LINDSAY ROLLINS

v.

WILLIAM HOWARD ROLLINS

WOZNIAK, J.

Lindsay Rollins appeals an order denying her petition for injunction for protection against sexual violence pursuant to section 784.046(2)(c), Florida Statutes (2020). Because we agree with the trial court that Ms. Rollins did not meet her burden of proving by a preponderance of the evidence that she was the victim of sexual violence, we affirm.

In an action for an injunction for protection against sexual violence, a petitioner must establish by a preponderance of the evidence (1) that the petitioner is the victim of sexual violence, (2) that the sexual violence was reported to law enforcement, and (3) that the petitioner “is cooperating in any criminal proceeding against the respondent, regardless of whether criminal charges based on the sexual violence have been filed, reduced, or dismissed by the state attorney.” § 784.046(2)(c), Fla. Stat. (2020). The parties agree that the first element, i.e., whether sexual violence occurred, is the only element at issue in this appeal.

During the final injunction hearing held pursuant to section 784.046(7), Florida Statutes (2020), the parties presented conflicting testimony on the element of sexual violence. At the conclusion of the hearing, the trial court stated:

I think the majority of the testimony comes down to a he said/she said, and while I find both parties credible as to their testimony, the court does not see something that would satisfy the preponderance of the evidence standard, and so, for that reason, the court will be denying the request.

The trial court dismissed the temporary injunction for protection against sexual violence and later denied Ms. Rollins’ motion for reconsideration and a separate motion for rehearing or in the alternative to amend the final 2 judgment and grant a final injunction.

Ms. Rollins contends on appeal that the only question before the trial court was whether she proved with competent, substantial evidence that she was subjected to sexual violence. She reasons that because she testified that she was sexually assaulted and the trial court found her testimony credible, she met her burden and the injunction should have been entered.

We disagree for the reasons that follow.

Ms. Rollins’ argument conflates the burden of evidentiary proof in the trial court proceedings with the legal requirement that the trial court’s findings of fact shall be sustained by an appellate court if supported by competent, substantial evidence. These are two distinct concepts. Haines v. Dep’t of Child. & Fams., 983 So. 2d 602, 607 (Fla. 5th DCA 2008) (“DCF’s conclusion that the competent, substantial evidence standard, which is an appellate

standard of review, should be used as an evidentiary standard of proof in a de novo administrative hearing to resolve disputed issues of fact was plainly unreasonable.”). A “burden of proof” is “[a] party’s duty to prove a disputed assertion or charge . . . .” Burden of proof, Black’s Law Dictionary (11th ed. 2019). In a civil case such as this one, the burden of proof is preponderance of the evidence. The Florida Supreme Court has stated that “[a] ‘preponderance’ of the evidence is defined as ‘the greater weight of the 3 evidence,’ Black’s Law Dictionary 1201 (7th ed. 1999).”1 Gross v. Lyons, 763 So. 2d 276, 281 n.1 (Fla. 2000) (quoting Am. Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)). This means that in order for the plaintiff/petitioner to prevail at an evidentiary hearing or trial, the evidence supporting the plaintiff/petitioner’s position must outweigh, i.e., be more convincing, than that of the defendant/respondent.

A party’s burden of proof in the trial court is not to be confused with the standard by which an appellate court reviews a trial court’s decision based on a finding of fact. The standard of review on appeal requires the appellate court to determine whether the trial court’s decision was supported by competent, substantial evidence, 2 regardless of whether the party’s burden 1 “‘Greater weight of the evidence’ means the more persuasive and convincing force and effect of the entire evidence in the case.” Fla. Std. Jury Instr. (Civ.) 401.3. 2 This Court has explained the term “competent substantial evidence”:

