Third District Court of Appeal State of Florida
Opinion filed August 1, 2018. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-2370 Lower Tribunal No. 17-18397 ________________
Brandy E. Raulerson, Appellant,
vs.
Jose P. Font, Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Luise Krieger Martin, Judge.
Barnard Law Offices, and Andrew C. Barnard and Garrett William Haakon Clifford, for appellant.
Font & Nelson, and Jose P. Font and Frantz C. Nelson (Fort Lauderdale), for appellee.
Before SUAREZ, SALTER and FERNANDEZ, JJ.
SALTER, J. Florida-licensed attorney Brandy E. Raulerson (“Ms. Raulerson”) appeals an
order dismissing her petition for an injunction against stalking as against the
appellee, Florida-licensed attorney Jose P. Font (“Mr. Font”). We affirm the order,
concluding, as the trial court did, that the sworn allegations in the petition (a)
primarily involve conduct outside the definitions and boundaries of the applicable
statutes,1 and (b) present certain issues best addressed under the disciplinary
framework established by the Rules Regulating The Florida Bar.
I. Background
Ms. Raulerson is an associate attorney employed by a law firm (Barnard
Law Offices, L.P., “BLO”), which regularly represents insured homeowners and
other parties with insurance claims, including bad faith claims. The senior and
“name” partner at BLO is Andrew C. Barnard (“Mr. Barnard”). Mr. Barnard was
designated as Ms. Raulerson’s attorney for purposes of the stalking case, and he
also represents her in this appeal. The petition includes allegations regarding
conduct witnessed by Mr. Barnard and statements heard by him, in each case
relating to lawsuits and conduct in a courtroom or courthouse.
The respondent, Mr. Font, is identified in the petition as the managing
partner of a law firm, “Font & Nelson, LLC,” in Fort Lauderdale. Mr. Font’s law
1 Sections 784.048 (“Stalking; definitions; penalties.”) and 748.0485 (“Stalking; injunction; powers and duties of court and clerk; petition; notice and hearing; temporary injunction; issuance of injunction; statewide verification system; enforcement.”), Florida Statutes (2017).
2 firm regularly represents insurers, and Mr. Font has expressed a particular interest
in identifying fraudulent insurance claims for prosecution under the applicable
criminal statutes. The petition alleges that Mr. Font, among other wrongful acts:
“threatened, harassed, stalked, cyberstalked, or abused” Ms. Raulerson;
“threatened to harm [Ms. Raulerson] and individuals closely associated with [Ms.
Raulerson];” “repeatedly harassed and threatened [Ms. Raulerson] and her co
workers and her employer by forcing her to appear at court hearings having
nothing to do with her, and then threatening her with criminal actions, going so far
as to publish a false affidavit against her which he suborned from a prior client;”
and repeatedly published the affidavit “in all cases involving [BLO] as well as
other cases where [BLO] has no involvement whatsoever.”
As the eleven-page petition continues, the underlying details (dates, times,
locations, specific threats – verbal, nonverbal, or implied) are sparse, but include
these allegations:
Mr. Font is alleged to have made “verbal threats to [Ms. Raulerson] that he
will cause her to lose her bar license and livelihood and reputation.”
Mr. Font is alleged to have harassed Ms. Raulerson because of her “rejection
of his crude sexual advances.” This was alleged to have begun in January
2016, the first encounter between the two attorneys, at an examination under
oath of an insured conducted by Mr. Font and attended by Ms. Raulerson
3 and another attorney from BLO. Mr. Font allegedly asked the other BLO
attorney, within the hearing of Ms. Raulerson, if he was having sexual
relations with Ms. Raulerson. The petition alleges that this was done “with
the obvious intent or objective that Mr. Font himself wanted to [have sexual
relations with her].”2
Following this incident, Ms. Raulerson was upset and complained to BLO
and Mr. Barnard. Mr. Barnard “contacted Mr. Font and expressed his
concern to Mr. Font about such abuse from an attorney against a young
associate. Mr. Font told Mr. Barnard to ‘f**k off.’”
At some later time, Mr. Font allegedly told Ms. Raulerson “he was having
her watched by means of remote drones.”
These circumstances caused Ms. Raulerson “extreme mental anguish
resulting in physical illness (hives, vomiting, lost sleep, loss of enjoyment of
life, disparagement of reputation).” Mr. Font’s threats have caused Ms.
Raulerson’s level of discomfort to rise “from high anxiety to revulsion
against Mr. Font to the point where she has applied for and obtained a
concealed weapons license.”
