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 MICHAEL DECKER, ) ) Appellant, ) ) v. ) Case No. 2D20-1303 ) REBEKAH MUNSON, ) ) Appellee. ) ) Opinion filed May 28, 2021. Appeal from the Circuit Court for Hillsborough County; Jessica Costello, Judge. James E. Fakhoury and William J. Cantrell of Cantrell, PLLC, Tampa (withdrew after briefing); William J. Cantrell and Dorella L. Gallaway of Cantrell Zwetsch, P.A., Tampa (substituted as Counsel of record), for Appellant. No appearance for Appellee. MORRIS, Judge. Dr. Michael Decker appeals from an order granting a petition for injunction against stalking entered in favor of Rebekah Munson. Because we conclude that there was insufficient evidence that a reasonable person would suffer substantial emotional distress from Dr. Decker's actions or that his actions were malicious in nature, we hold that Ms. Munson did not establish the elements required for the issuance of the injunction, and we therefore reverse. BACKGROUND Dr. Decker is a professor at the University of South Florida (USF), and Ms. Munson was a research assistant pursuing her graduate degree at USF. They began a four-month romantic relationship in June 2019 during a university-sponsored research trip.1 Ultimately Ms. Munson ended the relationship though she conceded she did not tell Dr. Decker that it was over "forever" because she was concerned about his reaction. She told Dr. Decker she did not want any "personal contact" from him, but subsequent to the breakup, Dr. Decker sent Ms. Munson a birthday gift, and she thanked him for it. Shortly after the breakup, Ms. Munson blocked Dr. Decker on social media. Then, in November 2019, approximately two months after the relationship ended, Dr. Decker came to Ms. Munson's workplace (a restaurant), even though she had asked him not to come there because her then-husband (now ex-husband) and other USF students worked there. During the restaurant visit, Dr. Decker sent a series of text messages to Ms. Munson, in which he professed his love for her, promised he would never do anything to jeopardize her career, and explained that everything was settled at USF and that they were both protected. Throughout the text exchange, Ms. Munson made it clear that she wanted to keep things professional between them, that she was not 1It is undisputed that this relationship was disclosed to USF.It is also undisputed that both parties were married to other people at the time they began their relationship though Dr. Decker was in the process of obtaining a divorce and Ms. Munson and her then-husband were having marital problems. -2- willing to risk her future, and that she was trying to salvage her reputation. She also asked Dr. Decker to leave her alone. Immediately after the restaurant encounter, Dr. Decker sent Ms. Munson another series of text messages and the following day, he sent her an email. In those text messages and email, he addressed their relationship, telling her he loved her, apologizing if he had hurt her, expressing confusion about Ms. Munson's reaction, but then also promising to "leave you alone as you ask" and doing his best to "avoid any personal contact." Ms. Munson conceded that Dr. Decker never threatened her with physical harm and never made any attempts to prevent her from graduating. Ms. Munson acknowledged that she did not seek an injunction immediately in November 2019, but she ultimately sought to do so several months later because Dr. Decker began trying to communicate with her sister and because he added Ms. Munson on social media. It is undisputed that Dr. Decker ceased all active direct communication with Ms. Munson after November 2, 2019. Ms. Munson blocked Dr. Decker's number on November 2, 2019. In December 2019, Dr. Decker tried to communicate with Ms. Munson's sister which led Ms. Munson to seek a Title IX no contact order2 through USF. Ms. Munson testified that Dr. Decker tried to add her as a "friend" or contact on Snapchat and Facebook in February 2020. Ms. Munson testified that she was in fear of Dr. Decker because he was tenured faculty at USF and because "it just seems like at every turn he's not taking no for an answer." 2See generally 20 U.S.C. § 1681(a) (discussing protections from discrimination based on sex, including in educational institutions). -3- Dr. Decker explained that he only went to the restaurant because he wanted to talk to Ms. Munson about her career being safeguarded due to the nature of their prior relationship and the fact that he was a professor and she was a research assistant. He also testified that he was concerned about Ms. Munson's state of mind and whether she was being emotionally manipulated by her then-husband based on prior statements Ms. Munson had made to him, a fact which Ms. Munson admitted. Dr. Decker explained that he was "trying to understand what her situation was." Dr. Decker testified that November 1, 2019—the date he went to the restaurant—was the first time that Ms. Munson expressed that she wanted no contact with him. While he first testified that he did not communicate with her after that request, he subsequently clarified that Ms. Munson was clear that she wanted no further contact with him on November 2, 2019, the day he sent a follow-up email to her. In reference to his attempts to add Ms. Munson on Snapchat and Facebook, Dr. Decker explained that he had been attempting to recover any cell phone communications from Ms. Munson to use in his defense of the Title IX investigation. He testified that he inadvertently added her, thinking that she had to be on his list of friends in order to retrieve old messages. He further testified that even though he added her on those social media platforms and had the ability to send her a message, he did not do so, a point that Ms. Munson did not refute. -4- In March 2020, Ms. Munson sought the injunction, and after a hearing, the trial court granted her petition and entered a final judgment for protection against stalking for a one-year period.3 ANALYSIS Section 784.0485, Florida Statutes (2019), permits an injunction to be entered where the elements of stalking have been established. Section 784.0485 is analyzed by looking to section 784.046, which deals with injunctions against repeat violence. Leach v. Kersey, 162 So. 3d 1104, 1106 (Fla. 2d DCA 2015). "Repeat Violence," in turn, requires "two incidents of violence or stalking." § 784.046(1)(b). "To support an injunction against stalking, the petitioner must prove each incident of stalking by competent, substantial evidence." Leach, 