DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LISANDRA GONZALEZ,
Appellant,
v.
SARAI LORRAINE FUNES,
Appellee.
No. 4D19-3180
[July 29, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Stefanie Moon, Judge; L.T. Case No. DVCE 19-006982.
Lisandra Gonzalez, Hallandale Beach, pro se.
No appearance for appellee.
KLINGENSMITH, J.
A soured business deal set against the backdrop of a love triangle put
in motion the events that led to Petitioner Sarai Lorraine Funes obtaining
a final judgment of injunction for protection against stalking against
Respondent Lisandra Gonzalez. In her petition, Funes made four
allegations of incidents that occurred over a two-month timeframe.
Because those incidents, as alleged by Funes, do not qualify for protection
by way of injunction under the stalking statute, we reverse.
The parties, Gonzalez and Funes, first met in 2017 when Funes was
dating Alexis Fortun. Gonzalez lived across the street from Fortun’s aunt
in Hallandale Beach, whom Fortun visited frequently. In 2019, after
Fortun and Funes ended their relationship, Fortun and Gonzalez began
dating. While Gonzalez and Fortun were still dating, Fortun and Funes
entered into a business relationship to purchase property. Gonzalez’s
concern with this real estate deal prompted a series of incidents between
her and Funes, and ultimately led Funes to petition for a stalking
injunction against Gonzalez.
In her petition, Funes alleged the following: (1) she asked Gonzalez to
stop calling and sending her text messages; (2) Gonzalez went to her place
of employment and accused her of money laundering; (3) Gonzalez called
her and sent insulting text messages; and (4) Gonzalez once took pictures
of her vehicle and license plate. Funes also claimed that Gonzalez
threatened her both in a phone call and in a text message, telling her that
if she ever visited Fortun’s aunt’s house again, she “wouldn’t see the end
of it or . . . live to tell the story.”
Gonzalez responded to those allegations by petitioning for an injunction
of her own against Funes. Gonzalez described Funes’ petition as another
attempt to cause problems in her relationship with Fortun. To Gonzalez,
an insurance and investment professional, the real estate transaction
between Funes and Fortun looked “very shady and weird.” Gonzalez said
she did not want her boyfriend to be involved in such an arrangement, so
she contacted Funes to discuss it. When Funes did not respond, Gonzalez
visited Funes’ office and requested to speak to the broker primarily in
charge of the deal. Gonzalez also claimed that contrary to Funes’
allegation, it was Funes who initiated contact with Gonzalez by texting her
“out of the blue” on her personal phone, Facebook Messenger, and
WhatsApp about personal matters. Gonzalez also stated that both she and
Fortun had asked Funes to “keep away” from the Hallandale Beach
neighborhood, but that Funes nonetheless kept visiting. As it pertained
to the claim that Gonzalez took a photo of Funes’ car, Gonzalez admitted
doing so, but said that she did it to get proof that Funes was continuing
her neighborhood visits after being told to stay away.
After hearing this evidence at the final injunction hearing, the court
granted Funes’ petition but denied Gonzalez’s counter-petition. This
appeal followed. 1
“A trial court has broad discretion to grant an injunction, and [this
court] review[s] an order imposing a permanent injunction for a clear
abuse of that discretion. Pickett v. Copeland,
236 So. 3d 1142, 1143–44
(Fla. 1st DCA 2018). However, “the question of whether the evidence is
legally sufficient to justify imposing an injunction is a question of law that
[this court] review[s] de novo.”
Id. at 1144.
Section 784.0485(1), Florida Statutes (2019), “create[s] a cause of
action for an injunction for protection against stalking[.]” Section
784.048(2), Florida Statutes (2019), states that stalking occurs when: “[a]
person . . . willfully, maliciously, and repeatedly follows, harasses, or
cyberstalks another person[.]” The statute defines “harass,” as “engag[ing]
1Gonzalez does not appeal the denial of her counter-petition for an injunction
against Funes.
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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. (2019) (emphases added). 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.” § 784.048(1)(b), Fla. Stat. (2019).
A. Whether Gonzalez’s conduct “serve[d] a legitimate purpose.”
As stated above, to constitute harassment a person must engage in
conduct that “serves no legitimate purpose.” § 784.048(1)(a), Fla. Stat.
(2019). When answering the question of whether conduct serves a
legitimate purpose, courts consider “a wide variety of conduct.” David v.
