Terrance J. Pickett, Appellant,
Holly C. Copeland, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Escambia County. Jan
Cromey of Cromey Law, P.A., Pensacola, for Appellant.
appearance for Appellee.
J. Pickett appeals the trial court's Final Judgment of
Injunction for Protection Against Stalking. Although we
disagree that Mr. Pickett was deprived of due process during
the hearing, we agree with Mr. Pickett that the evidence was
legally insufficient to support the issuance of the
injunction against him. Consequently, we reverse.
Pickett claims that competent, substantial evidence did not
support the trial court's imposition of the permanent
injunction against stalking. A trial court has broad
discretion to grant an injunction, and we review an order
imposing a permanent injunction for a clear abuse of that
discretion. Noe v. Noe, 217 So.3d 196, 199 (Fla. 1st
DCA 2017); 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. Wills v.
Jones, 213 So.3d 982, 984 (Fla. 1st DCA 2016).
784.0485(1), Florida Statutes (2016), "create[s] a cause
of action for an injunction for protection against
stalking." The "petition for an injunction for
protection against stalking may be filed in the circuit where
the petitioner currently or temporarily resides, where the
respondent resides, or where the stalking occurred."
§ 784.0485(1)(f), Fla. Stat. As defined in section
784.048(2), Florida Statutes (2016), stalking occurs when a
person "willfully, maliciously, and repeatedly
follows, harasses, or cyberstalks another person[.]"
(Emphasis added.) "Harass" is defined in section
784.048(1)(a) to mean "engag[ing] in a course of
conduct directed at a specific person which causes
substantial emotional distress to that person and serves no
legitimate purpose." (Emphasis added.) In its turn,
"course of conduct" is defined as "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), Fla. Stat. (emphasis added).
by its statutory definition, stalking requires proof of
repeated acts." Lukacs v. Luton, 982 So.2d
1217, 1219 (Fla. 1st DCA 2008); see also Power v.
Boyle, 60 So.3d 496, 498 (Fla. 1st DCA 2011)
("Stalking has been interpreted to mean 'repeated
acts of following or harassment.'") (quoting
Lukacs, 982 So.2d at 1219)). Stated differently,
repeated acts are required for "one act of
stalking." Lukacs, 982 So.2d at 1219
(emphasis in the original); see also Packal v.
Johnson, 226 So.3d 337 (Fla. 5th DCA 2017) (reversing
permanent injunction for protection against stalking violence
because the evidence did not support a finding of repeat
harassment); Carter v. Malken, 207 So.3d 891, 894
(Fla. 4th DCA 2017) ("A minimum of two incidents of
harassment are required to establish stalking.").
contrast, several courts have held that a stalking injunction
requires proof of two or more separate incidences of
"stalking." See, e.g., Burns v.
Bockorick, 220 So.3d 438, 440 (Fla. 4th DCA 2017)
("'In order to be entitled to an injunction for
stalking, the petitioner must allege and prove two separate
instances of stalking."') (quoting David v.
Schack, 192 So.3d 625, 627-28 (Fla. 4th DCA 2016));
Klemple v. Gagliano, 197 So.3d 1283, 1285 (Fla. 4th
DCA 2016) (same); Richards v. Gonzalez, 178 So.3d
451, 453 (Fla. 3d DCA 2015) (referring to
"[e]ach incident of stalking") (emphasis
in original); Touhey v. Seda, 133 So.3d 1203, 1204
(Fla. 2d DCA 2014) (requiring "each incident of
stalking" to be proved). Apparently, this two-incident
requirement was adopted based upon "guidance" from
the repeat violence statute-section 784.046, Florida
Statutes-"which defines repeat violence as 'two
incidents of violence or stalking committed by the
respondent, one of which must have been within 6 months of
the filing of the petition, which are directed against the
petitioner or the petitioner's immediate family
member.'" Wyandt v. Voccio, 148 So.3d 543,
544 (Fla. 2d DCA 2014) (emphasis added); see also David
v. Textor, 189 So.3d 871, 874-75 (Fla. 4th DCA 2016)
("Section 784.0485, Florida Statutes (2014), allows an
injunction against stalking, including cyberstalking. The
statute must be read in conjunction with section
784.046(1)(b), Florida Statutes (2014), which requires at
least two incidences of stalking to obtain an
injunction."); Leach v. Kersey, 162 So.3d 1104,
1106 (Fla. 2d DCA 2015) (holding that the stalking
"statute is analyzed with guidance from the statute
governing injunctions against repeat violence, section
784.046"); Touhey, 133 So.3d at 1203
("Given the [stalking] statute's recent enaction,
support for our holding comes from cases analyzing
allegations of stalking in the context of section 784.046,
which applies to injunctions for protection against repeat
violence, sexual violence, and dating violence.")
