DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOSEPH CASH,
Appellant,
v.
PATRICK GAGNON,
Appellee.
No. 4D19-1302
[November 4, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Stefanie Moon, Judge; L.T. Case No. DVCE19-1551 (63).
Edward M. Shahady of Edward M. Shahady P.A., Fort Lauderdale, for
appellant.
Jeffrey Green of Kaye Bender Rembaum, P.L., Pompano Beach, for
appellee.
KLINGENSMITH, J.
This case presents yet another opportunity for this court to discuss the
use of injunctions to keep the peace in uncivil neighborhood interactions.
For the reasons set forth below, we find that the injunction issued by the
trial court was improvidently granted and reverse.
Appellant Joseph Cash lives in the same condominium complex as
Patrick Gagnon, the petitioner in the underlying action. Their relationship
soured in 2013 when Gagnon joined the condo association’s board of
directors and Cash was not re-elected. The friction between the two
simmered until December 2018 when, according to Gagnon, Cash’s
emotions started to boil over.
According to Gagnon’s petition, the first incident that led him to request
an injunction occurred in December 2018 when Cash interrupted a
conversation Gagnon was having with another resident involving the
common area boat dock by aggressively yelling and accusing Gagnon of
both lying and stealing. A second incident, which also occurred that
December, involved Cash allegedly yelling at Gagnon for putting a parking
boot on a neighbor’s car, again calling him a liar, and angrily cursing at
him.
Two months later in February 2019, Gagnon alleged that Cash
confronted him once again, this time regarding some landscaping work
done by the association. In this episode, Gagnon claimed Cash
approached him twice, forty-five minutes apart, yelling and cursing about
trees that were purportedly installed according to an unapproved
landscaping plan and blocked the view from his condominium.
The last encounter alleged in the petition happened a week later. There,
Cash arrived home one afternoon to find Gagnon and a group of guests in
the parking lot with a car parked in Cash’s parking space. This
transgression prompted Cash to start yelling at Gagnon while also moving
his car close to the group and revving his engine. After this encounter in
the parking lot wound down, Cash rode in the elevator with Gagnon and
his guests on their way to their respective homes. When the elevator
arrived at Gagnon’s floor, the petition alleges that Cash allowed the guests
to exit but blocked Gagnon’s attempt to leave, all the while yelling and
cursing at him. As a result, Gagnon stated that he felt unsafe and called
the police to report the incident. Shortly thereafter, Gagnon filed his
petition for an injunction for protection against stalking. The trial court
granted the injunction following a hearing, and this appeal followed.
“The standard of review for an order imposing a permanent injunction
is abuse of discretion.” Weisberg v. Albert,
123 So. 3d 663, 664 (Fla. 4th
DCA 2013). “But the question of whether the evidence is legally sufficient
to justify imposing an injunction is a question of law that we review de
novo.” Krapacs v. Bacchus, 45 Fla. L. Weekly D1913, at *2 (Fla. 4th DCA
Aug. 12, 2020) (quoting Pickett v. Copeland,
236 So. 3d 1142, 1144 (Fla.
1st DCA 2018)).
Under section 784.048(2), Florida Statutes (2019), “[a] person who
willfully, maliciously, and repeatedly follows, harasses, or cyberstalks
another person commits the offense of stalking . . . .” Further, the statute
defines “harass” as a “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.
(2019). This statute specifically exempts constitutionally protected
activities. See § 784.048(1)(b), Fla. Stat. (2019).
A course of conduct requires multiple acts that are separated by time
or distance. See Levy v. Jacobs,
69 So. 3d 403, 405 (Fla. 4th DCA 2011).
“[T]o be entitled to an injunction for stalking, the petitioner must allege
2
and prove two separate instances of stalking” by competent, substantial
evidence. Logue v. Book,
297 So. 3d 605, 611 (Fla. 4th DCA 2020) (quoting
David v. Schack,
192 So. 3d 625, 628 (Fla. 4th DCA 2016)). Two or more
acts that are part of one continuous course of conduct are legally
insufficient to qualify as separate instances of harassment. See Packal v.
Johnson,
226 So. 3d 337, 338 (Fla. 5th DCA 2017). Further, “a ‘course of
conduct’ for purposes of the statute does not include protected speech.
This includes speech that may be offensive or vituperative.” David v.
Textor,
189 So. 3d 871, 876 (Fla. 4th DCA 2016) (citation omitted).
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?).
“Mere irritation, annoyance, embarrassment, exasperation,
aggravation, and frustration, without more, does not equate to ‘substantial
emotional distress.’”
