       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 14, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-3046
                          Lower Tribunal No. 14-9731
                             ________________


                                Reid Richards,
                                    Appellant,

                                         vs.

                            Jacqueline Gonzalez,
                                    Appellee.


       An Appeal from the Circuit Court for Miami Dade County, Joseph I. Davis,
Jr., Judge.

      Reid Richards, in proper person.

      Jacqueline Gonzalez, in proper person.


Before SUAREZ, C.J., and SALTER and SCALES, JJ.

      SALTER, J.

      Reid Richards appeals a final judgment for protection against stalking

entered in favor of the appellee, Jacqueline Gonzalez, who lives (with her three
children) next door to Mr. Richards and his spouse. Finding Ms. Gonzalez’s proof

insufficient under the applicable statutes and precedent, we reverse the final

judgment and vacate the injunction.

      Facts

      The parties have been next door neighbors in Pinecrest for many years.

Each has a history of alleging incidents of harassment and unneighborly behavior

against the other. Although each has obtained temporary ex parte civil injunctions

for protection against the other under the stalking statute, section 784.0485, Florida

Statutes (2014), their petitions for final judgments of injunction after a hearing

have, in prior incidents, been dismissed for failure to appear or upon a finding of

no just cause.

      The petition in the present case was filed in April 2014. Ms. Gonzalez and a

court clerk provided to assist petitioners in such cases completed a form petition

which “checked the box” in the spaces provided in paragraph 13 to allege that Mr.

Richards had: committed stalking; previously threatened, harassed, stalked,

cyberstalked, or physically abused her; threatened to harm her or family members;

used, or threatened to use, any weapons such as guns or knives against her; a

criminal history involving violence or the threat of violence; and destroyed

personal property, including, but not limited to, telephones or other communication

equipment, clothing, or other items belonging to her.



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      The description of “specific incidents of stalking,” paragraph 14 of the

petition, was a typewritten, single-page attachment compiled by the court staffer

based on her interview with Ms. Gonzalez.1 The attachment alleged a recent

incident in which Ms. Gonzalez was in her vehicle with her fifteen year-old son

approaching her home when Mr. Richards “jumped out in front of her vehicle in

attempt to harass [her].” She alleged that she stopped the vehicle in front of her

property and called the police, at which point Mr. Richards “threw a full water

bottle at [her] vehicle, and then got into his vehicle and sped off.”

      In a March 2014 incident, Ms. Gonzalez alleged that, while she was

entertaining family members in her backyard, Mr. Richards turned on his pressure

cleaner, climbed on the roof of his shed, began to look at Ms. Gonzalez and her

guests, and began laughing. Although Ms. Gonzalez called the police, she alleged

that the police told her that there was nothing they could do.

      In a February 2014 incident, Ms. Gonzalez alleged that Mr. Richards threw

garbage over her property line “and was [waving] his arms at [her], laughing and

taunting her.” She alleged that this had occurred the day after a six-month stay

away order applicable to his probation had expired. According to the Miami-Dade

Clerk’s case information system, Mr. Richards’ stay away order was entered in a

1  Section 784.0485(2)(c), Florida Statutes (2014), specifically directs the court
clerk to assist petitioners in the completion of their forms. In doing so, the clerk’s
office staff are merely recording information supplied by the self-represented
petitioner.

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misdemeanor battery case that was part of a deferred prosecution agreement with

adjudication withheld, and he complied with all of the terms of that agreement.

      Finally, Ms. Gonzalez alleged that Mr. Richards had been harassing and

stalking her family since 2005 in a series of incidents, but her allegation

acknowledged that prior ex parte temporary restraining orders expired and the

underlying cases were dismissed.

      In the present case, the trial court issued an ex parte temporary injunction

and the case was set for hearing.       After an initial dismissal (later vacated),

continuances and extensions of the temporary injunction pending the final hearing,

the trial court heard the case in November 2014. In the interim, Ms. Gonzalez was

represented by counsel for several months, but her attorney was permitted to

withdraw based upon his representation that he had been discharged.

