FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, Kenneth Friedland,
Acting Circuit Judge.
Gregory W. Eisenmenger, of Eisenmenger, Blaue & Peters,
P.A., Viera, for Appellant.
Appearance for Appellee.
Akin appeals the final judgment of injunction for protection
against stalking entered in favor of Cassandra Jacobs
following an evidentiary hearing. We reverse because there
was a lack of competent substantial evidence presented to
support an injunction against stalking.
parties previously worked in different departments at the
Kennedy Space Center. Jacobs filed a petition for injunction
for protection against stalking pursuant to section 784.0485,
Florida Statutes (2016), alleging that she received harassing
letters anonymously sent through the mail over the course of
the last year, her work space was vandalized with a substance
"spewed" on her chair and office equipment, and
that shortly before filing the petition, she learned through
an investigation conducted by her employer that Akin had been
tracking Jacobs' and her boyfriend's social media
pages and acquired personal information about Jacobs and her
is the offense of "willfully, maliciously, and
repeatedly follow[ing], harass[ing], or cyberstalk[ing]
another person." § 784.048(2), Fla. Stat. (2016).
By definition, the statute requires that a petitioner allege
and prove two separate instances of stalking. David v.
Schack, 192 So.3d 625, 627-28 (Fla. 4th DCA 2016)
(citing Roach v. Brower, 180 So.3d 1142, 1144 (Fla.
2d DCA 2015)). "Each incident of stalking must be
established by competent substantial evidence . . . ."
Laserinko v. Gerhardt, 154 So.3d 520, 522 (Fla. 5th
DCA 2015) (quoting Touhey v. Seda, 133 So.3d 1203,
1204 (Fla. 2d DCA 2014)). In the present case, there were no
allegations contained in the petition or evidence presented
at the evidentiary hearing of Akin either
"following" or "cyberstalking" Jacobs
under this statute. Therefore, to obtain the instant
injunction against stalking, Jacobs had to prove at least two
separate instances of being willfully and maliciously
harassed. The term "harass" is defined in this
statute as 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. (2016). Furthermore, "[i]n
determining whether each incident of harassment [has caused]
'substantial emotional distress' . . . to support a
finding of stalking, 'courts use a reasonable person
standard, not a subjective standard.'" Plummer
v. Forget, 164 So.3d 109, 110 (Fla. 5th DCA 2015)
(quoting Laserinko, 154 So.3d at 521-22).
evidence at the hearing was lacking. Notably, none of the
letters that Jacobs alleged to have been sent by Akin were
admitted into evidence. Also, Jacobs did not testify to
suffering substantial emotional distress. See Klemple v.
Gagliano, 197 So.3d 1283, 1286 (Fla. 4th DCA 2016)
(finding the evidence insufficient to constitute the
"harassment" prong under the statute where
petitioner did not testify to any emotional distress). Jacobs
did call one witness to testify, an investigator employed by
Kennedy Space Center who investigated Jacobs' separate
complaint that she filed with her employer against Akin on
these allegations. Much of this witness's testimony
concerned a videotape, letters, and a report that he reviewed
but did not prepare, none of which were admitted into
evidence. Akin's counsel interposed hearsay and best
evidence rule objections to much of this witness's
testimony, which the trial court incorrectly overruled. An
injunction cannot be based on hearsay evidence. See
id. at 1286. Finally, the evidence presented at the
hearing that Akin may have smeared tuna fish on Jacobs'
work station was speculative. See Realauction.com, LLC v.
Grant St. Grp., Inc., 82 So.3d 1056, 1059 (Fla. 4th DCA
2011) ("Speculative testimony is not competent
we reverse the final judgment of injunction for protection
against stalking, with directions to dismiss the petition.
CJ, AND EVANDER, J, concur LAMBERT, J, concurs and concurs
specially, with opinion.
LAMBERT, J., concurring and concurring specially, with
concur with the majority opinion. The result of this appeal
may well have been different if the letters that Jacobs
asserts were regularly sent to her by Akin were actually
admitted into evidence. Because the letters were not actually
admitted into evidence, there was no competent evidence in
the record about the content of the letters or how they would
cause a reasonable person to suffer substantial emotional
distress. Moreover, and as pointed out in the majority
opinion, there is no actual testimony or evidence from Jacobs
or her witness that Jacobs suffered from emotional distress,
let alone substantial emotional distress as ...