DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOSEPH CASH,

Appellant,

v.

PATRICK GAGNON,

Appellee.

No. 4D19-1302

[November 4, 2020]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Stefanie Moon, Judge; L.T. Case No. DVCE19-1551 (63).

Edward M. Shahady of Edward M. Shahady P.A., Fort Lauderdale, for 

appellant.

Jeffrey Green of Kaye Bender Rembaum, P.L., Pompano Beach, for 

appellee.

KLINGENSMITH, J.

This case presents yet another opportunity for this court to discuss the 

use of injunctions to keep the peace in uncivil neighborhood interactions. 

For the reasons set forth below, we find that the injunction issued by the 

trial court was improvidently granted and reverse.

Appellant Joseph Cash lives in the same condominium complex as 

Patrick Gagnon, the petitioner in the underlying action. Their relationship 

soured in 2013 when Gagnon joined the condo association’s board of 

directors and Cash was not re-elected. The friction between the two 

simmered until December 2018 when, according to Gagnon, Cash’s 

emotions started to boil over. 

According to Gagnon’s petition, the first incident that led him to request 

an injunction occurred in December 2018 when Cash interrupted a 

conversation Gagnon was having with another resident involving the 

common area boat dock by aggressively yelling and accusing Gagnon of 

both lying and stealing. A second incident, which also occurred that 

December, involved Cash allegedly yelling at Gagnon for putting a parking 
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boot on a neighbor’s car, again calling him a liar, and angrily cursing at 

him.

Two months later in February 2019, Gagnon alleged that Cash 

confronted him once again, this time regarding some landscaping work 

done by the association. In this episode, Gagnon claimed Cash 

approached him twice, forty-five minutes apart, yelling and cursing about 

trees that were purportedly installed according to an unapproved 

landscaping plan and blocked the view from his condominium.

 

The last encounter alleged in the petition happened a week later. There, 

Cash arrived home one afternoon to find Gagnon and a group of guests in 

the parking lot with a car parked in Cash’s parking space. This 

transgression prompted Cash to start yelling at Gagnon while also moving 

his car close to the group and revving his engine. After this encounter in 

the parking lot wound down, Cash rode in the elevator with Gagnon and 

his guests on their way to their respective homes. When the elevator 

arrived at Gagnon’s floor, the petition alleges that Cash allowed the guests 

to exit but blocked Gagnon’s attempt to leave, all the while yelling and 

cursing at him. As a result, Gagnon stated that he felt unsafe and called 

the police to report the incident. Shortly thereafter, Gagnon filed his 

petition for an injunction for protection against stalking. The trial court 

granted the injunction following a hearing, and this appeal followed.

“The standard of review for an order imposing a permanent injunction 

is abuse of discretion.” Weisberg v. Albert, 123 So. 3d 663, 664 (Fla. 4th 

DCA 2013). “But the question of whether the evidence is legally sufficient 

to justify imposing an injunction is a question of law that we review de 

novo.” Krapacs v. Bacchus, 45 Fla. L. Weekly D1913, at *2 (Fla. 4th DCA 

Aug. 12, 2020) (quoting Pickett v. Copeland, 236 So. 3d 1142, 1144 (Fla. 

1st DCA 2018)).

Under section 784.048(2), Florida Statutes (2019), “[a] person who 

willfully, maliciously, and repeatedly follows, harasses, or cyberstalks 

another person commits the offense of stalking . . . .” Further, the statute 

defines “harass” as a “means to engage in a course of conduct directed at 

a specific person which causes substantial emotional distress to that 

person and serves no legitimate purpose.” § 784.048(1)(a), Fla. Stat. 

(2019). This statute specifically exempts constitutionally protected 

activities. See § 784.048(1)(b), Fla. Stat. (2019).

A course of conduct requires multiple acts that are separated by time 

or distance. See Levy v. Jacobs, 69 So. 3d 403, 405 (Fla. 4th DCA 2011). 

“[T]o be entitled to an injunction for stalking, the petitioner must allege 
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and prove two separate instances of stalking” by competent, substantial 

evidence. Logue v. Book, 297 So. 3d 605, 611 (Fla. 4th DCA 2020) (quoting 

David v. Schack, 192 So. 3d 625, 628 (Fla. 4th DCA 2016)). Two or more 

acts that are part of one continuous course of conduct are legally 

insufficient to qualify as separate instances of harassment. See Packal v. 

Johnson, 226 So. 3d 337, 338 (Fla. 5th DCA 2017). Further, “a ‘course of 

conduct’ for purposes of the statute does not include protected speech. 

This includes speech that may be offensive or vituperative.” David v. 

Textor, 189 So. 3d 871, 876 (Fla. 4th DCA 2016) (citation omitted).

To qualify as stalking under the statute, the conduct must meet two 

requirements. First, “the defendant’s conduct must cause substantial 

emotional distress, which is greater than just an ordinary feeling of 

distress.” Johnstone v. State, 298 So. 3d 660, 665 (Fla. 4th DCA 2020). 

“When considering the sufficiency of the evidence, ‘[c]ourts apply a 

reasonable person standard, not a subjective standard, to determine 

whether an incident causes substantial emotional distress.’” Schack, 192 

So. 3d at 628 (alteration in original) (quoting Touhey v. Seda, 133 So. 3d 

1203, 1204 (Fla. 2d DCA 2014)). As the Fifth District explained in D.L.D. 

v. State, 815 So. 2d 746, 748 (Fla. 5th DCA 2002):

[I]n determining whether an incident or series of incidents 

creates substantial emotional distress for a victim, the 

distress should be judged not on a subjective standard (was 

the victim in tears and terrified), but on an objective one 

(would a reasonable person be put in distress when subjected 

to such conduct?).