      Despite the careful attention and unlimited patience of the trial judge during

the hearing, the parties used the final hearing to interrupt one another, accuse each

other of acts and omissions outside the sworn petition, and express their high levels

of frustration with each other. Brief testimony regarding the alleged “water bottle”

incident was provided by Ms. Gonzalez, her son, Mr. Richards, and his spouse.

Ms. Gonzalez offered what she said would be a video of the incident, but when

viewed by the trial judge it turned out to be a video of Ms. Gonzalez making a 911

call to the Pinecrest police.



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      At the close of the hearing, the trial court entered the “final judgment of

injunction for protection against stalking violence” against Mr. Richards, with a

term of four years. In addition to the form judgment’s usual terms prohibiting

contact, the injunction prohibited Mr. Richards from coming within twenty feet of

Ms. Gonzalez’s automobile or within twenty feet of her residence next door to his.

This appeal followed. As they did below, the parties are representing themselves

in this appeal.

      Analysis

      Stalking is the willful, malicious, and repeated following, harassing, or

cyberstalking of another person. § 784.048(2), Fla. Stat. (2014). “‘Harass’ means

                                                 { "pageset": "S06
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); see also § 784.048(1)(b) (defining “‘[c]ourse of

conduct’” as “a pattern of conduct composed of a series of acts over a period of

time, however short, which evidences a continuity of purpose”)                     .

      “Courts apply a reasonable person standard, not a subjective standard, to

determine whether an incident causes substantial emotional distress.” Touhey v.

Seda, 133 So. 3d 1203, 1204 (Fla. 2d DCA 2014) (internal quotation marks

omitted). In order to define “repeated following, harassing, or cyberstalking,”

guidance can be derived from section 784.046, Florida Statutes (2014), which


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defines repeat violence 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(1)(b); Wyandt v. Voccio, 148 So. 3d 543, 544 (Fla.

2d DCA 2014).      “Each incident of stalking must be proven by competent,

substantial evidence to support an injunction against stalking.” Touhey, 133 So.

3d at 1204 (emphasis provided).

      There is a substantial disparity between the testimony at trial and the

allegations in Ms. Gonzalez’s petition. There was no proof that Mr. Richards used,

or threatened to use, any weapons such as guns or knives against Ms. Gonzalez.

There was no proof that Mr. Richards destroyed “personal property, including, but

not limited to, telephones or other communication equipment, clothing, or other

items” belonging to Ms. Gonzalez.

      Regarding the alleged “water bottle” incident, Ms. Gonzalez’s fifteen year-

old son testified that he thought Mr. Richards threw a plastic water bottle against

the car door after Ms. Gonzalez had honked at Mr. Richards for approaching the

car “out of nowhere” (but in the street outside his home and car). The trial judge

queried the son:

       Court:       -- are you able to tell me whether or not [the water
       bottle] was launched by Mr. Richards intentionally or accidentally, or
       do you know?



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         Witness: I don’t know. I don’t really know. I’m almost positive it
         was intentionally, though, Your Honor.

         Court: Okay. But you’re not sure?

         Witness: Not completely.

        There was no reported damage to Ms. Gonzalez’s car.           There was no

testimony that the alleged plastic water bottle was thrown at a window of the car.

No bottle was found by Ms. Gonzalez, though she testified that Mr. Richards

immediately hopped in his car and sped away after the alleged incident.

        Conclusion

        Applying the requirements of sections 784.048 and 784.0485, Florida

Statutes (2014), and the “reasonable person standard” to the conduct described at

the final hearing (as opposed to the petition), we are constrained to reverse the

final judgment and vacate the injunction. We must also observe that, although the

stalking statutes expressly authorize self-representation,2 both parties’ rudeness to

the trial judge and the parties’ constant interruption of each other were self-

defeating. If some form of consensual mediation or counselling3 is unavailing and

future petitions eventuate, the parties might consider seeking legal assistance, paid

or pro bono, to focus their legal theories and presentation of evidence.

        Reversed; injunction vacated.

2   § 784.0485(1)(d), Fla. Stat. (2015).
3   See Shocki v. Aresty, 994 So. 2d 1131, 1134 & n.3 (Fla. 3d DCA 2008).

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