       Third District Court of Appeal
                                State of Florida

                           Opinion filed August 1, 2018.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D17-2370
                          Lower Tribunal No. 17-18397
                              ________________


                            Brandy E. Raulerson,
                                     Appellant,

                                         vs.

                                  Jose P. Font,
                                     Appellee.


     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Luise Krieger Martin, Judge.

       Barnard Law Offices, and Andrew C. Barnard and Garrett William Haakon
Clifford, for appellant.

      Font & Nelson, and Jose P. Font and Frantz C. Nelson (Fort Lauderdale), for
appellee.


Before SUAREZ, SALTER and FERNANDEZ, JJ.

      SALTER, J.
      Florida-licensed attorney Brandy E. Raulerson (“Ms. Raulerson”) appeals an

order dismissing her petition for an injunction against stalking as against the

appellee, Florida-licensed attorney Jose P. Font (“Mr. Font”). We affirm the order,

concluding, as the trial court did, that the sworn allegations in the petition (a)

primarily involve conduct outside the definitions and boundaries of the applicable

statutes,1 and (b) present certain issues best addressed under the disciplinary

framework established by the Rules Regulating The Florida Bar.

      I.    Background

      Ms. Raulerson is an associate attorney employed by a law firm (Barnard

Law Offices, L.P., “BLO”), which regularly represents insured homeowners and

other parties with insurance claims, including bad faith claims. The senior and

“name” partner at BLO is Andrew C. Barnard (“Mr. Barnard”). Mr. Barnard was

designated as Ms. Raulerson’s attorney for purposes of the stalking case, and he

also represents her in this appeal. The petition includes allegations regarding

conduct witnessed by Mr. Barnard and statements heard by him, in each case

relating to lawsuits and conduct in a courtroom or courthouse.

      The respondent, Mr. Font, is identified in the petition as the managing

partner of a law firm, “Font & Nelson, LLC,” in Fort Lauderdale. Mr. Font’s law

1  Sections 784.048 (“Stalking; definitions; penalties.”) and 748.0485 (“Stalking;
injunction; powers and duties of court and clerk; petition; notice and hearing;
temporary injunction; issuance of injunction; statewide verification system;
enforcement.”), Florida Statutes (2017).

                                         2
firm regularly represents insurers, and Mr. Font has expressed a particular interest

in identifying fraudulent insurance claims for prosecution under the applicable

criminal statutes. The petition alleges that Mr. Font, among other wrongful acts:

“threatened, harassed, stalked, cyberstalked, or abused” Ms. Raulerson;

“threatened to harm [Ms. Raulerson] and individuals closely associated with [Ms.

Raulerson];” “repeatedly harassed and threatened [Ms. Raulerson] and her co

workers and her employer by forcing her to appear at court hearings having

nothing to do with her, and then threatening her with criminal actions, going so far

as to publish a false affidavit against her which he suborned from a prior client;”

and repeatedly published the affidavit “in all cases involving [BLO] as well as

other cases where [BLO] has no involvement whatsoever.”

      As the eleven-page petition continues, the underlying details (dates, times,

locations, specific threats – verbal, nonverbal, or implied) are sparse, but include

these allegations:

    Mr. Font is alleged to have made “verbal threats to [Ms. Raulerson] that he

      will cause her to lose her bar license and livelihood and reputation.”

    Mr. Font is alleged to have harassed Ms. Raulerson because of her “rejection

      of his crude sexual advances.” This was alleged to have begun in January

      2016, the first encounter between the two attorneys, at an examination under

      oath of an insured conducted by Mr. Font and attended by Ms. Raulerson



                                         3
        and another attorney from BLO. Mr. Font allegedly asked the other BLO

        attorney, within the hearing of Ms. Raulerson, if he was having sexual

        relations with Ms. Raulerson. The petition alleges that this was done “with

        the obvious intent or objective that Mr. Font himself wanted to [have sexual

        relations with her].”2

     Following this incident, Ms. Raulerson was upset and complained to BLO

        and Mr. Barnard.         Mr. Barnard “contacted Mr. Font and expressed his

        concern to Mr. Font about such abuse from an attorney against a young

        associate. Mr. Font told Mr. Barnard to ‘f**k off.’”

       At some later time, Mr. Font allegedly told Ms. Raulerson “he was having

        her watched by means of remote drones.”