nowhere in the definitions of section 784.048 is stalking
defined as a multiple of itself. Stalking is defined simply
as "willfully, maliciously, and repeatedly"
following, harassing, or cyberstalking another person-not
repeatedly stalking another person. §
784.048(2), Fla. Stat. Equally important, section 784.0485
makes no reference to the provisions of the repeat violence
statute; does not mandate "guidance" from the
repeat violence provisions; and, independent of the
requirements of section 784.046, creates a "cause of
action for an injunction for protection against
stalking." § 784.0485(1), Fla. Stat.; see
M. Kimberly Martyn, Representing Battered Spouses,
Florida Dissolution of Marriage, §21.78 (Fla. Bar
CLE 12th ed. 2015) ("Effective October 1, 2012, a
fifth type of protective injunction exists for
protection against stalking. F.S. 784.0485(1). The
availability of this injunction enables victims of stalking,
including cyberstalking, who do not qualify for domestic
violence injunctions, to seek relief without the
necessity of proving the two separate stalking offenses that
are required in repeat violence injunction
proceedings.") (emphasis added). Moreover, if a
stalking injunction requires two instances of "stalking,
" then at least four prohibited events must be
proved by the person seeking the injunction-because a single
"stalking" offense requires repeated acts
of malicious following, and/or harassment, and/or
cyberstalking. See Lukacs, 982 So.2d at 1220
("To adopt the view of Appellant would lead to the
absurd result of requiring stalking victims to show that they
twice suffered from repeated harassment or
following before obtaining a protective injunction. Were we
to adopt such an interpretation, Appellant could have
threatened or followed Appellee four times before
the circuit court could issue a protective injunction.")
(emphasis in the original). Therefore, based on the statutory
language of section 784.0485, and the definitions set forth
in section 784.048, we hold that the injunction provisions of
section 784.0485 only require the petitioner to prove a
single incident of stalking.
to the facts of this case, it was incumbent on Ms. Copeland
to prove stalking by competent, substantial evidence.
Thoma v. O'Neal, 180 So.3d 1157, 1159 (Fla. 4th
DCA 2015) (citing McMath v. Biernacki, 776 So.2d
1039, 1041 (Fla. 1st DCA 2001)). As is so often true in
injunction cases, the parties appeared below without counsel.
The trial court conscientiously questioned each of the
parties, in turn. There was scant relevant evidence
presented, and the parties' testimony, at best, was
confusing and convoluted. We are sensitive to the
difficulties faced by the trial court in teasing out a thread
of truth from a jumbled patchwork of conflicting narrative.
But, after having carefully reviewed the record
ourselves-mindful that we are not the factfinder-we are
compelled to conclude that the evidence was neither competent
nor substantial to carry Ms. Copeland's burden.
there was evidence that Mr. Pickett followed Ms. Copeland
from the Murphy gas station on Thanksgiving Day in 2016, he
did so because there was an outstanding warrant for Ms.
Copeland's arrest for violating the injunction he had
obtained against her, and while he was following her, it is
undisputed that he was talking to the police. That was, at
most, a single act of following. Furthermore, though Ms.
Copeland accused Mr. Pickett of driving past her house on
multiple occasions- presumably to prove harassment-the
evidence only suggested a single incident of his passing by,
which falls short of a malicious "course of
conduct" serving "no legitimate purpose."
§ 784.048(1)(a), (b) & (2), Fla. Stat.; see
Leach, 162 So.3d at 1106 (reversing injunction and
holding Leach's several messages to Kersey by phone,
through friends, and on social media, after she learned of an
eighteen-month affair between Kersey and Leach's husband,
could not be found to serve "'no legitimate
purpose'"); Touhey, 133 So.3d at 1204
(holding record lacked a sufficient basis for the circuit
court's finding that Seda proved "inappropriate
contact" constituting stalking, where the testimony did
not establish maliciousness or that a reasonable person would
have suffered "substantial emotional distress" as a
result of Touhey's behavior).
result, we hold there was no competent, substantial evidence
to support the imposition of an injunction for protection
against stalking. ...