Mitchell v. Brogden

Decision Date16 July 2018
Docket NumberNo. 1D16-5849,1D16-5849
Citation249 So.3d 781 (Mem)
Parties Scott Anthony MITCHELL, Appellant, v. Taylor N. BROGDEN, Appellee.
CourtFlorida District Court of Appeals

249 So.3d 781 (Mem)

Scott Anthony MITCHELL, Appellant,
v.
Taylor N. BROGDEN, Appellee.

No. 1D16-5849

District Court of Appeal of Florida, First District.

July 16, 2018


Seth Schwartz and Albert J. Tasker, The Schwartz Law Group, P.A., Jacksonville, for Appellant.

Taylor Nicole Brogden, pro se, Appellee.

Per Curiam.

249 So.3d 782

Scott Mitchell appeals the stalking injunction entered against him. The injunction has now expired on its own terms, so it no longer has effect. Nonetheless, we cannot dismiss the appeal as moot because "collateral legal consequences flowing from such an injunction outlast the injunction itself." Murphy v. Reynolds , 55 So.3d 716, 716 (Fla. 1st DCA 2011).

Viewing the evidence in a light most favorable to Appellee, we conclude that the evidence did not support a finding that Mitchell's conduct was sufficient to "cause[ ] substantial emotional distress" under the reasonable-person standard we must apply. See § 784.048(1)(a), Fla. Stat.; see also Bouters v. State , 659 So.2d 235, 238 (Fla. 1995) (holding objective, reasonable-person standard applies). Accordingly, we reverse the order. See Ashford-Cooper v. Ruff , 230 So.3d 1283, 1283 (Fla. 1st DCA 2017) ("[T]here was no evidence that the repeated calls and texts Appellant made to Appellee to try to get in touch with her husband caused Appellee—or would cause a reasonable person in Appellee's position—substantial emotional distress."); David v. Schack , 192 So.3d 625, 628 (Fla. 4th DCA 2016) (reversing stalking injunction after finding reasonable person would not suffer substantial emotional distress when respondent "banged on [petitioner's] door" and left a letter and payment); Plummer v. Forget , 164 So.3d 109, 110 (Fla. 5th DCA 2015) ("Based upon our careful review of the record, we conclude that the incidents described by Forget, when examined through the prism of the ‘reasonable person’ standard, would not have caused ‘substantial emotional distress’ to support a finding of stalking."); Leach v. Kersey , 162 So.3d 1104, 1106 (Fla. 2d DCA 2015) (noting that "[a] reasonable woman who had an eighteen-month affair with another woman's husband might well expect to hear the scorn of an angry wife" and concluding that "[t]he evidence fails to show that a reasonable person in Kersey's situation would suffer substantial emotional distress from these contacts"); Touhey v. Seda , 133 So.3d 1203, 1204 (Fla. 2d DCA 2014) (reversing stalking injunction after finding reasonable person would not suffer substantial emotional distress based on particular contacts); Goudy v. Duquette , 112 So.3d 716, 717 (Fla. 2d DCA 2013) ("[A] reasonable person would not have suffered substantial emotional distress as a result of the conversation, however one-sided or hostile it might have been."); Jones v. Jackson , 67 So.3d 1203, 1203-04 (Fla. 2d DCA 2011) (finding appellant's threatening phone calls and text messages to appellee, and his statements to third parties suggesting he would do violence to appellee, would not have caused a reasonable person to suffer substantial emotion distress); Slack v. Kling , 959 So.2d 425, 426 (Fla. 2d DCA 2007) ("Slack left [two] voice message[s] stating that if Kling did not stay away from Slack's wife, Slack would make an ‘arrangement.’ We conclude that nothing in the record demonstrates any basis for finding that a reasonable person would suffer ‘substantial emotional distress’ from these two phone messages." (footnote omitted) ); McMath v. Biernacki , 776 So.2d 1039, 1040-41 (Fla. 1st DCA 2001) (noting that appellee admitted appellant never threatened her and holding that "[n]o evidence exists in the record that a reasonable person would suffer substantial emotional distress from these incidents. The record reveals that the appellee does not feel comfortable around the appellant. In response to why the appellee was afraid

249 So.3d 783

of the appellant, the appellee stated that the appellant did not understand her and had made several attempts to talk to her.").

REVERSED.

B.L. Thomas, C.J., and Winsor, J., concur; Osterhaus, J., dissents with opinion.

Osterhaus, J., dissenting.

