DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PATRICK SUTTON,
Appellant,
v.
HAROLD J. FOWLER, JR.,
Appellee.
No. 4D20-1978
[December 22, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; James W. McCann, Judge; L.T. Case No. 56-2020-DR-1266.
Jeffrey H. Garland of Jeffrey H. Garland, P.A., Fort Pierce, for appellant.
Karen O’Brien Steger of Steger Law, Stuart, for appellee.
WARNER, J.
The trial court entered a final judgment of protection against stalking
against appellant, precluding him from living at his condominium.
Because the court relied on conduct not alleged in the petition and not
tried by implied consent, we must reverse.
Appellant Patrick Sutton and appellee/petitioner Harold Fowler both
live in the same condominium complex in St. Lucie County. Sutton and
his wife own a condominium unit directly above the unit owned by appellee
Fowler and his wife. Fowler filed a petition and an amended petition for
an injunction for protection against stalking, alleging three dates where he
claimed that incidents necessitating an injunction occurred—April 26,
2020, June 7, 2020, and June 8, 2020. The court entered a temporary
injunction precluding Sutton from going within 500 feet of Fowler’s current
residence. After a deputy served the order on Sutton, he immediately
began cursing and then threatening Fowler from his condominium
balcony, loud enough for Fowler to hear. Sutton was arrested for a
criminal violation of the temporary injunction.
At the final hearing, Fowler testified to the various events. Sutton
moved into his unit above the Fowlers in 2019. Fowler testified that he
had not spoken to Sutton except for one occasion prior to the incidents
alleged in the petition. On April 26th, 2020, Sutton went out on his
balcony screaming and yelling and howling like a wolf. While Fowler
testified that Sutton yelled that he would get in Fowler’s “[expletive deleted]
face,” Fowler did not recall that Sutton actually used his name.
The next incident was on June 7, 2020. Again, Sutton yelled expletives
at Fowler, this time using his name. Other people could hear Sutton
screaming.
On June 8, 2020, Sutton again started screaming and yelling on the
balcony, that “the guy underneath me [is] a [expletive deleted] [---hole].”
Sutton then went inside and continued screaming so loudly that Fowler
could hear him in their unit. He could hear Sutton kicking doors.
Concerned for himself, his wife, and his neighbors, Fowler called 911 and
contacted the condominium manager. A short time later, Sutton banged
on Fowler’s door. Thinking it was the manager coming to check on the
situation, Fowler started to open the door, when his wife yelled that it was
Sutton at the door. Sutton tried to pull the door out of Fowler’s hands and
open it. Sutton demanded, “I want to know if you’re making complaints
against me.” Fowler testified that Sutton tried to enter, and Fowler had
“to push him out the front door.” Fowler restrained Sutton in a headlock
until management showed up and made Sutton go back to his unit.
Sutton continued yelling as they escorted him back to his unit, threatening
that he would make Fowler’s life miserable by tap dancing on the floor.
Sutton also called Fowler an “[expletive deleted] Jew.”
The police arrived and reviewed a video Fowler’s wife had taken of the
incident with Sutton at their door. The deputy thought Sutton was heavily
intoxicated. The deputy went to Sutton’s unit and heard both Sutton and
his wife screaming. When Sutton answered the door, the officer observed
numerous empty liquor bottles and beer cans. Sutton appeared
intoxicated. Sutton again screamed about Fowler and then about his wife.
Considering Sutton a danger to himself and others, the deputy decided to
Baker Act him. On the way to the hospital, the deputy asked Sutton if he
owned firearms and Sutton stated “no” but that if he did, “he would kill
himself and hurt others and also kill law enforcement.” The deputy felt
that Sutton was a danger to his wife, his neighbors, and himself.
Fowler testified that he started the injunction process on June 9, 2020.
After Sutton was released from the Baker Act, he was served with the
temporary injunction on the evening of June 12. Directing Fowler’s
attention to June 12, his counsel asked, “when Mr. Sutton was served with
the injunction at 8:00 P.M. on June 12, 2020, what did he then commence
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to -- begin to do after he was served with the injunction for protection?”
Sutton’s counsel objected because this incident was not part of the petition
or amended petition and outside its scope. The court overruled the
objection.
Fowler then testified that Sutton “immediately started banging on the
floors and—and yelling, screaming and howling, “[Expletive deleted],
[Fowler]. [Expletive deleted], [Fowler].” This went on approximately four
hours. After midnight, Sutton said “[Fowler], can you hear me? [Fowler],
can you hear me?” “[C]ome out onto the balcony.” Fowler called the
condominium management. Sutton continued to shout expletives and
yelled that he had a gun and would shoot Fowler. (A recording of this call
was played for the court but was not transcribed by the court reporter.)
