Sherry Corrie v. David Lee Keul , 160 So. 3d 97 ( 2015 )


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  •                                       IN THE DISTRICT COURT OF APPEAL
    FIRST DISTRICT, STATE OF FLORIDA
    SHERRY CORRIE,                        NOT FINAL UNTIL TIME EXPIRES TO
    FILE MOTION FOR REHEARING AND
    Appellant,                      DISPOSITION THEREOF IF FILED
    v.                                    CASE NO. 1D14-1146
    DAVID LEE KEUL,
    Appellee.
    _____________________________/
    Opinion filed March 16, 2015.
    An appeal from the Circuit Court for Duval County.
    Elizabeth A. Senterfitt, Judge.
    Diana L. Johnson of Johnson & Lufrano, P.A., Jacksonville, for Appellant.
    Robert C. Davis, Jacksonville, for Appellee.
    PER CURIAM.
    ON MOTION FOR REHEARING AND REHEARING EN BANC
    We grant Appellant’s motion for rehearing, withdraw our prior opinion, and
    substitute this opinion in its place. We deny Appellant’s motion for rehearing en
    banc.
    Appellant, Sherry Corrie, appeals the trial court’s Amended Final Judgment
    of Injunction for Protection Against Repeat Violence (After Notice), arguing that
    the injunction is not supported by competent, substantial evidence. 1      For the
    reasons that follow, we agree with Appellant’s argument and reverse the
    injunction.
    In his Petition for Injunction for Protection Against Repeat Violence,
    Appellee, David Lee Keul, alleged that Appellant lived within 500 feet of his
    house and had “anger issues with [him], [his] wife and [his] dog.” He further
    alleged that Appellant, for the last three years, had been “constantly harassing,
    verbally abusing, stalking, threatening [him], [his] family and friends.” Appellant
    allegedly threatened to take Appellee’s home and have him thrown in jail, and she
    “says she has a gun.” According to Appellee, on February 17, 2014, Appellant
    approached him while he was working in his yard and “continually screamed and
    hollered” at him. On August 10, 2014, Appellant allegedly chased Appellee and
    his dogs down the sidewalk, and on August 21, 2014, Appellant allegedly
    1
    Although Appellant did not make this argument below, this type of insufficiency
    of the evidence argument need not be preserved for appeal. See Achurra v.
    Achurra, 
    80 So. 3d 1080
    , 1082 (Fla. 1st DCA 2012) (citing Fla. R. Civ. P.
    1.530(e)).
    2
    approached Appellee on his driveway about his car being parked on the street and
    would not leave when Appellee asked her to do so. Appellant also allegedly took
    pictures of people who went to Appellee’s home. In the section of the injunction
    petition asking whether the respondent owns or is known to have guns, Appellee
    wrote, “Her comment it hold 1 in the chamber and 8 more.” The trial court entered
    a temporary injunction for protection against repeat violence.           During the
    subsequent hearing, Appellant provided testimony about what she claimed was
    Appellee’s harassing behavior. After Appellant called three other witnesses, the
    trial court asked Appellee whether he had any witnesses. After responding “Yes . .
    . . [My wife] also has video of [Appellant] over here screaming on the sidewalk at
    . . . me and my wife when we are sitting on our porch,” the trial court stated, “All
    right.    I am going to enter the injunction.”     The trial court then entered an
    Amended Final Judgment of Injunction for Protection Against Repeat Violence
    (After Notice). This appeal followed.
    An injunction entered pursuant to section 784.046, Florida Statutes, must be
    supported by competent, substantial evidence. Power v. Boyle, 
    60 So. 3d 496
    , 498
    (Fla. 1st DCA 2011); see also Goudy v. Duquette, 
    112 So. 3d 716
    , 717 (Fla. 2d
    DCA 2013) (noting that to support an injunction against repeat violence, each
    incident of violence must be proven by competent, substantial evidence). The term
    “violence” is defined as “any assault, aggravated assault, battery, aggravated
    3
    battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or
    false imprisonment, or any criminal offense resulting in physical injury or death,
    by a person against any other person.” § 784.046(1)(a), Fla. Stat. The term
    “repeat violence” means “two incidents of violence or stalking committed by the
    respondent, one of which must have been within 6 months of the filing of the
