Bell v. Battaglia

• Decision Date: 12 January 2022
• Docket Number: 2D19-280
• Parties: Sharon BELL, Appellant, v. Andrew BATTAGLIA, Appellee.
• Court: Florida District Court of Appeals

332 So.3d 1094

Sharon BELL, Appellant,

v.Andrew BATTAGLIA, Appellee.

No. 2D19-280

District Court of Appeal of Florida, Second District.

January 12, 2022

Kenneth R. Turner, Jr. of The Ken Turner Law Firm, LLC, Naples, for Appellant.

No appearance for Appellee.

ATKINSON, Judge.

Sharon Bell appeals the entry of a final order on Andrew Battaglia's petition for dating violence injunction, which prohibited her from contacting Battaglia for six months. We reverse because Bell did not cyberstalk Battaglia by sending a single text message to Battaglia's wife.

Bell and Battaglia dated off and on for a number of months. Battaglia petitioned for a dating violence injunction against Bell following an incident he alleged occurred on December 11, 2018. He claimed that Bell struck and pulled on his arms in an attempt to prevent him from leaving with his things. He also included in his petition four prior incidents involving Bell that occurred at two Naples restaurants while he was with another female acquaintance. He indicated on his petition that he was in imminent danger of becoming the victim of dating violence because Bell had "stalked, harassed, and assaulted" Battaglia at various locations and because she had "made threats to harass [Bell], his family and friends personally and on social media."

At the hearing, Battaglia testified that Bell sent the following text message to his wife:

You don't know me but I would like to tell you about your husband. You should know what he is doing. I have dated him for 4 months. Tonight he was abusive and hit me and threw me down because I wouldn't show him my phone. I had to go to the hospital for my wrist. He has a hidden account and uses money from that you don't know about. He pulls cash from it so you don't know where he is. He is terrified you will take his pension. I hope you do. He is a miserable person that deserves to be found out. Just thought you should know and I am sorry if this hurts you.

Bell admitted that she sent the text message because she was hurt and upset. Battaglia testified that Bell had threatened in the past to contact his wife for the purpose of making his divorce more financially painful to him.

Battaglia also testified about text messages that Bell had sent directly to him. And both Battaglia and Bell gave diverging accounts of an altercation that occurred after an evening of drinking. Battaglia admitted that he had thrown her phone on the floor. But he denied Bell's allegations that he had hurt her and thrown her to the floor, testifying instead that it was she who had attacked him in an attempt to prevent him from leaving before losing her grip and falling back. Battaglia repeatedly assured the court that he was in no fear of physical danger from Bell.

The court discounted the fracas, as well as the text messages Bell sent directly to Battaglia, as bases for granting the injunction: "It does not appear to me that there has been any tremendous violence against you.... [A]ll the other stuff, you know, while uncomfortable and obnoxious – I looked at all the texts you guys gave me. There's not any threats in those texts."

What the court did find salient to Battaglia's petition was the communication between Bell and Battaglia's wife: "[T]he behavior with regard to your wife, that definitely does constitute stalking." The trial court told Bell regarding her text to the wife, "[T]hat is stalking behavior" and "[t]here's no excuse for it." The trial court explained to Battaglia, "I mean, if you don't want to talk to her, block her number. However, it does concern me that she did contact your wife, which seems a little out of the range of what's appropriate[.]"

The court entered a final judgment of injunction for protection against dating violence, which included the following:

After hearing the testimony of each party present and of any witnesses, ... based on the specific facts of this case, that Petitioner is a victim of dating violence and/or Petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of an act of dating violence by Respondent, and that an immediate and present danger of dating violence exists to Petitioner or to a member of Petitioner's immediate family.

The court entered an order enjoining Bell for a period of six months from committing any violence against Battaglia, having any contact with him, and from going to a list of places in Naples that Battaglia frequently visits.

"Dating violence" is defined as "violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature." § 784.046(1)(d), Fla. Stat. (2018). To be entitled to an injunction for protection against such violence, one must either be "the victim of dating violence and ha[ve] reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence" or have "reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence." § 784.046(2)(b).

