LEO GREGORY HORNE, APPELLANT,
v.
PAMELA ENDRES, APPELLEE

Fla. 1st DCA | 2011-04-15
No. 1D10-4038
PADOVANO and WETHERELL, JJ., concur.
61 So. 3d 428 Florida District Court of Appeal, First District (2011) Negative Treatment
Cited by 5 cases

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Synopsis

Leo Gregory Horne appeals a no contact order issued against him under Florida's injunction against repeat violence statute. The court reversed, holding that the trial court lacked statutory authority to issue the order because the evidence did not establish the required elements of violence or repeat violence under Florida law.


Holding

The no contact order is reversed. Neither section 784.046(2) nor any other statute authorizes the no contact order entered by the trial court. The evidence did not establish violence or repeat violence as defined by statute, as Horne's statements were not accompanied by acts creating a reasonable fear of imminent violence. Courts lack plenary power to enjoin citizens to remain on good behavior absent clear statutory authority.


Headnotes

[1] A "no contact order" is not authorized by statute when the elements required for an injunction against repeat violence are not met.

[2] To qualify for an injunction against repeat violence, a petitioner must prove two incidents of violence as defined by statute, with one incident occurring within six mont…

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Key Quotes

“Neither section 784.046(2) nor any other statute authorizes the no contact order, and even courts of general jurisdiction are without plenary power to enjoin citizens to remain on good behavior.”

The core holding that the trial court lacked statutory authority for the order entered.

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Facts & Procedural History

Two incidents occurred between Horne (a sheriff's sergeant) and Endres. In the first, Horne confronted Endres and her ex-husband in a parking lot over…

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Opinion of the Court
BENTON, C.J.

BENTON, C.J.

Leo Gregory Horne appeals a “No Contact Order” entered against him on Pamela Endres’s Petition for Injunction Against Repeat Violence under section 784.046(2), Florida Statutes (2009). Her petition alleged two incidents of “violence” in which Mr. Horne “confronted” her and “made threats.” After entering a temporary injunction under the statute, and conducting an evidentiary hearing — duly noticed as being for the purpose of deciding whether a permanent injunction should issue under the statute — the trial court entered the no contact order under review. We reverse. Neither section 784.046(2) nor any other statute authorizes the no contact order, and even courts of general jurisdiction are without plenary power to enjoin citizens to remain on good behavior.

The no contact order appears to recognize that proof of the parties’ interactions fell short of a showing that would warrant an injunction against repeat violence under section 784.046(2), Florida Statutes (2009).1 Ms. Endres did not prove a single instance of “violence” within *430the meaning of section 784.046(l)(a).2 At most, Mr. Horne’s actions during the two incidents at issue were alleged to have constituted assault, “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent,” § 784.011(1), Fla. Stat. (2009), or battery — which occurs when a person “[a]ctually and intentionally touches or strikes another person against the will of the other” or “[i]ntentionally causes bodily harm to another person.” § 784.03(l)(a), Fla. Stat. (2009).

The trial court made no findings— and the record would not support a finding — that Mr. Horne either threatened to do Ms. Endres violence or that he intentionally touched or harmed her during the first incident. As to the second incident— events at the school — the trial court made factual findings that Mr. Horne slammed doors and slammed down a book bag, and that the principal was sufficiently concerned that he summoned a school resource officer. But the record reflects that the slamming behavior occurred outside Ms. Endres’s presence, and that she did not even know about it at the time.

To be sure, the record also supports the trial court’s findings that Mr. Horne said to Ms. Endres, “[Y]ou’re going to have charges coming your way,” and “[Y]ou don’t know who you’re messing with,” and that he told his wife, “[Y]ou should have taken care of her.” But these statements were not accompanied by any act that would create a reasonable fear that violence was imminent, and neither statement threatens violence, even implicitly. See Russell v. Doughty, 28 So.3d 169, 170 (Fla. 1st DCA 2010) (reversing injunction against repeat violence where testimony established that respondent yelled profanities and threats at petitioners, but that there was no indication that respondent “threatened to do violence, or that he took some action that could have created a well-founded fear that violence was imminent”). See also Perez v. Siegel, 857 So.2d 353, 355 (Fla. 3d DCA 2003) (reversing injunction against repeat violence where respondent threatened to kill petitioner and her family but without any apparent ability to do so, *431and committed no overt act creating a well-founded fear of violence).