Over ninety percent of the allegations in the petition, however, are related to
unprofessional conduct in litigation by Mr. Font—issuing subpoenae to require
2 The petition described the obscene terms allegedly spoken rather than “sexual relations.”
4 Ms. Raulerson to appear at insurance case trials, even when she was not involved;
filing an allegedly-defamatory affidavit3 in over a dozen insurance cases;
becoming “unhinged” after BLO “obtained a money judgment against him
individually for $8,332.50 for discovery abuses” in May 2017; making threats
while “hiding behind ‘judicial privilege;’” wasting Ms. Raulerson’s time in an
effort to have her fired, “obviously for ‘revenge’ and to make the case as expensive
as possible for [the plaintiff in a given case].”
The injunction for protection sought in the petition asked that Mr. Font be
prohibited from “going to or within 500 feet of any place [Ms. Raulerson] lives, or
to any specified place regularly frequented by [her] and any named family
members or individuals closely associated with [her.]” Those individual co-
workers closely associated with Ms. Raulerson were alleged to include Mr.
Barnard, any member of his family, or any associates or employees of BLO.
The petition also sought injunction provisions prohibiting Mr. Font from
going to or within 500 feet of the BLO law office, going to or within 100 feet of
Ms. Raulerson’s motor vehicle “whether or not that vehicle is occupied,” and
contacting Ms. Raulerson by telephone, mail, email, in writing, through another
person, “or in any other manner.”
3 The affidavit was signed by a former client of BLO and alleged “staging insurance claims and fee splitting with non-lawyers” in an insurance case in which Mr. Font represented the insurer. BLO denies that these allegations have any basis in fact.
5 In keeping with the statutory procedure in section 784.0485, a temporary
injunction for protection against stalking violence was issued on the day the
petition was filed, and the matter was scheduled for an evidentiary hearing and
consideration of a final judgment of injunction some fifteen days later. Mr. Font
filed a 422-page motion to dismiss the petition and dissolve the injunction, raising
the applicability of the litigation privilege, the paucity of details in the allegations,
the petition’s reliance on “psychoanalytical analysis” and “theatrical representation
of facts,” and an argument that emailed and electronically-filed pleadings and
communications between attorneys in legal matters may not be relied upon as
predicates for “cyberstalking” or “harassment” for purposes of the stalking
statutes.
The attachments included in the motion to dismiss included a deposition
transcript in which Mr. Font and Ms. Raulerson chastised one another for
allegedly-improper questions or objections. Included as well were motions to
disqualify BLO, objections, and motions for sanctions in various County Court
insurance cases in which the parties were represented by BLO and Mr. Font’s firm.
On behalf of Ms. Raulerson, Mr. Barnard filed a 174-page opposition to the
motion to dismiss, addressing Mr. Font’s claim of litigation privilege and the
subpoenae duces tecum directed to Ms. Raulerson. The opposition contended that
Mr. Font’s claims and motion for disqualification against Ms. Raulerson and BLO
6 were dismissed with prejudice in August 2017, and that a Bar complaint was
pending against Mr. Font.
The trial judge conducted a lengthy, thorough, and patient hearing on the
motion to dismiss. The court granted the motion to dismiss, “not necessarily with
pleasure,” but “because I think that’s what I need to do under the law.” The
court’s comments in open court included these observations for the benefit of Ms.
Raulerson:
As a young female attorney, you deserve better, because in making this ruling I’m assuming that—and presuming that everything that has been said is 100 percent true. I want you to know that. That’s what the law requires me to do to make—to make this determination. I find that if those things were said to you, then you were the victim of bullying at the very least. We are all supposed to be adults. We are all supposed to be examples for the community. We are all supposed to behave as officers of the court.
The trial court also provided the parties and counsel with information
regarding the Miami-Dade Circuit Professionalism Committee. This appeal
followed.
II. Analysis
Although the order of dismissal was without prejudice, we have jurisdiction
under Florida Rule of Appellate Procedure 9.130(a)(3)(B) (addressing non-final
orders denying an injunction). The trial court correctly noted that the motion to
dismiss tests the legal sufficiency of the petition, a matter for de novo review in
this Court: “We assume that all allegations in the complaint are true, and we
7 construe all reasonable inferences from those allegations in favor of [plaintiff].”
