CHARLES RUSSELL, APPELLANT,
v.
DEIDRA L. DOUGHTY, APPELLEE; CHARLES RUSSELL, APPELLANT, V. BENJAMIN SKY CLOUGH, APPELLEE
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Charles Russell appeals two injunctions for protection against repeat violence filed by his neighbors. The court reversed the injunctions because the alleged second incident—yelling profanities and threats—did not constitute violence under Florida law, leaving only one incident of battery, which is insufficient to establish repeat violence.
The court held that repeat violence requires two incidents of violence, and mere shouting and obscenities without an overt act creating well-founded fear of imminent violence does not constitute violence under Florida law. Therefore, only one incident of violence (battery) was established, which is insufficient for an injunction under section 784.046.
[1] A cause of action for an injunction in cases of repeat violence requires two incidents of violence, one of which must have occurred within six months of filing the petiti…
[2] "Violence" for the purpose of an injunction against repeat violence includes assault, battery, stalking, and other criminal offenses resulting in physical injury or death…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“"Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction."”
Establishes the legal standard that verbal conduct alone, without an overt act creating fear of imminent violence, cannot support a repeat violence injunction.
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Join FLexlaw to unlock all legal intelligenceRussell lived next door to Doughty and Clough, who filed separate petitions for injunctive relief against him. On January 26, 2009, Russell forcefully…
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Appellant Charles Russell appeals from two final judgments for protection against repeat violence entered against him. We reverse because the judgments are not supported by competent, substantial evidence.
Appellant lives next door to Doughty and Clough, who live together. Doughty and Clough filed separate petitions for in-junctive relief against Appellant. The petitions alleged the same set of facts: On January 26, 2009, Appellant forcefully grabbed Doughty and Clough after an altercation between their dogs; and on February 2, 2009, Appellant repeatedly rang their doorbell and yelled obscenities and threats at them when they opened the door.
Section 784.046, Florida Statutes (2008), creates a cause of action for an injunction in cases of repeat violence. “Repeat violence” is defined as two incidents of violence, one of which must' have occurred within six months of filing a petition for injunction. § 784.046(l)(b), Fla. Stat. “Violence” includes “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a), Fla. Stat. Competent, substantial evidence must support the trial court’s finding that two incidents of repeat violence occurred. See Shocki v. Aresty, 994 So.2d 1131, 1132 (Fla. 3d DCA 2008); Clement v. Ziemer, 953 So.2d 700, 702 (Fla. 5th DCA 2007); Santiago v. Towle, 917 So.2d 909, 910 (Fla. 5th DCA 2005).
The trial court must find that two incidents of violence occurred. See Terrell v. Thompson, 935 So.2d 592, 593 (Fla. 1st DCA 2006). Appellant admits that the trial court correctly found that one incident of violence, battery, occurred. Appellant argues, and we agree, that a second incident of repeat violence did not occur. Regarding the alleged second incident, the testimony given at the injunction hearing was that Appellant yelled profanities and threats at Clough and Doughty. There is no indication that Appellant threatened to do violence, or that he took some action that could have created a well-founded fear that violence was imminent. See § 784.011(1), Fla. Stat. (2008) (defining assault as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”). “Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction.” Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006); accord Santiago, 917 So.2d at 911; Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990).
Neighbors should explore and exhaust a variety of alternatives to litigation before bringing a claim under section 748.046 for repeat violence. See Shocki, 994 So.2d at 1134. Accordingly, the trial court’s final judgments for protection against repeat violence are REVERSED.
WOLF, WEBSTER, and THOMAS, JJ, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Power v. Boyle, 60 So. 3d 496 (Fla. 1st DCA 2011)
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Corrie v. Keul, 160 So. 3d 97 (Fla. 1st DCA 2015)…s Appellant argues on appeal, and as this Court has explained, ‘“Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction.’” Russell v. Doughty, 28 So. 3d 169, 170 (Fla. 1st DCA 2010) (citation omitted). It has also been held that “[e]ven a representation that the offender owns a gun and is not afraid of using it is insufficient to support an injunction absent an overt act indicating an ability to carry o…
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Horne v. Endres, 61 So. 3d 428 (Fla. 1st DCA 2011)…his wife, “[Y]ou should have taken care of her.” But these statements were not accompanied by any act that would create a reasonable fear that violence was imminent, and neither statement threatens violence, even implicitly. See Russell v. Doughty, 28 So. 3d 169, 170 (Fla. 1st DCA 2010) (reversing injunction against repeat violence where testimony established that respondent yelled profanities and threats at petitioners, but that there was no indication that respondent “threatened to do violence, or that he…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. Brooks, 567 So. 2d 34 (Fla. 1st DCA 1990)
- Sorin v. Cole, 929 So. 2d 1092 (Fla. 4th DCA 2006)
- Santiago v. Towle, 917 So. 2d 909 (Fla. 5th DCA 2005)
- Terrell v. Thompson, 935 So. 2d 592 (Fla. 1st DCA 2006)
- Chantal Rodriguez v. State, 994 So. 2d 1131 (Fla. 3d DCA 2008)
- Clement v. Lanelle Ziemer, 953 So. 2d 700 (Fla. 5th DCA 2007)
- Shocki v. Aresty, 994 So. 2d 1131 (Fla. 3d DCA 2008)