"Violence" is defined as "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(1)(a) (emphasis added). "Stalking occurs when a person ‘willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.’ " Brungart v. Pullen , 296 So. 3d 973, 977 (Fla. 2d DCA 2020) (emphasis added) (quoting § 784.048(2)); see Whitlock v. Veltkamp , 296 So. 3d 528, 530 (Fla. 1st DCA 2020) ("[T]he statutory definition of ‘domestic violence’ includes a wide range of actions, including stalking in its three forms ...."). " ‘Cyberstalk[ing]’ means," inter alia, "to engage 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) (emphasis added).

Here, the dating violence injunction was based upon a single text message to Battaglia's wife that the trial court deemed to be "cyberstalking." This was error because the text message was sent to a third party, not Battaglia. See Scott v. Blum , 191 So. 3d 502, 504 (Fla. 2d DCA 2016) ("Mr. Scott did not communicate words, images, or language via email or electronic communication directly to Mr. Blum."); see also Brungart , 296 So. 3d at 979 (concluding that the act of sending videos and communications to third parties did not constitute stalking). Cyberstalking requires that the communications be "directed at a specific person," and that they cause "substantial emotional distress to that person." § 784.048(1)(d); cf. § 784.046(1)(b) (providing that, unlike dating violence, "[r]epeat violence" can be committed by violence or stalking "directed against the petitioner or the petitioner's immediate family member " (emphasis added)). Although Battaglia was the subject of the text message that Bell admitted sending to his wife, he was not the recipient. See Scott , 191 So. 3d at 504–05 (concluding that emails sent to third parties did "not constitute words ‘directed at a specific person’ for purposes of the cyberstalking statute simply because they are about [the petitioner]"); cf. David v. Textor , 189 So. 3d 871, 875 (Fla. 4th DCA 2016) ("[W]here comments are made on an electronic medium to be read by others, they cannot be said to be directed to a particular person.").

Additionally, the trial court's reliance on a single text message comes short of the repeated acts required to establish stalking. Cf. Packal v. Johnson , 226 So. 3d 337, 338 (Fla. 5th DCA 2017) (reversing entry of stalking injunction after "trial court expressly disregarded" an alleged "history of confrontations" and relied instead on a single altercation, which was insufficient to "support a finding of stalking, which requires evidence of repeat harassment"). "By its statutory definition, stalking requires proof of repeated acts." Carter v. Malken , 207 So. 3d 891, 893–94 (Fla. 4th DCA 2017) (citing Laserinko v. Gerhardt , 154 So. 3d 520, 521 (Fla. 5th DCA 2015) ) ("A minimum of two incidents of harassment are required to establish stalking."); cf. Whitlock , 296 So. 3d at 530 n.2 ("If the stalking consists of harassing or cyberstalking, the petitioner must show ‘a course of conduct’ directed at the petitioner which causes the petitioner ‘substantial emotional distress ... and serv[es] no legitimate purpose.’ " (quoting § 784.048(1)(a), (c) & (d))).

The trial court erred by entering a dating violence injunction in favor of Battaglia and against Bell based upon a single text message sent by Bell to Battaglia's wife. However, the six-month injunction had already expired when Bell filed her initial brief in this case. Despite its expiration, Bell requested that this court set aside the final judgment. Respondent Battaglia did not file a brief or motion in this appeal, and the issue of mootness was not asserted by either party. Upon a divided vote of the panel, this court issued an order to show cause why the appeal should not be dismissed as moot because the injunction had expired by its terms. No response to the order was received.

Florida appellate courts have routinely decided appeals from expired domestic violence and stalking injunctions on the merits because of the "collateral consequences" that could result from the judgment. See Yaklin v. Yaklin , 296 So. 3d 531, 533 (Fla. 2d DCA 2020) ("Although the record indicates that the injunction has expired, we remand with instructions to vacate the injunction ‘because of the unintended collateral consequences that may result from such a judgment.’ " (quoting Phillips v. Phillips , 151 So. 3d 58, 59 (Fla. 2d DCA 2014) )); see also Stover v. Stover , 287 So. 3d...