Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ERIC STALLINGS, Appellant, v. DEVIN BERNARD, Appellee. No. 2D20-3141 February 18, 2022 Appeal from the Circuit Court for Pinellas County; Amy M. Williams, Judge. Robert E. Heyman of Heyman Law Firm, P.A., St. Petersburg, for Appellant. Elizabeth Siano Harris of Harris Appellate Law Office, Miami, for Appellee. SLEET, Judge. Eric Stallings appeals the final judgment of injunction for protection against stalking entered in favor of Devin Bernard.1 Because the record does not demonstrate any basis for finding that Stallings engaged in a course of conduct involving two separate incidents of stalking that evidenced a continuity of purpose to harass Bernard, we reverse. At all times material, Stallings' girlfriend lived next to Bernard in an adjoining townhome. In the fall of 2019, Stallings began dating and regularly visiting his girlfriend at her residence. Although Bernard had seen Stallings visiting his girlfriend during that time, Bernard never had any untoward contact with Stallings until May 2020 when she and Stallings' girlfriend had an argument. There is no record evidence to show the nature and topic of the argument, but the record does indicate that Stallings became angry about it and sent Bernard a message through Snapchat on May 14, 1 The petition was originally filed by Bernard's mother because Bernard was a minor. However, at the time of the hearing, Bernard had turned eighteen, and the trial court allowed her to proceed on her own behalf. 2 2020.2 There is no evidence that Stallings had previously communicated with Bernard via Snapchat. The message was not preserved or printed as an exhibit for trial, but Bernard testified about the nature of the message based upon her recollection. She testified that "[Stallings] sent unnecessary messages to me after a fight with his girlfriend . . . . I cannot exactly remember what they said, but they were in all caps like I would get what's coming to me." Bernard testified that the message was "threatening and scary." In response, Bernard told Stallings to stop, blocked him on Snapchat, and told her mother about the message. Thereafter, Stallings continued to visit his girlfriend next door, but he and Bernard had no contact until August 2020. On August 2, 2020, at about 9:30 p.m., Lucas Smith, Bernard's boyfriend, had a verbal altercation with Kyle Kaufman, 2 Snapchat is a social media application that allows users to share and edit photos, videos, and messages. In one-on-one conversations, Snapchat servers automatically delete photos, videos, and messages after the receiving party has viewed them. See When Does Snapchat Delete Snaps and Chats?, Snapchat.com, https://support.snapchat.com/en-US/article/whenare-snaps- chats-deleted (last visited Dec. 9, 2021). However, Snapchat users can take active steps to save a photo, video, or message at any point. Id. 3 Stallings' girlfriend's brother. The argument ensued while Smith, seated in his vehicle with Bernard, and Kaufman, seated in a black Jeep Cherokee driven by his friend, were in Bernard's neighborhood. It ultimately culminated in Smith throwing a cup containing either spit from tobacco dip or a Slurpee at Kaufman. Kaufman and his friend then chased Smith out of the neighborhood, but Smith was able to escape. About an hour later while he and Bernard were on a date, Smith received a text from a "mutual friend" which stated that "they were trying to jump [him]." Smith testified that he believed they were the same boys involved in the earlier incident. Around 10:30 p.m., Smith pulled into Bernard's neighborhood and saw the same black Jeep Cherokee that Kaufman chased him in earlier. Instead of dropping Bernard off at her home, Smith attempted to elude the pursuing vehicle and leave the neighborhood. When he approached the entrance of the neighborhood, he was confronted by Stallings, who tried to block Smith's path of travel with his truck. Smith eluded Stallings by driving over the curb and through the grass. A vehicle pursuit ensued and ended at a stoplight when Stallings in his truck and the 4 boys in the Jeep Cherokee got out and approached Smith's vehicle. They began banging on Smith's windows, and when Smith attempted to drive away, Stallings smashed the back window with a baseball bat. Bernard testified that she believed Stallings could see her in Smith's vehicle and that Stallings intended to harass her. Ultimately, the trial court determined that there was sufficient evidence to support Bernard's stalking allegations and entered a three-year permanent injunction to be in effect until October 14, 2023. On appeal of an order granting a permanent injunction for protection against stalking, the trial court's factual findings are reviewed for competent substantial evidence. Washington v. Brown, 300 So. 3d 338, 340 (Fla. 2d DCA 2020) ("[T]his court will affirm an injunction for protection against stalking under section 784.0485 if it is supported by competent, substantial evidence."); see also 2 Philip J. Padovano, Florida Appellate