IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

ROBERT LENTINO,

Appellant,

v. Case No. 5D21-2155

LT Case No. 2021-31507-FMCI

TORIANNE MCKINNEY,

Appellee.

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Opinion filed June 3, 2022

Appeal from the Circuit Court 

for Volusia County,

Steven C. Henderson, Judge.

Aaron D. Delgado and Ann M. 

Phillips, of The Law Office of Aaron 

Delgado & Associates, PLLC, 

Daytona Beach, for Appellant.

No Appearance for Appellee.

SASSO, J.

Robert Lentino appeals the final judgment of injunction for protection 

against dating violence entered against him and in favor of Torianne 
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McKinney. We agree with Mr. Lentino that the evidence was legally 

insufficient to support a finding that Ms. McKinney had a reasonable fear that 

she was in imminent danger of another act of dating violence.

The trial court, after noting the evidence presented was “complicated 

and convoluted,” granted injunctive relief and briefly explained its ruling was 

predicated on two incidents—a traffic stop and a phone call. As to the traffic 

stop, Mr. Lentino properly objected to the introduction of evidence regarding 

the incident, arguing the incident was not raised in Ms. McKinney’s petition. 

The trial court overruled Mr. Lentino’s objection, which was error because 

consideration of the unpled and otherwise unnoticed allegations constituted 

a due process violation. See Brooks v. Basdeo, 336 So. 3d 423, 423 (Fla. 5th 

DCA 2022) (holding that appellant’s due process rights were violated when 

the trial court permitted, and then relied upon, testimony regarding an unpled 

incident as part of its basis for granting the injunction); De Leon v. Collazo, 

178 So. 3d 906, 909 (Fla. 3d DCA 2015) (reversing injunction for protection 

against domestic violence where material allegations were raised for the first 

time at the final hearing over objection and appellate court was unable to 

conclude the erroneous admission of evidence did not contribute to the trial 

court’s determination). As to the remaining incident relied upon by the trial 

court, we conclude the evidence supporting the phone call is legally 
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insufficient to support the trial court’s conclusion that Ms. McKinney is a victim 

in imminent danger of another act of dating violence. See Cook v. McMillan, 

300 So. 3d 189, 191–92 (Fla. 4th DCA 2020) (determining that 

communication not containing threats of violence is insufficient to prove 

petitioner was in fear of another act of dating violence); Di Stefano v. Long, 

279 So. 3d 758, 759 (Fla. 2d DCA 2019) (“[R]egardless of whether the 

petitioner has been the victim of dating violence in the past, the petitioner 

must show that he or she has reasonable cause to believe that he or she is 

in imminent danger of becoming the victim of an act of dating violence in the 

future.” (citation omitted)).

So, because the trial court’s stated reason for granting the injunction 

was based on two incidents, where evidence as to the first was admitted in 

error and evidence as to the second was legally insufficient, we are obligated 

to reverse.

REVERSED.

COHEN and TRAVER, JJ., concur.