of some of them is not verifiable.
In addition, even though some of Washington's messages contained insulting comments describing Brown in a negative light, these messages were not directed to Brown. These messages do not even meet the statute's requirement that such communications be "directed at a specific person." See Santiago v. Leon, 299 So.3d 1114, 1119 (Fla. 3d DCA Jan. 2, 2020) ("Florida case law has mandated that threats via social media be directed to the individual – not by content, but by delivery – to fall within the purview of section 784.0485." (quoting Logue v. Book, 44 Fla. L. Weekly D2083, D2085, 2019 WL 3807987 (Fla. 4th DCA Aug. 14, 2019) )). Moreover, several of the attachments to Brown's petition were not to—or about—Brown in any way; they were messages to (and from) Washington's ex-wife or some other third-party having nothing to do with Brown.
Finally, while Brown may have been justifiably offended by some of the messages posted by Washington, none of the attachments to the petition or the evidence adduced during the hearing support a legal conclusion that a reasonable person in Brown's shoes would have experienced the level of "substantial emotional distress" necessary to support an injunction under section 784.0485. See Goudy, 112 So. 3d at 717 ("In determining if an incident causes substantial emotional distress, courts use a reasonable person standard, not a subjective standard." (quoting Slack v. Kling, 959 So. 2d 425, 426 (Fla. 2d DCA 2007) )); Reid v. Saunders, 282 So. 3d 151, 151 (Fla. 1st DCA 2019) ("The pertinent statutes require that the evidence in support of a stalking injunction be sufficient to produce substantial emotional distress in a reasonable person."); Venn v. Fowlkes, 257 So. 3d 622, 624 (Fla. 1st DCA 2018) ("The ‘substantial emotional distress’ that is necessary to support a stalking injunction is greater than just an ordinary feeling of distress."); Burroughs v. Corey, 92 F. Supp. 3d 1201, 1205 (M.D. Fla. 2015) ("Under Florida law, a reasonable person does not suffer substantial emotional distress easily."), aff'd, 647 Fed. App'x 967 (11th Cir. 2016). Thus, "substantial emotional distress" connotes an unjustifiable infliction of stress of great proportion, in the nature of fear and concern. Simply evoking mere resentment and anger, without more, does not qualify for entry of an injunction.
At the hearing, the trial court emphasized the inappropriateness of Brown's behavior but neglected to focus on the legal requirements for granting a petition for an injunction against stalking. As our courts have repeatedly stated, Florida's injunction statutes "are not a panacea to be used to cure all social ills. In fact, nowhere in the statutory catalog of improper behavior is there a provision for court-ordered relief against uncivil behavior." Polanco v. Cordeiro, 67 So. 3d 235, 238 (Fla. 2d DCA 2010) (Villanti, J., concurring); see also Power v. Boyle, 60 So. 3d 496, 498 (Fla. 1st DCA 2011) (explaining that courts may not enter injunctions "simply ‘to keep the peace’ between parties who, for whatever reason, are unable to get along and behave civilly towards each other"); Horne v. Endres, 61 So. 3d 428, 429 (Fla. 1st DCA 2011) ("[E]ven courts of general jurisdiction are without plenary power to enjoin citizens to remain on good behavior."). At best, Brown's complaints centered around Washington's inappropriate conduct and statements. But none of the allegations contained in Brown's petition, the attachments thereto, and the testimony at the hearing established a legally sufficient basis for the award of an injunction for protection against stalking.
To be precise, the trial court recognized and emphasized the inappropriateness of both parties' behavior.
Accordingly, because the final judgment of injunction for protection against stalking entered in favor of Brown against Washington is not supported by competent, substantial evidence in the record, we must reverse.
Reversed and remanded with directions to dismiss the petition.
CASANUEVA and BLACK, JJ., Concur.