Greene v. Times Publ’g Co., 130 So. 3d 724, 728 (Fla. 3d DCA 2013).4
A. Key Terms
Section 784.048(1) provides the pertinent definitions for “harass,” “course
of conduct,” “credible threat,” and “cyberstalk.” The statute defines the first
degree misdemeanor offense of “stalking”5 and the third degree felony offense of
“aggravated stalking.”6 These are the definitions and offenses which establish the
predicate requirements for an injunction for protection against stalking or
cyberstalking. The procedure for prosecuting a cause of action for such an
injunction is detailed in section 784.0485.
The following excerpts from the definitions in section 748.048(1) are
applicable in the present case (with emphasis provided):
4 Mr. Font contends that, because the order sought to be reviewed also dissolved the previously entered temporary injunction, that our standard of review should be for an abuse of discretion, citing Shaw v. Tampa Electric Co., 949 So. 2d 1066, 1068 (Fla. 2d DCA 2007). We disagree, as the ex parte temporary injunction in stalking cases is effective for a short and limited period of time, pending consideration at a hearing after notice to the respondent. The trial court’s dismissal of the petition upon consideration of Mr. Font’s motion to dismiss presents an issue of law subject to de novo review. 5 § 784.048(2). 6 § 784.048(3). Aggravated stalking occurs when stalking includes an additional element, “a credible threat.” Id.
8 “‘Harass’ 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). The enactors’ choice of the term
“substantial emotional distress” establishes a more demanding burden than the
dictionary definitions of the word “harass” might suggest, which include the verbs
“worry,” “tire out,” “vex, trouble, or annoy continually or chronically,” “plague,”
“bedevil,” or “badger.”7
“‘Course of conduct’ means a pattern of conduct composed of a series of
acts over a period of time, however short, which evidences a continuity of
purpose.” § 784.048(1)(b).
“‘Credible threat’ means a verbal or nonverbal threat, or a combination of
the two, including threats delivered by electronic communication or implied by a
pattern of conduct, which places the person who is the target of the threat in
reasonable fear for his or her safety or the safety of his or her family members or
individuals closely associated with the person, and which is made with the
apparent ability to carry out the threat to cause such harm. It is not necessary to
prove that the person making the threat had the intent to actually carry out the
threat.” § 784.048(1)(c).
7 Webster’s Third New Int’l Dictionary, Unabridged 1031 (1986).
9 “‘Cyberstalk’ means to engage in a course of conduct to communicate, or
to cause to be communicated, words, images, or language by or through the use of
electronic mail or electronic communication, directed at a specific person, causing
substantial emotional distress to that person and serving no legitimate purpose.”
§ 784.048(1)(d).
The term “substantial emotional distress” is evaluated under a reasonable
person standard rather than a subjective standard. Richards v. Gonzalez, 178 So.
3d 451, 453 (Fla. 3d DCA 2015).
B. Application of the Statutory Terms to the Petition
As the trial court cogently noted at the outset, the petition more nearly
resembles, in its overall impression, a grievance complaint to The Florida Bar, or a
motion for sanctions in the ten enumerated insurance lawsuits (and one petition to
this Court) involving the parties, rather than other petitions for injunction under
Chapter 784 (“I don’t think that this is the forum for me to decide, frankly, a lot of
what you would like me to decide based on your pleadings”).
It must also be noted that the petition is misleading (whether intentionally or
not) in its use of the term “order of protection” in paragraph 4.d. of the petition
regarding “previous protection.” Section 784.0485(3)(d) requires that the petition
include, if applicable, information pertaining to any other “order of protection
issued against [the respondent] previously or from another jurisdiction, if known.”
10 In context, “order of protection” plainly refers to an injunction for protection
against stalking.8 As used in the petition by Ms. Raulerson’s counsel, however,
“order of protection” was used to describe a protective order issued under the
Florida Rules of Civil Procedure to quash a subpoena issued by Mr. Font’s law
firm to compel her attendance at a trial in which Ms. Raulerson had no apparent
role or knowledge. Ms. Raulerson’s counsel classifies such acts as a form of
harassment, but it is misleading to characterize the protective order obtained under
the civil rules as an “order of protection” under the “previous protection”
allegations required by the stalking statutes.
The core allegations in the petition describe interactions between Ms.
Raulerson in her capacity as an attorney for the BLO firm and Mr. Font in his
capacity as an attorney, all occurring in connection with the ten, enumerated,
insurance-related lawsuits. Mr. Font’s verbal threats to Ms. Raulerson “that he
will cause her to lose her bar license and livelihood and reputation,” and his
repeatedly filing the affidavit of a former BLO client (as purported evidence of
insurance fraud by that client and BLO) could involve unprofessional behavior or
8 As used in section 784.0485, “the offense of stalking shall include the offense of cyberstalking.” § 784.0485(1). The misleading characterization in paragraph 4.d is not rectified by the statement in paragraph 1 of the petition that Ms. Raulerson had not previously “received or tried to get an injunction for protection against stalking against [Mr. Font].”
