Khan v. Deutschman

282 So.3d 965

Sajed KHAN, Appellant,

v.Laura DEUTSCHMAN, Appellee.

No. 1D18-822

District Court of Appeal of Florida, First District.

October 11, 2019

Mark V. Murray, Tallahassee, and Kevin Robert Alvarez, Tallahassee, for Appellant.

Thomas J. Schulte, Jr. of Ausley McMullen, Tallahassee, for Appellee.

Ketchel, Terrance R., Associate Judge.

Sajed Khan challenges the lower court's final judgment granting Laura Deutschman a dating violence injunction against him. For the reasons set forth below, we affirm.

It is well established that a trial court has broad discretion to enter an injunction, and a decision based on that discretion will not be overturned absent a finding that the court abused that discretion. Pickett v. Copeland , 236 So. 3d 1142, 1143–44 (Fla. 1st DCA 2018). "It [is] the responsibility of the trial court to determine the credibility of the witnesses and to resolve the conflicts in evidence." Jeffries v. Jeffries , 133 So. 3d 1243, 1244 (Fla. 1st DCA 2014) (citing Disston v. Hanson , 116 So. 3d 612 (Fla. 5th DCA 2013) ). "It is well-established that the appellate court does not re-weigh the evidence or the credibility of the witnesses." Lahodik v. Lahodik , 969 So. 2d 533, 535 (Fla. 1st DCA 2007).

As is often the case with pro se litigants in domestic violence injunction hearings, the testimony of the parties in this case was sometimes contradictory, and even in direct dispute on several crucial matters. The parties engaged in an eight- to eleven-month romantic relationship that by all accounts was a significant relationship. The parties stayed at each other's homes occasionally during their relationship, lived together for short periods of time, and traveled together. On the other hand, both parties acknowledged that the relationship was rocky and was often "on again, off again."

Of significance to this case, in the middle of November 2017, the two broke up, and a few days later, had a rather public falling out when Appellant saw Appellee in the arms of another man at a local bar. Appellee yelled at Appellant because she felt that Appellant followed her to the bar. The fight stretched into the early hours of the next morning via a string of mostly unanswered text messages.

Importantly, Appellee ended the fight by telling Appellant that she never wanted to talk to him again, and she immediately blocked him from contacting her by phone and social media. Appellee was unequivocal at this time that she wanted no further contact and that this was permanent. She made no further contact with Appellant, even in the face of repeated efforts by him to communicate. Appellant claims that Appellee called him one time following this no contact request, on a blocked phone number, and spoke with him for forty-five minutes, a claim that Appellee vigorously denied.

Appellee also testified that Appellant struck her in the face a year earlier, pointing to the volatile nature of the relationship, an accusation that the Appellant denied.

Over the next few months, in an apparent attempt to reconcile, Appellant continued to try to contact Appellee via several texts, a formal letter, flowers, and on at least one occasion, a phone call, none of which were responded to by Appellee. On the contrary, during this time, Appellee attempted to stop Appellant from contacting her by having her attorney send Appellant a cease and desist letter, which Appellant received. Ultimately, Appellee contacted the police to assist her in having Appellant stop contacting her. When this was not successful, Appellee finally filed for an injunction to prevent dating violence.

The trial court commented that it was flabbergasted by Appellant's failure to heed the attorney's formal cease and desist letter, and the court concluded that it considered the continued communications following clear directions to stop as "hectoring." Based on these facts the trial court entered a final injunction on the Petition for Protection Against Dating Violence for a period of one year.

Appellant raises "the question of whether the evidence is legally sufficient to justify imposing an injunction [which] is a question of law that we review de novo." Pickett , 236 So. 3d at 1144 (citing Wills v. Jones , 213 So. 3d 982, 984 (Fla. 1st DCA 2016) ).

The dating violence injunction permits any person "who is the victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence" may petition the circuit court for an injunction to prevent such violence. § 784.046(2)(b), Fla. Stat. Dating violence is "any assault, battery, aggravated battery, sexual assault, stalking, aggravated stalking, kidnapping or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against another person" between individuals who have had or currently have a significant, romantic relationship. § 784.046(1)(a), (d). There is no dispute that the parties were engaged in a continuing and significant relationship of a romantic or intimate nature. Because the evidence presented by the parties could only possibly meet the requirements of the dating violence element of stalking, our analysis will be confined to a review of the requirements for a stalking injunction only.

The stalking element is found not only in the dating violence injunctions, but also the domestic violence injunctions, the repeat violence injunctions, and more recently the standalone stalking injunction that was created by the Legislature.^* In each of these types of injunctions the legal analysis for the application of the stalking requirements is identical and in fact interchangeable although other requirements of the various injunctions are substantially different.

"Stalking" is when one "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another." § 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," section 784.048(1)(a), and cyberstalking is harassing through electronic communication, see section 784.048(1)(d).

"Substantial emotional distress" is an objective standard, Bouters v. State , 659 So. 2d 235, 237 (Fla. 1995), and whether a person experiences substantial emotional distress is determined by considering the totality of the circumstances. See Leach v. Kersey , 162 So. 3d 1104, 1106 (Fla. 2d DCA 2015) ("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."); Biggs v. Elliot , 707 So. 2d 1202 (Fla. 4th DCA 1998) (following and repeatedly telephoning the victim did constitute stalking within the statutory definition of section 784.048, Florida Statutes (1995) ; and stating "whether the conduct meets the statutory requirement is a question of fact for the trier of fact").

A dating violence injunction requires "violence"—and most of the acts the Legislature defined as "violence" are violent as that term is used in ordinary parlance. See § 784.046(1)(a), (d), Fla. Stat. (requiring "violence" and defining "violence" as "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death"); Branson v. Rodriguez-Linares , 143...