     These circumstances caused Ms. Raulerson “extreme mental anguish

        resulting in physical illness (hives, vomiting, lost sleep, loss of enjoyment of

        life, disparagement of reputation).” Mr. Font’s threats have caused Ms.

        Raulerson’s level of discomfort to rise “from high anxiety to revulsion

        against Mr. Font to the point where she has applied for and obtained a

        concealed weapons license.”

        Over ninety percent of the allegations in the petition, however, are related to

unprofessional conduct in litigation by Mr. Font—issuing subpoenae to require

2  The petition described the obscene terms allegedly spoken rather than “sexual
relations.”

                                            4
Ms. Raulerson to appear at insurance case trials, even when she was not involved;

filing an allegedly-defamatory affidavit3 in over a dozen insurance cases;

becoming “unhinged” after BLO “obtained a money judgment against him

individually for $8,332.50 for discovery abuses” in May 2017; making threats

while “hiding behind ‘judicial privilege;’” wasting Ms. Raulerson’s time in an

effort to have her fired, “obviously for ‘revenge’ and to make the case as expensive

as possible for [the plaintiff in a given case].”

      The injunction for protection sought in the petition asked that Mr. Font be

prohibited from “going to or within 500 feet of any place [Ms. Raulerson] lives, or

to any specified place regularly frequented by [her] and any named family

members or individuals closely associated with [her.]”       Those individual co-

workers closely associated with Ms. Raulerson were alleged to include Mr.

Barnard, any member of his family, or any associates or employees of BLO.

      The petition also sought injunction provisions prohibiting Mr. Font from

going to or within 500 feet of the BLO law office, going to or within 100 feet of

Ms. Raulerson’s motor vehicle “whether or not that vehicle is occupied,” and

contacting Ms. Raulerson by telephone, mail, email, in writing, through another

person, “or in any other manner.”

3    The affidavit was signed by a former client of BLO and alleged “staging
insurance claims and fee splitting with non-lawyers” in an insurance case in which
Mr. Font represented the insurer. BLO denies that these allegations have any basis
in fact.

                                            5
       In keeping with the statutory procedure in section 784.0485, a temporary

injunction for protection against stalking violence was issued on the day the

petition was filed, and the matter was scheduled for an evidentiary hearing and

consideration of a final judgment of injunction some fifteen days later. Mr. Font

filed a 422-page motion to dismiss the petition and dissolve the injunction, raising

the applicability of the litigation privilege, the paucity of details in the allegations,

the petition’s reliance on “psychoanalytical analysis” and “theatrical representation

of facts,” and an argument that emailed and electronically-filed pleadings and

communications between attorneys in legal matters may not be relied upon as

predicates for “cyberstalking” or “harassment” for purposes of the stalking

statutes.

       The attachments included in the motion to dismiss included a deposition

transcript in which Mr. Font and Ms. Raulerson chastised one another for

allegedly-improper questions or objections. Included as well were motions to

disqualify BLO, objections, and motions for sanctions in various County Court

insurance cases in which the parties were represented by BLO and Mr. Font’s firm.

       On behalf of Ms. Raulerson, Mr. Barnard filed a 174-page opposition to the

motion to dismiss, addressing Mr. Font’s claim of litigation privilege and the

subpoenae duces tecum directed to Ms. Raulerson. The opposition contended that

Mr. Font’s claims and motion for disqualification against Ms. Raulerson and BLO



                                           6
were dismissed with prejudice in August 2017, and that a Bar complaint was

pending against Mr. Font.

      The trial judge conducted a lengthy, thorough, and patient hearing on the

motion to dismiss. The court granted the motion to dismiss, “not necessarily with

pleasure,” but “because I think that’s what I need to do under the law.” The

court’s comments in open court included these observations for the benefit of Ms.

Raulerson:

        As a young female attorney, you deserve better, because in making
        this ruling I’m assuming that—and presuming that everything that
        has been said is 100 percent true. I want you to know that. That’s
        what the law requires me to do to make—to make this
        determination. I find that if those things were said to you, then you
        were the victim of bullying at the very least. We are all supposed to
        be adults. We are all supposed to be examples for the community.
        We are all supposed to behave as officers of the court.