    petition, which are directed against the petitioner or the petitioner’s immediate
    family member.” § 784.046(1)(b), Fla. Stat. An “assault” is “an intentional,
    unlawful threat by word or act to do violence to the person of another, coupled
    with an apparent ability to do so, and doing some act which creates a well-founded
    fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat.
    The “offense of battery” occurs when a person “[a]ctually and intentionally
    touches or strikes another person against the will of the other” or “[i]ntentionally
    causes bodily harm to another person.” § 784.03(1)(a), Fla. Stat. Stalking occurs
    when a person “willfully, maliciously, and repeatedly follows, harasses, or
    cyberstalks another person.” § 784.048(2), Fla. Stat. “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.
    Turning to the case at issue, the allegations made in support of the injunction
    included Appellant’s alleged anger issues and threats of taking Appellee’s home
    4
    and having him thrown in jail, her act of screaming at Appellee, her act of chasing
    Appellee and his dogs down the sidewalk on one occasion, and her statement that
    “it hold 1 in the chamber and 8 more.” Appellee presented no evidence at the
    hearing other than stating that his wife had video of Appellant screaming at the two
    of them while they were sitting on their porch. As Appellant argues on appeal, and
    as this Court has explained, “‘Mere shouting and obscene hand gestures, without
    an overt act that places the victim in fear, does not constitute the type of violence
    required for an injunction.’” Russell v. Doughty, 
    28 So. 3d 169
    , 170 (Fla. 1st DCA
    2010) (citation omitted). It has also been held that “[e]ven a representation that the
    offender owns a gun and is not afraid of using it is insufficient to support an
    injunction absent an overt act indicating an ability to carry out the threat or
    justifying a belief that violence is imminent.” Sorin v. Cole, 
    929 So. 2d 1092
    ,
    1094 (Fla. 4th DCA 2006). There was no allegation or evidence in this case of an
    overt act on Appellant’s part that indicated an ability to carry out any of her threats
    or that justified a belief that violence was imminent.
    Moreover, we reject Appellee’s argument that his allegations and the
    testimony presented at the hearing showed that Appellant engaged in stalking and
    harassment. Here, unlike the situation in Goosen v. Walker, 
    714 So. 2d 1149
    ,
    1150 (Fla. 4th DCA 1998), where the testimony showed that the appellant
    videotaped the appellees on two to four occasions during the preceding four
    5
    months when the appellees were in their own yard or the adjoining area and where
    the Fourth District found that the conduct constituted stalking, this case presents
    only a general allegation without any supporting testimony that Appellant took
    pictures of Appellee’s guests. While Appellee also argues that there are certain
    threatening and violent situations between neighbors where courts have no choice
    but to enter an injunction, this case does not present one of those situations. See
    Banks v. McFarland, 
    148 So. 3d 162
    , 162 (Fla. 1st DCA 2014) (reversing the
    temporary injunction for repeat violence entered against the appellant because the
    appellant’s statements to the appellee, his neighbor, that “I will shoot and kill all of
    you” and “I’ll F you up” in addition to making other ugly remarks and taunts and
    engaging in intrusive behavior did not constitute repeat violence where there was
    no showing of an overt act); 
    Power, 60 So. 3d at 497
    (reversing the injunctions
    entered against the appellants and concluding that the evidence of several
    disagreements between the parties, who were neighbors, obscenities yelled by one
    of the appellants, and one of the appellants allowing her dog to urinate on the
    appellees’ garage door and writing profane and inappropriate notes on mail that
    was delivered to the appellees’ residence did not constitute violence).
    Accordingly, we reverse the Amended Final Judgment of Injunction for
    Protection Against Repeat Violence (After Notice).
    REVERSED.
    6
    LEWIS, C.J., WOLF and ROBERTS, JJ., CONCUR.
    7
    

Document Info

Docket Number: 1D14-1146

Citation Numbers: 160 So. 3d 97

Judges: Lewis, Wolf, Roberts

Filed Date: 3/15/2015

Precedential Status: Precedential

Modified Date: 10/19/2024