I think we should affirm because competent, substantial evidence supports the trial court's conclusion that Mr. Mitchell violated the stalking statute.

ORDER ON MOTION FOR HEARING EN BANC

A judge of this Court requested that this cause be heard en banc in accordance with Florida Rule of Appellate Procedure 9.331(c). All judges in regular active service have voted on the request. Less than a majority of those judges voted in favor of hearing en banc. Accordingly, the request for hearing en banc is denied.

B.L. Thomas, C.J., and Lewis, Roberts, Wetherell, Rowe, Ray, Osterhaus, Kelsey, Winokur, Jay, Winsor, and M.K. Thomas, JJ., concur.

Wolf and Bilbrey, JJ., dissent.

Makar, J., dissents with opinion.

Makar, J., dissenting from the denial of hearing en banc.

Due to a large caseload, our fifteen-member appellate court—like the other four district courts in Florida—assigns each case randomly to a three-judge panel for disposition, raising the trivia question: How many different three-judge panels are possible? If you said 455, you're correct.1 Most people guess a far smaller number. What isn't trivial is the jurisprudential impact that so many different panels have on similar or related cases, making the need for intra-court decisional uniformity important, which was the basis upon which en banc review was sought as to the proposed disposition of this case by a divided panel.2

Decisional uniformity is so important that it is one of only two grounds for en banc review, the other involving cases of exceptional importance. Rule 9.331, Fla. R. App. P. (2018). It is the primary tool for reducing disparate results within a large appellate court...

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9 cases
  • Bell v. Battaglia
    • United States
    • Court of Appeal of Florida (US)
    • 12 Enero 2022
    ...251 So. 3d 986, 988 n.1 (Fla. 1st DCA 2018) ("Although the injunction has now expired, the appeal is not moot."); Mitchell v. Brogden , 249 So. 3d 781, 782 (Fla. 1st DCA 2018) ("The injunction has now expired on its own terms, so it no longer has effect. Nonetheless, we cannot dismiss the a......
  • Bell v. Battaglia
    • United States
    • Court of Appeal of Florida (US)
    • 12 Enero 2022
    ...249 So.3d 781 (Fla. 1st DCA 2018), simply cite Murphy and conclude the appeals are not moot. See Paulson, 251 So.3d at 988 n.1; Mitchell, 249 So.3d at 782. Finally, Stone v. McMillan, 270 So.3d 510 (Fla. DCA 2019), simply cites Paulson. See id. at 512. The use of the presumption in these op......
  • State v. Petagine
    • United States
    • Court of Appeal of Florida (US)
    • 10 Marzo 2020
    ...be merely "an assemblage of 455 randomly-assigned and autonomous three-judge panels each doing as it sees fit." Mitchell v. Brogden , 249 So. 3d 781, 784 (Fla. 1st DCA 2018) (Makar, J., dissenting from denial of rehearing) (noting that our 15-member court has 455 possible three-judge panel ......
  • Khan v. Deutschman
    • United States
    • Court of Appeal of Florida (US)
    • 11 Octubre 2019
    ..."[w]ithout just cause or excuse").282 So.3d 969 Considering the evidence in the light most favorable to Appellee, Mitchell v. Brogden , 249 So. 3d 781 (Fla. 1st DCA 2018), we find that the evidence is legally sufficient to support entry of the dating violence injunction based upon a finding......
  • Request a trial to view additional results
2 books & journal articles
  • En Banc Hearings, By the Numbers.
    • United States
    • Florida Bar Journal Vol. 95 No. 2, March 2021
    • 1 Marzo 2021
    ...motion.(32) (1) Florida Office of the State Courts Administrator Annual Reports, www.flcourts.org. (2) Id. (3) Mitchell v. Brogden, 249 So. 3d 781 (Fla. 1st DCA 2018) (Makar, J., (4)Chase Federal Savings & Loan Ass'n v. Schreiber, 479 So. 2d 90 (Fla. 1985). (5) Florida Office of the Sta......
  • Concurrals, Dissentals, and this Commental.
    • United States
    • Florida Bar Journal Vol. 97 No. 2, March 2023
    • 1 Marzo 2023
    ...Court of Appeal En Banc, Florida Rules of Appellate Procedure, 416 So. 2d 1127, 1128 (Fla. 1982). (30) Id. (31) Mitchell v. Brogden, 249 So. 3d 781, 784 (Fla. 1st DCA 2018) (Makar, J., dissenting from denial of rehearing en banc) (quoting Schreiber v. Chase Fed. Sav. & Loan Ass'n, 422 S......

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