Akin v. Jacobs
230 So. 3d 1292
| Fla. Dist. Ct. App. | 2017Background
- Cassandra Jacobs (petitioner) sought an injunction against stalking under Fla. Stat. § 784.0485 after allegedly receiving anonymous harassing letters, having her workspace vandalized with a smeared substance, and learning that Ricky Akin had tracked her and her boyfriend on social media and obtained personal information.
- The trial court held an evidentiary hearing and entered a final injunction for protection against stalking in Jacobs’ favor.
- At the hearing, none of the alleged letters were admitted into evidence; Jacobs did not testify to experiencing substantial emotional distress.
- Jacobs called an employer investigator who testified about materials he reviewed (videotape, letters, report) that were not admitted; the trial court overruled hearsay and best-evidence objections to much of that testimony.
- The appellate court found much of the testimony speculative (e.g., tuna smear) and ruled that the injunction was based on inadmissible hearsay and insufficient competent substantial evidence.
- The Fourth District reversed and remanded with directions to dismiss the petition; a concurrence expressed concern about the trial judge’s active participation aiding the unrepresented petitioner.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner proved at least two instances of stalking under § 784.048(2) | Jacobs argued letters, vandalism, and tracking constituted repeated harassment causing substantial emotional distress | Akin argued evidence was insufficient, hearsay, and speculative; petitioner failed to prove distress or proper incidents | Reversed: Jacobs failed to present competent substantial evidence of two separate harassment incidents required for stalking |
| Whether evidence admitted at hearing was competent or inadmissible hearsay | Jacobs relied on investigator testimony about documents and tape he reviewed | Akin objected based on hearsay and best-evidence rule; objected to judge’s handling | Held inadmissible: injunction cannot be based on hearsay; trial court erred in overruling objections |
| Whether petitioner testified to substantial emotional distress (reasonable-person standard) | Jacobs relied on implied distress from conduct and investigator report | Akin noted Jacobs gave no testimony of substantial emotional distress; no letters in evidence to show effect | Held: No testimony or admissible evidence showing substantial emotional distress; petitioner failed statutory burden |
| Whether trial judge’s active participation denied due process | Jacobs did not explicitly argue; judge questioned and elicited testimony for pro se Jacobs | Akin argued judge’s active role disadvantaged him (counseled defendant below and on appeal) | Issue waived on appeal but concurrence warned judge became an active participant beyond permissible clarification; court cautioned judges against advocating for pro se litigants |
Key Cases Cited
- David v. Schack, 192 So.3d 625 (Fla. 4th DCA) (stalking requires proof of two separate incidents)
- Roach v. Brower, 180 So.3d 1142 (Fla. 2d DCA) (interpretation of stalking statutory requirements)
- Laserinko v. Gerhardt, 154 So.3d 520 (Fla. 6th DCA) (each incident must be proven by competent substantial evidence)
- Touhey v. Seda, 133 So.3d 1203 (Fla. 2d DCA) (evidentiary standard for stalking injunctions)
- Plummer v. Forget, 164 So.3d 109 (Fla. 5th DCA) (use reasonable-person standard to assess substantial emotional distress)
- Klemple v. Gagliano, 197 So.3d 1283 (Fla. 4th DCA) (absence of testimony about emotional distress can defeat harassment element)
- Realauction.com, LLC v. Grant St. Grp., Inc., 82 So.3d 1056 (Fla. 4th DCA) (speculative testimony is not competent substantial evidence)
- Chastine v. Broome, 629 So.2d 293 (Fla. 4th DCA) (trial judge must remain neutral and not advocate for a party)
- Asbury v. State, 765 So.2d 965 (Fla. 4th DCA) (judges may ask questions to clear uncertainties but must avoid giving tips)
- J.F. v. State, 718 So.2d 251 (Fla. 4th DCA) (limits on judicial participation in questioning)
- In re Eriksson, 36 So.3d 580 (Fla. 2010) (judges encouraged to assist pro se litigants but within bounds)
- Johnson v. State, 114 So.3d 1012 (Fla. 5th DCA) (failure to contemporaneously object waives appellate review of judicial improprieties)