Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MATTHEW SINOPOLI, ) ) Appellant, ) ) v. ) Case No. 2D18-4124 ) JOY METTS CLARK, ) ) Appellee. ) ) Opinion filed February 7, 2020. Appeal from the Circuit Court for Sarasota County; Donna Padar Berlin, Judge. W. Matthew Kowtko of the Kowtko Law Group, P.A., Sarasota, for Appellant. No appearance for Appellee. LaROSE, Judge. Matthew Sinopoli appeals the final judgment of injunction for protection against stalking entered in favor of his neighbor, Joy Metts Clark.1 We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We reverse. 1Ms. Clark relocated following entry of the injunction. Nonetheless, the terms of the injunction remain in full force and effect. Thus, this appeal is not moot. See Jacquot v. Jacquot, 183 So. 3d 1158, 1159 (Fla. 5th DCA 2015) ("Injunctions for protections against domestic violence fall under the third exception to the usual rule of mootness because of the collateral legal consequences that may flow from the injunction."); see also Jones v. Jones, 32 So. 3d 772, 774 n.1 (Fla. 2d DCA 2010) ("Presumably, this injunction has already expired and was not renewed. We do not Background In 2014, Ms. Clark moved into her single-story home adjacent to Mr. Sinopoli's three-story residence. Balconies on his second and third floors furnish a view into Ms. Clark's backyard. Various shrubs, palms, and assorted greenery border the shared property line. These plants began the saga of the parties' souring relationship as described in Ms. Clark's petition for injunctive relief. One morning in the spring of 2015, Ms. Clark awoke to find that Mr. Sinopoli had pared down the foliage on his property. More specifically, she claimed that he had "annihilated" the plants. Then, in May 2016, after Ms. Clark planted a "lush, thick wall of trees [on her property]," Mr. Sinopoli again "butchered the trees." Ms. Clark admitted, however, that Mr. Sinopoli "has every right" because "[the trees] were on his property." Ms. Clark also described how Mr. Sinopoli would "s[i]t on his porch from early morning to late at night, never leaving, watching every move I made." In further cataloguing his conduct, Ms. Clark described waking up one morning in September 2017 "to find that he had taken a razor blade and shredded his pool cage." The final event precipitating her injunction petition occurred in July 2018 when Mr. Sinopoli installed a floodlight "facing directly in my back door and my outdoor shower." As a result of these actions, Ms. Clark claimed to be paralyzed by fear, afraid to venture into her back yard. treat the order on appeal as moot because we are concerned about the potential collateral effects of such an order on Mr. Jones."). -2- Ms. Clark and Mr. Sinopoli testified at an evidentiary hearing on her petition. Ms. Clark described each of the events alleged in her petition. She also testified that her husband frequently travelled for work and she was often home alone. She stated that she was afraid and felt "threatened," characterizing herself as a "nervous wreck." In addition to sleeping with a gun by her bedside, she testified that she installed surveillance equipment. She admitted photographs of the floodlight illuminating her backyard. Ms. Clark testified that since the spring of 2015, Mr. Sinopoli had not attempted to contact or communicate with her. Mr. Sinopoli disputed Ms. Clark's allegations and offered benign explanations. For instance, he testified that he trimmed his plants as part of his regular yard maintenance routine. Further, he denied sitting on his porch to watch Ms. Clark; he testified, "I smoke cigarettes, I smoke cigars, I do barbeques, and I smoke things like turkeys and hams that my kids like." He also testified that with Hurricane Irma fast approaching, on the advice of his pool company, he cut his pool screen to minimize wind resistance and reduce the chance that his pool cage would collapse in the storm. As for the floodlight, Mr. Sinopoli testified that while he was out of the country on business, someone had tampered with his pool equipment. Again, on the advice of his pool company, Mr. Sinopoli had the light installed; a timer ensured that the light was operational from dusk until dawn. After hearing testimony, the trial court entered the injunction. The trial court was particularly persuaded by Mr. Sinopoli's "deliberate indifference" to the flood light shining onto Ms. Clark's backyard. The trial court stated that it "invades her quiet enjoyment of the back of her property all the way into her kitchen" and that the light was -3- not "the least restrictive alternative for protecting pool equipment under the circumstances." Analysis "Each incident of stalking must be proven by competent, substantial evidence to support an injunction against stalking." Givens v. Holmes, 241 So. 3d 232, 234 (Fla. 2d DCA 2018) (quoting Touhey v. Seda, 133 So. 3d 1203, 1204 (Fla. 2d DCA 2014)). The burden rested with Ms. Clark. See Pickett v. Copeland, 236 So. 3d 1142, 1146 (Fla. 1st DCA 2018) ("Turning to the facts of this case, it was incumbent on Ms. Copeland to prove stalking by competent, substantial evidence." (citing Thoma v. O'Neal, 180 So. 3d 1157, 1159 (Fla. 4th DCA 2015))). Florida courts may enjoin stalking under section 784.0485, Florida Statutes (2018). Indeed, judicial redress is appropriate when "[a] person . . . willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." § 784.048(2); accord Alter v. Paquette, 98 So. 3d 218, 220 (Fla. 2d DCA 2012) ("A person is guilty of stalking when he or she maliciously, willfully, and repeatedly harasses another person." (citing § 784.048(2), Fla. Stat. (2011))). Florida law defines "harass" as "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). Mr. Sinopoli contests the injunction in a variety of ways. We address only whether his behavior, as found by the trial court, caused Ms. Clark substantial emotional distress. Cf. Roach v. Brower, 180 So. 3d 1142, 1144 (Fla. 2d DCA 2015) ("In the case at bar, while we might defer to the court's determinations that Ms. Roach's course of conduct was willful, malicious, and unjustified, we cannot ignore the complete absence -4- of evidence as to whether that conduct caused Ms. Brower substantial emotional distress under section 784.048(1)(a)."). Critically, "[i]n determining if an incident causes substantial emotional distress, courts use a reasonable person standard, not a subjective standard." Goudy v. Duquette, 112 So. 3d 716, 717 (Fla. 2d DCA 2013) (quoting Slack v. Kling, 959 So. 2d 425, 426 (Fla. 2d DCA 2007)); accord Leach v. Kersey, 162 So. 3d 1104, 1106 (Fla. 2d DCA 2015) ("In determining whether substantial emotional distress occurred, the courts look to the standard of a reasonable person in the petitioner's shoes."); 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." (quoting McMath v. Biernacki, 776 So. 2d 1039, 1040 (Fla. 1st DCA 2001))); see, e.g., 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."). Further, "[t]he reasonable person standard is applied to a person in the position of the party . . . . Thus, the standard is case specific." David v. Textor, 189 So. 3d 871, 876 n.1 (Fla. 3d DCA 2016) (citation omitted). Numerous cases address whether alleged substantial emotional distress satisfies the reasonable person standard in the context of stalking injunctions. In Leach, for example, a wife contacted her husband's paramour "by phone and by messages and 'friend' requests on Facebook," all for the purpose of telling the [paramour] to stay away from her husband. 162 So. 3d at 1106. We reversed the stalking injunction: -5- [T]he evidence does not show that these contacts would cause a reasonable person in [the paramour]'s circumstances to suffer substantial emotional distress. 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. In fact, [the paramour] herself clearly did not suffer substantial emotional distress from these contacts. . . . The evidence fails to show that a reasonable person in [the paramour]'s situation would suffer substantial emotional distress from these contacts. Id. (citation omitted); see, e.g., Jones v. Jackson, 67 So. 3d 1203, 1204 (Fla. 2d DCA 2011) (holding that the trial court erred in granting an injunction against stalking where the evidence did not demonstrate that a reasonable person in the petitioner's position would have suffered substantial emotional distress). We recently catalogued a series of cases further highlighting this reasonable person requirement: The conduct referenced by the circuit court in this case— entering upon the property and removing the permit—would not cause a reasonable person to suffer substantial emotional distress. Compare Paulson[, 251 So. 3d at 990] (reversing injunction for protection against stalking because a reasonable person would not suffer substantial emotional distress as a result of a neighbor—who had been complaining about the petitioner's outdoor light and dogs— looking at the petitioner's utility meter near the petitioner's property on multiple occasions and staring at the petitioner while she sunbathed), and David v. Schack, 192 So. 3d 625, 628 (Fla. 4th DCA 2016) (reversing injunction for protection against stalking because a reasonable person would not suffer substantial emotional distress when respondent "banged on [petitioner's] door and left her a letter and a check"), with Robertson v. Robertson, 164 So. 3d 87, 88 (Fla. 4th DCA 2015) (affirming entry of injunction for protection against stalking because respondent's conduct of looking inside petitioner's house in the middle of the night with a flashlight, uninvited and without warning, for three consecutive nights constituted a course of conduct causing substantial emotional distress). See also Touhey, 133 So. 3d at 1204-05 (reversing injunction for protection against stalking because the actions of the respondent—visiting the petitioner's office once and calling the office twice to inquire -6- about petitioner's whereabouts—would not cause a reasonable person to suffer substantial emotional distress); Jones[, 67 So. 3d at 1204] (concluding that there was not competent substantial evidence of stalking because a reasonable person in the petitioner's position would not have suffered substantial emotional distress as a result of receiving threatening phone calls and text messages). Caterino v. Torello, 276 So. 3d 88, 93 (Fla. 2d DCA 2019); see also 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. The record 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. While these attempts may cause subjective distress to the appellee, there is no competent, substantial evidence that the attempts to talk to the appellee would cause a reasonable person to suffer any emotional distress."). In concluding that