Johnstone, 298 So. 3d at 669 (Klingensmith, J.,
dissenting) (quoting § 784.048(1), Fla. Stat. (2018)). To satisfy this first
prong of the stalking statute, the court must find that the conduct
complained of caused distress, which is greater than just an ordinary
feeling of discomfort. See
Johnstone, 298 So. 3d at 665; Shannon v. Smith,
278 So. 3d 173, 176 (Fla. 1st DCA 2019).
Second, “[t]he course of conduct must serve no legitimate purpose.”
Johnstone, 298 So. 3d at 664. A legitimate purpose is determined by the
facts of each case, but “courts have generally held that contact is legitimate
when there is a reason for the contact other than to harass the victim.”
O’Neill v. Goodwin,
195 So. 3d 411, 413 (Fla. 4th DCA 2016); see
Textor,
189 So. 3d at 875 (“[W]hether a communication serves a legitimate
purpose is broadly construed and will cover a wide variety of conduct.”).
3
As such, “the action complained of must be so entirely bereft of a valid
purpose that the only possible reason to engage in such acts would be to
cause substantial concern or distress to the intended target.”
Johnstone,
298 So. 3d at 668 (Klingensmith, J., dissenting).
Taking Gagnon’s allegations as true, when viewed through the lens of
the statute and the case law interpreting it, Cash’s conduct falls short of
what is necessary to obtain an injunction. While Cash’s profanity and
accusations of lying might have been offensive to Gagnon, perhaps even
defamatory, this speech does not fall within a “course of conduct” that
allows for injunctive relief. See
Textor, 189 So. 3d at 876; Chevaldina v.
R.K./FL Mgmt., Inc.,
133 So. 3d 1086, 1090 (Fla. 3d DCA 2014) (“Injunctive
relief is not available to prohibit the making of defamatory or libelous
statements.”). Additionally, most of Cash’s actions served the legitimate
purpose of conveying various complaints to an association board member
about condominium-related events. See
O’Neill, 195 So. 3d at 413. Even
though these complaints were voiced in an intemperate, crude, and uncivil
manner, this does not entitle Gagnon to an injunction. See Caterino v.
Torello,
276 So. 3d 88, 94 (Fla. 2d DCA 2019) (yelling and cursing would
not cause a reasonable person to feel substantial emotional distress and
does not warrant injunctive relief).
Gagnon also alleges in his petition that the altercation relating to
Cash’s displeasure about the landscaping constitutes two separate
incidents sufficient to qualify as a course of conduct under the statute.
These two incidents involved the same subject matter but occurred forty-
five minutes apart. Even if we were to hold that they should be treated as
two separate stalking incidents, see
Packal, 226 So. 3d at 338, they do not
qualify as instances of stalking because Cash had a legitimate purpose in
seeking out Gagnon and voicing his displeasure about the association’s
actions. See
O’Neill, 195 So. 3d at 413;
Textor, 189 So. 3d at 875.
While Gagnon alleges four instances of stalking occurred during the
parking lot dispute, these events were one continuous episode. See
Levy,
69 So. 3d at 405. Although Cash is alleged to have revved his car engine
in the parking lot and yelled at Gagnon, nothing about this incident, as
described, would lead a reasonable person to incur substantial emotional
distress. However, the incident where Gagnon says Cash followed him up
the elevator and blocked his egress to berate him could be a qualifying
incident sufficient to constitute stalking when paired with another. At that
point, Cash no longer had a legitimate purpose for engaging in such
actions because the parking dispute was resolved. See
Textor, 189 So. 3d
at 875. There was no legitimate purpose for Cash to restrict or limit
Gagnon’s ability to freely leave the confines of the elevator. In this
4
scenario, we have no trouble concluding that a reasonable person would
have substantial emotional distress after suffering verbal abuse while
being essentially trapped in an elevator. See
Johnstone, 298 So. 3d at 664;
O’Neill, 195 So. 3d at 413. Cash’s speech combined with blocking
Gagnon’s exit from the elevator crossed the line into unprotected conduct.
See
Chevaldina, 133 So. 3d at 1092.
Although the encounter between Cash and Gagnon in the elevator can
be considered a qualifying incident, the rest of the alleged conflicts are
merely uncomfortable neighborly disputes that do not rise to the level of
stalking. See
Caterino, 276 So. 3d at 94 (quoting Shocki v. Aresty,
994 So.
2d 1131, 1134 (Fla. 3d DCA 2008) (“[N]oise, profanity, and claims of
vandalism to property do not always warrant injunctive relief under the
stalking and repeat violence statutes.”)). As this court has repeated on
many occasions, 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.”
Klemple v. Gagliano,
197 So. 3d 1283, 1286 (Fla. 4th DCA 2016) (quoting
Power v. Boyle,
60 So. 3d 496, 498 (Fla. 1st DCA 2011)). For this reason,
we reverse the injunction entered against Cash.
Reversed.
LEVINE, C.J., and CONNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
5