162 So. 3d at 1106. Section 784.048(2) defines stalking as where "[a] person . . . willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." As relevant here, " '[h]arass' 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). In determining whether there was competent substantial evidence of substantial emotional distress, we analyze the issue using the standard of a reasonable person in the petitioner's shoes, Leach, 162 So. 3d at 1106, rather than a subjective 3The injunction was set to expire on April 1, 2021. Ms. Munson has not appeared in this appeal and thus has presented no argument as to why this court should not consider this appeal. Further, there is the potential for collateral consequences, such as the prohibition against Dr. Decker's possession or ownership of firearms or ammunition. Thus we have determined it is necessary for us to address this case on the merits. -5- standard that focuses only on the petitioner's own feelings, Touhey v. Seda, 133 So. 3d 1203, 1204 (Fla. 2d DCA 2014). Many courts, including this one, have determined that the reasonable person standard for substantial emotional distress is not met where the party against whom the injunction is sought has contacted or attempted to contact the petitioner without permission but where no threats were made or no public embarrassment was involved. See, e.g., Leach, 162 So. 3d at 1106 (concluding that evidence was insufficient to establish that a reasonable person would suffer substantial emotional distress where wife contacted husband's lover by phone and by messages and friend requests on Facebook to tell her to stay away from her husband because "[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"); Ravitch v. Whelan, 851 So. 2d 271, 272-73 (Fla. 5th DCA 2003) (concluding that "[n]othing in the record demonstrates any basis for finding that a reasonable person would suffer 'substantial emotional distress' " where, after nine-month relationship ended and after petitioner told respondent she was not willing to reconcile, respondent left voicemail messages and sent petitioner emails, none of which were hostile or threatening; where respondent saw petitioner in public but did not try to make contact with her; where respondent left petitioner's personal items on her doorstep along with two notes, a card, and a rose; and where respondent eventually asked petitioner to repay him for monies she allegedly owed him); McMath v. Biernacki, 776 So. 2d 1039, 1040 (Fla. 1st DCA 2001) (concluding that there was no evidence that a reasonable person would suffer substantial emotional distress where respondent sent a letter and then, subsequently, -6- flowers and balloons to petitioner but never threatened her); see also David v. Schack, 192 So. 3d 625, 627-28 (Fla. 4th DCA 2016) (opining that it was difficult to see how a reasonable person would suffer substantial emotional distress where respondent banged on petitioner's door and left a letter and check in her mailbox despite petitioner texting respondent to leave her alone). The facts of this case establish that no threats were made; indeed, Ms. Munson conceded that Dr. Decker never threatened her with physical harm or made attempts to sabotage her studies or career. It is undisputed that Dr. Decker had no active communication with Ms. Munson beyond November 2, 2019, the day he sent the follow-up email and the day following the restaurant incident and the transmission of the text messages between the two parties wherein Ms. Munson made it abundantly clear that she wanted no further contact with Dr. Decker. Although the record indicates that Dr. Decker subsequently made one attempt to contact Ms. Munson's sister and added Ms. Munson as a "friend" or contact on Snapchat and Facebook, Dr. Decker did not attempt to send Ms. Munson a message through those platforms. And there is no other evidence that Dr. Decker attempted to embarrass Ms. Munson publicly, jeopardize her graduation and/or career, or otherwise contact her sister again. The unfortunate circumstances here were the result of a messy breakup, where one party appears to have had a difficult time accepting that the relationship was over. However, while Ms. Munson may have had some subjective emotional distress over Dr. Decker's short-lived attempt to reconcile and/or communicate with her, the evidence is simply insufficient to establish that a reasonable person would suffer substantial emotional distress under the same circumstances. This is especially so -7- where no threats were made, no public embarrassment was involved, and Dr. Decker ceased all active communication with Ms. Munson several months before she even sought the injunction. Accordingly, because Ms. Munson failed to demonstrate that Dr. Decker harassed her as defined by section 784.048(1)(a), she failed to establish her entitlement to an injunction against stalking by competent substantial evidence. Likewise, we are not convinced that Dr. Decker's actions were malicious in nature as required by section 784.048(2) as they were not wrongful or without legal justification. See Seese v. State, 955 So. 2d 1145, 1149 (Fla. 4th DCA 2007). The record evidence reflects that Dr. Decker's November 2019 attempts to contact Ms. Munson were predicated on his confusion about the status of their relationship and his apparent concern for her wellbeing. Once Ms. Munson made it clear that she did not want any further contact with him, Dr. Decker stopped trying to directly communicate with her. The record indicates that Dr. Decker made a single attempt to contact Ms. Munson's sister, and his messages contained expressions of concern about Ms. Munson. Finally, Dr. Decker provided an unrefuted explanation for why he added Ms. Munson on Snapchat and Facebook, and there is no indication that he used those "connections" to try to communicate with Ms. Munson in any manner. Consequently, because Ms. Munson failed to establish her entitlement to an injunction for protection against stalking, the trial court erred by granting her petition -8- and issuing the injunction.4 We therefore reverse the final judgment of injunction for protection against stalking. Reversed. KHOUZAM, C.J., and SMITH, J., Concur. 4Because we have concluded that Ms. Munson failed to prove that a reasonable person would suffer substantial emotional distress from Dr. Decker's actions or that Dr. Decker's actions were malicious in nature, it is unnecessary for us to resolve the issue of whether Dr. Decker had a legitimate purpose in attempting to contact Ms. Munson. -9-