Opinion
No. 2D22-2009
06-23-2023
Benjamin KAYE, Appellant, v. Shana WILSON, Appellee.
Benjamin Kaye, pro se. Shana Wilson, pro se.
Benjamin Kaye, pro se.
Shana Wilson, pro se.
MORRIS, Chief Judge.
Benjamin Kaye appeals an order extending a final judgment of injunction for protection against domestic violence. We reverse because there was no evidence that the petitioner, Shana Wilson, suffered substantial emotional distress or that she had a reasonable fear of imminent domestic violence.
Three days before the original injunction was set to expire in May 2022, Wilson filed a motion for extension. The trial court held an evidentiary hearing and made oral findings at the conclusion of the hearing. The trial court found that Kaye had committed domestic violence based on three incidents that constituted stalking. First, "soon after the injunction was issued" in May 2021, Kaye "took a recording that was not made with Ms. Wilson's consent, altered it and doctored it and then emailed it out to Ms. Wilson's family and other friends." The trial court found that "[t]his is harassment that was directed to Ms. Wilson." Second, in June 2021, Kaye sent a locksmith to the rental cottage on the same property as the residence in which Wilson was living. Kaye owns the property, but Wilson was allowed to remain in the residence as a result of the original injunction. The trial court found that
even though it's a cottage on the property, it's very close to the specific location. And the cottage was part of the entire area that he was not allowed to go to. And Mr. Kaye's explanation of changing the locks having something to do with bank accounts just is not credible. The court finds that this was specifically designed by Mr. Kaye to be harassing conduct towards Ms. Wilson. It was done purposely and it was done contrary to the court's injunction of not to have any contact, directly or indirectly because but for Mr. Kaye setting in motion the locksmith, the locksmith would never have come. So the court does believe that that is another instance of harassing conduct.
Third, Kaye texted Wilson's ex-husband in July 2021 in an attempt to obtain Wilson's parents’ information. The court did not believe that Kaye was "just trying to let Ms. Wilson's parents know about the impending legal threats that he was going to prosecute against Ms. Wilson." The court found Wilson's "continued fear of [imminent] domestic violence to be reasonable" and therefore extended the injunction for two years.
The trial court noted that the parties have several civil legal proceedings against each other regarding the property.
"While ‘a trial court has broad discretion in entering an injunction for protection against violence[,] ... it must be supported by competent, substantial evidence.’ " Frost v. Wilson , 320 So. 3d 820, 823-24 (Fla. 2d DCA 2021) (alteration in original) (quoting Brungart v. Pullen , 296 So. 3d 973, 976 (Fla. 2d DCA 2020) ). "Whether the evidence is legally sufficient to support issuance of the injunction is a legal question subject to de novo review." Id. at 824 (quoting Schultz v. Moore , 282 So. 3d 152, 154 (Fla. 5th DCA 2019) ).
"[W]hen a party seeks to extend a nonpermanent injunction against domestic violence, he or she must demonstrate that an additional act of domestic violence has occurred or that there is a reasonable fear of imminent domestic violence." Black v. Black , 308 So. 3d 269, 270-71 (Fla. 2d DCA 2020) (alteration in original) (quoting Trice v. Trice , 267 So. 3d 496, 501 (Fla. 2d DCA 2019) ). "Domestic violence" includes "stalking." § 741.28(2), Fla. Stat. (2021). Stalking occurs when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." § 784.048(2), Fla. Stat. (2021) ; see Branson v. Rodriguez-Linares , 143 So. 3d 1070, 1071 (Fla. 2d DCA 2014) (recognizing that "[c]hapter 741[, which addresses domestic violence injunctions,] does not provide a definition for the criminal offenses listed in section 741.28(2)" and that a court must "look to the statute that proscribes stalking to determine the essential elements of that offense"). " ‘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." § 784.048(1)(a) (emphasis added). " ‘Course of conduct' means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose." § 784.048(1)(b).
"Cyberstalk" means:
1. To engage in a course of conduct to communicate, or to cause to be communicated, directly or indirectly, words, images, or language by or through the use of electronic mail or electronic communication, directed at or pertaining to a specific person; or
2. To access, or attempt to access, the online accounts or Internet-connected home electronic systems of another person without that person's permission,
causing substantial emotional distress to that person and serving no legitimate purpose.
§ 784.048(1)(d) (emphasis added).
Kaye contends that the trial court incorrectly applied a subjective standard and that the three incidents would not have caused substantial emotional distress to a reasonable person. Kaye also argues that Wilson did not establish that she had a reasonable fear of imminent domestic violence.