Textor,
189 So. 3d 871, 875 (Fla. 4th DCA 2016). Conduct is “legitimate
when there is a reason for the [conduct] other than to harass the victim.”
O’Neill v. Goodwin,
195 So. 3d 411, 413 (Fla. 4th DCA 2016).
For insight into how courts view allegations of stalking that arise from
a love triangle, the case of Leach v. Kersey,
162 So. 3d 1104 (Fla. 2d DCA
2015), is instructive. There, the alleged victim, Tara Michelle Kersey, had
an eighteen-month affair with Melissa Leach’s husband, Dr. Leach.
Id. at
1106. After Leach learned of the affair, she contacted Kersey by phone,
through friends, and on social media, telling her to stay away from Dr.
Leach.
Id. Leach also posted a message on a public blog calling Kersey a
“Homewrecker.”
Id. at 1107. Kersey then petitioned for an injunction for
protection against stalking, which the trial court granted after a hearing.
Id.
On appeal, the Second District reversed.
Id. at 1106-07. The court
found that Leach’s contacts to Kersey were made for the legitimate purpose
of telling Kersey to “stay away” from her husband.
Id. at 1106. Further
legitimizing the contacts, the Second District noted that Leach made her
contact in response to discovering an attempt by Kersey to contact her
husband.
Id. Additionally, the court found that Leach’s contacts would
not cause a reasonable person in Kersey’s circumstances to suffer
substantial emotional distress, stating that “[a] reasonable woman who
had an eighteen-month affair with another woman’s husband might well
expect to hear the scorn of an angry wife.”
Id.
We find that given the context in which they occurred, Gonzalez’s
contacts in this case all served legitimate purposes. Here, the issues
between Gonzalez and Funes came to the forefront shortly after Gonzalez
started dating Fortun, who was Funes’ ex-boyfriend. The first spat
between the parties apparently arose because of the real estate transaction
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between Funes and Fortun. When Gonzalez, herself a mortgage loan
originator, heard details of the transaction from Fortun, she immediately
thought that it was “shady” and did not want her boyfriend to be a part of
it. As a result, Gonzalez attempted to reach out to Funes to inform her
that she believed the transaction was not proper. The evidence submitted
at the hearing showed that Gonzalez sent the subject messages to Funes
to offer her advice on the transaction since Gonzalez had experience with
real estate transactions, and this particular transaction was of interest to
her because her boyfriend Fortun, was involved. Thus, Gonzalez’s
communications to Funes regarding the real estate transaction served a
legitimate purpose. See Touhey v. Seda,
133 So. 3d 1203, 1205 (Fla. 2d
DCA 2014) (stating that communications regarding a dispute over the
dissolution of a business served a legitimate purpose).
Gonzalez’s visit to Funes’ employer also served a legitimate purpose.
Because of Gonzalez’s background, she knew that a head broker is
responsible for the actions of the brokers that work under them. Thus,
Gonzalez felt that she should inform Funes’ brokerage firm of Funes’
suspicious actions. Although Gonzalez may have had ulterior motives for
contacting Funes’ employer, her contact with them was not entirely bereft
of a legitimate purpose. Gonzalez wanted to alert them to the possibility
of an illicit transaction which one of their brokers was engaging in;
Gonzalez also had a particular interest, i.e., protecting her boyfriend. See
O’Neill, 195 So. 3d at 413 (stating that conduct is legitimate when there is
a reason for it other than harassment).
Gonzalez’s messages and calls to Funes also served the legitimate
purpose of telling her to “stay away” from Fortun. See
Leach, 162 So. 3d
at 1106. Given the previous relationship between Funes and Fortun,
Gonzalez was concerned that Funes would interfere with her relationship
with Fortun. These concerns were certainly amplified when Gonzalez
noticed text messages from Funes to Fortun stating that she was still in
love with him.
