Mitchell v. Brogden

249 So.3d 781 (Mem)

Scott Anthony MITCHELL, Appellant,

v.Taylor N. BROGDEN, Appellee.

No. 1D16-5849

District Court of Appeal of Florida, First District.

July 16, 2018

Seth Schwartz and Albert J. Tasker, The Schwartz Law Group, P.A., Jacksonville, for Appellant.

Taylor Nicole Brogden, pro se, Appellee.

Per Curiam.

Scott Mitchell appeals the stalking injunction entered against him. The injunction has now expired on its own terms, so it no longer has effect. Nonetheless, we cannot dismiss the appeal as moot because "collateral legal consequences flowing from such an injunction outlast the injunction itself." Murphy v. Reynolds , 55 So.3d 716, 716 (Fla. 1st DCA 2011).

Viewing the evidence in a light most favorable to Appellee, we conclude that the evidence did not support a finding that Mitchell's conduct was sufficient to "cause[ ] substantial emotional distress" under the reasonable-person standard we must apply. See § 784.048(1)(a), Fla. Stat.; see also Bouters v. State , 659 So.2d 235, 238 (Fla. 1995) (holding objective, reasonable-person standard applies). Accordingly, we reverse the order. See Ashford-Cooper v. Ruff , 230 So.3d 1283, 1283 (Fla. 1st DCA 2017) ("[T]here was no evidence that the repeated calls and texts Appellant made to Appellee to try to get in touch with her husband caused Appellee—or would cause a reasonable person in Appellee's position—substantial emotional distress."); David v. Schack , 192 So.3d 625, 628 (Fla. 4th DCA 2016) (reversing stalking injunction after finding reasonable person would not suffer substantial emotional distress when respondent "banged on [petitioner's] door" and left a letter and payment); Plummer v. Forget , 164 So.3d 109, 110 (Fla. 5th DCA 2015) ("Based upon our careful review of the record, we conclude that the incidents described by Forget, when examined through the prism of the ‘reasonable person’ standard, would not have caused ‘substantial emotional distress’ to support a finding of stalking."); Leach v. Kersey , 162 So.3d 1104, 1106 (Fla. 2d DCA 2015) (noting 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" and concluding that "[t]he evidence fails to show that a reasonable person in Kersey's situation would suffer substantial emotional distress from these contacts"); Touhey v. Seda , 133 So.3d 1203, 1204 (Fla. 2d DCA 2014) (reversing stalking injunction after finding reasonable person would not suffer substantial emotional distress based on particular contacts); Goudy v. Duquette , 112 So.3d 716, 717 (Fla. 2d DCA 2013) ("[A] reasonable person would not have suffered substantial emotional distress as a result of the conversation, however one-sided or hostile it might have been."); Jones v. Jackson , 67 So.3d 1203, 1203-04 (Fla. 2d DCA 2011) (finding appellant's threatening phone calls and text messages to appellee, and his statements to third parties suggesting he would do violence to appellee, would not have caused a reasonable person to suffer substantial emotion distress); Slack v. Kling , 959 So.2d 425, 426 (Fla. 2d DCA 2007) ("Slack left [two] voice message[s] stating that if Kling did not stay away from Slack's wife, Slack would make an ‘arrangement.’ We conclude that nothing in the record demonstrates any basis for finding that a reasonable person would suffer ‘substantial emotional distress’ from these two phone messages." (footnote omitted) ); McMath v. Biernacki , 776 So.2d 1039, 1040-41 (Fla. 1st DCA 2001) (noting that appellee admitted appellant never threatened her and holding that "[n]o evidence exists in the record that a reasonable person would suffer substantial emotional distress from these incidents. The record reveals that the appellee does not feel comfortable around the appellant. In response to why the appellee was afraid of the appellant, the appellee stated that the appellant did not understand her and had made several attempts to talk to her.").

REVERSED.

B.L. Thomas, C.J., and Winsor, J., concur; Osterhaus, J., dissents with opinion.

Osterhaus, J., dissenting.

I think we should affirm because competent, substantial evidence supports the trial court's conclusion that Mr. Mitchell violated the stalking statute.

ORDER ON MOTION FOR HEARING EN BANC

A judge of this Court requested that this cause be heard en banc in accordance with Florida Rule of Appellate Procedure 9.331(c). All judges in regular active service have voted on the request. Less than a majority of those judges voted in favor of hearing en banc. Accordingly, the request for hearing en banc is denied.

