Overstreet v. Kixmiller

• Decision Date: 28 October 2003
• Docket Number: No. ED 82452.,ED 82452.
• Parties: Patty OVERSTREET and Kerry Montgomery, Respondents, v. Carl KIXMILLER, Appellant.
• Court: Missouri Court of Appeals

120 S.W.3d 257

Patty OVERSTREET and Kerry Montgomery, Respondents, v. Carl KIXMILLER, Appellant.

No. ED 82452.

Missouri Court of Appeals, Eastern District, Division Three.

October 28, 2003.

Curtis G. Hanrahan, Jefferson City, MO, for appellant.

CLIFFORD H. AHRENS, Presiding Judge.

Carl Kixmiller ("Kixmiller") appeals the judgment of the trial court granting orders of protection against him and in favor of Patty Overstreet ("Overstreet") and Kerry Montgomery ("Montgomery")¹. Kixmiller claims that the trial court erred in failing to dismiss Overstreet's petition for order of protection for failure to state a claim. He also asserts that the trial court erred in granting orders of protection in favor of Montgomery and Overstreet because there was insufficient evidence to support such orders. We affirm in part and reverse in part.

Kixmiller was the chairman of the Osage County Ambulance District Board. Montgomery and Overstreet were employees of the Ambulance District. In December 2002, Montgomery filed a petition for order of protection. Attached to her petition was a voluntary statement dated November 21, 2002, outlining several conversations and incidents which occurred between her and Kixmiller. Overstreet also filed a similar petition in December 2002. Both cases were heard jointly, and the trial court entered full orders of protection in favor of Montgomery and Overstreet. The present appeal followed.

Kixmiller argues that the trial court erred in entering a full order of protection in favor of Overstreet because there was insufficient evidence to support such an order. Kixmiller specifically claims that no activity or course of conduct was directed to Overstreet. He also argues that his conduct was constitutionally protected, did not constitute more than one incident, nor would it cause a reasonable person substantial emotional distress.

The judgment of the trial court must be affirmed unless there is no substantial evidence to support the judgment, it is against the weight of the evidence, or the trial court erroneously declares or applies the law. Suhr v. Okorn, 83 S.W.3d 119, 120 (Mo.App.2002); (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

Pursuant to section 455.020 RSMo (2000)², any adult who has been the victim of stalking may file a petition for protection alleging such stalking. Section 455.010(10) defines the phrase "stalking" as follows:

"Stalking" is when an adult purposely and repeatedly harasses or follows with the intent of harassing another adult. As used in this subdivision, "harasses" means to engage in a course of conduct directed at a specific adult that serves no legitimate purpose, that would cause a reasonable adult to suffer substantial emotional distress. As used in this subdivision, "course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct".

"Legitimate" activity has been defined as meaning "sanctioned by law or custom; lawful; allowed." Girard v. Girard, 54 S.W.3d 203, 204 (Mo.App.2001); (quoting Wallace v. Van Pelt, 969 S.W.2d 380, 385 (Mo.App.1998)).

Pursuant to section 455.040 RSMo (Cum.Supp.2002), the petitioner must prove the allegation of stalking by a preponderance of the evidence in order to obtain a full order of protection.

We note that there is real harm which can result in abusing the Adult Abuse Act and its provisions, which includes the stigma that may attach to a defendant who is ultimately labeled a "stalker." Girard, 54 S.W.3d at 205; (quoting Wallace, 969 S.W.2d at 387). Therefore, trial courts must exercise great care to make certain that sufficient evidence exists to support all elements of the statute before entering a full order of protection. Id. at 205-206.

In the present case, the only evidence presented by Overstreet was her testimony concerning one conversation with Kixmiller and a statement contained in a memo discussing that sexual harassment in the workplace would not be tolerated. Overstreet testified that she felt threatened by the memo discussing sexual harassment. Overstreet specifically testified about a portion of the memo which made reference to being followed; however, that portion stated that the reputation of the employees would "follow" them. The memo, which was provided to all employees, could be said to have a legitimate business purpose to advise the employees of the sexual harassment policy, consequences and procedure for complaints of that nature within the ambulance district.

Additionally, Overstreet testified that Kixmiller came in "yelling, screaming, harassing...." She related one conversation, in which Kixmiller stated that he would "have the last laugh," which she considered threatening. However, Overstreet testified that she interpreted this incident as a threat to her of being fired. While we are uncertain from the record before us what legitimate purpose was served by Kixmiller's obviously aggressive style of management, we acknowledge that not all the elements of the definition of stalking have been met.

Overstreet failed to present sufficient evidence that Kixmiller engaged in a series of acts, which would cause a reasonable adult to suffer substantial emotional distress. We do not believe one personal interaction, and one memo addressing the issue of sexual harassment in the workplace that was provided to several employees, including Overstreet, is sufficient evidence of a "series of acts over a period of time" as is required to meet the definition of stalking. Additionally, the threat of being fired is not, without more, sufficient basis for a full order of protection. The legislature's use of the term "substantial emotional distress" in its definition of stalking under section 455.010(10) indicates that the conduct complained of must result in a considerable amount of distress in a reasonable person. Girard, 54 S.W.3d at 205. This emotional distress must be "something markedly greater than the level of uneasiness, nervousness, unhappiness or the like which are commonly experienced in day to day living." Id. Although the conduct may cause alarm or distress...