DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
NISSIM HASAN a/k/a NISSIM HASSAN,
Appellant,
v.
KIMBERLY P. RIVERA,
Appellee.
No. 4D20-1598
[January 12, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael G. Kaplan, Judge; L.T. Case No. DVCE20-1529.
Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale, for appellant.
Marc A. Silverman of Frank, Weinberg & Black, P.L., Plantation, for
appellee.
PER CURIAM.
We reverse the final judgment of injunction for protection against
stalking issued pursuant to section 784.0485(1), Florida Statutes (2020),
concluding that appellant’s repeated threats of litigation did not rise to the
level of causing substantial emotional distress in a reasonable person.
The evidence presented concerned appellant’s displeasure with a
woman’s testimony in another person’s injunction case. On one occasion
appellant came to the woman’s front door and angrily threatened to sue
her for $50,000 for lying unless she helped him in his ongoing dispute
with another person; two other times appellant approached the woman in
Publix and angrily threatened to sue her unless she backed his position in
a dispute with a condominium association.
These incidents, which were the basis for appellee’s petition, do not
meet the level of conduct required to support an injunction for stalking. 1
1Even considering the evidence of unpleaded incidents (most of which appellant
did not object to below), we conclude that the unpleaded incidents likewise did
not rise to the level necessary to support an injunction for stalking.
Unpleasant, uncivil, and distasteful communications “do not rise to the
level required to support a permanent injunction against stalking.” Reid
v. Saunders,
282 So. 3d 151, 151 (Fla. 1st DCA 2019). Likewise, “[m]ere
irritation, annoyance, embarrassment, exasperation, aggravation, and
frustration, without more, does not equate to ‘substantial emotional
distress.’” Cash v. Gagnon,
306 So. 3d 106, 110 (Fla. 4th DCA 2020)
(quoting Johnstone v. State,
298 So. 3d 660, 669 (Fla. 4th DCA 2020)
(Klingensmith, J., dissenting)). While profanity and accusations of lying
might be offensive or even defamatory, “this speech does not fall within a
‘course of conduct’ that allows for injunctive relief.”
Id. Similarly, where
the respondent’s actions would not have caused substantial emotional
distress in a reasonable person, an injunction cannot be supported by
conclusory testimony that the petitioner was scared of the respondent’s
“erratic behavior.” Gonzalez v. Funes,
300 So. 3d 679, 684–85 (Fla. 4th
DCA 2020). In short, “injunctions are not available to stop someone from
uttering insults or falsehoods.” Logue v. Book,
297 So. 3d 605, 614 (Fla.
4th DCA 2020).
We reverse the final judgment for injunction of protection and remand
to the circuit court to dismiss the petition.
Reversed and remanded.
GROSS and KUNTZ, JJ., concur.
FORST, J., dissents with opinion.
FORST, J., dissenting.
“Every natural person has the right to be let alone and free from
governmental intrusion into the person’s private life except as otherwise
provided herein.” Art. I, § 23, Fla. Const. Florida’s anti-stalking law,
section 784.0485, Florida Statutes (2020), “create[s] a cause of action for
an injunction for protection against stalking” by a nongovernmental actor.
Thus, the Florida Constitution protects an individual’s “right to be let
alone” from the government and section 748.0485 extends somewhat
similar protection against harassment by a nongovernmental actor. As
Appellant significantly infringed upon the victim’s freedom, I respectfully
dissent from the majority’s opinion.
In the instant case, Appellant was no stranger to the anti-stalking
injunction process. The victim had been an employee of a condominium
association; both Appellant and the victim were residents of the
condominium. During the victim’s employment, Appellant “often came to
the offices” and “was threatening and scaring people.” This led to the
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association president seeking and obtaining a protective injunction
against Appellant. The victim left her employment with the association in
September 2018.
One month later, Appellant went to the victim’s home and threatened
to sue her unless she recanted the statements she had given in the hearing
on the petition for injunction filed by the association’s president. The
victim “asked [Appellant] to leave me alone, to never come to my home,
and to not - - that I didn’t want any part of it.” She further testified that
after she had entered her home and closed the door, Appellant “kept at it
[and] kept talking and he kept saying that we were - - that he was going to
make me pay.”
The second unwelcome encounter was about eight months later, at a
local supermarket. The victim testified that Appellant “came right up to
my face and said that he was going to make me pay . . . that his attorney
was going to sue me for $50,000, and that he was - - unless I testified and
helped him bring [the condo association’s president] down for stealing
money from the association, . . . that we were all going to pay . . . .” The
victim contends she told Appellant that “I was not feeling comfortable that
he’d approached me with my son, and that I’m tired of him - - his
aggressive behavior - - and I wanted him to leave me alone and to not
approach me, not to come towards me.” (Emphasis added). And the victim
“pushed through [Appellant] to leave . . . .”
At this point, Appellant was clearly on notice that the victim had no
desire to discuss either Appellant’s past lawsuit or his threatened lawsuit
and merely wanted to be left alone, both when she was at home and when
she was out in public. Nonetheless, several months after the first
supermarket encounter, Appellant noticed the victim at the same
supermarket. Notwithstanding the victim’s previous declarations,
Appellant once again invaded the victim’s personal space, “with his
hysterical outbursts, aggressive way saying . . . he was going to sue me for
the 50,000 unless I helped him bring [the association’s president] down.”
The victim for a third time informed Appellant that she didn’t want to be
involved with his dispute with her former employer and “I want you to stop.
I’m with my kid.” The victim maintains Appellant did not stop, but “just
carrie[d] on talking and telling me that he’s going to make us pay,” and
she ultimately had to “push through him [to] then leave.”
