Cardon v. Halmaghi

• Decision Date: 19 October 2022
• Docket Number: 1D20-2314
• Parties: David CARDON, Appellant, v. Brian HALMAGHI, Appellee.
• Court: Florida District Court of Appeals

348 So.3d 1241

David CARDON, Appellant,

v.Brian HALMAGHI, Appellee.

No. 1D20-2314

District Court of Appeal of Florida, First District.

October 19, 2022

Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant.

Brian Halmaghi, pro se, Appellee.

Nordby, J.

This case involves an order permanently extending an injunction entered against David Cardon. The injunction against repeat violence and stalking was entered under section 784.046, Florida Statutes, based on a petition filed by Brian Halmaghi. Cardon challenges the extension of the injunction and argues the trial court erred in (1) not allowing him to present evidence and testimony on his own behalf before holding him in indirect criminal contempt, (2) granting Halmaghi's motion to permanently extend the injunction, and (3) denying Cardon's motion to modify the injunction.

We reverse because Cardon is correct that the trial court erred in permanently extending the injunction. As explained below, given our reversal on this issue, we decline to reach the remaining issues.

I.

Cardon and Halmaghi, who live catty-cornered across the street from one another, are nearly next-door neighbors. The two have a history of not getting along. In the summer of 2019, their antagonistic relationship reached its boiling point. Cardon physically attacked Halmaghi, resulting in a misdemeanor battery conviction.

Based on this altercation (and another verbal exchange), the trial court granted Halmaghi's petition for a repeat violence injunction against Cardon. The injunction was set to expire in August 2021 and included the usual conditions prohibiting Cardon from having contact with Halmaghi or from going within 500 feet of Halmaghi's property. But the injunction recognized two exceptions to the 500-foot rule: the injunction permitted Cardon ingress and egress to his home and the injunction allowed Cardon to access his mailbox, which is located at the northern edge of Halmaghi's property.

Nearly a year after the injunction issued, Halmaghi's wife filed a letter with the clerk of court accusing Cardon of violating the injunction. She alleged that, one time, while Halmaghi was on the roof working, Cardon walked to a nearby neighbor's house (about thirty feet away) and pointed at Halmaghi. She also alleged that, another time, while visiting the same neighbor, Cardon greeted her with a "smirk." In response to these allegations, the trial court issued an order to show cause requiring Cardon to appear before the court and explain why he should not be held in contempt for violating the injunction.

Before the hearing on the order to show cause, Halmaghi moved to permanently extend the two-year injunction and attached many emails from his wife to the State Attorney's Office. In these emails, Halmaghi's wife accused Cardon of stalking and intimidation. She claimed Cardon watched and photographed Halmaghi's comings and goings. She also alleged that Cardon was twice next door at a neighbor's house. At the same time, she acknowledged that Cardon was not doing anything threatening, "just trying to prove he is above the law."

At the hearing, Halmaghi reiterated the allegations in his wife's letter to the clerk of court. Halmaghi testified that, on April 7, 2020, Cardon was "next door, smiling, grinning at my wife, nodding his head, being above the law.... I came home. He was still next door smiling at me, like, what are you going to do?" And on March 15, 2020, Halmaghi was working on his roof when he heard a voice at the street. When he looked up, he saw Cardon "pointing his finger at me like if it's a gun or something, and I looked at him, and he saw me. He ran next door to the neighbor next door."

Cardon's counsel agreed that Cardon was at a nearby neighbor's property on at least one occasion but explained that Cardon was merely pressure washing the neighbor's driveway. Based on this explanation by counsel, the trial court found that Cardon violated the injunction. The trial court viewed the ingress/egress and mailbox exceptions as limitations, which meant Cardon could not walk across the street to visit a residence located within 500 feet of Halmaghi's property. Cardon's counsel sought to present evidence that Halmaghi was not present while Cardon was pressure washing the neighbor's driveway and other evidence rebutting allegations made by Halmaghi. But the trial court determined that, because Cardon violated the injunction, the evidence was unnecessary. The trial court set the case for a sentencing hearing and reiterated that the injunction precluded Cardon from going within 500 feet of Halmaghi's residence, with two exceptions: the injunction permits Cardon to check his mailbox and authorizes the ingress and egress of his home.