The fact that Gonzalez took pictures of Funes’ vehicle and license plate
was also not entirely devoid of a legitimate purpose. When Gonzalez took
these pictures, the parties previously had a falling out and each told the
other not to contact them. Gonzalez then became increasingly concerned
about the amount of time Funes spent with Fortun and his family and had
told Fortun to tell Funes to stay away. Despite this, Funes still frequented
Fortun’s aunt’s house, which was in the same neighborhood where
Gonzalez lived. Seeing Funes’ car across the street, Gonzalez took a
picture of the car to provide proof to Fortun that Funes was still coming to
the neighborhood despite being asked to stay away. While Funes claimed
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that she was only in the neighborhood because she was a close family
friend and was providing medical help in her other role as a licensed nurse,
this does not negate the fact that Gonzalez had a legitimate purpose for
taking the pictures. See
Textor, 189 So. 3d at 875 (stating that “a wide
variety of conduct” will be considered legitimate).
B. Whether Gonzalez’s actions caused Funes “substantial emotional
distress.”
To constitute harassment, the perpetrator’s actions must cause the
victim “substantial emotional distress.” § 784.048(1)(a), Fla. Stat. (2019).
“For determining whether an incident [causes] substantial emotional
distress, courts must use a reasonable person standard, not a subjective
standard.” McMath v. Biernacki,
776 So. 2d 1039, 1040 (Fla. 1st DCA
2001). 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?” D.L.D. v. State,
815 So. 2d 746, 748 (Fla. 5th DCA
2002).
In another case involving a love triangle, Jones v. Jackson,
67 So. 3d
1203 (Fla. 2d DCA 2011), Micah Jones was living with Lawrence Jackson’s
“soon-to-be ex-wife,” and the two men frequently got into spats.
Id. at
1204 (Altenbernd, J., concurring). According to Jackson, Jones sent him
threatening phone calls and text messages.
Id. at 1203-04. Jackson also
stated that Jones made statements to third parties suggesting that he
would “do violence” to him.
Id. at 1204. Jackson petitioned for an
injunction and the trial court granted it after a hearing.
Id.
On appeal, the Second District reversed this injunction as well.
Id. The
Second District stated that the threats Jackson received would not have
caused a reasonable person substantial emotional distress.
Id. The court
also noted that the only evidence about Jackson’s emotional response was
that he was calm after receiving one of Jones’ threats.
Id. In his
concurrence, Judge Altenbernd noted that although it seemed like
Jackson was tired of Jones’ “profanity and idle verbal threats,” Jackson
did not actually fear that Jones would act on them.
Id. at 1204
(Altenbernd, J., concurring).
Like in Jones, we find that Gonzalez’s actions would not have caused a
reasonable person in Funes’ position substantial emotional distress. At
the injunction hearing, Funes alleged that she was scared of Gonzalez
because of her “erratic behavior.” By this, Funes’ was presumably
referring to Gonzalez’s messages, phone calls, visit to her place of
employment, and threat that Funes “wouldn’t see the end of it or . . . live
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to tell the story” if she visited Fortun or his family again. However, as
stated above, Gonzalez’s messages, phone calls, and visit to her place of
employment all had legitimate purposes. There was also no evidence to
show that Funes actually feared that Gonzalez would act on the alleged
one-time threat. It is also important to note that when Gonzalez made this
alleged threat to Funes regarding her contacts with Fortun, Gonzalez was
dating Fortun. A reasonable person in Funes’ situation should expect to
receive a degree of “scorn” as a result of continuing to inject herself into
the life of an ex-boyfriend. See
Leach, 162 So. 3d at 1106. Further,
Gonzalez’s disdain for Funes was likely amplified because Funes
continued to send her ex-boyfriend text messages stating that she still
loved him. See id.; see also Ashford-Cooper v. Ruff,
230 So. 3d 1283, 1283
(Fla. 1st DCA 2017) (stating that a wife’s repeated calls and text messages
to her husband’s paramour would not cause a reasonable person in the
paramour’s position substantial emotional distress).
Considering all the evidence in this case, it appears that the primary
purpose for the trial court’s entry of this injunction was simply as a means
“to keep the peace” between the parties. See Klemple v. Gagliano,
197 So.
3d 1283, 1286 (Fla. 4th DCA 2016). However, we have previously
cautioned that the injunction statute should not be used in this manner.
Id. As Judge Altenbernd stated in Jones, the best solution to the issues in
this case would be for Gonzalez and Funes to “leave one another alone.”
Jones, 67 So. 3d at 1204 (Altenbernd, J., concurring). However, a court-
ordered injunction is not the proper way to accomplish that laudable goal.
We therefore reverse the injunction entered against Gonzalez in this
matter.
Reversed.
CIKLIN, CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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