A trial court’s order granting a permanent injunction for protection
against stalking is reviewed for competent substantial evidence. O’Neill v.
Goodwin,
195 So. 3d 411, 413 (Fla. 4th DCA 2016).
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Courts have the authority to enjoin stalking and/or
cyberstalking under section 784.0485, Florida Statutes
(2015). “A person who willfully, maliciously, and repeatedly
follows, harasses, or cyberstalks another person commits the
offense of stalking ....” § 784.048(2), Fla. Stat (2015).
“‘Harass’ means to engage in a course of conduct directed at
a specific person which causes substantial emotional distress
to that person and serves no legitimate purpose.” §
784.048(1)(a).
Id.
A. Appellant’s course of conduct caused substantial emotional distress
to the victim
“‘For determining whether an incident [causes] substantial emotional
distress, courts must use a reasonable person standard, not a subjective
standard.’ Thus, the question is not ‘was the victim in tears and terrified,’
but rather, ‘would a reasonable person be put in distress when subjected
to such conduct?’” Gonzalez v. Funes,
300 So. 3d 679, 684 (Fla. 4th DCA
2020) (alteration in original) (internal citations omitted) (quoting McMath
v. Biernacki,
776 So. 2d 1039, 1040 (Fla. 1st DCA 2001), and D.L.D. v.
State,
815 So. 2d 746, 748 (Fla. 5th DCA 2002)).
During the hearing on the victim’s petition for injunction, she
referenced “[m]ultiple times” that Appellant had come to the condominium
association office where she was then employed and behaved
“aggressively” and “attacked” and physically struck the association’s
president. She testified that the three subsequent non-workplace
encounters were similar to her “experiences in the past with [Appellant]
and his behavior has always been unpredictable [and] aggressive.” The
victim contended that, as a result of these encounters—one at her home
and two at her local grocer—as well as Appellant’s previous declarations
that “he is a military expert and that he knows how to do away with
people,” she “feel[s] like I’m still being harassed and stalked . . . [and] now
he’s bringing it to my home, to - - when I’m shopping. And I don’t feel safe
anymore. And I don’t - - I don’t feel comfortable.”
The victim further testified that, after she walked away from Appellant
during the first supermarket confrontation, “I seen him like look outside
the glass window of Publix. And I felt like he was watching my vehicle.
And I just sat at the car and I was afraid to move.” She recounted that,
“for a few weeks after, I kept watching my car. And every time before I got
in my car, I was watching around my car . . . .” Following the second
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Publix encounter, the victim did not “feel safe at that Publix anymore. I
don’t want to shop there because I - - fear I will run into him.”
Here, the victim’s testimony regarding Appellant’s aggressive behavior
toward the victim, as detailed above, which the trial court found to be
credible, presented competent substantial evidence that Appellant’s
course of conduct directed at the victim “cause[d] substantial emotional
distress to that person.” See § 784.048(1)(a), Fla. Stat. (2020). This
conclusion is buttressed by considering the victim’s knowledge of
Appellant’s previous encounters with the condominium president for
which an injunction against stalking was issued.
B. Appellant’s course of conduct directed at the victim served no
legitimate purpose
“Whether the purpose for contact is ‘legitimate’ is evaluated on a case-
by-case basis and the term ‘legitimate’ seems to be lacking a precise
definition. However, courts have generally held that contact is legitimate
when there is a reason for the contact other than to harass the victim.”
O’Neill, 195 So. 3d at 413. Here, the initial meeting/confrontation at the
victim’s home may have served a “legitimate purpose,” as Appellant wanted
the victim to understand his dispute with the condominium association
and its president and his desire that the victim support his efforts.
However, any legitimacy eroded after the victim made her position on
this matter clear and urged Appellant to leave her alone. He did not, twice
hostilely approaching the victim at the supermarket thereafter, both times
forcing the victim to flee once Appellant rejected the victim’s request that
he physically back away. The fact that the contact with the victim was—
in each instance—physical, confrontational, and uninvited, detracts from
its legitimacy. Cf. Alter v. Paquette,
98 So. 3d 218, 220 (Fla. 2d DCA 2012)
(seven text messages were insufficient to support a finding of stalking);
Poindexter v. Springer,
898 So. 2d 204, 207 (Fla. 2d DCA 2005) (holding
that a letter threatening to sue “served a legitimate purpose and therefore
could not be included in the definition of harassment”).
Conclusion
As in Auguste v. Aguado,
282 So. 3d 937 (Fla. 3d DCA 2019), “[t]his
case was highly fact-specific and relied in large part on live testimony. As
such, the trial court was uniquely well-situated to evaluate the evidence
and rule on the injunction.” Id. at 938. “A ‘trial court is afforded broad
discretion in granting, denying, dissolving or modifying injunctions, and
unless a clear abuse of discretion is demonstrated, an appellate court
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must not disturb the trial court’s decision.’” Singer v. Singer,
324 So. 3d
529, 529 (Fla. 4th DCA 2021) (quoting Carricarte v. Carricarte,
961 So. 2d
1019, 1020 (Fla. 3d DCA 2007)).
It was not the content or the frequency of Appellant’s communications
that crossed the line. It was the aggressive and “in your face” presentation
of his threats and his refusal to back away and cease physically
confronting the victim that leapfrogs these communications from
“pestering” to “stalking/harassment.” Accordingly, I would affirm the trial
court’s final judgment of injunction for protection against stalking.
* * *
Not final until disposition of timely filed motion for rehearing.
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