          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-4587
                  _____________________________

GREGG SHANNON,

    Appellant,

    v.

CHRISTOPHER SMITH, and OBO
CHARLES C. SMITH, a minor,

    Appellees.
                  _____________________________


On appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.

                           July 23, 2019


PER CURIAM.

    Appellant, Gregg Shannon, appeals a permanent injunction
for protection against stalking that was entered against him.
Appellant argues, and we agree, that the trial court’s
determination that he stalked Appellee, Christopher Smith, his
neighbor, is not supported by competent, substantial evidence.
We, therefore, reverse the injunction.

     In his September 2018 petition for a stalking injunction,
Appellee relied upon a May 2017 incident in which Appellant
allegedly stole signs from the neighborhood, a May 2017 “blow me”
email sent to him from Appellant, a July 2017 incident in which
Appellant allegedly put flyers in Appellee’s “flyer box,” a July 2017
sign stealing incident, a November 2017 sign throwing incident, a
January 2018 incident in which Appellant allegedly yelled at other
neighbors, a January 2018 incident in which Appellant allegedly
chased Appellee, who was riding his bike, and yelled profanities at
him, a February 2018 email in which Appellant allegedly
threatened Appellee about his “TV job” and mentioned Appellee’s
“morals clause” with his employer, a July 2018 email sent to
Appellee’s employer, and an August 2018 incident at the
homeowner’s association (“HOA”) meeting that, according to a
police report, involved a verbal altercation between Appellant and
Appellee.

     In setting the matter for a hearing, the trial court found that
the petition did not set forth a sufficient factual basis upon which
it could enter a temporary injunction. During the subsequent
hearing, the trial court asked Appellee how Appellant had stalked
or cyberstalked him. Appellee testified about Appellant stealing,
throwing, and damaging signs in the neighborhood that pertained
to a lawsuit that some neighbors, including Appellee, were
involved in against a home builder, and about Appellant chasing
him down the street while yelling profanities.               Appellee
acknowledged that the email to his employer that he relied upon
in his petition was sent from an anonymous Gmail account and
that it was possible that another neighbor who opposed the lawsuit
could have sent it. A video was played of the HOA meeting during
which Appellant and Appellee had a verbal altercation. A second
video was also played of an encounter Appellant had with another
neighbor elsewhere in the neighborhood. After the trial court
asked Appellant whether the language he used at the HOA
meeting was an appropriate or nice thing to do, in response to
which Appellant acknowledged it was not, the trial court stated,
“Well, it may not arise to a criminal; however, based upon the
videos I have seen, they were aggressive in nature and the Court
is going to enter an order of injunction prohibiting [Appellant] from
having any contact with [Appellee] or his family.” This appeal
followed.

     In 2012, the Legislature created a cause of action for an
injunction for protection against stalking. See § 784.0485(1), Fla.
Stat. (2012). “Stalking” is defined as “willfully, maliciously, and
repeatedly follow[ing], harass[ing], or cyberstalk[ing] another

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person.” § 784.048(2), Fla. Stat. (2018). “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. (2018). “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), Fla. Stat. (2018). “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), Fla.
Stat. (2018).

     To be entitled to an injunction under section 784.0485, a
petitioner must prove by competent, substantial evidence a single
incident of stalking. Pickett v. Copeland, 236 So. 3d 1142, 1145
(Fla. 1st DCA 2018); see also Paulson v. Rankart, 251 So. 3d 986,
989 (Fla. 1st DCA 2018). In determining whether an incident
causes substantial emotional distress, courts use a reasonable
person standard rather than a subjective one. McMath v.
Biernacki, 776 So. 2d 1039, 1040 (Fla. 1st DCA 2001). While a trial
court has broad discretion to grant an injunction, the question of
whether the evidence is legally sufficient to justify imposing an
injunction is a question of law that is reviewable de novo. Pickett,
236 So. 3d at 1143-44.

