James Banks v. Kim D. McFarland

District Court of Appeal of Florida

James Banks v. Kim D. McFarland

148 So. 3d 162

CourtDistrict Court of Appeal of Florida

DecidedOctober 12, 2014

Docket1D13-5825

StatusPublished

Cited by1 cases

This text of 148 So. 3d 162 (James Banks v. Kim D. McFarland) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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James Banks v. Kim D. McFarland, 148 So. 3d 162 (Fla. Ct. App. 2014).

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Opinion

PER CURIAM.

James Banks appeals the issuance of a temporary injunction for repeat violence against him based upon the complaint of Kim McFarland. We reverse.

Appellant and his spouse lived across the street from and had an acrimonious relationship with appellee and her spouse. The trial court entered the injunction against repeat violence pursuant to section 748.046, Florida Statutes (2013), based upon testimony from appellee and another neighbor that appellant yelled at appellee, “I will shoot and kill all of you” and “I’ll F you up,” in addition to making other ugly remarks and taunts and engaging in intrusive behavior.

The “repeat violence” necessary to obtain an injunction under the statute includes “assault,” which, in turn, requires proof of an intentional and unlawful threat to do violence, the apparent ability to do so, “and doing some act which creates a well-founded fear in such other person that *163 such violence is imminent.” § 784.011(1), Fla. Stat. (2013). The case law is replete with instances of persons making nearly identical threatening remarks as appellant’s, which did not warrant an injunction because they were not accompanied by overt acts that would have created a well-founded fear in the victim that violence was imminent. See Titsch v. Buzin, 59 So.3d 265 (Fla. 2d DCA 2011); Gagnard v. Sticht, 886 So.2d 321 (Fla. 4th DCA 2004); Perez v. Siegel, 857 So.2d 353 (Fla. 3d DCA 2003); Cirillo v. Jones, 84 So.3d 1174 (Fla. 4th DCA 2012). See also Sorin v. Cole, 929 So.2d 1092 (Fla. 4th DCA 2006); Johnson v. Brooks, 567 So.2d 34 (Fla. 1st DCA 1990); Power v. Boyle, 60 So.3d 496 (Fla. 1st DCA 2011); Russell v. Doughty, 28 So.3d 169 (Fla. 1st DCA 2010); Santiago v. Towle, 917 So.2d 909 (Fla. 5th DCA 2005).

There was no showing of an overt act below. We find nothing to distinguish the case at bar from those cited above.

REVERSED.

PADOVANO, THOMAS, and CLARK, JJ., concur.

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PER CURIAM.

James Banks appeals the issuance of a temporary injunction for repeat violence against him based upon the complaint of Kim McFarland. We reverse.

Appellant and his spouse lived across the street from and had an acrimonious relationship with appellee and her spouse. The trial court entered the injunction against repeat violence pursuant to section 748.046, Florida Statutes (2013), based upon testimony from appellee and another neighbor that appellant yelled at appellee, “I will shoot and kill all of you” and “I’ll F you up,” in addition to making other ugly remarks and taunts and engaging in intrusive behavior.

The “repeat violence” necessary to obtain an injunction under the statute includes “assault,” which, in turn, requires proof of an intentional and unlawful threat to do violence, the apparent ability to do so, “and doing some act which creates a well-founded fear in such other person that *163 such violence is imminent.” § 784.011(1), Fla. Stat. (2013). The case law is replete with instances of persons making nearly identical threatening remarks as appellant’s, which did not warrant an injunction because they were not accompanied by overt acts that would have created a well-founded fear in the victim that violence was imminent. See Titsch v. Buzin, 59 So.3d 265 (Fla. 2d DCA 2011); Gagnard v. Sticht, 886 So.2d 321 (Fla. 4th DCA 2004); Perez v. Siegel, 857 So.2d 353 (Fla. 3d DCA 2003); Cirillo v. Jones, 84 So.3d 1174 (Fla. 4th DCA 2012). See also Sorin v. Cole, 929 So.2d 1092 (Fla. 4th DCA 2006); Johnson v. Brooks, 567 So.2d 34 (Fla. 1st DCA 1990); Power v. Boyle, 60 So.3d 496 (Fla. 1st DCA 2011); Russell v. Doughty, 28 So.3d 169 (Fla. 1st DCA 2010); Santiago v. Towle, 917 So.2d 909 (Fla. 5th DCA 2005).

There was no showing of an overt act below. We find nothing to distinguish the case at bar from those cited above.

REVERSED.

PADOVANO, THOMAS, and CLARK, JJ., concur.

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148 So. 3d 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-banks-v-kim-d-mcfarland-fladistctapp-2014.

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