Practice § 19:5 (2021 ed.) ("If an injunction rests on a finding of fact it will be reviewed by the competent substantial evidence test."). "But the question of whether the evidence is legally sufficient to justify imposing an injunction is a question of law that we review de novo." 5 Washington, 300 So. 3d at 340 (quoting Pickett v. Copeland, 236 So. 3d 1142, 1143-44 (Fla. 1st DCA 2018)); see also 2 Philip J. Padovano, Florida Appellate Practice § 19:5 (2021 ed.) ("To the extent that an injunction is based on a purely legal matter, it is reviewable de novo."). Based on our de novo review, the facts are insufficient to support the injunction as a matter of law. "Section 784.0485, Florida Statutes . . . provides for injunctive relief from stalking." Caterino v. Torello, 276 So. 3d 88, 92 (Fla. 2d DCA 2019). Under section 784.048(2), "[a] person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking."3 "Harass" is defined as "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." § 784.048(1)(a) (emphasis added). "Course of conduct" is defined as "a pattern of conduct composed of a series of acts over a period of time, however short, 3 "We interpret section 784.0485 with reference to the definitions found in section 784.048, which makes stalking under certain conditions a criminal offense, and refer to section 784.046 (providing for protective injunctions for victims of repeat violence) and the cases interpreting that statute for guidance." Washington, 300 So. 3d at 340. 6 which evidences a continuity of purpose." § 784.048(1)(b) (emphasis added). "Thus, by its statutory definition, stalking requires proof of repeated acts." Pickett, 236 So. 3d at 1144 (quoting Lukacs v. Luton, 982 So. 2d 1217, 1219 (Fla. 1st DCA 2008)). This court does not take lightly the conduct exhibited by Stallings. However, the law requires a "course of conduct directed at a specific person . . . which evidences a continuity of purpose." § 784.048(1)(a)-(b). And a thorough review of this record demonstrates that the evidence presented below was insufficient to satisfy the legal definition of stalking set forth in section 784.048. Specifically, the evidence presented regarding the August 2, 2020, car chase did not show that Stallings' conduct was directed at Bernard. Rather, it revolved around Smith and began when Smith threw an object at Kaufman. Within an hour, Smith received a text from a friend who informed him that "they were trying to jump [him]." It is undisputed that Smith was the target of the boys' ire as Smith testified that the car chase was related to the earlier incident between the boys. When Stallings became involved, all his actions were directed toward Smith and his vehicle. Although Bernard may have been scared, there is no evidence that Stallings' conduct was 7 directed toward her when he pursued Smith's vehicle and damaged it with a baseball bat. Stallings made direct contact with Bernard one time when he sent the Snapchat message. And although indirect contact can constitute harassment, there still must be a pattern of conduct that evidences a continuity of purpose, which we do not have here. See Jones v. Jackson, 67 So. 3d 1203, 1204 (Fla. 2d DCA 2011). The Snapchat message and the subsequent August incident two and a half months later do not satisfy the requirement of repeated acts toward Bernard because there is no evidence the August incident was directed at Bernard. See Pickett, 236 So. 3d at 1144. Because the evidence does not support that the August incident was directed at Bernard and the only other incident directed at Bernard was the Snapchat message, the trial court erred in entering the permanent stalking injunction against Stallings.4 4 Given that reversal is required because the evidence presented below was insufficient to support entry of the permanent injunction, we need not address Stallings' second argument that the Snapchat message to Bernard would not have placed a "reasonable person" in substantial emotional distress such that it would be legally sufficient to support the injunction. See Slack v. King, 959 So. 2d 425, 425-26 (Fla. 2d DCA 2007) (explaining that courts use a "reasonable person" standard when determining whether a series of 8 See Carter v. Malken, 207 So. 3d 891, 894 (Fla. 4th DCA 2017) ("A minimum of two incidents of harassment are required to establish stalking." (citing Wyandt v. Voccio, 148 So. 3d 543, 544 (Fla. 2d DCA 2014))). In so ruling, we do not approve of Stallings' conduct. "But, for us to affirm the challenged injunction order, the complained-of conduct must meet the express statutory elements." Santiago v. Leon, 299 So. 3d 1114, 1120 (Fla. 3d DCA 2020). Here, it does not. Accordingly, we reverse and remand with instructions that the trial court dismiss Bernard's petition. See Touhey v. Seda, 133 So. 3d 1203, 1205 (Fla. 2d DCA 2014). Reversed and remanded. ATKINSON and SMITH, JJ., Concur. Opinion subject to revision prior to official publication. acts causes substantial emotional distress, so as to constitute harassment under section 784.048(1)). 9