Fowler finally called 911, as he feared for his life and safety.
The deputy who arrived in the early hours of June 13 listened to the
recording of Sutton’s threatening screaming, and went to Sutton’s
condominium. Sutton smelled of marijuana. He denied threatening
Fowler but said that he could say anything he wanted to inside his own
residence. The deputy arrested Sutton for violating the temporary
injunction. He took Sutton into custody, and Sutton continued to curse
and called the deputy names on the way to jail.
A neighbor also testified at trial, mostly about the June 12 incident. As
to the prior incidents, the neighbor confirmed that on April 26, Sutton was
howling on his balcony, and on June 7, she heard cursing, using Fowler’s
name. On June 12, she heard the commotion and was very frightened,
because she feared Sutton would mistakenly barge into her unit, which
was next door to Fowler’s unit.
When asked by his counsel, Fowler stated that he was afraid of Sutton
and would not be satisfied with an injunction which simply prohibited
Sutton from going onto Fowler’s floor of the condominium or the common
areas. He thought Sutton was volatile and unpredictable. He did not have
any idea why Sutton had fixated on him and identified him as Jewish. He
was afraid to open his door.
During closing arguments, Fowler’s counsel argued that a permanent
injunction keeping Sutton away from the condominium entirely was the
only appropriate remedy, due to the fact that Sutton violated the
temporary injunction just after it was served on him. Sutton’s counsel
argued that the June 12 event should not be considered because it was an
unpled event and that neither the yelling on June 7, nor the incident on
April 26 could support the injunction. Counsel also argued that any
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injunction should be narrowly tailored so as not to take away Sutton’s
right to his property.
The court was concerned because of Sutton’s negative behavior. It
concluded that people had a right to peaceably enjoy their property, which
Sutton was preventing. The court then imposed a permanent injunction
prohibiting Sutton from going onto the condominium property, which
extended to both sides of A1A. As a basis for the injunction, the court
found “repeated violations of peaceable enjoyment of [Fowler’s] property by
Mr. Sutton unprovoked, followed by an immediate violation of the
injunction[.]” Sutton’s counsel again objected to the court’s reliance on
the June 12 incident because it was not pled as a ground for the
injunction.
The final judgment of injunction for protection against stalking was
entered the same day as the hearing, August 11, 2020. The order provides
that the injunction will be in full force and effect until further order of the
court. The order prohibits Sutton from going within 500 feet of the
condominium and prohibits Sutton from returning to the entire
condominium property on either side of A1A, other than to use the public
road.
Sutton filed a motion for rehearing arguing in part that the evidence of
the violation of the injunction was not pled in the petition and violated
Sutton’s constitutional right to due process. The court denied the motion
and this appeal followed.
“Trial courts have ‘broad discretion in granting . . . injunctions, and
unless a clear abuse of discretion is demonstrated, appellate courts will
not disturb the trial court’s decision.’” DiTanna v. Edwards,
323 So. 3d
194, 200 (Fla. 4th DCA 2021) (quoting Hobbs v. Hobbs,
290 So. 3d 1092,
1094 (Fla. 1st DCA 2020)). “The trial court’s order granting a permanent
injunction is reviewed for competent substantial evidence.”
Id. (citations
omitted). “But the question of whether the evidence is legally sufficient to
justify imposing an injunction is a question of law” reviewed de novo. Cash
v. Gagnon,
306 So. 3d 106, 109 (Fla. 4th DCA 2020) (quoting Krapacs v.
Bacchus,
301 So. 3d 976, 978 (Fla. 4th DCA 2020)).
Sutton argues that the trial court erred by admitting evidence
concerning his violation of the temporary injunction stemming from the
events the evening of June 12 and into the early morning of June 13.
Without those events, the evidence was insufficient to support the
issuance of a permanent injunction for protection against stalking. We
agree that the court erred in considering those events in determining
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whether to issue a permanent injunction, because Fowler never sought to
amend his petition to allege them. While the violation of the temporary
injunction may have been relevant to the scope of any injunction, the trial
court relied on the conduct to support the granting of the injunction, over
the objection of Sutton. 1
Section 784.048, Florida Statutes (2020) defines stalking as the
“willful[ ], malicious[ ], and repeated[ ] follow[ing], harass[ing], or
cyberstalk[ing of] another person.” DiTanna, 323 So. 3d at 201 (quoting
Lopez v. Lopez,
922 So. 2d 408, 410 (Fla. 4th DCA 2006)). Section
784.048(1) also defines harassing, a component of stalking, as follows: “(a)
‘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. (2020). “In turn,
the statute defines a ‘course of conduct’ as ‘a pattern of conduct composed
of a series of acts over a period of time, however short, which evidences a
continuity of purpose.’” DiTanna, 323 So. 3d at 201 (quoting §
784.048(1)(b), Fla. Stat. (2020)).
