          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D16-5849
                  _____________________________

SCOTT ANTHONY MITCHELL,

    Appellant,

    v.

TAYLOR N. BROGDEN,

    Appellee.
                   ___________________________

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

                            July 16, 2018


PER CURIAM.

     Scott Mitchell appeals the stalking injunction entered against
him. The injunction has now expired on its own terms, so it no
longer has effect. Nonetheless, we cannot dismiss the appeal as
moot because “collateral legal consequences flowing from such an
injunction outlast the injunction itself.” Murphy v. Reynolds, 55
So. 3d 716, 716 (Fla. 1st DCA 2011).

    Viewing the evidence in a light most favorable to Appellee, we
conclude that the evidence did not support a finding that Mitchell’s
conduct was sufficient to “cause[] substantial emotional distress”
under the reasonable-person standard we must apply. See
§ 784.048(1)(a), Fla. Stat.; see also Bouters v. State, 659 So. 2d 235,
238 (Fla. 1995) (holding objective, reasonable-person standard
applies). Accordingly, we reverse the order. See Ashford-Cooper v.
Ruff, 230 So. 3d 1283, 1283 (Fla. 1st DCA 2017) (“[T]here was no
evidence that the repeated calls and texts Appellant made to
Appellee to try to get in touch with her husband caused Appellee—
or would cause a reasonable person in Appellee’s position—
substantial emotional distress.”); David v. Schack, 192 So. 3d 625,
628 (Fla. 4th DCA 2016) (reversing stalking injunction after
finding reasonable person would not suffer substantial emotional
distress when respondent “banged on [petitioner’s] door” and left a
letter and payment); Plummer v. Forget, 164 So. 3d 109, 110 (Fla.
5th DCA 2015) (“Based upon our careful review of the record, we
conclude that the incidents described by Forget, when examined
through the prism of the ‘reasonable person’ standard, would not
have caused ‘substantial emotional distress’ to support a finding of
stalking.”); Leach v. Kersey, 162 So. 3d 1104, 1106 (Fla. 2d DCA
2015) (noting that “[a] reasonable woman who had an eighteen-
month affair with another woman’s husband might well expect to
hear the scorn of an angry wife” and concluding that “[t]he
evidence fails to show that a reasonable person in Kersey’s
situation would suffer substantial emotional distress from these
contacts”); Touhey v. Seda, 133 So. 3d 1203, 1204 (Fla. 2d DCA
2014) (reversing stalking injunction after finding reasonable
person would not suffer substantial emotional distress based on
particular contacts); Goudy v. Duquette, 112 So. 3d 716, 717 (Fla.
2d DCA 2013) (“[A] reasonable person would not have suffered
substantial emotional distress as a result of the conversation,
however one-sided or hostile it might have been.”); Jones v.
Jackson, 67 So. 3d 1203, 1203-04 (Fla. 2d DCA 2011) (finding
appellant’s threatening phone calls and text messages to appellee,
and his statements to third parties suggesting he would do
violence to appellee, would not have caused a reasonable person to
suffer substantial emotion distress); Slack v. Kling, 959 So. 2d 425,
426 (Fla. 2d DCA 2007) (“Slack left [two] voice message[s] stating
that if Kling did not stay away from Slack’s wife, Slack would make
an ‘arrangement.’ We conclude that nothing in the record
demonstrates any basis for finding that a reasonable person would
suffer ‘substantial emotional distress’ from these two phone
messages.” (footnote omitted)); McMath v. Biernacki, 776 So. 2d
1039, 1040-41 (Fla. 1st DCA 2001) (noting that appellee admitted
appellant never threatened her and holding that “[n]o evidence
exists in the record that a reasonable person would suffer
substantial emotional distress from these incidents. The record

                                 2
reveals that the appellee does not feel comfortable around the
appellant. In response to why the appellee was afraid of the
appellant, the appellee stated that the appellant did not
understand her and had made several attempts to talk to her.”).

    REVERSED.

B.L. THOMAS, C.J., and WINSOR, J., concur; OSTERHAUS, J.,
dissents with opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


OSTERHAUS, J., dissenting.

     I think we should affirm because competent, substantial
evidence supports the trial court’s conclusion that Mr. Mitchell
violated the stalking statute.

                 _____________________________


Seth Schwartz and Albert J. Tasker, The Schwartz Law Group,
P.A., Jacksonville, for Appellant.

Taylor Nicole Brogden, pro se, Appellee.

                 _____________________________


          ORDER ON MOTION FOR HEARING EN BANC

    A judge of this Court requested that this cause be heard en
banc in accordance with Florida Rule of Appellate Procedure
9.331(c). All judges in regular active service have voted on the
request. Less than a majority of those judges voted in favor of

                                3
hearing en banc. Accordingly, the request for hearing en banc is
denied.

B.L. THOMAS, C.J., and LEWIS, ROBERTS, WETHERELL, ROWE, RAY,
OSTERHAUS, KELSEY, WINOKUR, JAY, WINSOR, and M.K. THOMAS,
JJ., concur.

