DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ABEL B. GARCIA,
Appellant,
v.
OLGA C. SOTO,
Appellee.
No. 4D21-661
[April 20, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Renatha S. Francis, Judge; L.T. Case No.
502020DR006626XXXXMB.
Troy William Klein of the Law Office of Troy W. Klein, P.A., West Palm
Beach, for appellant.
Kent D. Huffman of Hutchinson & Huffman, P.A., West Palm Beach,
and Kara Rockenbach Link of Link & Rockenbach, PA, West Palm Beach,
for appellee.
WARNER, J.
In entering a final judgment of injunction for protection against
stalking, the trial court found two episodes of stalking sufficient to satisfy
a pattern of conduct. Because we conclude that those incidents do not
constitute a pattern of harassment under the relevant statute, we reverse
the final judgment.
Appellee, Soto, petitioned for an injunction for protection against
stalking, alleging that appellant, Garcia, had engaged in multiple acts of
stalking. After the trial court denied the petition for a temporary
injunction, Soto filed an eleven-page supplemental affidavit in which Soto
detailed her entire relationship with Garcia. In brief, Soto began dating
Garcia after her husband died, but the relationship soon soured, because
Garcia appeared possessive and demanded money from her. After they
broke up, Soto began seeing another man, and Garcia began to make
threats. The affidavit detailed incidents involving her automobile business
and home, including theft of cars and electrical interruptions which she
attributed to Garcia. Some specific incidents where Garcia was present
were also included.
At the final hearing on the petition, Soto’s attorney brought the affidavit
to the attention of the court, which said it would take notice of the affidavit
and asked counsel to elicit testimony as to a few of the more recent
incidents. Counsel then asked Soto about even more recent incidents, not
included in the affidavit, but the court interrupted and asked for
clarification. Soto then began to relate various incidents, such as FPL
disconnecting electricity at her business, which she suspected was
instigated by Garcia, but admitted that she did not know for sure. Counsel
then directed Soto to testify regarding other incidents.
Soto then recounted an incident which occurred at a local restaurant
in January 2020. She and her boyfriend went to dinner at a restaurant,
and Garcia was at the same restaurant. Garcia came to her table four
times, as he also knew the boyfriend who was his former employee. The
first time Garcia came over to her table, Soto was up dancing. When she
came back, her wine tasted funny, so she did not drink it. The second
time Garcia came over, he spoke to her boyfriend, saying “he cleaned up
well.” The third time, Garcia again mumbled something to the boyfriend
saying something like “you look good.” He came back a fourth time. Soto
never told him to go away, nor did she speak with him.
As Soto and her boyfriend were leaving the restaurant, someone
sprayed her boyfriend in the face with pepper spray. Someone else
approached Garcia and took her purse. The police were called and were
told that the boyfriend attacked a bouncer, and he was arrested.
In April 2020, Soto and her boyfriend were at a Home Depot returning
some merchandise. Soto stayed in their car, while the boyfriend went into
the store. She testified that Garcia approached her boyfriend and told him
that he had planned the “[restaurant] thing,” because he saw the boyfriend
with Soto. Garcia then made some statements about how he treated
women badly. Soto attempted to show the court a text image from Garcia
that she said depicted an image showing her boyfriend’s address and some
message, but the court commented that it was impossible to read.
After presentation of this evidence, the court offered Garcia the
opportunity to testify. Garcia denied that he had admitted staging the
restaurant incident when he saw Soto’s boyfriend at the Home Depot or
that he had talked to Soto there. Soto’s counsel then clarified Soto’s
testimony, noting that the statements made in the parking lot were
statements made to the boyfriend, not to Soto, although Soto was present
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and heard them.
At the end of the testimony, the court ruled. After stating the definition
of harassment as engaging in a course of conduct that causes substantial
emotional distress serving no legitimate purpose, the court found that
Soto’s testimony that she was nervous and “uncomfortable and all of this
stuff” was evidence of substantial emotional distress. The court relied on
the incidents in January at the restaurant and in April at the Home Depot
to establish a course of conduct. As to the January incident in the
restaurant, the court found that Garcia’s appearance at the table four
times constituted a continuity of purpose. Although short, this
constituted a pattern of conduct under the statute. As to the April
incident, the court believed Soto that Garcia did have a conversation with
the boyfriend at the Home Depot and that Garcia admitted to planning the
attack at the restaurant. The court did not mention any of the other
incidents to which Soto testified. Based upon these findings it entered a
judgment of injunction. Garcia brings this appeal.
“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)) (internal quotation marks 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)).
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) defines the components 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.
“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
3
of stalking must be proven by competent substantial evidence.” Id. “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). “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)).
To qualify as stalking, the conduct must cause substantial emotional
distress and serve no legitimate purpose. Id. at 110. “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.’” David v. Schack,
192 So. 3d 625,
628 (Fla. 4th DCA 2016) (quoting Touhey,
133 So. 3d at 1204). “[T]he
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). “Mere irritation, annoyance,
embarrassment, exasperation, aggravation, and frustration, without more,
does not equate to ‘substantial emotional distress.’” Id. at 669
(Klingensmith, J., dissenting).
