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Mitchell v. Brogden

Florida Court of Appeals, First District

July 16, 2018

Scott Anthony Mitchell, Appellant,
v.
Taylor N. Brogden, Appellee.

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

          Taylor Nicole Brogden, pro se, Appellee.

          On appeal from the Circuit Court for Duval County. Elizabeth A. Senterfitt, Judge.

          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 The injunction has now expired on its own terms, so it no longer has effect.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.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          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, ...


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