WOLF and BILBREY, JJ., dissent.

MAKAR, J., dissents with opinion.

                  _____________________________

MAKAR, J., dissenting from the denial of hearing en banc.

     Due to a large caseload, our fifteen-member appellate court—
like the other four district courts in Florida—assigns each case
randomly to a three-judge panel for disposition, raising the trivia
question: How many different three-judge panels are possible? If
you said 455, you’re correct. 1 Most people guess a far smaller
number. What isn’t trivial is the jurisprudential impact that so
many different panels have on similar or related cases, making the
need for intra-court decisional uniformity important, which was
the basis upon which en banc review was sought as to the proposed
disposition of this case by a divided panel. 2


    1     The formula for combinations applied here is
(15x14x13)/(1x2x3)=455. When you factor in visiting judges
(circuit judges from within our district or judges from other district
courts of appeal) the number increases substantially. The Second
District, the largest intermediate appellate court in Florida with
sixteen members, has 560 possible three-judge panels (slightly less
due to a husband-wife combo currently serving on that court); the
Third District, the smallest with ten members, has 120 possible
three-judge panels. Viewed in a different way, it takes about ten
years for a district judge to sit with every possible combination of
her colleagues on a fifteen-member court (assuming no panel
combinations are repeated, which is unlikely).
    2Review was sought because it was unlikely that the victim,
who had no lawyer at trial or on appeal, would seek review. She
                                  4
     Decisional uniformity is so important that it is one of only two
grounds for en banc review, the other involving cases of exceptional
importance. Rule 3.331, Fla. R. App. P. (2018). It is the primary
tool for reducing disparate results within a large appellate court
arising from randomized panel assignments. For example, in Jones
v. State, 790 So. 2d 1194, 1196 (Fla. 1st DCA 2001), this Court
decided to hear a case en banc “to resolve a conflict in our opinions
regarding the applicable standard of review” in a criminal case. By
doing so, the Court furthered “a primary function of the en banc
rule [which] is to standardize the decisions of each district so as to
minimize the importance of the ‘luck of the [appellate] draw’ . . . in
presenting cases before our increasingly multi-member courts.”
Schreiber v. Chase Fed. Sav. & Loan Ass’n, 422 So. 2d 911, 912 n.1
(Fla. 3d DCA 1982) (“Schreiber I”) (Schwartz, J.), decision quashed,
479 So. 2d 90 (Fla. 1985) (adopting Judge Schwartz’s viewpoint).

     Without en banc review for uniformity, we’d not be one court
attempting to dispense uniform justice, but an assemblage of 455
randomly-assigned and autonomous three-judge panels each doing
as it sees fit. That is not our jurisprudential system. As our
supreme court said when it established the en banc rule: “Under
our appellate structural scheme, each three-judge panel of a
district court of appeal should not consider itself an independent
court unto itself, with no responsibility to the district court as a
whole.” See In re Rule 9.331, Determination of Causes by a Dist.
Court of Appeal En Banc, Fla. Rules of Appellate Procedure, 416
So. 2d 1127, 1128 (Fla. 1982) (emphasis added). The court long ago
held that language in article V, section 4—that “three judges shall
consider each case”—does not “restrict[] the district courts from
hearing cases en banc.” Chase Fed. Sav. and Loan Ass’n v.
Schreiber, 479 So. 2d 90, 93 (Fla. 1985) (“Shreiber II”). The purpose


filed a pro se answer brief (well done by pro se standards), but it
was stricken for technical non-compliance with our Court’s citation
rules, such that only the appellant’s brief was considered. It would
have been better to have stricken only the non-compliant portions.
Better yet, consideration ought to be given to appointing counsel
or encouraging legal aid organizations and appellate pro bono
attorneys to provide representations in this type of case where one
or both parties lack counsel.

                                  5
of the en banc process is to unify a court’s jurisprudence, rather
than potentially fracture it by giving decisions of three-judge
panels preferred or protected status. As our supreme court said in
support of the en banc rule:

    The en banc process now authorized for the district courts
    is designed to help the district courts avoid conflict,
    assure harmonious decisions within the courts’
    geographic boundaries, and develop predictability of the
    law within their jurisdiction. Consistency of decisions
    within each district is essential to the credibility of the
    district courts. There has been criticism of intermediate
    appellate courts for their failure to speak with “a single
    voice of the law.” Meador, An Appellate Court Dilemma
    and A Solution Through Subject Matter Organization, 16
    U. Mich. J.L. Ref. 471, 474 (1983). As judges are added to
    Florida’s district courts to meet expanding caseloads, the
    resulting increased number of three-judge panels cannot
    help but increase the number of inconsistent and
    conflicting decisions. When there is a general rotation of
    Florida’s district court judges among three-judge panels,
    the increased number of panel combinations
    compounds the problem. With a five-member court, the
    number of different panel combinations is ten. With a
    twelve-member court, however, the number of panel
    combinations is 220. The en banc process provides a
    means for Florida’s district courts to avoid the perception
    that each court consists of independent panels speaking
    with multiple voices with no apparent responsibility to the
    court as a whole. The process provides an important
    forum for each court to work as a unified collegial body to
    achieve the objectives of both finality and uniformity of the
    law within each court’s jurisdiction.

