Sutton v. Fowler
| Decision Date | 22 December 2021 |
| Docket Number | 4D20-1978 |
| Citation | 332 So.3d 1001 |
| Parties | Patrick SUTTON, Appellant, v. Harold J. FOWLER, Jr., Appellee. |
| Court | Florida District Court of Appeals |
Jeffrey H. Garland of Jeffrey H. Garland, P.A., Fort Pierce, for appellant.
Karen O'Brien Steger of Steger Law, Stuart, for appellee.
The trial court entered a final judgment of protection against stalking against appellant, precluding him from living at his condominium. Because the court relied on conduct not alleged in the petition and not tried by implied consent, we must reverse.
Appellant Patrick Sutton and appellee/petitioner Harold Fowler both live in the same condominium complex in St. Lucie County. Sutton and his wife own a condominium unit directly above the unit owned by appellee Fowler and his wife. Fowler filed a petition and an amended petition for an injunction for protection against stalking, alleging three dates where he claimed that incidents necessitating an injunction occurred—April 26, 2020, June 7, 2020, and June 8, 2020. The court entered a temporary injunction precluding Sutton from going within 500 feet of Fowler's current residence. After a deputy served the order on Sutton, he immediately began cursing and then threatening Fowler from his condominium balcony, loud enough for Fowler to hear. Sutton was arrested for a criminal violation of the temporary injunction.
At the final hearing, Fowler testified to the various events. Sutton moved into his unit above the Fowlers in 2019. Fowler testified that he had not spoken to Sutton except for one occasion prior to the incidents alleged in the petition. On April 26th, 2020, Sutton went out on his balcony screaming and yelling and howling like a wolf. While Fowler testified that Sutton yelled that he would get in Fowler's "[expletive deleted] face," Fowler did not recall that Sutton actually used his name.
The next incident was on June 7, 2020. Again, Sutton yelled expletives at Fowler, this time using his name. Other people could hear Sutton screaming.
On June 8, 2020, Sutton again started screaming and yelling on the balcony, that "the guy underneath me [is] a [expletive deleted] [---hole]." Sutton then went inside and continued screaming so loudly that Fowler could hear him in their unit. He could hear Sutton kicking doors. Concerned for himself, his wife, and his neighbors, Fowler called 911 and contacted the condominium manager. A short time later, Sutton banged on Fowler's door. Thinking it was the manager coming to check on the situation, Fowler started to open the door, when his wife yelled that it was Sutton at the door. Sutton tried to pull the door out of Fowler's hands and open it. Sutton demanded, "I want to know if you're making complaints against me." Fowler testified that Sutton tried to enter, and Fowler had "to push him out the front door." Fowler restrained Sutton in a headlock until management showed up and made Sutton go back to his unit. Sutton continued yelling as they escorted him back to his unit, threatening that he would make Fowler's life miserable by tap dancing on the floor. Sutton also called Fowler an "[expletive deleted] Jew."
The police arrived and reviewed a video Fowler's wife had taken of the incident with Sutton at their door. The deputy thought Sutton was heavily intoxicated. The deputy went to Sutton's unit and heard both Sutton and his wife screaming. When Sutton answered the door, the officer observed numerous empty liquor bottles and beer cans. Sutton appeared intoxicated. Sutton again screamed about Fowler and then about his wife. Considering Sutton a danger to himself and others, the deputy decided to Baker Act him. On the way to the hospital, the deputy asked Sutton if he owned firearms and Sutton stated "no" but that if he did, "he would kill himself and hurt others and also kill law enforcement." The deputy felt that Sutton was a danger to his wife, his neighbors, and himself.
Fowler testified that he started the injunction process on June 9, 2020. After Sutton was released from the Baker Act, he was served with the temporary injunction on the evening of June 12. Directing Fowler's attention to June 12, his counsel asked, "when Mr. Sutton was served with the injunction at 8:00 P.M. on June 12, 2020, what did he then commence to -- begin to do after he was served with the injunction for protection?" Sutton's counsel objected because this incident was not part of the petition or amended petition and outside its scope. The court overruled the objection.
Fowler then testified that Sutton "immediately started banging on the floors and—and yelling, screaming and howling, This went on approximately four hours. After midnight, Sutton said "[C]ome out onto the balcony." Fowler called the condominium management. Sutton continued to shout expletives and yelled that he had a gun and would shoot Fowler. (A recording of this call was played for the court but was not transcribed by the court reporter.) Fowler finally called 911, as he feared for his life and safety.
