Billy J. Stone v. Teresa A. McMillian , 270 So. 3d 510 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-5332
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BILLY J. STONE,
Appellant,
v.
TERESA A. MCMILLIAN,
Appellee.
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On appeal from the Circuit Court for Escambia County.
Jennie Kinsey, Judge.
May 2, 2019
PER CURIAM.
On Teresa McMillian’s second attempt to have an injunction
for protection against stalking entered against her neighbor, Billy
Stone, she succeeded. Stone appeals, arguing that the evidence is
insufficient to support an injunction. We agree. 1
I.
The First Petition
In December 2016, Stone put a threatening letter in
McMillian’s mailbox, warning her not to “pull another stunt like
1 We affirm as to Stone’s other two arguments without
further comment.
[she] did today.” Stone testified that McMillian honked her horn
and intentionally drove her car at him while he walked his dog
with his back turned, causing him to jump out of the way,
thinking he and his dog were about to be hit. Stone admitted
writing the letter, which intimidated McMillian, while he was
angry about this incident. McMillian testified that Stone walked
around the circular street the two lived on repeatedly throughout
the day. Stone had done this since approximately 2009, but it
now unnerved McMillian in light of Stone’s letter.
McMillian also did not like that Stone walked his dog on a
government-owned vacant lot next to her house. So, in March or
April 2017, she set up a motion-sensing sprinkler on the border of
her property to spray Stone while he was on the vacant lot.
Although the sprinkler once succeeded in soaking Stone, he did
not stop walking his dog on the empty lot and, in June 2017,
McMillian called the police to report that he and his dog were
defying a no-trespassing sign on the lot.
At the hearing on McMillian’s petition for a stalking
injunction in July 2017, the trial court noted several times that
the parties were engaged in “tit for tat” behavior, encouraged
them to “go [their] separate ways,” and declined to grant the
injunction.
The Second Petition
Just two months later in September, McMillian filed another
petition for injunction for protection against stalking. Her chief
complaint was that Stone walked past her house far too often.
McMillian would not know this but for the videos recorded from
her security camera, which she reviewed daily. McMillian
maintained a log, marking how many times per day Stone walked
past her house from August until September 2017, a number
often in double digits. McMillian felt intimidated by Stone
walking past her house because of the letter he wrote in
December 2016. McMillian testified that on the morning of
August 1, she discovered dog waste in her trash can, which had
previously been placed at the curb and was to be emptied shortly.
After reviewing her security camera, she fingered Stone and his
dog as the culprits. McMillian admitted that she later went
outside and yelled at Stone and his wife for this incident as they
2
walked past her house, but insisted that she was very afraid of
him. McMillian similarly found Stone to be the guilty party, after
reviewing her security camera footage, when she heard a vehicle
down the road rev its engine too loud and for too long. Lastly,
McMillian complained that on August 15, “Stone stepped on [her]
driveway to avoid being hit by a bus that was driving past [her]
house,” even though he had previously been told to stay away
from her property.
Stone testified that he has routinely walked the loop around
his home since 2009 and has not in any way changed his routine
based on McMillian. He stated that he walks to alleviate anxiety,
to talk and visit with neighbors, and to help with the
neighborhood watch program he helped develop. Six neighbors
testified that Stone is active in the community and routinely
walks past their house every day, often stopping to talk. Stone
testified that he always picks up after his dog and, if it is trash
day, will put it in the nearest can before it gets picked up; he
admitted using McMillian’s can once, but denied it was an
attempt to intimidate her.
The trial court, with the same judge presiding from the first
hearing in July, agreed that Stone walked the neighborhood
because he cares about crime and for personal reasons, but felt
that the sheer number of times signaled that he still had not “let
go of” his animosity towards McMillian. The trial court
understood that McMillian’s trash can was on the curb and about
to be emptied, but felt that Stone put his dog’s waste in there to
harass her. The trial court admitted struggling to find
substantial emotional distress, and allowed McMillian to explain
that she was still afraid of Stone due to his letter from December
2016, and his continued walking of the neighborhood. Stone
argued that the trial court previously found the parties’ behavior
to be “tit for tat” and cannot now enter an injunction for stalking
based on him walking around his own neighborhood. The trial
court granted a one-year injunction. 2
2Although the injunction is no longer in effect, this appeal is
not moot. See Paulson v. Rankart, 251 So. 3d 986, 988 n. 1 (Fla.
1st DCA 2018).
3
II.
We recently explained the framework for entering an
injunction for protection against stalking pursuant to section
784.0485, Florida Statutes:
Stalking occurs when a person “willfully, maliciously,
and repeatedly follows, harasses, or cyberstalks another
person.” § 784.048(2), Fla. Stat. (2016). To “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), Fla. Stat. A “course of
conduct” is “a pattern of conduct composed of a series of
acts over a period of time, however short, which
evidences a continuity of purpose.” § 784.048(1)(b), Fla.
Stat. In determining whether an incident causes
“substantial emotional distress,” courts use a
“reasonable person” standard rather than a subjective
one. McMath v. Biernacki, 776 So.2d 1039, 1040 (Fla.
1st DCA 2001).
Paulson v. Rankart, 251 So. 3d 986, 988-89 (Fla. 1st DCA 2018).
A trial court’s imposition of such an injunction is reviewed for
abuse of discretion and must be supported by competent,
substantial evidence. See Pickett v. Copeland, 236 So. 3d 1142,
1143-44 (Fla. 1st DCA 2018).
III.
A central focus of this injunction is the threatening letter
Stone wrote to McMillian in December 2016. But in July 2017,
after also hearing of McMillian’s sprinkler ambush and report to
the police, the trial court described the parties’ behavior as “tit
for tat” and declined to grant an injunction. Stone’s subsequent
behavior includes walking past McMillian’s house often on his
loop around the neighborhood, putting his dog’s waste in her
trash can once while it sat on the curb, revving his engine one
day near her house, and stepping on her driveway to avoid being
hit by a bus.
4
Without need to dissect each fact, we do not find legally
sufficient evidence that Stone maliciously engaged in a course of
conduct directed at McMillian that would cause a reasonable
person substantial emotional distress. 3 Rather, it appears that
the parties had an altercation in December 2016 and their
relationship turned sour. After the trial court declined to grant
an injunction in July 2017, McMillian took every innocuous act of
Stone as one of aggression and intimidation, including
scrupulously logging each time he walked past her home after
daily review of her security camera.
In Paulson, the petitioner obtained a stalking injunction
after testifying that her neighbor yelled at her, made complaints
to authorities, stared at her, and looked at her utility meters,
making her anxious and worried that he would shoot one of her
dogs. 251 So. 3d at 987-88. We found that “the evidence was
insufficient to show that he willfully and maliciously engaged in a
course of conduct that would cause her substantial emotional
distress.” Id. at 990. This case is similar. See also Power v. Boyle,
60 So. 3d 496, 498 (Fla. 1st DCA 2011) (“The statute does not
allow the trial court to enter injunctions simply ‘to keep the
peace’ between parties who, for whatever reason, are unable to
get along and behave civilly towards each other.”).
IV.
This neighborly feud, which does include some uncivil or
immature conduct, does not include stalking. We therefore
REVERSE the final injunction for protection against stalking.
B.L. THOMAS, C.J., and KELSEY and WINOKUR, JJ., concur.
3 We do not disagree with Stone’s argument that he walks
around his neighborhood, put dog waste in a trash can, and
avoided getting hit by a bus for legitimate purposes under section
784.048.
5
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Robert J. Powell of Clark Partington, Pensacola, for Appellant.
No appearance for Appellee.
6