Schreiber II, 479 So. 2d at 93-94 (emphasis added). Uniformity
review, perhaps a bit like a cranky hall monitor, helps to keep
order by requiring three-judge panels to be open-minded as to the
views of their colleagues and responsible to the court as a whole in
their decisions, particularly written ones that become binding
precedent. Our supreme court—with its limited jurisdiction—does


                                 6
not perform this function; instead, each district court must do so,
making enthusiasm and dedication to the task important.

     Little judicial fervor exists for decisional uniformity, however.
The primary reason is an institutional predisposition—ingrained
on the first day of new appellate judges’ school—to avoid the en
banc process and its rancor entirely, invoking it only as a last
resort in extraordinary situations, typically only very high-profile
cases. An almost plague-like resistance prevails. Another reason is
that en banc review takes time and energy, both of which may be
in short supply, making the judicial cost/benefit balance teeter
presumptively against review. And a key word in Rule 9.331(a) is
that en banc review is appropriate only if “necessary to maintain
uniformity in the court’s decisions.” Rule 9.331(a), Fla. R. App. P.
(2018) (emphasis added). What may be important to one judge may
not matter to others, making the necessity for en banc review in
the eye of each judicial beholder.

     And what standard should apply in deciding when uniformity
review is justified? As noted in Jones, the “district courts are free
to adopt their own standards for determining whether en banc
consideration is required to maintain uniformity of decisions. An
intra-district conflict may justify en banc review even if it does not
meet the more exacting definition of ‘express and direct conflict’ in
the context of the supreme court’s discretionary jurisdiction.” 790
So. 2d at 1196 (citing Schreiber II, 479 So. 2d 90). Our court lacks
a standard for uniformity review, saying only that it is a
discretionary decision, Internal Operating Procedures, 6.4. (“A
decision to grant or deny en banc review on either of these [two]
grounds is within the discretion of the court.”), but we ought to
have one, as should any large multi-member appellate court. 3 For
example, Judge Schwartz proposed that “an appropriate standard
or rule-of-thumb is the rather practical one that decisions lack
uniformity whenever it appears that they are so inconsistent and

    3 We also have no standard for determining what cases are of
“exceptional importance” under the en banc rule. In re Doe 13-A,
136 So. 3d 748, 754 (Fla. 1st DCA 2014) (“This Court has not
expressly articulated standards for determining whether a case is
exceptionally important.”) (Rowe, J., dissenting from denial of
hearing en banc).
                                  7
disharmonious that they would not have been rendered by the
same panel of the court.” Schreiber I, 422 So. 2d at 912 n.1,
(Schwartz, J.), decision quashed, 479 So. 2d 90 (Fla. 1985)
(adopting Judge Schwartz’s viewpoint that uniformity review is
not limited to direct conflict). This standard is workable, and
others exist, but what matters most is that there exists a standard
that reflects commitment to the goal of uniformity. After all, even
a uniform standard can be applied in a non-uniform manner,
making institutional devotion to decisional uniformity a key factor.

     In this regard, an oft-heard comment against uniformity
review is: “If I were on the panel, I’d decide the case differently,
but it is not en-banc-worthy.” By this reasoning, uniformity will
never occur; panel decisions become immunized from internal
review even if a majority of the court may disagree with them.
Uniformity review, of course, cannot be undertaken in every case
where a judge disagrees with a panel decision; we don’t have the
ability to oversee each other’s daily work to that degree; indeed,
the largest slice of our caseload results in per curiam affirmed
decisions, which escape uniformity review entirely because no
written opinion is produced and non-panel members typically are
unaware of the issues raised and the basis for their resolution. In
any event, although perfect decisional uniformity is impossible,
striving for and encouraging en banc review on this basis is a
worthy goal.

     Given this backdrop, it is respectfully submitted that a
substantial likelihood exists, if not a certainty, that the “luck of the
draw” will dictate whether stalking injunctions are upheld or
reversed in this district absent clarity in how the appellate
standard of review is to be applied in this class of cases—for which
uniformity is important. Panels will decide similar cases
differently, applying standards of review in differing ways and
viewing factual records through divergent minds’ eyes. The degree
of decisional dispersion is potentially wide, resulting in
unpredictable and inconsistent results based on the panel
assigned, just like our jurisprudence on other topics for which a
motion for hearing en banc failed. See, e.g., In re Doe 13-A, 136 So.
3d at 758 (denial of hearing en banc with a concurral, four
dissentals, and a commental). I disagree profoundly that a basis
for reversal exists in this case, but—more importantly—believe

                                   8
that uniformity review would produce greater clarity and
predictability, as in Jones and In re Doe 13-A, on the appellate
standard of review and its application to the record in this class of
cases.




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