The trial court entered the “No Contact Order,” in lieu of an injunction under the statute, “so that hopefully [Mr. Horne] can maintain his employment[3] and receive the treatment that will serve him, his family, the public and restore the ability to become a quality officer.” See generally Weiand v. State, 732 So.2d 1044, 1055 n. 11 (Fla.1999) (“In addition, pursuant to 18 U.S.C.A. § 922 (West Supp.1998), it is unlawful for any person under a restraining order to transport, possess, or receive in interstate commerce any firearms or ammunition.”); Boyles v. Tiefenthaler, 810 So.2d 1041, 1041 (Fla. 2d DCA 2002). The no contact order, which was to remain in effect until further order of the trial court, directs Mr. Horne to “refrain from committing or causing any act or threat of violence against” Ms. Endres; to have no contact in any manner with Ms. Endres; and not to go within 500 feet of her, her residence, her place of employment, or her car.4

As seems to have been intended, the trial court’s no contact order has much the same effect as an injunction of the kind section 784.046(2) authorizes. Implementing the statute, the supreme court has approved Form 12.980(0 for use in the issuance of permanent injunctions against repeat violence under chapter 784. See Fla. Fam. L.R.P. 12.610(c)(2)(A). The standard Form 12.980(Z) injunction prohibits the respondent from committing acts of violence against the petitioner, prohibits the respondent from having any contact with the petitioner, and from going within 500 feet of the petitioner’s current residence, place of employment, school, or other requested places. See Fla. Fam. L.R.P. Form 12.980(Z). The no contact order entered in the present case contains nearly identical prohibitions.

In the absence of proof of the statutory prerequisites, however, we are unable to affirm the no contact order, as being in effect an injunction against repeat violence. Nor are we aware of any other statutory authority for the no contact order. See, e.g., Polanco v. Cordeiro, — So.3d-, -, 2010 WL 3655514 (Fla. 2d DCA 2010) (Villanti, J., concurring) (“[N]owhere in the statutory catalog of improper behavior is there a provision for court-ordered relief against uncivil behavior occurring at work or church, which was the crux of Mrs. Cordeiro’s complaint.”).

Ms. Endres argues for affir-mance on a “tipsy coachman” theory, see generally Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999), contending that the trial court could have entered the no contact order as a remedy within the power of a court of equity to fashion. We do not agree that Florida’s courts have such sweeping powers. In general, equity will not enjoin even criminal violations, as such. See Steinfink v. Radish, 638 So.2d 79, 79 (Fla. 3d DCA 1993) (reversing injunction against repeat violence and stating that “[s]ince equity has no non-statutory ‘jurisdiction to enjoin the commission of crime, nor will equity act to prevent an illegal act *432merely because it is illegal,’ there is no alternative basis to support the order under review.” (brackets and citations omitted)).5 The rule is that an injunction is unavailable unless the party seeking the injunction can ‘“establish a clear legal right, an inadequate remedy at law and that irreparable harm will arise absent injunctive relief.’ ” Hollywood Towers Condo. Ass’n, Inc. v. Hampton, 40 So.3d 784, 786 (Fla. 4th DCA 2010) (quoting K.W. Brown & Co. v. McCutchen, 819 So.2d 977, 979 (Fla. 4th DCA 2002)).

The no contact order is reversed.

PADOVANO and WETHERELL, JJ., concur.


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Citator

Cited By

  • Power v. Boyle, 60 So. 3d 496 (Fla. 1st DCA 2011)
    …tection against repeat violence. The statute does not allow the trial court to enter injunctions simply “to keep the peace” between parties who, for whatever reason, are unable to get along and behave civilly towards each other. See Home v. Entires, 61 So. 3d 428, 429 (Fla. 1st DCA 2011) (reversing “no contact order” entered pursuant to section 784.046 and observing that “even courts of general jurisdiction are without plenary power to enjoin citizens to remain on good behavior”); Polanco v. Cordeiro, — So.…
  • Washington v. Brown, 300 So. 3d 338 (Fla. 2d DCA 2020)
    …. Boyle, 60 So. 3d 496, 498 (Fla. 1st DCA 2011) (explaining that courts may not enter injunctions "simply 'to keep the peace' between parties who, for whatever reason, are unable to get along and behave civilly towards each other"); Horne v. Endres, 61 So. 3d 428, 429 (Fla. 1st DCA 2011) ("[E]ven courts of general jurisdiction are without plenary power to enjoin citizens to remain on good behavior."). At best, Brown's complaints centered around Washington's inappropriate conduct and statements. But none of…
  • …ot be construed as such an injunction. As this court has explained, in the absence of proof of the statutory prerequisites, we cannot deem a no contact order as being, in effect, an injunction for protection against repeat violence. Horne v. Endres, 61 So. 3d 428, 431 (Fla. 1st DCA 2011). In fact, the “no contact” order does not purport to be issued on the authority of section 784.046, although it does repeatedly employ the term “injunction.” Furthermore, by entry of the injunction under review, the trial c…
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