Touhey v. Seda
133 So. 3d 1203
| Fla. Dist. Ct. App. | 2014Background
- Frank Seda filed a sworn petition (Oct. 26, 2012) seeking an injunction for protection against stalking under the newly enacted section 784.0485, Florida Statutes.
- Seda alleged repeated attempts by Kevin Touhey to contact, threaten, and harass him and his employees beginning January 2012; at the hearing Seda revised the timeframe to about late September 2012 after an incident in which Touhey’s son pulled a gun.
- Specific contacts proved at the hearing: one text from Touhey saying “we can resolve this problem,” one in-person visit to Seda’s office, and two phone calls to the office asking for Seda; Seda had also socialized with Touhey earlier in 2012.
- Three witnesses for Seda offered largely indirect or non-credible testimony: one had no firsthand knowledge, one corroborated a single visit and two calls without threats, and one was unaware of stalking.
- The circuit court entered a final injunction for protection against stalking; Touhey appealed arguing insufficient evidence of stalking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence established "stalking" under § 784.048 (willful, malicious, repeated following/harassing/cyberstalking) | Seda: Touhey repeatedly contacted, threatened, and intimidated him causing fear and substantial emotional distress | Touhey: Contacts were minimal, legitimate (business-related), not malicious, and insufficiently repeated to cause substantial emotional distress | Reversed: insufficient evidence of the repeated, malicious conduct required for stalking |
| Whether Seda proved substantial emotional distress (objective reasonable-person standard) | Seda: Fear for his life after the gun incident and subsequent contacts produced distress | Touhey: A reasonable person would not suffer substantial emotional distress from one visit, two calls, and one text; Seda’s fear stemmed from the son’s act | Reversed: reasonable person would not suffer substantial emotional distress from the proved contacts |
| Whether contacts had a legitimate purpose (defeating "harass" element) | Seda: Contacts were attempts to intimidate and harass | Touhey: Had a legitimate business-related purpose to contact Seda (shared business ties; dissolving relationship) | Held: Touhey had a legitimate purpose for the contacts; defeats harassment finding |
| Whether each alleged stalking incident was proven by competent, substantial evidence | Seda: Witnesses supported pattern of indirect contact and intimidation | Touhey: Witness testimony was weak/indirect and did not show malicious repeated acts | Held: Record lacks competent, substantial evidence of repeated malicious acts; injunction must be dismissed |
Key Cases Cited
- Goudy v. Duquette, 112 So.3d 716 (Fla. 2d DCA 2013) (applies reasonable-person standard for substantial emotional distress and requires competent evidence of each stalking incident)
- Jones v. Jackson, 67 So.3d 1203 (Fla. 2d DCA 2011) (indirect contact can be harassment but threatening calls/texts may still be insufficient absent harassment showing)
- Slack v. Ming, 959 So.2d 425 (Fla. 2d DCA 2007) (two voicemails threatening an "arrangement" were insufficient for a reasonable person to suffer substantial emotional distress)
- Alter v. Paquette, 98 So.3d 218 (Fla. 2d DCA 2012) (contacts made to collect a debt or for legitimate business matters defeat harassment claim)