“In order to be entitled to a stalking injunction two separate instances
of stalking must be proven by competent substantial evidence.” Id. at 201
(citing Burns v. Bockorick,
220 So. 3d 438, 440 (Fla. 4th DCA 2017)).
“Each incident of stalking must be proven by competent, substantial
evidence to support an injunction against stalking.” Touhey v. Seda,
133
So. 3d 1203, 1204 (Fla. 2d DCA 2014) (citation omitted). “Two or more
acts that are part of one continuous course of conduct are legally
insufficient to qualify as separate instances of harassment.” Cash, 306
So. 3d at 109 (citing Packal v. Johnson,
226 So. 3d 337, 338 (Fla. 5th DCA
2017)). “A course of conduct requires multiple acts that are separated by
time or distance.”
Id. (citing Levy v. Jacobs,
69 So. 3d 403, 405 (Fla. 4th
DCA 2011)).
Harassment under the statute must result in substantial emotion
distress to the recipient.
1 Fowler also claims that Sutton did not object to the introduction of the testimony
regarding the June 12 incident when other witnesses testified. Having objected
and secured a definitive ruling the first time the incident came up in testimony,
he was not required to continually assert an objection. See § 90.104, Fla. Stat.
(2020) (“If the court has made a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not renew an objection
or offer of proof to preserve a claim of error for appeal.”)
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To qualify as stalking under the statute, the conduct must
meet two requirements. First, “the defendant’s conduct must
cause substantial emotional distress, which is greater than
just an ordinary feeling of distress.” Johnstone v. State,
298
So. 3d 660, 665 (Fla. 4th DCA 2020). “When considering the
sufficiency of the evidence, ‘[c]ourts apply a reasonable person
standard, not a subjective standard, to determine whether an
incident causes substantial emotional distress.’” Schack, 192
So. 3d at 628 (alteration in original) (quoting Touhey v. Seda,
133 So. 3d 1203, 1204 (Fla. 2d DCA 2014)). As the Fifth
District explained in D.L.D. v. State,
815 So. 2d 746, 748 (Fla.
5th DCA 2002):
[I]n determining whether an incident or series of
incidents creates substantial emotional distress for a
victim, the distress should be judged not on a subjective
standard (was the victim in tears and terrified), but on
an objective one (would a reasonable person be put in
distress when subjected to such conduct?).
Cash, 306 So. 3d at 110. Substantial emotional distress is more than an
ordinary feeling of distress or embarrassment. See Shannon v. Smith,
278
So. 3d 173 (Fla. 1st DCA 2019).
In Cash, this court considered a factual scenario involving two
individuals living in the same condominium complex. Gagnon filed a
petition for an injunction against Cash. Four incidents occurred that
resulted in the trial court’s grant of a final injunction against stalking.
They mainly involved Cash yelling profanities at Gagnon and accusing him
of lying and stealing. On appeal, we found that these incidents of yelling,
profanity, and accusations did not constitute acts of stalking. However,
an act of cornering the individual in an elevator while yelling and
screaming at him could be a qualifying incident. 306 So. 3d at 111. As
that was the only one of the many instances alleged in the petition to
support an injunction against stalking, we reversed the injunction noting
that section 784.048 “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.” Id. (quoting
Klemple v. Gagliano,
197 So. 3d 1283, 1286 (Fla. 4th DCA 2016).
Applying these principles to the present case, we cannot conclude that
the petition alleged two incidents which would qualify for a stalking
injunction. In the April 26 incident, Sutton was howling like a wolf and
yelling. While Fowler testified that Sutton’s behavior was directed at him,
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he could not recall that Sutton yelled his name. A neighbor also heard the
howling but did not testify that she heard Sutton use Fowler’s name. This
incident, while disturbing, merely involved strange behavior and on an
objective level would not cause substantial emotional distress in a
reasonable person. Cash, 306 So. 3d at 110.
During the June 7 incident, Sutton stood on his balcony yelling
profanities and epithets at Fowler who was in his condominium unit below.
Like the April 26 incident, this would be insufficient to warrant a
reasonable person to feel substantial emotional distress. Cash, 306 So.
3d at 110.
On June 8, Sutton again started screaming and yelling profanities at
Fowler. The Fowlers could hear Sutton kicking his door. Fowler called
911 and the condominium management out of concern for himself, his
wife, and his neighbors. Sutton then appeared at Fowler’s door, banging
on it. When Fowler began to open the door and then close it after realizing
it was Sutton, Sutton tried to yank the door open. Fowler had to stop
Sutton from entering by holding him a headlock until management came.