“Mere irritation, annoyance, embarrassment, exasperation, 

aggravation, and frustration, without more, does not equate to ‘substantial 

emotional distress.’” Johnstone, 298 So. 3d at 669 (Klingensmith, J., 

dissenting) (quoting § 784.048(1), Fla. Stat. (2018)). To satisfy this first 

prong of the stalking statute, the court must find that the conduct 

complained of caused distress, which is greater than just an ordinary

feeling of discomfort. See Johnstone, 298 So. 3d at 665; Shannon v. Smith, 

278 So. 3d 173, 176 (Fla. 1st DCA 2019).

Second, “[t]he course of conduct must serve no legitimate purpose.” 

Johnstone, 298 So. 3d at 664. A legitimate purpose is determined by the 

facts of each case, but “courts have generally held that contact is legitimate 

when there is a reason for the contact other than to harass the victim.” 

O’Neill v. Goodwin, 195 So. 3d 411, 413 (Fla. 4th DCA 2016); see Textor, 

189 So. 3d at 875 (“[W]hether a communication serves a legitimate 

purpose is broadly construed and will cover a wide variety of conduct.”). 
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As such, “the action complained of must be so entirely bereft of a valid 

purpose that the only possible reason to engage in such acts would be to 

cause substantial concern or distress to the intended target.” Johnstone, 

298 So. 3d at 668 (Klingensmith, J., dissenting).

Taking Gagnon’s allegations as true, when viewed through the lens of 

the statute and the case law interpreting it, Cash’s conduct falls short of 

what is necessary to obtain an injunction. While Cash’s profanity and 

accusations of lying might have been offensive to Gagnon, perhaps even 

defamatory, this speech does not fall within a “course of conduct” that 

allows for injunctive relief. See Textor, 189 So. 3d at 876; Chevaldina v. 

R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1090 (Fla. 3d DCA 2014) (“Injunctive 

relief is not available to prohibit the making of defamatory or libelous 

statements.”). Additionally, most of Cash’s actions served the legitimate 

purpose of conveying various complaints to an association board member 

about condominium-related events. See O’Neill, 195 So. 3d at 413. Even 

though these complaints were voiced in an intemperate, crude, and uncivil 

manner, this does not entitle Gagnon to an injunction. See Caterino v. 

Torello, 276 So. 3d 88, 94 (Fla. 2d DCA 2019) (yelling and cursing would 

not cause a reasonable person to feel substantial emotional distress and 

does not warrant injunctive relief).

Gagnon also alleges in his petition that the altercation relating to 

Cash’s displeasure about the landscaping constitutes two separate 

incidents sufficient to qualify as a course of conduct under the statute. 

These two incidents involved the same subject matter but occurred fortyfive minutes apart. Even if we were to hold that they should be treated as 

two separate stalking incidents, see Packal, 226 So. 3d at 338, they do not 

qualify as instances of stalking because Cash had a legitimate purpose in 

seeking out Gagnon and voicing his displeasure about the association’s 

actions. See O’Neill, 195 So. 3d at 413; Textor, 189 So. 3d at 875.

While Gagnon alleges four instances of stalking occurred during the 

parking lot dispute, these events were one continuous episode. See Levy, 

69 So. 3d at 405. Although Cash is alleged to have revved his car engine 

in the parking lot and yelled at Gagnon, nothing about this incident, as 

described, would lead a reasonable person to incur substantial emotional 

distress. However, the incident where Gagnon says Cash followed him up 

the elevator and blocked his egress to berate him could be a qualifying 

incident sufficient to constitute stalking when paired with another. At that 

point, Cash no longer had a legitimate purpose for engaging in such 

actions because the parking dispute was resolved. See Textor, 189 So. 3d 

at 875. There was no legitimate purpose for Cash to restrict or limit 

Gagnon’s ability to freely leave the confines of the elevator. In this 
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scenario, we have no trouble concluding that a reasonable person would 

have substantial emotional distress after suffering verbal abuse while 

being essentially trapped in an elevator. See Johnstone, 298 So. 3d at 664; 

O’Neill, 195 So. 3d at 413. Cash’s speech combined with blocking 

Gagnon’s exit from the elevator crossed the line into unprotected conduct. 

See Chevaldina, 133 So. 3d at 1092.

Although the encounter between Cash and Gagnon in the elevator can 

be considered a qualifying incident, the rest of the alleged conflicts are 

merely uncomfortable neighborly disputes that do not rise to the level of 

stalking. See Caterino, 276 So. 3d at 94 (quoting Shocki v. Aresty, 994 So. 

2d 1131, 1134 (Fla. 3d DCA 2008) (“[N]oise, profanity, and claims of 

vandalism to property do not always warrant injunctive relief under the 

stalking and repeat violence statutes.”)). As this court has repeated on 

many occasions, section 784.048 “does not allow the trial court to enter 

injunctions simply ‘to keep the peace’ between parties who, for whatever 

reason, are unable to get along and behave civilly towards each other.” 

Klemple v. Gagliano, 197 So. 3d 1283, 1286 (Fla. 4th DCA 2016) (quoting 

Power v. Boyle, 60 So. 3d 496, 498 (Fla. 1st DCA 2011)). For this reason, 

we reverse the injunction entered against Cash.

Reversed.

LEVINE, C.J., and CONNER, J., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.