      The trial court also provided the parties and counsel with information

regarding the Miami-Dade Circuit Professionalism Committee.           This appeal

followed.

      II.    Analysis

      Although the order of dismissal was without prejudice, we have jurisdiction

under Florida Rule of Appellate Procedure 9.130(a)(3)(B) (addressing non-final

orders denying an injunction). The trial court correctly noted that the motion to

dismiss tests the legal sufficiency of the petition, a matter for de novo review in

this Court: “We assume that all allegations in the complaint are true, and we


                                         7
construe all reasonable inferences from those allegations in favor of [plaintiff].”

Greene v. Times Publ’g Co., 130 So. 3d 724, 728 (Fla. 3d DCA 2013).4

              A.      Key Terms

        Section 784.048(1) provides the pertinent definitions for “harass,” “course

of conduct,” “credible threat,” and “cyberstalk.”      The statute defines the first

degree misdemeanor offense of “stalking”5 and the third degree felony offense of

“aggravated stalking.”6 These are the definitions and offenses which establish the

predicate requirements for an injunction for protection against stalking or

cyberstalking.      The procedure for prosecuting a cause of action for such an

injunction is detailed in section 784.0485.

        The following excerpts from the definitions in section 748.048(1) are

applicable in the present case (with emphasis provided):




4  Mr. Font contends that, because the order sought to be reviewed also dissolved
the previously entered temporary injunction, that our standard of review should be
for an abuse of discretion, citing Shaw v. Tampa Electric Co., 949 So. 2d 1066,
1068 (Fla. 2d DCA 2007). We disagree, as the ex parte temporary injunction in
stalking cases is effective for a short and limited period of time, pending
consideration at a hearing after notice to the respondent. The trial court’s dismissal
of the petition upon consideration of Mr. Font’s motion to dismiss presents an
issue of law subject to de novo review.
5   § 784.048(2).
6 § 784.048(3). Aggravated stalking occurs when stalking includes an additional
element, “a credible threat.” Id.

                                          8
        “‘Harass’ means to engage in a course of conduct directed at a specific

person which causes substantial emotional distress to that person and serves no

legitimate purpose.”        § 784.048(1)(a).   The enactors’ choice of the term

“substantial emotional distress” establishes a more demanding burden than the

dictionary definitions of the word “harass” might suggest, which include the verbs

“worry,” “tire out,” “vex, trouble, or annoy continually or chronically,” “plague,”

“bedevil,” or “badger.”7

        “‘Course of conduct’ means a pattern of conduct composed of a series of

acts over a period of time, however short, which evidences a continuity of

purpose.” § 784.048(1)(b).

        “‘Credible threat’ means a verbal or nonverbal threat, or a combination of

the two, including threats delivered by electronic communication or implied by a

pattern of conduct, which places the person who is the target of the threat in

reasonable fear for his or her safety or the safety of his or her family members or

individuals closely associated with the person, and which is made with the

apparent ability to carry out the threat to cause such harm. It is not necessary to

prove that the person making the threat had the intent to actually carry out the

threat.” § 784.048(1)(c).




7   Webster’s Third New Int’l Dictionary, Unabridged 1031 (1986).

                                          9
      “‘Cyberstalk’ means to engage in a course of conduct to communicate, or

to cause to be communicated, words, images, or language by or through the use of

electronic mail or electronic communication, directed at a specific person, causing

substantial emotional distress to that person and serving no legitimate purpose.”

§ 784.048(1)(d).

      The term “substantial emotional distress” is evaluated under a reasonable

person standard rather than a subjective standard. Richards v. Gonzalez, 178 So.

3d 451, 453 (Fla. 3d DCA 2015).

             B.    Application of the Statutory Terms to the Petition

        As the trial court cogently noted at the outset, the petition more nearly

resembles, in its overall impression, a grievance complaint to The Florida Bar, or a

motion for sanctions in the ten enumerated insurance lawsuits (and one petition to

this Court) involving the parties, rather than other petitions for injunction under

Chapter 784 (“I don’t think that this is the forum for me to decide, frankly, a lot of

what you would like me to decide based on your pleadings”).

      It must also be noted that the petition is misleading (whether intentionally or

not) in its use of the term “order of protection” in paragraph 4.d. of the petition

regarding “previous protection.” Section 784.0485(3)(d) requires that the petition

include, if applicable, information pertaining to any other “order of protection

issued against [the respondent] previously or from another jurisdiction, if known.”



