                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

SHERRY CORRIE,                        NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D14-1146

DAVID LEE KEUL,

      Appellee.

_____________________________/

Opinion filed March 16, 2015.

An appeal from the Circuit Court for Duval County.
Elizabeth A. Senterfitt, Judge.

Diana L. Johnson of Johnson & Lufrano, P.A., Jacksonville, for Appellant.

Robert C. Davis, Jacksonville, for Appellee.




PER CURIAM.

        ON MOTION FOR REHEARING AND REHEARING EN BANC
        We grant Appellant’s motion for rehearing, withdraw our prior opinion, and

substitute this opinion in its place. We deny Appellant’s motion for rehearing en

banc.

        Appellant, Sherry Corrie, appeals the trial court’s Amended Final Judgment

of Injunction for Protection Against Repeat Violence (After Notice), arguing that

the injunction is not supported by competent, substantial evidence. 1      For the

reasons that follow, we agree with Appellant’s argument and reverse the

injunction.

        In his Petition for Injunction for Protection Against Repeat Violence,

Appellee, David Lee Keul, alleged that Appellant lived within 500 feet of his

house and had “anger issues with [him], [his] wife and [his] dog.” He further

alleged that Appellant, for the last three years, had been “constantly harassing,

verbally abusing, stalking, threatening [him], [his] family and friends.” Appellant

allegedly threatened to take Appellee’s home and have him thrown in jail, and she

“says she has a gun.” According to Appellee, on February 17, 2014, Appellant

approached him while he was working in his yard and “continually screamed and

hollered” at him. On August 10, 2014, Appellant allegedly chased Appellee and

his dogs down the sidewalk, and on August 21, 2014, Appellant allegedly

1
 Although Appellant did not make this argument below, this type of insufficiency
of the evidence argument need not be preserved for appeal. See Achurra v.
Achurra, 80 So. 3d 1080, 1082 (Fla. 1st DCA 2012) (citing Fla. R. Civ. P.
1.530(e)).
                                      2
approached Appellee on his driveway about his car being parked on the street and

would not leave when Appellee asked her to do so. Appellant also allegedly took

pictures of people who went to Appellee’s home. In the section of the injunction

petition asking whether the respondent owns or is known to have guns, Appellee

wrote, “Her comment it hold 1 in the chamber and 8 more.” The trial court entered

a temporary injunction for protection against repeat violence.           During the

subsequent hearing, Appellant provided testimony about what she claimed was

Appellee’s harassing behavior. After Appellant called three other witnesses, the

trial court asked Appellee whether he had any witnesses. After responding “Yes . .

. . [My wife] also has video of [Appellant] over here screaming on the sidewalk at

. . . me and my wife when we are sitting on our porch,” the trial court stated, “All

right.    I am going to enter the injunction.”     The trial court then entered an

Amended Final Judgment of Injunction for Protection Against Repeat Violence

(After Notice). This appeal followed.

         An injunction entered pursuant to section 784.046, Florida Statutes, must be

supported by competent, substantial evidence. Power v. Boyle, 60 So. 3d 496, 498

(Fla. 1st DCA 2011); see also Goudy v. Duquette, 112 So. 3d 716, 717 (Fla. 2d

DCA 2013) (noting that to support an injunction against repeat violence, each

incident of violence must be proven by competent, substantial evidence). The term

“violence” is defined as “any assault, aggravated assault, battery, aggravated

                                           3
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(1)(a), Fla. Stat. The term

“repeat violence” means “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(1)(b), Fla. Stat. An “assault” is “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.

The “offense of battery” 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(1)(a), Fla. Stat. Stalking occurs

when a person “willfully, maliciously, and repeatedly follows, harasses, or

cyberstalks another person.” § 784.048(2), Fla. Stat. “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), Fla. Stat.

      Turning to the case at issue, the allegations made in support of the injunction

included Appellant’s alleged anger issues and threats of taking Appellee’s home

                                          4
and having him thrown in jail, her act of screaming at Appellee, her act of chasing

Appellee and his dogs down the sidewalk on one occasion, and her statement that

“it hold 1 in the chamber and 8 more.” Appellee presented no evidence at the

hearing other than stating that his wife had video of Appellant screaming at the two

of them while they were sitting on their porch. As Appellant argues on appeal, and

as this Court has explained, “‘Mere shouting and obscene hand gestures, without

an overt act that places the victim in fear, does not constitute the type of violence

required for an injunction.’” Russell v. Doughty, 28 So. 3d 169, 170 (Fla. 1st DCA

2010) (citation omitted). It has also been held that “[e]ven a representation that the

offender owns a gun and is not afraid of using it is insufficient to support an

injunction absent an overt act indicating an ability to carry out the threat or

justifying a belief that violence is imminent.” Sorin v. Cole, 929 So. 2d 1092,

1094 (Fla. 4th DCA 2006). There was no allegation or evidence in this case of an

overt act on Appellant’s part that indicated an ability to carry out any of her threats

or that justified a belief that violence was imminent.

      Moreover, we reject Appellee’s argument that his allegations and the

testimony presented at the hearing showed that Appellant engaged in stalking and

harassment. Here, unlike the situation in Goosen v. Walker, 714 So. 2d 1149,

1150 (Fla. 4th DCA 1998), where the testimony showed that the appellant

videotaped the appellees on two to four occasions during the preceding four

                                          5
months when the appellees were in their own yard or the adjoining area and where

the Fourth District found that the conduct constituted stalking, this case presents

only a general allegation without any supporting testimony that Appellant took

pictures of Appellee’s guests. While Appellee also argues that there are certain

threatening and violent situations between neighbors where courts have no choice

but to enter an injunction, this case does not present one of those situations. See

Banks v. McFarland, 148 So. 3d 162, 162 (Fla. 1st DCA 2014) (reversing the

temporary injunction for repeat violence entered against the appellant because the

appellant’s statements to the appellee, his neighbor, that “I will shoot and kill all of

you” and “I’ll F you up” in addition to making other ugly remarks and taunts and

engaging in intrusive behavior did not constitute repeat violence where there was

no showing of an overt act); Power, 60 So. 3d at 497 (reversing the injunctions

entered against the appellants and concluding that the evidence of several

disagreements between the parties, who were neighbors, obscenities yelled by one

of the appellants, and one of the appellants allowing her dog to urinate on the

appellees’ garage door and writing profane and inappropriate notes on mail that

was delivered to the appellees’ residence did not constitute violence).

      Accordingly, we reverse the Amended Final Judgment of Injunction for

Protection Against Repeat Violence (After Notice).

      REVERSED.

                                           6
LEWIS, C.J., WOLF and ROBERTS, JJ., CONCUR.




                                 7