In this case, the trial court classified Garcia approaching Soto and her
boyfriend at the restaurant as four separate acts of stalking. We disagree,
as they were part of one “continuous course of conduct,” which would
constitute one instance of stalking, not four.
Nevertheless, even if they were separate incidents, they do not
constitute stalking, because they would not be of a nature to cause a
reasonable person substantial emotional distress, even if Garcia’s
approach was an annoyance. No testimony was received that Garcia
threatened Soto or caused a scene. Instead, it appears that he was
speaking mostly to the boyfriend. No harsh words were even exchanged.
These incidents do not constitute a course of conduct of stalking.
The attack outside the restaurant is more concerning and would
constitute an act of harassment if it had been perpetrated by Garcia.
Although the physical violence was leveled against the boyfriend and not
Soto, Soto’s purse was stolen—grabbed from her person. Being the victim
of such an attack would cause more than ordinary emotional distress in a
reasonable person.
The court relied on the encounter at the Home Depot store in its ruling,
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although it is not clear whether it considered this a separate incident of
harassment. That incident, as well, would not cause a reasonable person
substantial emotional distress. Garcia had a conversation with the
boyfriend, admitting that he planned the incident outside the restaurant
where the boyfriend was pepper sprayed. He did not talk to Soto, and no
harsh words were exchanged. Soto testified that some sort of disturbing
text was sent to the boyfriend, but the court disregarded this because it
was unreadable. As this was simply a “confirmation” of a prior act of
harassment, it was not a separate instance of stalking. Indeed, it may also
have served a legitimate purpose because Garcia admitted culpability for
the prior incident.
Because the court relied on these incidents alone to justify the issuance
of the final judgment of injunction, the judgment was not supported by
competent substantial evidence of stalking, because only one incident met
the statutory requirements. In her brief, Soto relies on a multitude of other
incidents contained in her supplemental affidavit to support her claim of
stalking and her emotional distress, contending that the court took
“judicial notice” of the affidavit. The court could not take judicial notice of
its contents. See § 90.202(11)–(12), Fla. Stat. (2021). A matter judicially
noticed must be of common and general knowledge. Nielsen v. Carney
Groves, Inc.,
159 So. 2d 489, 491 (Fla. 2d DCA 1964); see also Wyatt v.
State,
270 So. 2d 47 (Fla. 4th DCA 1972) (defining judicial notice as “the
cognizance of certain facts which judges and jurors may properly take and
act upon without proof, because they already know them” (quoting
Mitchum v. State,
251 So. 2d 298, 300 (Fla. 1st DCA 1971)). Judicial notice
“may not be used to dispense with proof of essential facts that are not
judicially cognizable.” McDaniels v. State,
388 So. 2d 259, 260 (Fla. 5th
DCA 1980). Clearly, the incidents described in Soto’s affidavit were part
of the proof of essential facts and were not facts of common or general
knowledge. The incidents could not be judicially noticed.
Regardless, the court did not rely on any of the incidents described in
the affidavit and made no findings on any of incidents. Because these are
evidentiary facts, the dissent’s reliance on the tipsy coachman doctrine is
misplaced. “[A]n appellate court cannot employ the tipsy coachman rule
where a lower court has not made factual findings on an issue and it would
be inappropriate for an appellate court to do so.” Bueno v. Workman,
20
So. 3d 993, 998 (Fla. 4th DCA 2009).
The final judgment is not supported by competent substantial evidence.
The incidents relied on by the court did not constitute a course of conduct
causing substantial emotional distress as required by statute. We reverse
and direct that the judgment be vacated.
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Reversed.
GROSS, J., concurs.
ARTAU, J., dissents with opinion.
ARTAU, J., dissenting.
I respectfully dissent because the appellant failed to object to the
admissibility of the supplemental affidavit which described several
incidents constituting either the “following” or “harassing” forms of
stalking as defined in section 784.048(2), Florida Statutes (2020). The
supplemental affidavit, together with the testimony presented by the
appellee at the hearing, provided the trial court with competent substantial
evidence of two or more acts that would constitute either form of stalking
sufficient to support issuance of the injunction.
Before presenting any testimony, counsel for the appellee announced
that he wished to move the supplemental affidavit into evidence in view of
the court’s limited time to consider in-person testimony at the evidentiary
hearing. The appellant did not object. The trial court agreed that, as
scheduled, there was insufficient time for the appellee to testify as to
“everything” in the supplemental affidavit, and directed counsel to present
testimony from the appellee only as to “a couple of the more recent
incidents.” The trial court then inartfully ruled that it would “take notice”
of the supplemental affidavit.
“In order to preserve an evidentiary ruling for appellate review, a
contemporaneous objection on the specific legal ground raised on appeal
must be made in the trial proceedings, and the objecting party must obtain
a ruling by the trial court for the appellate court to review.” Ham v.
