Cash v. Gagnon

306 So.3d 106

Joseph CASH, Appellant,

v.Patrick GAGNON, Appellee.

No. 4D19-1302

District Court of Appeal of Florida, Fourth District.

[November 4, 2020]

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 , 301 So.3d 976, 978 (Fla. 4th DCA 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 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."). 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...