SCALES, J.
Not final until disposition of timely filed motion for rehearing. Lower Tribunal No. 17-16905 An Appeal from the Circuit Court for Miami-Dade County, Deborah White-Labora, Judge. Palomares Starbuck & Associates, and Lorenzo J. Palomares, for appellant. Martinez-Scanziani & Associates Law, P.A., and Denise Martinez-Scanziani, for appellee. Before LOGUE, SCALES and GORDO, JJ. SCALES, J.
Luis Santiago, the respondent below, appeals a final judgment imposing a permanent stalking injunction against him in favor of the petitioner below, M.L., a minor child. Because there is not competent, substantial evidence in the record to support the trial court's determination that Santiago had "stalked" M.L. as that term is defined in section 784.048 of the Florida Statutes (2017), we reverse the final judgment imposing the permanent stalking injunction.
I. RELEVANT FACTS AND PROCEDURAL HISTORY
Santiago and M.L.'s father, Carlos Leon ("the father"), had a long-distance relationship during which M.L. was born through a surrogate. The relationship ended when M.L. was approximately one and a half years old.
It is undisputed that Santiago is, and always has been, a resident of Puerto Rico. It is also undisputed that Santiago never resided with the father and M.L.
Though Santiago is not listed on M.L.'s birth certificate, Santiago maintains that he executed an agreement to adopt M.L. that was never formally ratified by a court.
On July 12, 2017, the father, on behalf of M.L., filed a verified petition against Santiago in the lower court seeking a permanent injunction against Santiago based on Santiago's alleged stalking of M.L. The verified petition alleged that, beginning in February 2017, Santiago had stalked M.L. by: (i) getting a tattoo of M.L.'s name on his body; (ii) posting images of M.L. on his social media accounts (including Facebook and Instagram) and representing thereon that M.L. is Santiago's son; (iii) mailing packages to M.L.; (iv) twice emailing the father to express his love for M.L.; (v) contacting the father's surrogate in search of information about M.L.; (vi) appearing once outside the father and M.L's home; and (vii) driving by a restaurant the father and M.L. were patronizing and making eye contact with the father and M.L. The father further represented that Santiago regularly frequented the same restaurants at the same time as the father, oftentimes when M.L. was also present.
On December 17, 2018, after holding two evidentiary hearings on the injunction petition, the trial court entered a final judgment precluding Santiago both from having any contact with M.L. and from posting any images or comments about M.L. on all social media. Santiago appeals this December 17, 2018 final judgment.
"A trial court has broad discretion to grant an injunction, and we review an order imposing an injunction for a clear abuse of discretion. 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." Pickett v. Copeland, 236 So. 3d 1142, 1143-44 (Fla. 1st DCA 2018) (citations omitted). "To support an injunction against stalking, each incident of stalking must be proven by competent, substantial evidence. The appellate court should consider legal sufficiency as opposed to evidentiary weight when evaluating whether competent, substantial evidence supports the lower court ruling." Lippens v. Powers, 179 So. 3d 374, 376 (Fla. 5th DCA 2015) (citations omitted).
Section 784.0485(1) of the Florida Statutes (2017) "create[s] a cause of action for an injunction for protection against stalking." The statute authorizes a trial court to enter a statutory injunction against a respondent whose conduct meets the statutory definition of stalking set forth in section 784.048 of the Florida Statutes. See Richards v. Gonzalez, 178 So. 3d 451, 453 (Fla. 3d DCA 2015). Hence, a review of the relevant statutory text - and whether the respondent's conduct constitutes behavior proscribed by the relevant statutes - is critical to our analysis.
In appropriate circumstances, a petitioner may seek a stalking injunction, under section 741.30 of the Florida Statutes (2017), via a petition for protection against domestic violence. Because it is undisputed that Santiago never resided with the father and M.L., section 741.30 does not apply here. See § 741.30(1)(e), Fla. Stat. (2017) (providing that a domestic violence injunction may be sought by "family or household members"); § 741.28(3), Fla. Stat. (2017) (defining "family or household member" as "spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married").
Section 784.048 defines "stalking" as when "[a] person . . . willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." § 784.048(2), Fla. Stat. (2017) (emphasis added). Hence, to warrant issuance of a stalking injunction, the record must establish that the respondent either "followed," "harassed," or "cyberstalked" another. Here, the transcripts for the two evidentiary hearings reflect that, aside from determining that Santiago had engaged in "stalking-like" and "creepy" behavior, the lower court neither referred to section 784.048, nor made any express findings with respect to any of the statutory elements for stalking set forth therein. As outlined in more detail below, we conclude that there is not competent substantial evidence in the record to support the trial court's legal determination that Santiago "stalked" M.L. - i.e., that Santiago either followed, harassed, or cyberstalked M.L. so as to warrant the injunction.
