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Schultz v. Moore

Florida Court of Appeals, Fifth District

September 27, 2019

MICHAEL SCHULTZ, Appellant,
v.
SAMANTHA MOORE, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Orange County, Alicia L. Latimore, Judge.

          Brandon F. Dark, of Law Office of Brandon F. Dark, P.A., Orlando, for Appellant.

          No Appearance for Appellee.

          SASSO, J.

         Appellant, Michael Schultz, challenges the two-year injunction for protection against dating violence entered against him and in favor of Appellee, Samantha Moore, [1]his former girlfriend. Because the evidence is legally insufficient to support a finding that Appellee had an objectively reasonable fear that she was in imminent danger of becoming the victim of future dating violence, we reverse.

         In July 2018, Appellee filed a petition for protection against dating violence against Appellant, pursuant to section 784.046(2)(b), Florida Statutes (2018). The petition described three prior incidents of dating violence and alleged Appellee had reasonable cause to believe she was in imminent danger of becoming a victim of another act of dating violence. The petition also noted that Appellant knew the location of her house and job and owned multiple firearms. The circuit court entered a temporary injunction and set a permanent injunction hearing.

         At the hearing, Appellee discussed the three incidents of dating violence listed in her petition. She testified she and Appellant ended their relationship following the last incident, which occurred on July 11, 2018, about two weeks before the permanent injunction hearing. She further testified that since ending their relationship, she had received communications from Appellant via email and through his roommate. Viewing the evidence most favorably to Appellee, none of those communications threatened physical injury or violence. When questioned by the court whether she was afraid of Appellant, Appellee responded with an unelaborated, "Yes." Following Appellant's testimony, both parties agreed there was no reason to have any contact with each other.

         Section 784.046(2)(b) creates a cause of action for an injunction for protection in cases of "dating violence, " as defined at section 784.046(1)(d). Unlike injunctions for protection against repeat violence and sexual violence under section 784.046(2)(a), (c) and injunctions for protection against stalking under section 784.0485, dating violence injunctions must be predicated on the reasonable prospect of a future violent act. Specifically, section 784.046(2)(b) creates a cause of action for an injunction for protection against dating violence only when a petitioner has "reasonable cause to believe he or she is in imminent danger of becoming the victim of . . . an act [or another act] of dating violence." § 784.046(2)(b), Fla. Stat. (2018) (emphasis added).

         Here, Appellant challenges the legal sufficiency of the evidence supporting that necessary element of a dating violence injunction: that Appellee had an objectively reasonable fear of imminent danger of another act of dating violence. While the circuit court has broad discretion in entering an injunction for protection against dating violence based on the statute, each element of the injunction must be supported by competent, substantial evidence. Nuila v. Stolp, 188 So.3d 105, 106 (Fla. 5th DCA 2016). Whether the evidence is legally sufficient to support issuance of the injunction is a legal question subject to de novo review. Sumners v. Thompson, 271 So.3d 1232, 1233 (Fla. 1st DCA 2019).

         We agree with Appellant that the evidence adduced at the hearing was legally insufficient to support a determination that Appellee had a reasonable fear of imminent danger of another act of dating violence. The emails and messages admitted at the hearing were insufficient to support issuance of the injunction. See, e.g., id. at 1234. Furthermore, there was no testimony or other evidence that Appellant threatened Appellee with physical injury or violence after the July 11, 2018 incident. See Alderman v. Thomas, 141 So.3d 668, 670-71 (Fla. 2d DCA 2014) (reversing injunction where petitioner's testimony that she "[felt] 'insecure and unsafe with' [respondent] and that he scare[d] her" was "conclusory and vague"). Consequently, based on the specific facts of this case and the requirements of section 784.046(2)(b), we reverse. Because we reverse on this issue, we decline to address Appellant's due process argument.

         REVERSED.

          ORFINGER and ...


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