ANTHONY DELOPA, APPELLANT,
v.
DAVID B. COHEN, APPELLEE

Fla. 4th DCA | 2004-05-19
No. 4D03-3658
WARNER and KLEIN, JJ., concur.
873 So. 2d 530 Florida District Court of Appeal, Fourth District (2004) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Anthony Delopa appeals a final judgment of injunction for protection against repeat violence under Florida law. The court reversed, holding that the evidence failed to establish two incidents of violence as required by statute to constitute "repeat violence."


Holding

The court held that the evidence did not establish "repeat violence" as defined by statute. Cohen's testimony established only one incident that might constitute an assault, and vague references to threatening phone calls did not amount to a course of conduct sufficient to constitute stalking or a second act of violence.


Headnotes

[1] A permanent injunction for repeat violence requires proof of two incidents of violence or stalking as defined by statute.

[2] The statutory definition of "violence" includes assault, battery, sexual battery, or stalking.

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Key Quotes

“repeat violence" as "two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member.”

Establishes the statutory definition of repeat violence required to support an injunction under § 784.046(1)(b).

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Facts & Procedural History

David Cohen obtained a temporary injunction for protection against repeat violence based on his sworn petition against Anthony Delopa. At the extensio…

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Opinion of the Court
GROSS, J.

[*531] GROSS, J.

Anthony Delopa appeals a final judgment of injunction for protection against repeat violence entered under section 784.046, Florida Statutes (2002). We reverse because neither the testimony at the extension hearing nor the sworn petition for injunction for protection demonstrated two incidents of violence that are necessary to constitute “repeat violence” under the statute.

Based on appellee David Cohen’s sworn petition, the circuit court entered a temporary injunction for protection against repeat violence. The temporary injunction set an extension hearing on August 7, 2003. Both Cohen and Delopa appeared and testified at the extension hearing.

Section 784.046(2) creates a cause of action for an injunction for protection in “cases of repeat violence.” The statute defines “repeat violence” as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(l)(b). The two incidents of violence must be supported by competent substantial evidence. See Ravitch v. Whelan, 851 So. 2d 271, 273 (Fla. 5th DCA 2003). The definition of “violence” is “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a).

At the injunction hearing, Cohen’s testimony did not establish “repeat violence” within the meaning of the statute. Cohen described one incident which involved no physical violence and, in the light most favorable to him, constituted an assault. Cohen generally mentioned receiving “threatening phone calls” after filing the petition, but he did not specify the caller or their contents. The petition alluded to an incident involving Cohen’s ex-girlfriend; however she is not an “immediate family member” within the meaning of the statute. Similarly, the petition’s vague reference to threats over the phone did not amount to a “course of conduct” sufficient to constitute stalking. See § 784.048(l)(b), Fla. Stat. (2002). No testimony at the extension hearing amplified these nebulous allegations of the petition.

Because the evidence did not establish “repeat violence,” the final judgment of injunction for protection against repeat violence is reversed. See Buerster v. Fermin, 844 So. 2d 804, 805 (Fla. 4th DCA 2003) (reversing final judgment for injunction where the petitioner’s own testimony demonstrated that only one act of violence, if any, occurred); Orr v. Koutsogiannis, 829 So. 2d 962 (Fla. 4th DCA 2002) (holding that the evidence only supported one instance of violence; subsequent threats which were not taken seriously by petitioner did not amount to violence under section 784.046); Gianni v. Kerrigan, 836 So. 2d 1106, 1107 (Fla. 2d DCA 2003) (finding that phone calls did not qualify as acts of violence when the petitioner testified that he was not put in fear by the calls).

REVERSED.

WARNER and KLEIN, JJ., concur.


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Citator

Cited By

  • Sorin v. Cole, 929 So. 2d 1092 (Fla. 4th DCA 2006)
    …f” up another man and kill him was [*1095] insufficient to support an injunction because a mere threat to commit an assault is not enough). The law requires two acts of violence to justify an injunction against repeat violence. See Delopa v. Cohen, 873 So. 2d 530 (Fla. 4th DCA 2004). Because Cole did not allege even one act of violence, as it is defined in the statute, it was error to grant the petition for an injunction. Reversed. POLEN and KLEIN, JJ., concur.…

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