A. "Follows"
Section 784.048 does not define "follows." The rules of statutory construction, therefore, require that the term be given its plain and ordinary meaning. See Nehme v. Smithkline v. Beecham Clinical Labs., Inc., 863 So. 2d 201, 204-05 (Fla. 2003). We conclude that, in the context of seeking a stalking injunction, the plain and ordinary meaning for "follows" is to tail, shadow, or pursue someone.
In this case, the father established, at most, that Santiago had appeared outside the father and M.L.'s home on one occasion, and that Santiago, who travels in the same social circle as the father, patronizes the same restaurants as the father and M.L. Indeed, at no point during Santiago's testimony was Santiago even asked to explain any of these occurrences. Santiago's conduct, without more, is not an example of "following" for purposes of section 784.048. See Klemple v. Gagliano, 197 So. 3d 1283, 1285-86 (Fla. 4th DCA 2016) (holding evidence that the respondent was outside the petitioner's front door and that, on another occasion, the respondent waited in his car outside the petitioner's home "was vague and does not amount to following, particularly where the parties live in the same community"). Moreover, even if Santiago showing up at restaurants frequented by the father and M.L. constitutes "following," the record does not contain any evidence to support a finding that Santiago's conduct was willful and malicious, as required by section 784.048(2). See Laserinko v. Gerhardt, 154 So. 3d 520, 521 (Fla. 5th DCA 2015) (finding no evidence of stalking where there was no competent evidence presented that the respondent knew the petitioner was also going to be at a concert).
We therefore conclude that none of Santiago's conduct amounted to willful, malicious and repeated "following" under section 784.048.
B. "Harasses"
Section 784.048 defines "harass" 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), Fla. Stat. (2017) (emphasis added). In this case, the father filed a petition on behalf of M.L., not on behalf of M.L. and himself Consequently, M.L. is the only relevant "person" in this analysis.
To this end, much of Santiago's conduct (sending two emails to the father, contacting the father's surrogate, and regularly patronizing the same restaurants where the father, but not M.L., was present) was not directed at M.L. In fact, as discussed below, it is undisputed that M.L. was unaware of any of Santiago's conduct. Santiago's conduct, therefore, was insufficient to constitute "harassment" of M.L. so as to obtain a stalking injunction on behalf of M.L. See Dixon v. Sermon, 230 So. 3d 609, 610 (Fla. 2d DCA 2017) (reversing a stalking injunction where the respondent's conduct was directed at the petitioner's husband, rather than the petitioner).
Moreover, because the father testified unequivocally at the hearing below that M.L. was "totally unaware" of Santiago's conduct, there was no evidence that Santiago's conduct had caused "substantial emotional distress" to M.L. so as to constitute "harassment," as required by section 784.048(1)(a). See Lippens v. Powers, 179 So. 3d 374, 376 (Fla. 5th DCA 2015) (disregarding a text message, a letter and a website created by the respondent, where the mother had filed a petition for a stalking injunction on behalf of her daughter, but the daughter was unaware of the respondent's actions); accord Gill v. Gill, 50 So. 3d 772, 775 (Fla. 2d DCA 2010) (reversing a domestic violence injunction in favor of the former wife, concluding that "since no injunction in favor of [the minor child] was requested the Former Husband's alleged violence toward [the minor child] is relevant only to determining whether his actions gave the Former Wife an objectively reasonable fear that the Former Husband would turn his anger and violent actions toward her").
In addition, even if M.L. had been aware of Santiago's conduct, none of this conduct (getting a tattoo, twice emailing the father, mailing several packages to M.L., contacting the father's surrogate, appearing once outside M.L.'s home, frequenting the same restaurants as M.L., making eye contact with M.L. from his car, and social media posts), without more, amounted to "harassing" under section 784.048(1)(a). See Paulson v. Rankart, 251 So. 3d 986, 990 (Fla. 1st DCA 2018) (staring at the petitioner while she sunbathed was not stalking where there was no evidence the respondent made any accompanying statements or gestures evidencing a threat); Laserinko, 154 So. 3d at 521 (sending an email on Easter wishing a Happy Easter, and sending a card and package on Valentine's Day was not stalking); Touhey v. Seda, 133 So. 3d 1203, 1204 (Fla. 2d DCA 2014) (calling and visiting the petitioner's place of work to ask the petitioner's employees about the petitioner's whereabouts was, without more, not stalking); Smith v. Melcher, 975 So. 2d 500, 502 (Fla. 2d DCA 2007) (concluding the respondent's acts of circling the restaurant where the petitioner was eating in his vehicle, looking at petitioner, pointing at the petitioner, and shaking his head was not harassment); McMath v. Biernacki, 776 So. 2d 1039, 1040 (Fla. 1st DCA 2001) (sending flowers and balloons to petitioner was not stalking).