     Based upon the hearing transcript, the trial court entered the
stalking injunction because of what it considered to be Appellant’s
aggressive behavior toward Appellee at the HOA meeting and
toward a different neighbor on another occasion. However,
whether Appellant was verbally aggressive toward someone other
than Appellee has no bearing on whether he stalked Appellee.
Moreover, a verbal altercation between two neighbors during an
HOA meeting in no way warrants the entry of an injunction
against stalking. The same can be said of the other incidents
relied upon by Appellee in his petition, some of which Appellee
himself described as being petty. As for the July 2018 anonymous
email that was sent to Appellee’s employer, Appellee
acknowledged below that another person could have sent it.


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    In Corrie v. Keul, 160 So. 3d 97, 99 (Fla. 1st DCA 2015), this
Court, in reversing an injunction against repeat violence, rejected
the appellee’s argument that his allegations and the testimony
presented at the hearing showed that the appellant, his neighbor,
engaged in stalking and harassment. The appellee had alleged
that the appellant threatened to take his house and have him
thrown in jail, screamed at him, chased him and his dog down the
sidewalk on one occasion, and told him that “it hold 1 in the
chamber and 8 more.” Id. We explained that while the appellee
argued that there are certain threatening and violent situations
between neighbors where courts have no choice but to enter an
injunction, the case at hand did not present one of those situations.
Id. This case does not present one of those situations either.

     Similarly, in Power v. Boyle, 60 So. 3d 496, 499 (Fla. 1st DCA
2011), we reviewed an injunction against repeat violence and
determined that although the incidents at issue, which involved
neighbors and included yelling obscenities, letting a dog urinate on
the other party’s garage door, and writing profane and
inappropriate notes on mail, were immature and uncivil, they did
not constitute violence or stalking. We reasoned that it appeared
that the relationship between the parties was more “tit-for-tat
than stalker-victim.” Id. This case can be characterized in the
same manner.

     In addition, Appellant correctly argues that Appellee provided
no testimony that any of Appellant’s actions caused him
substantial emotional distress. As we have explained, the
substantial emotional distress that is necessary to support a
stalking injunction is greater than just an ordinary feeling of
distress. Venn v. Fowlkes, 257 So. 3d 622, 624 (Fla. 1st DCA 2018).
While the anonymous email sent to Appellee’s employer and
Appellant’s behavior at the HOA meeting may have frustrated and
embarrassed Appellee, and rightfully so, embarrassment does not
equate to substantial emotional distress. See David v. Textor, 189
So. 3d 871, 875 (Fla. 4th DCA 2016) (“That they [online postings]
may be embarrassing to [the appellee] is not at all the same as
causing him substantial emotional distress sufficient to obtain an
injunction.”). Without evidence of this necessary element, the
injunction should not have been entered. See Roach v. Brower, 180
So. 3d 1142, 1144 (Fla. 2d DCA 2015) (noting that “without

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competent, substantial evidence that . . . the petitioner, suffered
substantial emotional distress, the circuit court could not enter an
injunction against [the appellant] based upon the stalking
statute”); see also Klemple v. Gagliano, 197 So. 3d 1283, 1286 (Fla.
4th DCA 2016) (noting that the appellee did not testify as to any
emotional distress caused by arguing with the appellant and
reasoning that the stalking statute did not allow the trial court to
enter injunctions simply to keep the peace between parties who are
unable to get along and behave civilly towards each other); Jones
v. Jackson, 67 So. 3d 1203, 1203-04 (Fla. 2d DCA 2011) (concluding
that the appellant’s threatening phone calls and text messages to
the appellee, and his statements to third parties suggesting he
would do violence to the appellee, would not have caused a
reasonable person to suffer substantial emotional distress);
McMath, 776 So. 2d at 1040-41 (“No evidence exists in the record
that a reasonable person would suffer substantial emotional
distress from these incidents.”). Appellant is also correct that the
evidence failed to establish stalking as to Appellee’s minor child.
Even if the child were present during the HOA meeting and
unfortunately heard from Appellant what the trial court described
as inappropriate language, that incident would not constitute
stalking warranting an injunction.

     In conclusion, although we in no way condone any of
Appellant’s actions or his behavior, we must reverse the injunction
for the reasons set forth herein.

    REVERSED.

LEWIS, B.L. THOMAS, and ROBERTS, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Hayward Dykes, Jr., and Casey Jernigan King of Hand Arendall
Harrison Sale, Destin, for Appellant.

No appearance for Appellees.




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