                                         10
In context, “order of protection” plainly refers to an injunction for protection

against stalking.8 As used in the petition by Ms. Raulerson’s counsel, however,

“order of protection” was used to describe a protective order issued under the

Florida Rules of Civil Procedure to quash a subpoena issued by Mr. Font’s law

firm to compel her attendance at a trial in which Ms. Raulerson had no apparent

role or knowledge. Ms. Raulerson’s counsel classifies such acts as a form of

harassment, but it is misleading to characterize the protective order obtained under

the civil rules as an “order of protection” under the “previous protection”

allegations required by the stalking statutes.

      The core allegations in the petition describe interactions between Ms.

Raulerson in her capacity as an attorney for the BLO firm and Mr. Font in his

capacity as an attorney, all occurring in connection with the ten, enumerated,

insurance-related lawsuits. Mr. Font’s verbal threats to Ms. Raulerson “that he

will cause her to lose her bar license and livelihood and reputation,” and his

repeatedly filing the affidavit of a former BLO client (as purported evidence of

insurance fraud by that client and BLO) could involve unprofessional behavior or




8  As used in section 784.0485, “the offense of stalking shall include the offense of
cyberstalking.” § 784.0485(1). The misleading characterization in paragraph 4.d
is not rectified by the statement in paragraph 1 of the petition that Ms. Raulerson
had not previously “received or tried to get an injunction for protection against
stalking against [Mr. Font].”

                                          11
even conduct subject to discipline by The Florida Bar, but falls short of harassment

under the statutory definition.

      The unsuitability of the stalking statutes for complaints about the repeated

electronic service of subpoenae, even frivolous subpoenae, by one lawyer on

another is apparent and was properly recognized by the trial court. Such conduct,

as alleged in the present case and if proven, may be many things, but it is not

“cyberstalking” under section 784.048(1)(d).

      The petition acknowledges that much of the alleged conduct involves

violations of Rules Regulating The Florida Bar 4-3.1 proscribing frivolous actions,

4-3.2 regarding dilatory practices by a lawyer in litigation, and 4-3.4(d) proscribing

frivolous discovery requests.     Culling from these allegations the remaining

wrongful acts that might be actionable under the stalking statutes, we are left with

grossly inappropriate sexual comments; undated “inappropriate suggestions such

as ‘you can call me on my cell phone at night to discuss this case’;” and a

statement by Mr. Font to Ms. Raulerson that “he was having her watched by means

of a remote drones [sic],” with no information regarding the date or actual

observation by any drone.

      Typical hallmarks of stalking and cyberstalking simply are not present,

whether involving actual or implied threats of violence; surveillance; videotaping;

the use of social media for revenge or humiliation; cellphone bugging or GPS



                                         12
tracking; harassment by telephone or personal visits (here, outside of alleged

interactions in legal proceedings); and other behaviors enumerated in section 7, “A

Reference to Electronic Stalking in Florida,” within the Florida’s Domestic

Violence Benchbook (Sept. 2014) compiled for judges by the Office of State

Courts Administrator.9

             C.    Litigation Privilege

      In his motion to dismiss and answer brief here, Mr. Font contends that the

allegations and relief sought within the petition are barred by the litigation

privilege. As a matter of law, “defamatory statements made in the course of

judicial proceedings are absolutely privileged, no matter how false or malicious the

statements may be, so long as the statements are relevant to the subject of inquiry.”

Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins.

Co., 639 So. 2d 606, 607 (Fla. 1994). The scope of that privilege was narrowed

slightly in DelMonico v. Traynor, 116 So. 3d 1205, 1208 (Fla. 2013), to exclude

allegedly defamatory statements “made by an attorney during ex-parte, out-of-

court questioning of a potential, nonparty witness while investigating matters

connected to a pending lawsuit.”



9 Thanks to the pioneering work of the late Judge Amy Karan and the continuous
efforts of County Court Judge Carroll Kelly, Florida in general and Miami-Dade
County in particular have been leaders in educating the Legislature, the courts, and
the public regarding stalking, cyberstalking, and domestic violence.