Nationstar Mortg., LLC,
164 So. 3d 714, 717 (Fla. 1st DCA 2015). The
appellant’s failure to object to the admissibility of the supplemental
affidavit, and failure to request a definitive ruling excluding the affidavit
from the trial court’s consideration as evidence, precludes the appellant
from taking the position that the supplemental affidavit is not a part of the
record that can be considered in determining that the appellee presented
sufficient evidence to support issuance of the injunction.
In discussing the harassing form of stalking, the majority intimates that
all forms of stalking require conduct that causes substantial emotional
distress and serves no legitimate purpose. However, such an
interpretation of the stalking statute ignores the Florida Legislature’s use
of the disjunctive “or” in providing for different forms of stalking. See §
6
748.048(2), Fla. Stat. (2020) (“A person who willfully, maliciously, and
repeatedly follows, harasses, or cyberstalks another person commits the
offense of stalking[.]” (emphasis added)).
While all forms of stalking—inclusive of “following”—require evidence
that the conduct be done “repeatedly” with “malicious” and “willful” intent,
only the “harassing” and “cyberstalking” forms of stalking carry the
additional requirement that the conduct causes “substantial emotional
distress” and serves “no legitimate purpose.” See Klemple v. Gagliano,
197
So. 3d 1283, 1285-86 (Fla. 4th DCA 2016) (explaining the different
elements required to prove stalking under the “following” and
“harassment” prongs of section 784.048); see also Santiago v. Leon,
299
So. 3d 1114, 1117-20 (Fla. 3d DCA 2020) (concluding that while the
“following” form of stalking must be conduct amounting to “willful,
malicious and repeated ‘following[,]’” it is the “harassing” and
“cyberstalking” forms of stalking that must amount to conduct that causes
“substantial emotional distress” and serves “no legitimate purpose”
(quoting § 784.048(1)(a) & (1)(d)1.–2., Fla. Stat. (2017)). Moreover,
“[w]hether the conduct meets the statutory requirement [to constitute
stalking] is a question of fact for the trier of fact.” Biggs v. Elliot,
707 So.
2d 1202, 1202 (Fla. 4th DCA 1998).
The majority correctly points out that the trial court does not appear to
have based its ruling on the incidents described in the supplemental
affidavit. However, under the tipsy coachman rule, when a “trial court
reaches the right result, but for the wrong reasons,” its judgment “will be
upheld if there is any basis which would support the judgment in the
record.” Dade Cnty. Sch. Bd. v. Radio Station WQBA,
731 So. 2d 638, 644-
45 (Fla. 1999); see also Applegate v. Barnett Bank,
377 So. 2d 1150, 1152
(Fla. 1979) (“Even when based on erroneous reasoning, a conclusion or
decision of a trial court will generally be affirmed if the evidence or an
alternative theory supports it.”).
The majority’s reliance on Bueno v. Workman,
20 So. 3d 993 (Fla. 4th
DCA 2009), as preventing application of the tipsy coachman rule here is
misplaced. Bueno correctly rejected an argument that a lower court’s
erroneous dismissal of a case on theories of estoppel, waiver, and election
of remedies could be upheld under the tipsy coachman rule because the
plaintiff had “committed a fraud on the court.”
Id. at 998. Bueno explained
that “it would be inappropriate” to “employ the tipsy coachman rule where
[the] lower court [had] not made factual findings on [the fraud] issue[.]”
Id.
Unlike Bueno—where the lower court had not made any finding of fraud—
the trial court here made its factual finding of stalking, but did not recite
sufficient facts from the record when it explained its reasoning for the
7
finding of stalking. See Delivorias v. Delivorias,
80 So. 3d 352, 353-55 (Fla.
1st DCA 2011) (distinguishing Bueno and “those cases in which the ‘tipsy
coachman’ doctrine was deemed inapplicable [because] the trial court
failed to make findings of fact” on an issue, from cases in which the tipsy
coachman doctrine should be applied because a factual finding was made
on an issue “and competent substantial evidence in the record supports
the result, but the trial court failed to explain its reasoning”).
Moreover, the statute creating a cause of action for an injunction
against stalking does not require a trial court to provide any reasons for
its finding of stalking. See § 784.0485(6)(a), Fla. Stat. (2020) (“Upon notice
and hearing, when it appears to the court that the petitioner is the victim
of stalking, the court may grant such relief as the court deems proper,
including an injunction[.]”). Accordingly, we would have no legal basis to
reverse an injunction that is supported by competent substantial evidence
in the record simply because the trial court did not provide any reasons
for its finding of stalking. Likewise, we should not reverse this injunction
simply because the trial court did not provide enough reasons for its
finding of stalking. See Lukacs v. Luton,
982 So. 2d 1217, 1221 (Fla. 1st
DCA 2008) (“Although the trial court did not base its ruling on the [correct]
analysis,” we may affirm where “the facts established below show that
appellant committed an act of stalking, and the trial court found appellant
committed such an act[.]”).
Thus, the tipsy coachman rule should be applied to affirm the trial
court’s injunction because it was supported by competent substantial
evidence in the record that the appellant committed two or more acts that
would constitute either the “following” or “harassing” forms of stalking.
* * *
Not final until disposition of timely filed motion for rehearing.
8