Soon after the hearing, Cardon moved to modify the injunction and requested permission to use his fenced-in backyard and take the trash to the street. Cardon also filed a motion for rehearing seeking to vacate the trial court's ruling on the order to show cause. The trial court denied the motion for rehearing and set a hearing date for the parties to address sentencing and all pending motions.

Many witnesses testified at the sentencing hearing. Halmaghi called his wife. She labeled Cardon as "scary" and terrifying. Halmaghi's wife referenced the emails sent to the State Attorney's Office and several photographs introduced into evidence. Halmaghi's wife admitted that Cardon never said anything to her or Halmaghi, but she alleged Cardon took pictures of Halmaghi with his cell phone. As to the March incident, Halmaghi's wife saw a group of people, including Cardon, gathered in a neighbor's driveway. After about forty-five minutes, she witnessed Cardon point at her husband, who was working on the roof. As to the April incident, Halmaghi's wife testified that law enforcement investigated the issue and declined to arrest Cardon. Specifically, "they came, looked, and said, [h]e's not doing anything wrong, he's helping a neighbor, and left."

Among others, CJ testified on behalf of Cardon. CJ resides directly across the street from Cardon and directly north of Halmaghi. At the hearing, CJ addressed the March and April incidents. On March 15 the neighbors gathered around his driveway to look at a baby deer wandering in the neighborhood. CJ explained that, while outside, he briefly pointed out Halmaghi to his wife. As for the April 7 incident, Cardon pressure washed CJ's driveway in exchange for a favor. During the pressure washing, law enforcement arrived and asked several questions. Law enforcement expressed confusion about whether the injunction permitted Cardon to be at CJ's house, but they permitted Cardon to complete his pressure washing task anyway. CJ never witnessed anything that would lead him to believe that either Cardon or Halmaghi antagonized the other.

Both parties presented argument to the trial court. Cardon's counsel argued that Cardon did not maliciously or intentionally violate the injunction. The injunction was ambiguous, evidenced by law enforcement's confusion. Cardon's counsel asked the trial court to deny Halmaghi's request to extend the injunction because Halmaghi did not prove continuing fear. Counsel also requested the trial court grant Cardon's motion to modify the injunction to enable him to enjoy his backyard, which contains a pool surrounded by a six-foot privacy fence. Conversely, Halmaghi argued that the injunction was not ambiguous. As to Cardon's motion to modify the injunction, Halmaghi argued against Cardon's request to enjoy his own fenced-in backyard. Halmaghi contended that from his house, he could see Cardon's head over the top of the privacy fence. He added: "[h]e has woods in the back of his property. He likes sneaking up on people.... He could build a gun stand and shoot me with a rifle."

Ultimately, the trial court orally denied Cardon's motion to modify the injunction and granted Halmaghi's motion, thereby permanently extending the injunction. The trial court orally sentenced Cardon to forty-five days in jail, suspended, for contempt of court for violating the injunction. In doing so, the trial court pronounced:

[I]f there's another violation, as they say in the movies, [b]ring your toothbrush to the hearing and leave your wallet at home, because you'll be going to jail if there's another violation. So let's be perfectly clear, ingress, egress, come and go from your house, go across the street to your mailbox, other than that, you're in the four walls of the house.

The trial court never issued a written contempt order or a written order in the matter of Cardon's motion to modify the injunction. The trial court, however, did issue a written order permanently extending the injunction. This timely appeal follows.

II.

A trial court's discretion is broad when granting, denying, dissolving, or modifying injunctions; this means we will not disturb any such ruling absent a clear abuse of that discretion. Hobbs v. Hobbs , 290 So. 3d 1092, 1094 (Fla. 1st DCA 2020). Although our review is deferential, we still require that a trial court's grant of an injunction against repeat violence or stalking be supported by competent, substantial evidence. See Power v. Boyle , 60 So. 3d 496, 498 (Fla. 1st DCA 2011). And whether that evidence is legally sufficient to support an extension of an injunction is a legal question subject to de novo review. See Hobbs , 290 So. 3d at 1094 ; see also Pickett v. Copeland , 236 So. 3d 1142, 1144 (Fla. 1st DCA 2018).

Under section 784.046, Florida Statutes, a victim of repeat violence may petition for a protective injunction. § 784.046(2), Fla. Stat. (2020). For this particular cause of action, the Legislature has defined "repeat violence" to mean "two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member." § 784.046(1)(b), Fla. Stat. In turn, "violence" is...