                                          13
      No Florida case has held, nor do we, that the litigation privilege applies to

conduct otherwise meeting the definitional requirements of stalking or

cyberstalking—any more than the litigation privilege bars an action for a battery

committed by one attorney against another in the course of a legal proceeding.10 A

privilege against defamation claims is not a privilege to cause substantial

emotional distress for “no legitimate purpose” or to threaten the safety of opposing

counsel.

      Ms. Raulerson’s counsel argues that the trial court dismissed the petition on

the basis of the litigation privilege. We find nothing in the hearing transcript to

support that contention.      Because the issue was addressed in the parties’

memoranda below and their briefs here, we have considered, and now reject, the

argument that the petition was barred in its entirety by the litigation privilege.

      III.   Mr. Font’s Motion for Attorney’s Fees

      Mr. Font filed a motion for appellate attorney’s fees and costs. The motion

is denied. The motion was made pursuant to Florida Rule of Appellate Procedure

9.400 “and this Court’s inherent authority.” Rule 9.400 is “a vehicle for requesting

appellate fees, but does not provide independent authority for granting attorney’s

10  We recognize broad language in Echevarria, McCalla, Raymer, Barrett &
Frappier v. Cole, 950 So. 2d 380, 384 (Fla. 2007), to the effect that the privilege
may apply to other forms of misconduct during the course of a judicial proceeding,
including tortious and statutory causes of action. That holding recognized that the
privilege or immunity must, however, have some relation to the proceeding. Id. at
385 (citing Levin).

                                          14
fees.” Lewis v. Lewis, 689 So. 2d 1271, 1273 (Fla. 1st DCA 1997). See also,

Garcia v. Collazo, 178 So. 3d 429 (Fla. 3d DCA 2015).

      Nor does an unelaborated allusion to this Court’s “inherent authority” or the

allegedly “frivolous” petition suffice to support such a motion.        And finally,

motions for costs are filed in the lower tribunal, not in an appellate court. Fla. R.

App. P. 9.400(a); Superior Protection, Inc. v. Martinez, 930 So. 2d 859, 860 (Fla.

2d DCA 2006).

      The motion for appellate attorney’s fees and costs is denied.

      IV.    Conclusion

      The Court shares the trial court’s sympathy for both (a) Ms. Raulerson’s

difficult and stressful position as an employee of BLO—a law firm in a truly

acrimonious dispute over insurance claims and the defense of accusations

amounting to insurance fraud—and (b) her verified allegations regarding Mr. Font,

such as crude comments, a possible drone, wasted time under subpoena, and

threats of Bar proceedings or criminal charges for her or her law firm’s conduct.

The trial court’s assessment that “if those things were said to you, then you were

the victim of bullying at the very least,” is completely accurate.

      BLO and Mr. Barnard, clearly frustrated by Mr. Font’s “filing of motions

typically exceeding 500 pages in length,” and “filing the defamatory affidavit in

over a dozen cases,” resorted to prose long on diagnosis and short on particular



                                          15
facts, in drafting the petition.11 And many of the acts alleged in the petition would,

if true, obligate the attorney making the allegations to report the acts to The Florida

Bar.   See Rules Regulating The Florida Bar 4-8.3, “Reporting professional

misconduct.”

       It is also true that an attorney relatively new to the practice of law and high-

conflict litigation (though the very term, when used as a reference to conduct

between counsel rather than parties, is inimical to professional practice) should

develop a “thick skin,”12 but such an attorney is also entitled to refer improper

conduct by opposing counsel to the Bar and, in a particular case, to the presiding

judge. The trial court was correct that these would be a forum for determination of

“a lot of what you would like me to decide based on your pleadings.”

       For these reasons, we affirm the trial court’s order of dismissal.




11  “Mr. Font’s invective has been ‘brewing’ and escalating since then to an
alarming level, consistent with behavior exhibited by narcissistic psychopaths who
cannot stand to lose ‘control.’ From a big picture, Mr. Font’s conduct relates to
frustrated power and control over [Ms. Raulerson], cases being handled by [BLO],
and his own wounded narcissistic ego.”
12See Before the Bar, Student Lawyer, In Brief: Developing a thick skin, ABA
For Law Students (Oct. 1, 2013), https://abaforlawstudents.com/2013/10/01/brief-
developing-thick-skin/, (last visited June 21, 2018).


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