Ms. Clark had met her burden, the trial court discounted Mr. Sinopoli's explanations, finding that he was not credible. We do not disturb this finding; "[i]t was the responsibility of the trial court to determine the credibility of the witnesses and to resolve the conflicts in the evidence." Jeffries v. Jeffries, 133 So. 3d 1243, 1244 (Fla. 1st DCA 2014) (citing Disston v. Hanson, 116 So. 3d 612 (Fla. 5th DCA 2013)); see also Lahodik v. Lahodik, 969 So. 2d 533, 535 (Fla. 1st DCA 2007) ("It is well-established that the appellate court does not re-weigh the evidence or the credibility of witnesses."). We may, nonetheless, conclude that a petitioner's evidence is insufficient to satisfy the reasonable person standard demanded by the case law. -7- We do not doubt the subjective sincerity of Ms. Clark's distress. On this record, however, we are not persuaded that it rises to the level of causing substantial emotional distress in a reasonable person. Ms. Clark's petition and her testimony focus on three categories of activity by Mr. Sinopoli. First, the nocturnal cutting of the shrubbery. Ms. Clark conceded "that the trees are located on his property." Certainly, whatever pruning decisions Mr. Sinopoli made for his property, whether in poor taste or not, were his to make. Second, Mr. Sinopoli's watching Ms. Clark from his balconies. Paulson, 251 So. 3d at 986, is instructive. In that case, the First District stated: [W]hile Ms. Rankart testified that Mr. Paulson would stare at her while she was sunbathing on her porch, there was no evidence that Mr. Paulson made any statements or gestures toward her on these occasions, that he trespassed onto her property, or that he made threats of any kind. Without more, the evidence was insufficient to show that he willfully and maliciously engaged in a course of conduct that would cause her substantial emotional distress. Those facts are indistinguishable from our case and do not justify entry of an injunction. Third, the flood light. At the evidentiary hearing, Ms. Clark's counsel stated that the "main crux of the petition is the flood light shining into my client's residence, residential area." Indeed, the trial court hinged its ruling largely on this issue, relying on Robertson, 164 So. 3d 87, 88 (Fla. 4th DCA 2015). There, the Fourth District held that the former husband's conduct of uninvited peering inside of the former wife's home with a flashlight in the middle of the night for three consecutive nights caused substantial emotional distress. Id. at 88. Apparently, the trial court in this case was persuaded by the Fourth District's affirmance of the injunction based upon "a person -8- going on the property shining a light in the window on three consecutive instance[s] . . . . Here we have months of consecutive flood light into the backyard . . . ." We read Robertson differently. That case involved the former husband's middle-of-the-night physical trespass, onto the former wife's property, to peer into her window using a flashlight. Id. at 87-88. In contrast, nothing here suggested that Mr. Sinopoli physically entered Ms. Clark's property, much less that trespass alone would be sufficient to support issuance of a stalking injunction. See Caterino, 276 So. 3d at 93. Under our facts, Mr. Sinopoli's seeming indifference to Ms. Clark's distress over the light is more appropriately addressed in a nuisance action. See Burnett v. Rushton, 52 So. 2d 645, 645-46 (Fla. 1951) (affirming injunction enjoining a private nuisance where the petitioner's neighbor "operated her lawn mower in an unnecessarily noisy manner at an early hour of the morning in close proximity to appellee's bedroom with the purpose of annoying him and his family; that she had over a long period of time, at various times of day and night, operated her radio in a loud tone; that she annoyed appellee by causing an electric light to be focused upon his residence at all times of night; that she purposely incited her dog to bark boisterously and annoy appellee; that she engaged in obscene gestures directed to appellee's family and committed other and various acts with the deliberate purpose of harassing appellee and his family"). "[I]t is unfortunate that these neighbors could not get along, [nevertheless,] an injunction is not designed to 'keep the peace between parties who, for whatever reason, are unable to get along and behave civilly toward each other.' " Caterino, 276 So. 3d at 93-94 (quoting Power v. Boyle, 60 So. 3d 496, 498-99 (Fla. 1st DCA 2011)); see also Polanco v. Cordeiro, 67 So. 3d 235, 238 (Fla. 2d DCA 2010) (Villanti, J., -9- concurring) ("Petitions for injunctions against repeat violence, or against domestic violence for that matter, are to be used only to rectify the egregious conduct outlined in the statutes themselves. These statutory provisions are not a panacea to be used to cure all social ills. In fact, nowhere in the statutory catalog of improper behavior is there a provision for court-ordered relief against uncivil behavior . . . ." (citations omitted)). Conclusion Because the record does not demonstrate any basis for finding that a reasonable person would suffer "substantial emotional distress" from Mr. Sinopoli's conduct, we reverse and remand with instructions that the trial court dismiss Ms. Clark's petition. Reversed and remanded with instructions. BLACK and ATKINSON, JJ., Concur. - 10 -