The deputy who arrived in the early hours of June 13 listened to the recording of Sutton's threatening screaming, and went to Sutton's condominium. Sutton smelled of marijuana. He denied threatening Fowler but said that he could say anything he wanted to inside his own residence. The deputy arrested Sutton for violating the temporary injunction. He took Sutton into custody, and Sutton continued to curse and called the deputy names on the way to jail.
A neighbor also testified at trial, mostly about the June 12 incident. As to the prior incidents, the neighbor confirmed that on April 26, Sutton was howling on his balcony, and on June 7, she heard cursing, using Fowler's name. On June 12, she heard the commotion and was very frightened, because she feared Sutton would mistakenly barge into her unit, which was next door to Fowler's unit.
When asked by his counsel, Fowler stated that he was afraid of Sutton and would not be satisfied with an injunction which simply prohibited Sutton from going onto Fowler's floor of the condominium or the common areas. He thought Sutton was volatile and unpredictable. He did not have any idea why Sutton had fixated on him and identified him as Jewish. He was afraid to open his door.
During closing arguments, Fowler's counsel argued that a permanent injunction keeping Sutton away from the condominium entirely was the only appropriate remedy, due to the fact that Sutton violated the temporary injunction just after it was served on him. Sutton's counsel argued that the June 12 event should not be considered because it was an unpled event and that neither the yelling on June 7, nor the incident on April 26 could support the injunction. Counsel also argued that any injunction should be narrowly tailored so as not to take away Sutton's right to his property.
The court was concerned because of Sutton's negative behavior. It concluded that people had a right to peaceably enjoy their property, which Sutton was preventing. The court then imposed a permanent injunction prohibiting Sutton from going onto the condominium property, which extended to both sides of A1A. As a basis for the injunction, the court found "repeated violations of peaceable enjoyment of [Fowler's] property by Mr. Sutton unprovoked, followed by an immediate violation of the injunction[.]" Sutton's counsel again objected to the court's reliance on the June 12 incident because it was not pled as a ground for the injunction.
The final judgment of injunction for protection against stalking was entered the same day as the hearing, August 11, 2020. The order provides that the injunction will be in full force and effect until further order of the court. The order prohibits Sutton from going within 500 feet of the condominium and prohibits Sutton from returning to the entire condominium property on either side of A1A, other than to use the public road.
Sutton filed a motion for rehearing arguing in part that the evidence of the violation of the injunction was not pled in the petition and violated Sutton's constitutional right to due process. The court denied the motion and this appeal followed.
"Trial courts have ‘broad discretion in granting ... injunctions, and unless a clear abuse of discretion is demonstrated, appellate courts will not disturb the trial court's decision.’ " DiTanna v. Edwards , 323 So. 3d 194, 200 (Fla. 4th DCA 2021) (quoting Hobbs v. Hobbs , 290 So. 3d 1092, 1094 (Fla. 1st DCA 2020) ). "The trial court's order granting a permanent injunction is reviewed for competent substantial evidence." Id. (citations omitted). "But the question of whether the evidence is legally sufficient to justify imposing an injunction is a question of law" reviewed de novo. Cash v. Gagnon , 306 So. 3d 106, 109 (Fla. 4th DCA 2020) (quoting Krapacs v. Bacchus , 301 So. 3d 976, 978 (Fla. 4th DCA 2020) ).
Sutton argues that the trial court erred by admitting evidence concerning his violation of the temporary injunction stemming from the events the evening of June 12 and into the early morning of June 13. Without those events, the evidence was insufficient to support the issuance of a permanent injunction for protection against stalking. We agree that the court erred in considering those events in determining whether to issue a permanent injunction, because Fowler never sought to amend his petition to allege them. While the violation of the temporary injunction may have been relevant to the scope of any injunction, the trial court relied on the conduct to support the granting of the injunction, over the objection of Sutton.1
Section 784.048, Florida Statutes (2020) defines stalking as the "willful[ ], malicious[ ], and repeated[ ] follow[ing], harass[ing], or cyberstalk[ing of] another person." DiTanna , 323 So. 3d at 201 (quoting Lopez v. Lopez , 922 So. 2d 408, 410 (Fla. 4th DCA 2006) ). Section...
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