          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-2124
                  _____________________________

WAYNE LOUIS HUTSELL,

    Appellant,

    v.

ELLEN DAVIS HUTSELL,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Jefferson County.
Dawn Caloca-Johnson, Judge.

                         February 4, 2019


PER CURIAM.

     Wayne Louis Hutsell appeals the final judgment of injunction
for protection against domestic violence entered against him under
§ 741.30, Florida Statutes (2016), based upon a petition filed by his
former wife, Ellen Davis Hutsell. We reverse because the evidence
presented at the hearing on the petition was legally insufficient to
support the injunction.

     For the trial court to issue an injunction for protection against
domestic violence, the party seeking the injunction must establish
that he or she has an objectively reasonable fear that he or she is
in “imminent danger of becoming the victim of any act of domestic
violence.” § 741.30(1)(a), Fla. Stat.; see also Randolph v. Rich, 58
So. 3d 290, 291 (Fla. 1st DCA 2011). In this case, the evidence
supporting the injunction stems from Mr. Hutsell’s e-mail address
having been registered to the in-vehicle safety and security system
account for Ms. Hutsell’s truck. The OnStar® equipment and
capability was factory installed on the truck he helped her
purchase in 2014, and his e-mail address was on the account.
Because the system’s activation button in her truck had been
engaged, Ms. Hutsell alleged that Mr. Hutsell could receive text
and e-mail notifications by which he could monitor her truck’s
location, fuel and oil levels, air pressure of the tires, and even lock
and unlock its doors. His apparent access to her truck’s electronic
data frightened Ms. Hutsell.

     Ms. Hutsell’s domestic violence case asserted that Mr. Hutsell
had stalked her based on her belief that he was tracking her truck.
The definition of domestic violence includes “stalking,” § 741.28(2),
Fla. Stat., which is defined in section 784.048(2) to encompass
when a person “willfully, maliciously, and repeatedly follows,
harasses, or cyberstalks another person.” Because records from the
truck’s safety/security system were not admitted into evidence,
and we do not know whether Mr. Hutsell actually accessed, used,
or misused the truck’s electronic records, there was not a basis for
finding following- or cyberstalking-based violations of this statute.
Regarding harassment, Florida law defines “harass” in section
784.048(1)(a) to mean “engag[ing] in a course of conduct directed
at a specific person which causes substantial emotional distress to
that person and serves no legitimate purpose.”

     Ms. Hutsell’s evidence focused on two alleged incidents of
harassment. By statutory definition, “stalking requires proof of
repeated acts.” Pickett v. Copeland, 236 So. 3d 1142, 1144 (Fla. 1st
DCA 2018) (quoting Lukacs v. Luton, 982 So. 2d 1217, 1219 (Fla.
1st DCA 2008)). Ms. Hutsell argued that the first incident occurred
one Valentines’ Day morning when Mr. Hutsell showed up at the
same Tallahassee restaurant where Ms. Hutsell was eating with
one of Mr. Hutsell’s relatives. Mr. Hutsell entered the restaurant
and sat down at a table. He did not speak or attempt any
interaction with Ms. Hutsell. But she immediately left the
restaurant when he arrived. Mr. Hutsell then ate and left the
restaurant sometime later.



                                  2
     The second incident related to Ms. Hutsell’s work. In a text-
message conversation between the parties, Mr. Hutsell made
comments that led Ms. Hutsell to believe that he was tracking her
whereabouts at work. These comments related to her response to
a specific police call that Ms. Hutsell made to a neighborhood in
the course of her work (Ms. Hutsell works for the police
department). Earlier in the text-message string, however, Ms.
Hutsell had herself identified the location of the call to Mr. Hutsell
before he had referred to it. Because Ms. Hutsell alluded to her
location first, these text messages didn’t tend to show that Mr.
Hutsell gleaned her location information via her truck’s electronic
safety/security system.

    After hearing the evidence, the trial court took the matter
under advisement. It later issued a ruling granting the injunction
that did not make specific findings. The final order included only
a conclusory recitation from the form injunction order:

    After hearing the testimony of each party present and of
    any witnesses, or upon consent of Respondent, the Court
    finds, based on the specific facts of this case, that
    Petitioner is a victim of domestic violence or has
    reasonable cause to believe that he/she is in imminent
    danger of becoming a victim of domestic violence by
    Respondent.

    To receive an injunction, it was incumbent on Ms. Hutsell to
prove her case with competent, substantial evidence. Pickett, 236
So. 3d at 1146. Viewing the evidence in her favor, we cannot
conclude that competent, substantial evidence supports the
conclusion that she was either a victim of domestic violence arising
from these incidents and the tracking allegations, or had
reasonable cause to believe that she was in imminent danger of
becoming a victim of domestic violence. For these reasons, we
reverse the decision of the lower court and remove the injunction
against Mr. Hutsell.

    REVERSED.

OSTERHAUS and JAY, JJ., concur; MAKAR, J., concurs with opinion.


                                  3
                  _____________________________

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

MAKAR, J., concurs.

     I concur, but highlight that this is a case of evidentiary
insufficiency, not legal sufficiency. Allegations that OnStar®
tracking or other means of surveillance were used surreptitiously
and unlawfully to stalk a victim state a viable legal theory for relief
under the statute. Here, insufficient evidence was presented to
prove this theory of stalking, raising only a suspicion of improper
behavior. This case again highlights the importance of legal
counsel because the movant acted pro se at trial and did not file a
pro se answer brief on appeal. See Mitchell v. Brogden, 249 So. 3d
781, 783 n.2 (Fla. 1st DCA 2018) (Makar, J., dissenting from denial
of rehearing en banc).

                  _____________________________

Luke Newman, Luke Newman, P.A., Tallahassee, for Appellant.

Ellen Davis Hutsell, pro se, Appellee.




                                  4