"Whether a communication causes substantial emotional distress should be narrowly construed and is governed by the reasonable person standard." Scott v. Blum , 191 So. 3d 502, 504 (Fla. 2d DCA 2016) (quoting David v. Textor , 189 So. 3d 871, 875 (Fla. 4th DCA 2016) ). "[E]ach incident must cause substantial emotional distress under an objective standard. Substantial emotional distress ‘is greater than ordinary distress,’ and ‘[u]nder Florida law, a reasonable person does not suffer substantial emotional distress easily.’ " Baruti v. Vingle , 343 So. 3d 150, 151 (Fla. 5th DCA 2022) (second alteration in original) (first citing Laserinko v. Gerhardt , 154 So. 3d 520, 522 (Fla. 5th DCA 2015) ; and then quoting Venn v. Fowlkes , 257 So. 3d 622, 624 (Fla. 1st DCA 2018) ). " ‘[S]ubstantial emotional distress’ connotes an unjustifiable infliction of stress of great proportion, in the nature of fear and concern." Washington v. Brown , 300 So. 3d 338, 341 (Fla. 2d DCA 2020). In addition, an objective standard applies to the question of whether the petitioner feared that domestic violence was imminent. See Randolph v. Rich , 58 So. 3d 290, 292 (Fla. 1st DCA 2011) (holding that petitioner must "present sufficient evidence to establish the objective reasonableness of his or her fear that the danger of violence is ‘imminent’ ").
At the end of the hearing, even though the trial court found that stalking had occurred, the trial court did not expressly find that Kaye's conduct caused Wilson "substantial emotional distress" for purposes of stalking. Rather, the trial court found that Wilson had a reasonable continued fear of imminent domestic violence. We will address both standards.
Wilson testified that the video harmed her "emotionally and socially and reputation [sic]." She stated that Kaye was "doing everything he can to harm [her] financially as well as emotionally and mentally." Wilson repeatedly stated that Kaye's conduct was "harassment," but she did not offer testimony regarding her "substantial emotional distress." When Kaye's counsel pointed out that Wilson had not established that "she had substantial emotional distress," the trial court noted that Wilson was crying at the hearing. This was evidence of Wilson's subjective distress. Wilson did not establish that Kaye's having the locks changed on a rental cottage that he owned would have caused a reasonable person substantial emotional distress or that Kaye's single text message to Wilson's ex-husband asking for Wilson's parents’ information would have caused a reasonable person substantial emotional distress. See Horowitz v. Horowitz , 160 So. 3d 530, 532 (Fla. 2d DCA 2015) (holding that "[b]ecause [petitioner's] testimony as to her reaction to [social media] posts was ‘conclusory and vague’ it was insufficient to show" that "the posts caused her 'substantial emotional distress’ "). Wilson also failed to establish that the Facebook message caused her substantial emotional distress. See Scott , 191 So. 3d at 505, 503 (holding that "[a] reasonable person would not suffer substantial emotional distress over the emails, articles, blog posts, and videos" sent to 2,200 people that caused the petitioner "distress relate[d] to his business reputation and personal reputation among his colleagues," despite evidence that the petitioner had "trouble sleeping and eating, the emails were constantly on his mind, and he constantly had to defend himself to people"); see also Washington , 300 So. 3d at 341 ("[W]hile Brown may have been justifiably offended by some of the messages posted by Washington, none of the attachments to the petition or the evidence adduced during the hearing support a legal conclusion that a reasonable person in Brown's shoes would have experienced the level of ‘substantial emotional distress' necessary to support an injunction ....").
Even though there was no substantial emotional distress to support a finding of stalking, the extension could be supported by the finding that Wilson had a reasonable fear of imminent domestic violence. See Black , 308 So. 3d at 270-71 (holding that petitioner must demonstrate that an additional act of domestic violence has occurred or that there is a reasonable fear of imminent domestic violence). However, throughout the hearing, when Wilson was asked if she was in fear of imminent harm, she denied that she was fearful. Rather, she testified that Kaye was making her life "miserable" and that the conduct was "harassment." As to the locksmith incident, she testified that it put her in "fear and danger" in June 2021 and that the guests renting the cottage were in "fear of danger" at the time, but she admitted that she was currently not in fear at the hearing. The three incidents relied on by the trial court occurred in May and June 2021, and the hearing took place almost a year later in May 2022.
Because there was no competent substantial evidence establishing that Wilson suffered substantial emotional distress or that she had a reasonable fear that domestic violence was imminent, we reverse the order extending the injunction. We need not address the other issues raised by Kaye on appeal.
Reversed and remanded.
NORTHCUTT and BLACK, JJ., Concur.