Sutton continued yelling and cursing at Fowler. While Sutton claims on
appeal that this served a legitimate purpose as Sutton wanted to know if
Fowler was making complaints about him, we reject that characterization.
This encounter was much more like the elevator encounter in Cash.
Further, we think any reasonable person would suffer substantial
emotional distress when an irate neighbor attempts to force himself into
one’s abode. The June 8 event would qualify as an incident for a stalking
injunction.
These were the only incidents alleged in the petition. Two of them did
not meet the requirements, leaving only one incident to support the
petition. This was insufficient to support the injunction. In its ruling
finding that the evidence presented warranted an injunction, the court
also relied on the unpled incident of June 12. But Fowler did not amend
the petition to allege this incident as an incident of harassment. Sutton
properly objected to testimony on the issue as it was not pled in the
complaint. He further objected in closing argument by again arguing that
the incident was not in the pleading. Thus, he preserved his objection to
the court relying on it to justify the injunction.
“Generally, ‘courts are not authorized to grant relief not requested in
the pleadings.’” Fed. Home Loan Mortg. Corp. v. Beekman,
174 So. 3d 472,
475 (Fla. 4th DCA 2015) (quoting Cardinal Inv. Grp., Inc. v. Giles,
813 So.
2d 262, 263 (Fla. 4th DCA 2002)); see also Griffin v. Griffin,
463 So. 2d
569, 573 (Fla. 1st DCA 1985) (noting that absent parties’ stipulation,
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consent, acquiescence, motion and order, or amendment, the issues at
trial are fixed by the pleadings). “An exception to the rule requiring relief
to be pled is if the issue is tried by consent of the parties.” Beekman, 174
So. 3d at 475 (citing Fla. R. Civ. P. 1.190(b)). Rule 1.190(b) provides that:
When issues not raised by the pleadings are tried by express
or implied consent, they shall be treated in all respects as if
they had been raised in the pleadings. Such amendment of
the pleadings as may be necessary to cause them to conform
to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment, but
failure so to amend shall not affect the result of the trial of
these issues. If the evidence is objected to at the trial on the
ground that it is not within the issues made by the pleadings,
the court may allow the pleadings to be amended to conform
with the evidence and shall do so freely when the merits of the
cause are more effectually presented thereby and the
objecting party fails to satisfy the court that the admission of
such evidence will prejudice the objecting party in
maintaining an action or defense upon the merits.
In this case, Sutton objected both to the evidence and to the court relying
on the unpled incident, and no motion was made by Fowler to amend the
pleadings to conform with the evidence, without which the petition was
insufficient to warrant an injunction against stalking. The issue was not
tried by implied consent.
In Shocki v. Aresty,
994 So. 2d 1131 (Fla. 3d DCA 2008), the court
addressed a similar issue on a petition for an injunction against repeat
violence. There, as here, one neighbor was harassing another. The
petition filed by Aresty alleged that Shocki had verbally threatened to “do
something” to Aresty and his wife or their property on at least two
occasions. It also alleged that Shocki banged aggressively on their
common wall and also took a hammer to Aresty’s barbeque grill, leaving
damage. In addition, Shocki had yelled profanities at them while they were
dining outside with guests. Approximately two weeks prior to the hearing
on the petition, Aresty moved to supplement the petition to allege a
subsequent significant incident where Shocki vandalized Aresty’s car by
pouring a corrosive liquid on it. This caused Aresty’s wife to suffer
emotional damage.
At the hearing, the evidence supported both the incident in the
supplemental petition as well as the other incidents alleged. During
closing argument, however, Aresty also told the court of two other
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incidents which had occurred the day before the hearing. The trial court
relied in part on these unpled incidents in entering a final injunction
against stalking. Shocki appealed.
The appellate court concluded that Shocki had not been provided due
process when the trial court relied on the unpled incidents described in
closing argument to support the finding of stalking. Noting that “[n]oise,
profanity, and claims of vandalism to property do not always warrant
injunctive relief under the stalking and repeat violence statutes,” it
nevertheless agreed with the trial court, “that the course of conduct
between these neighbors may require intervention.”
Id. at 1134.
Here, as in Shocki, the trial court relied on unpled conduct in entering
the final judgment of injunction. The incident was not tried by implied
consent, as Fowler never sought to amend his petition. Because the
incidents which were alleged in the petition were insufficient to warrant
the entry of an injunction, the court erred in entering the final judgment.
Therefore, we must reverse.
Reversed with directions to vacate the final judgment.
GERBER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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