Schwartz and Albert J. Tasker, The Schwartz Law Group, P.A.,
Jacksonville, for Appellant.
Nicole Brogden, pro se, Appellee.
appeal from the Circuit Court for Duval County. Elizabeth A.
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The injunction has now expired on its own terms, so it no
longer has effect.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
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.").
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
Osterhaus, J., dissenting.
we should affirm because competent, substantial evidence
supports the trial court's conclusion that Mr. Mitchell
violated the stalking statute.
on Motion for Hearing En Banc
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.
Thomas, C.J., and Lewis, Roberts, Wetherell, Rowe, Ray,
Osterhaus, Kelsey, Winokur, Jay, ...