Santiago v. Towle, 5D05-151.
| Decision Date | 09 January 2006 |
| Docket Number | No. 5D05-151.,5D05-151. |
| Citation | 917 So.2d 909 |
| Parties | Alejandro SANTIAGO, Jr., Appellant, v. Kelly TOWLE, Appellee. |
| Court | Florida Supreme Court |
Elizabeth E. Berenguer, of Elizabeth E. Berenguer, P.A., Orlando, for Appellant.
No Appearance for Appellee.
The appellant, Alejandro Santiago, Jr., appeals the granting of a permanent injunction for protection against repeat violence rendered in favor of the appellee, Kelly Towle. Because the record does not support a finding of two incidents of violence or stalking, as required by the applicable statute, we reverse.
Section 784.046, Florida Statutes (2005), grants a victim of repeat violence the right to seek a protective injunction. Violence is defined by the statute 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), Fla. Stat. (2005). Repeat violence is defined as "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. (2005).
In order to support an injunction against repeat violence, each purported act of violence must be founded upon competent, substantial evidence. Forrest v. Wilson, 889 So.2d 124 (Fla. 1st DCA 2004). In the present case while there may arguably exist some evidence of one incident of violence against Ms. Towle, there does not appear to be supporting evidence for a second incident.
Mr. Santiago and Ms. Towle are neighbors. Unfortunately, they are involved in an acrimonious civil dispute over a fence. Ms. Towle alleged in her petition three incidences of violence, all apparently growing out of the fence controversy. Only the first incident involved physical contact, however.
The initial incident purportedly occurred prior to the commencement of the civil case. Ms. Towle claimed that Mr. Santiago threw a liquid on her. The nature of the substance is unclear, but it appears to have been harmless because Ms. Towle did not allege or prove any injury from the event. Other than her petition statement, the trial court did not receive any evidence from Ms. Towle to prove this allegation. She suggested that she had three witnesses to the event, but none testified, and no testimony, including testimony from Ms. Towle, concerning the event was proffered at the hearing. Mr. Santiago denied throwing any liquid at or on Ms. Towle.
The second incident asserted by Ms. Towle involved Mr. Santiago pulling up next to her in her car, making an obscene gesture, and shouting obscenities. The sparse evidence adduced, even if believed, indicates that Mr. Santiago did not make any overt act that would have placed Ms. Towle in imminent danger, but rather only shouted and made hand gestures. That is, there was no allegation of reckless or careless driving or the like that might demonstrate that the vehicle was being used...
To continue reading
Request your trial
-
Cannon v. Thomas ex rel. Jewett
...without evidence that respondent took an action creating a “well-founded fear that violence was imminent”); Santiago v. Towle, 917 So.2d 909, 911 (Fla. 5th DCA 2005) (holding that a respondent's statement to a third party that he “had a gun and was not afraid to use it” did not constitute a......
-
Banks v. McFarland
...DCA 1990) ; Power v. Boyle, 60 So.3d 496 (Fla. 1st DCA 2011) ; Russell v. Doughty, 28 So.3d 169 (Fla. 1st DCA 2010) ; Santiago v. Towle, 917 So.2d 909 (Fla. 5th DCA 2005).There was no showing of an overt act below. We find nothing to distinguish the case at bar from those cited above.REVERS......
-
Tash v. Rogers ex rel. E.R.
...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 record here contains allegations of three incidents involving Appellant and Rogers or E.R. In the first incident, ......
-
Levy v. Jacobs
...machine did not qualify as second incident); see also Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006); Santiago v. Towle, 917 So.2d 909, 910 (Fla. 5th DCA 2005). An appellate court reviews an order granting an injunction for protection against repeat violence to determine whether ea......