As this Court noted in Raulerson v. Font, 277 So. 3d 1057, 1061 (Fla. 3d DCA 2018) (quoting Webster's Third New International Dictionary Unabridged 1031 (1986)), "[t]he enactor's choice of the term 'substantial emotional distress' establishes a more demanding burden than the dictionary definitions of the word 'harass' might suggest, which include the verbs 'worry,' 'tire out,' 'vex, trouble, or annoy continually or chronically,' 'plague,' 'bedevil,' or 'badger.'" The more demanding burden was not met in this case.
Even if Santiago's conduct could satisfy the statutory definition of "harass" and was willful, the record does not contain any evidence to support a finding that Santiago's conduct was malicious, as required by section 784.048(2), in order to obtain an injunction.
We therefore conclude that none of Santiago's conduct amounted to willful, malicious and repeated "harassment" under section 784.048.
C. "Cyberstalks"
Section 784.048 defines "cyberstalk" as "engag[ing] in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose." § 784.048(1)(d), Fla. Stat. (2017) (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, which evidences a continuity of purpose." § 784.048(1)(b), Fla. Stat. (2017).
While Santiago's numerous postings of comments and pictures to his online social media accounts may have referenced M.L. either overtly or covertly, such conduct is insufficient to constitute "cyberstalking." Rather, "Florida case law has mandated that threats via social media be directed to the individual - not by content, but by delivery - to fall within the purview of section 784.0485." Logue v. Book, 44 Fla. L. Weekly D2083, 2019 WL 3807987, at *4 (Fla. 4th DCA Aug. 14, 2019) (emphasis added). Because social media posts are generally delivered to the world at large, the Florida appellate courts have "interpreted 'a course of conduct directed at a specific person' [in section 784.048(1)(d)] to exempt social media messages from qualifying as the type of conduct covered by section 784.0485, Florida Statutes." Id. at *3.
For example, in David v. Textor, 189 So. 3d 871, 875 (Fla. 4th DCA 2016), the Fourth District held that "where comments are made on an electronic medium to be read by others, they cannot be said to be directed at a specific person." In Scott v. Blum, 191 So. 3d 502, 504 (Fla. 2d DCA 2016), the Second District echoed this sentiment, concluding that the respondent's sending derogatory emails about the petitioner to twenty-two hundred members of a professional organization was not "cyberstalking," in part, because the emails were not communicated directly to the petitioner. In Horowitz v. Horowitz, 160 So. 3d 530, 531 (Fla. 2d DCA 2015), the appellate court held that the respondent's posts to his personal Facebook page were not "cyberstalking" because "posts to one's own Facebook page are not directed at a specific person but are instead posted for all of the user's Facebook 'friends' to see, depending on the user's privacy settings." Finally, in Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1091-92 (Fla. 3d DCA 2014), this Court held that the respondent's repeated blog posts publicly criticizing the petitioner's business and the petitioner, individually, while arguably defamatory, did not constitute "cyberstalking."
There was no evidence introduced at the two evidentiary hearings conducted below that Santiago had, in any manner, delivered his social media posts to M.L. On the contrary, the father testified that he went to Santiago's social media sites to read the posts. For this reason, we conclude Santiago's social media posts did not constitute "cyberstalking" for purposes of obtaining a permanent injunction under section 784.0485.
In addition, even if Santiago had sufficiently directed his social media posts at M.L., there was no evidence presented below that the posts caused any distress to M.L, as required by section 784.048(1)(d). See Lippens, 179 So. 3d at 376. As stated previously, the father testified unequivocally at the hearing below that M.L. was "totally unaware" of all of Santiago's conduct. And again, the record does not contain any evidence to support a finding that Santiago's conduct was malicious, as required by section 784.048(2).
Hence, the record does not support a finding that Santiago's conduct amounted to willful, malicious and repeated "cyberstalking" under section 784.048.
III. CONCLUSION
We recognize that Santiago's conduct might have been, as characterized by the trial court, "creepy." But, for us to affirm the challenged injunction order, the complained-of conduct must meet the express statutory elements. Pursuant to the relevant statutory provisions, in order for the trial court to impose a permanent stalking injunction against Santiago, there must be competent, substantial evidence in the record to support a finding that Santiago "willfully, maliciously, and repeatedly follow[ed], harasse[d], or cyberstalk[ed]" M.L. § 784.048(2), Fla. Stat. (2017). Because the record is devoid of any such evidence, we are compelled to reverse the final judgment imposing the stalking injunction against him.
This Court is mindful of the difficulties a parent may encounter in obtaining a stalking injunction on behalf of a minor child - particularly, a child as young as M.L. Nevertheless, this Court is constrained to apply section 784.048 in accordance with the definitions expressly set forth therein. Moreover, we note that nothing in section 784.048 prohibits a parent from filing a petition on behalf of him or herself, as well as the minor child. --------
Reversed.
Comments