B.L. Thomas, C.J., and Lewis, Roberts, Wetherell, Rowe, Ray, Osterhaus, Kelsey, Winokur, Jay, Winsor, and M.K. Thomas, JJ., concur.

Wolf and Bilbrey, JJ., dissent.

Makar, J., dissents with opinion.

Makar, J., dissenting from the denial of hearing en banc.

Due to a large caseload, our fifteen-member appellate court—like the other four district courts in Florida—assigns each case randomly to a three-judge panel for disposition, raising the trivia question: How many different three-judge panels are possible? If you said 455, you're correct.¹ Most people guess a far smaller number. What isn't trivial is the jurisprudential impact that so many different panels have on similar or related cases, making the need for intra-court decisional uniformity important, which was the basis upon which en banc review was sought as to the proposed disposition of this case by a divided panel.²

Decisional uniformity is so important that it is one of only two grounds for en banc review, the other involving cases of exceptional importance. Rule 9.331, Fla. R. App. P. (2018). It is the primary tool for reducing disparate results within a large appellate court arising from randomized panel assignments. For example, in Jones v. State , 790 So.2d 1194, 1196 (Fla. 1st DCA 2001), this Court decided to hear a case en banc "to resolve a conflict in our opinions regarding the applicable standard of review" in a criminal case. By doing so, the Court furthered "a primary function of the en banc rule [which] is to standardize the decisions of each district so as to minimize the importance of the ‘luck of the [appellate] draw’ ... in presenting cases before our increasingly multi-member courts." Schreiber v. Chase Fed. Sav. & Loan Ass'n , 422 So.2d 911, 912 n.1 (Fla. 3d DCA 1982) (" Schreiber I ") (Schwartz, J.), decision quashed , 479 So.2d 90 (Fla. 1985) (adopting Judge Schwartz's viewpoint).

Without en banc review for uniformity, we'd not be one court attempting to dispense uniform justice, but an assemblage of 455 randomly-assigned and autonomous three-judge panels each doing as it sees fit. That is not our jurisprudential system. As our supreme court said when it established the en banc rule: "Under our appellate structural scheme, each three-judge panel of a district court of appeal should not consider itself an independent court unto itself, with no responsibility to the district court as a whole ." See In re Rule 9.331, Determination of Causes by a Dist. Court of Appeal En Banc, Fla. Rules of Appellate Procedure , 416 So.2d 1127, 1128 (Fla. 1982) (emphasis added). The court long ago held that language in article V, section 4—that "three judges shall consider each case"—does not "restrict[ ] the district courts from hearing cases en banc." Chase Fed. Sav. and Loan Ass'n v. Schreiber , 479 So.2d 90, 93 (Fla. 1985) (" Shreiber II "). The purpose of the en banc process is to unify a court's jurisprudence, rather than potentially fracture it by giving decisions of three-judge panels preferred or protected status. As our supreme court said in support of the en banc rule:

The en banc process now authorized for the district courts is designed to help the district courts avoid conflict, assure harmonious decisions within the courts' geographic boundaries, and develop predictability of the law within their jurisdiction. Consistency of decisions within each district is essential to the credibility of the district courts. There has been criticism of intermediate appellate courts for their failure to speak with "a single voice of the law." Meador, An Appellate Court Dilemma and A Solution Through Subject Matter Organization, 16 U. Mich. J.L. Ref. 471, 474 (1983). As judges are added to Florida's district courts to meet expanding caseloads, the resulting increased number of three-judge panels cannot help but increase the number of inconsistent and conflicting decisions. When there is a general rotation of Florida's district court judges among three-judge panels, the increased number of panel combinations compounds the problem. With a five-member court, the number of different panel combinations is ten. With a twelve-member court, however, the number of panel combinations is 220. The en banc process provides a means for Florida's district courts to avoid the perception that each court consists of independent panels speaking with multiple voices with no apparent responsibility to the court as a whole. The process provides an important forum for each court to work as a unified collegial body to achieve the objectives of both finality and uniformity of the law within each court's jurisdiction.

Schreiber II , 479 So.2d at 93-94 (emphasis added). Uniformity review, perhaps a bit like a cranky hall monitor, helps to keep order by requiring three-judge panels to be open-minded as to the views of their colleagues and responsible to the court as a whole in their decisions, particularly written ones that become binding precedent. Our supreme court—with its limited jurisdiction—does not perform this function; instead, each district court must do so, making enthusiasm and dedication to the task important.

Little judicial fervor exists for decisional uniformity, however. The primary reason is an institutional predisposition—ingrained on the first day of new appellate judges' school—to avoid the en banc process and its rancor entirely, invoking it...