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Caterino v. Torello

Florida Court of Appeals, Second District

June 26, 2019



          Appeal from the Circuit Court for Collier County; Christine H. Greider, Judge.

          Landon P. Miller of Mangone & Miller Law Offices, Naples, for Appellant.

          Gail Janis Torello, pro se.

          BLACK, JUDGE.

         Lorraine Caterino challenges the final judgment of injunction for protection against stalking entered following an evidentiary hearing, arguing that there was insufficient evidence of two instances of stalking. She asserts that the evidence demonstrated that there was a legitimate purpose for the contact between her and Gail Torello, the petitioner. Ms. Caterino further contends that the evidence demonstrated merely a "tit for tat" scenario between two neighbors and that the interactions would not cause a reasonable person to experience substantial emotional distress. We agree and reverse.

         On April 6, 2018, Mrs. Torello filed a petition seeking an injunction for protection against stalking against Ms. Caterino, her neighbor, alleging that since January 2018 Ms. Caterino has been following, harassing, and verbally attacking her. At the evidentiary hearing on the petition, Mrs. Torello testified that Ms. Caterino has been following her while videotaping and photographing her and that Ms. Caterino has made threatening comments such as "you're going down," "you'll get yours," and "you're all alone." Mrs. Torello claimed that when she drives by Ms. Caterino, Ms. Caterino looks at her "like she absolutely wants to kill" her and that Ms. Caterino stares at her whenever she is outside. In February 2018 Ms. Caterino sent Mrs. Torello a letter directing Mrs. Torello to "CEASE AND DESIST ALL DEFAMATION OF OR [SIC] LORRAINE CATERINO'S CHARACTER AND REPUTATION," failing which Ms. Caterino would pursue all available legal remedies. The letter, which was admitted into evidence, purported to be from Florida's Civil Law Group, and Ms. Caterino signed it as treasurer. Mrs. Torello asserted that Ms. Caterino had drafted the letter herself and that the purported law firm does not exist. Mrs. Torello also testified that Ms. Caterino complained to the code enforcement division of Collier County about her in-home pet sitting business, that an enforcement officer conducted an investigation, and that the case had been closed. Mrs. Torello stated that her pet sitting business did not violate any county codes or the homeowner's association (HOA) declaration. Mrs. Torello further testified that on April 5, the day before she filed the petition, Ms. Caterino approached Mrs. Torello while she was outside of her home, got in her face, and began yelling obscenities at her. Ms. Caterino refused to leave Mrs. Torello's property, so Mrs. Torello called the police but Ms. Caterino took off in her car before the police arrived. Later that same evening while Mrs. Torello was at an HOA meeting, her surveillance system captured Ms. Caterino entering upon Mrs. Torello's property and removing a building permit that was attached to the garage door. Mrs. Torello again contacted law enforcement. The video of the incident was admitted into evidence. Mrs. Torello contended that Ms. Caterino's conduct has affected her everyday life: she does not want to go outside, she feels uncomfortable having company to her home, and she has trouble sleeping at night because Ms. Caterino is always outside with her dog.

         Mrs. Torello's husband also testified at the hearing. He succeeded Ms. Caterino as the HOA president on January 31 or February 1, 2018. Mr. Torello claimed that Ms. Caterino has made their lives "hell." He indicated that Mrs. Torello is miserable and that Ms. Caterino's conduct has affected his relationship with Mrs. Torello. Though Mr. Torello did not observe Ms. Caterino yell at Mrs. Torello while she was outside on April 5, he claimed that Mrs. Torello was "shaking like a leaf" afterward.

         Ms. Caterino also testified at the hearing and explained that "this is a very simple situation that has gone completely out of control in a very small neighborhood where we all used to get along." She claimed that she had served as the president of the HOA for nine years and explained that the governing documents prohibit homeowners from operating businesses out of their homes. She claimed that because Mrs. Torello has been running a business out of her home for the last couple of years, she asked the attorney for the HOA to send Mrs. Torello a cease and desist letter, which angered Mrs. Torello. The letter from the attorney for the HOA, dated January 29, 2018, was admitted into evidence, and it cited the specific section of the HOA declaration that prohibits homeowners from operating an in-home business. After the letter was sent, Mrs. Torello texted Ms. Caterino, claiming that Ms. Caterino was "ruining her life" and that Mrs. Torello was the "one person that can wreck a whole neighborhood." Ms. Caterino did not provide the court with these alleged text messages. Ms. Caterino admitted that she had taken pictures of Mrs. Torello walking dogs but claimed that she had been asked to take the pictures by the individual investigating the alleged county code violation; she denied that the case had been closed. With regard to the incident outside of Mrs. Torello's home on April 5, Ms. Caterino testified that she was about to leave her house to pick up a friend from the airport and when she opened her garage door her dog ran out and over to Mrs. Torello's yard. When she went to collect the dog, Mrs. Torello told her to put the dog on a leash and get out of her yard. Ms. Caterino admitted that she then yelled an obscenity at Mrs. Torello who, in turn, threatened to call the police. Ms. Caterino then got in her car and drove to the airport. And with regard to the incident captured on Mrs. Torello's surveillance system later that evening, Ms. Caterino claimed that she entered upon Mrs. Torello's property while holding a document which expressed her frustration and that of several neighbors with Mrs. Torello and her in-home pet sitting business. The document Ms. Caterino claimed to have had in her hand was admitted into evidence only for the purpose of corroborating her story but not for its content.

         Ms. Caterino's witness, a neighbor, testified that she had never seen Ms. Caterino give Mrs. Torello dirty looks and was unaware of any difficulties between the parties.

At the close of the evidence, the court made the following findings:
THE COURT: Okay. Thank you.
Court's prepared to make findings and rule on the requested relief.
The requirement for the Court's finding is to make a finding that two incidents of violence or stalking was [sic] committed by the respondent which were directed against the petitioner or the petitioner's immediate family.
The allegations in the petition are between January of 2018 and April 6 of 2018. One of the two incidents of stalking must have been within six months of filing the petition.
May I have the exhibits please?
The letter received [from the attorney for the HOA] dated January 29 of 2018 is not stalking by the respondent.
Ms. Caterino did not object to the admissibility of a letter from Florida['s] Civil Law Group, which she signed as treasurer. I didn't hear any evidence or testimony that Ms. Caterino is the treasurer of ...

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