IVANA ALTER, APPELLANT,
v.
ROBERT G. PAQUETTE, APPELLEE

Fla. 2d DCA | 2012-09-28
No. 2D11-3816
YILLANTI and KHOUZAM, JJ., Concur.
98 So. 3d 218 Florida District Court of Appeal, Second District (2012) Positive Treatment
Cited by 13 cases

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Holding

The court held that the evidence did not support a finding of two incidents of repeat violence as defined by statute, thus reversing the injunction.


Headnotes

[1] An injunction for protection against repeat violence requires proof of two incidents of violence or stalking, one of which must have occurred within six months of the pet…

[2] To establish stalking for the purpose of an injunction against repeat violence, the conduct must be malicious, willful, and repeated harassment that causes substantial em…

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Facts & Procedural History

A petition for an injunction against repeat violence was filed, alleging battery and stalking. The alleged battery involved a shoulder tap at a restau…

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Opinion of the Court
WHATLEY, Judge.

WHATLEY, Judge.

Ivana Alter appeals a final judgment of injunction for protection against repeat violence. We agree with Alter that the evidence did not support a finding that she committed acts of repeat violence as defined in section 784.046(2), Florida Statutes (2011), and we therefore reverse.

Section 784.046(2) allows a victim of repeat violence to petition the court for an injunction for protection. Repeat violence is defined 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 statute defines violence as “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). To support the issuance of an injunction, the incidents of repeat violence must be proven by competent, substantial evidence. Singletary v. Greever, 62 So.3d 700, 702 (Fla. 2d DCA 2011).

Robert G. Paquette filed the petition for an injunction for protection against repeat violence alleging several incidents of violence directed toward him by Alter.1 However, at the hearing on the petition there was testimony regarding only two of the allegations. In his petition, Paquette alleged that Alter had violated a prior temporary injunction by approaching him and hitting him at a restaurant known as Pure on May 28, 2011. He testified at the hearing that he and his wife were smoking outside of the restaurant when, he noticed Alter across the street. Alter walked toward the entrance of the restaurant, “tapped” him on the shoulder as she walked by him, and went inside the restaurant. Paquette went inside the restaurant and while he was talking to the manager, Alter left the restaurant. Alter testified that it appeared that Paquette and his wife were leaving the restaurant when she and her friend arrived and that she neither spoke to nor touched Paquette as she and her friend entered the restaurant. When she realized that Paquette had entered the restaurant, she immediately left. We conclude that even if Paquette’s testimony that Alter tapped him on the shoulder as she entered the restaurant amounted to a *220battery, there was insufficient evidence establishing a second act of violence.

In his petition, Paquette alleged that Alter had sent him seven text messages demanding money in return for her promise to not tell his wife about the affair. At the hearing, Paquette testified regarding six text messages from Alter asking him to repay $10,000. Alter testified that she had loaned Paquette this money when they were looking for an apartment together and he had never repaid the money to her. Paquette contends that Alter’s text messages constituted stalking. We disagree.

A person is guilty of stalking when he or she maliciously, willfully, and repeatedly harasses another person. § 784.048(2). Harassment is defined as engaging “in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(l)(a). “In determining if an incident causes substantial emotional distress, courts use a reasonable person standard, not a subjective standard.” Slack v. Kling, 959 So.2d 425, 426 (Fla. 2d DCA 2007).

The case at bar is similar to Ravitch v. Whelan, 851 So.2d 271, 272-73 (Fla. 5th DCA 2003), in which the Fifth District held that there was insufficient evidence to suggest that the appellant’s request to his ex-girlfriend to repay money allegedly loaned to her during the course of the relationship was threatening, hostile or abusive conduct supporting the issuance of an injunction for protection against repeat violence. Here, Alter testified that the text messages concerned a loan she had made to Paquette, and Paquette testified that several messages asked him to repay money. As in Ravitch, because Alter testified that she was seeking the repayment of a loan, it cannot be said that the text messages served “no legitimate purpose.” See § 784.048(l)(a).

Accordingly, the evidence did not support the finding that Alter committed two acts of violence or stalking, and we therefore reverse the injunction for protection against repeat violence.

Reversed and remanded.

YILLANTI and KHOUZAM, JJ., Concur.


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Citator

Cited By

  • Touhey v. Seda, 133 So. 3d 1203 (Fla. 2d DCA 2014)
    …48(l)(a); cf. Goudy, 112 So. 3d at 717 (concluding that respondent had a legitimate purpose for contacting petitioner where both parties agreed that the call addressed respondent’s daughter’s participation in a dance competition); Alter v. Paquette, 98 So. 3d 218, 220 (Fla. 2d DCA 2012) (concluding that respondent had a legitimate purpose for contacting petitioner where respondent testified that she was seeking repayment of a loan). Because there was insufficient evidence that Mr. Touhey stalked Mr. Seda, w…
  • Alkiviades A. David v. Textor, 189 So. 3d 871 (Fla. 4th DCA 2016)
    …ves a legitimate purpose is broadly construed and will cover a wide variety of conduct. See, e.g., Gaudy, 112 So. 3d at 717 (finding that a parent calling about his daughter’s dance team participation serves a legitimate purpose); Alter v. Paquette, 98 So. 3d 218, 220 (Fla. 2d DCA 2012) (finding that communications demanding payment of loan serve a legitimate purpose); Touhey v. Seda, 133 So. 3d 1203, 1205 (Fla. 2d DCA 2014) (finding that communications regarding disputes over the dissolution of a business s…
  • Leach v. Kersey, 162 So. 3d 1104 (Fla. 2d DCA 2015)
    …h. After Leach learned of the affair, she contacted Kersey by phone and by messages and “friend” requests on Facebook. The evidence does not show that these contacts “serve[d] no legitimate purpose.” § 784.048(l)(a), (d); see also Alter v. Paquette, 98 So. 3d 218, 220 (Fla. 2d DCA 2012) (stating that when text messages sought “repayment of a loan, it cannot be said that the text messages served ‘no legitimate purpose’ ” (quoting § 784.048(1)(a))). Rather, Leach made the contacts for the legitimate purpose of…

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