The term “competent substantial evidence” does not relate to the quality, character, convincing power, probative value or weight of the evidence but refers to the existence of some evidence (quantity) as to each essential element and as to the legality and admissibility of that evidence. Competency of evidence refers to its admissibility under legal rules of evidence. “Substantial” requires that there be some (more than a mere iota or scintilla), real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical 4 of proof in the trial court was preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt. Stated another way, and apropos here, the findings of the trial court in either granting or denying an injunction must be supported by competent, substantial evidence to be affirmed. See Keller v. Ramseyer, 237 So. 3d 468, 468–69 (Fla. 5th DCA 2018) (“In this case, there were no eyewitnesses, affidavits from eyewitnesses, or direct physical evidence of the alleged abuse to support the allegations. Accordingly, there was a lack of substantial, competent evidence to support [the trial court’s order granting] the injunction.”); Nuila v. Stolp, 188 So. 3d 105, 106–07 (Fla. 5th DCA 2016) (reversing dating violence injunction because the trial court’s order finding that the third element of statute had been established was not supported by competent substantial evidence (citing Toubail v. White, 141 So. 3d 649, 650 (Fla. 4th DCA 2014))).

Having clarified the distinction between the evidentiary burden of proof in the trial court and the appellate standard of review, we turn now to Ms. evidence or hypothetical possibilities) having definite probative value (that is, “tending to prove”) . . . .

Lonergan v. Est. of Budahazi, 669 So. 2d 1062, 1064 (Fla. 5th DCA 1996) (quoting Dunn v. State, 454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially)). 5 Rollins’ situation. Ms. Rollins was required to prove her case by a preponderance of the evidence. See S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 139 So. 3d 869, 872 (Fla. 2014) (“Traditionally, a preponderance of the evidence standard is the applicable burden of proof in civil cases.”);

Dickson v. Curtis, 47 Fla. L. Weekly D356 (Fla. 3d DCA Feb. 9, 2022) (observing trial court’s conclusion that party “met his burden of proving an act of domestic violence by the preponderance of the evidence”); see generally 25 Am. Jur. 2d Domestic Abuse and Violence § 25 (2022) (collecting out-of-state case law recognizing preponderance of evidence standard of proof for issuance of domestic abuse or violence injunction).

Here, Ms. Rollins testified that sexual violence occurred.3 Mr. Rollins denied such acts, resulting in a critical conflict in evidence—a fact disregarded by Ms. Rollins—and the trial court found both parties were credible. Given the equipoise in both evidence and credibility, the trial court correctly concluded that Ms. Rollins did not meet her burden of proving, by a preponderance of the evidence, that sexual violence had occurred. See Coker v. Dawkins, 20 Fla. 141 (1883) (holding that where equally credible witnesses give 3 Ms. Rollins’ sister, who was not present at any of the events in question, also testified, but the trial court correctly limited her testimony to her impression that Ms. Rollins was upset when Ms. Rollins called her the next morning and her efforts to help Ms. Rollins get home. Her testimony did not address whether sexual violence occurred. 6 conflicting testimony and no other evidence bearing on the fact is asserted, the trial court must hold against the person on whom the burden of proof rests); Dep’t of HRS v. Moore, 603 So. 2d 13, 14 (Fla. 5th DCA 1992) (affirming trial court’s finding that plaintiff failed to prove its case by a preponderance of the evidence when the only evidence before the court was equally credible yet conflicting testimony); Friedman v. U.S. Home Corp., 452 So. 2d 1111, 1112–13 (Fla. 2d DCA 1984) (affirming judgment where trial court found plaintiffs failed to prove their case by preponderance of the evidence when only evidence presented was equally credible yet conflicting testimony). “This Court will not re-weigh the evidence considered by the trial court, nor will we disturb the trial court’s determination of credibility of the witnesses.” Finkelstein v. State, 157 So. 3d 1085, 1087 (Fla. 1st DCA 2015).

We agree with the trial court that given the equally credible but directly conflicting testimony presented at the injunction hearing, Ms. Rollins did not meet her burden of proving by a preponderance of the evidence that sexual violence had occurred. Consequently, based on the specific facts of this case and the requirements of section 784.046(2), we affirm.

AFFIRMED.

EDWARDS and SASSO, JJ., concur. 7