11 even conduct subject to discipline by The Florida Bar, but falls short of harassment
under the statutory definition.
The unsuitability of the stalking statutes for complaints about the repeated
electronic service of subpoenae, even frivolous subpoenae, by one lawyer on
another is apparent and was properly recognized by the trial court. Such conduct,
as alleged in the present case and if proven, may be many things, but it is not
“cyberstalking” under section 784.048(1)(d).
The petition acknowledges that much of the alleged conduct involves
violations of Rules Regulating The Florida Bar 4-3.1 proscribing frivolous actions,
4-3.2 regarding dilatory practices by a lawyer in litigation, and 4-3.4(d) proscribing
frivolous discovery requests. Culling from these allegations the remaining
wrongful acts that might be actionable under the stalking statutes, we are left with
grossly inappropriate sexual comments; undated “inappropriate suggestions such
as ‘you can call me on my cell phone at night to discuss this case’;” and a
statement by Mr. Font to Ms. Raulerson that “he was having her watched by means
of a remote drones [sic],” with no information regarding the date or actual
observation by any drone.
Typical hallmarks of stalking and cyberstalking simply are not present,
whether involving actual or implied threats of violence; surveillance; videotaping;
the use of social media for revenge or humiliation; cellphone bugging or GPS
12 tracking; harassment by telephone or personal visits (here, outside of alleged
interactions in legal proceedings); and other behaviors enumerated in section 7, “A
Reference to Electronic Stalking in Florida,” within the Florida’s Domestic
Violence Benchbook (Sept. 2014) compiled for judges by the Office of State
Courts Administrator.9
C. Litigation Privilege
In his motion to dismiss and answer brief here, Mr. Font contends that the
allegations and relief sought within the petition are barred by the litigation
privilege. As a matter of law, “defamatory statements made in the course of
judicial proceedings are absolutely privileged, no matter how false or malicious the
statements may be, so long as the statements are relevant to the subject of inquiry.”
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins.
Co., 639 So. 2d 606, 607 (Fla. 1994). The scope of that privilege was narrowed
slightly in DelMonico v. Traynor, 116 So. 3d 1205, 1208 (Fla. 2013), to exclude
allegedly defamatory statements “made by an attorney during ex-parte, out-of-
court questioning of a potential, nonparty witness while investigating matters
connected to a pending lawsuit.”
9 Thanks to the pioneering work of the late Judge Amy Karan and the continuous efforts of County Court Judge Carroll Kelly, Florida in general and Miami-Dade County in particular have been leaders in educating the Legislature, the courts, and the public regarding stalking, cyberstalking, and domestic violence.
13 No Florida case has held, nor do we, that the litigation privilege applies to
conduct otherwise meeting the definitional requirements of stalking or
cyberstalking—any more than the litigation privilege bars an action for a battery
committed by one attorney against another in the course of a legal proceeding.10 A
privilege against defamation claims is not a privilege to cause substantial
emotional distress for “no legitimate purpose” or to threaten the safety of opposing
counsel.
Ms. Raulerson’s counsel argues that the trial court dismissed the petition on
the basis of the litigation privilege. We find nothing in the hearing transcript to
support that contention. Because the issue was addressed in the parties’
memoranda below and their briefs here, we have considered, and now reject, the
argument that the petition was barred in its entirety by the litigation privilege.
III. Mr. Font’s Motion for Attorney’s Fees
Mr. Font filed a motion for appellate attorney’s fees and costs. The motion
is denied. The motion was made pursuant to Florida Rule of Appellate Procedure
9.400 “and this Court’s inherent authority.” Rule 9.400 is “a vehicle for requesting
appellate fees, but does not provide independent authority for granting attorney’s
10 We recognize broad language in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 384 (Fla. 2007), to the effect that the privilege may apply to other forms of misconduct during the course of a judicial proceeding, including tortious and statutory causes of action. That holding recognized that the privilege or immunity must, however, have some relation to the proceeding. Id. at 385 (citing Levin).
14 fees.” Lewis v. Lewis, 689 So. 2d 1271, 1273 (Fla. 1st DCA 1997). See also,
Garcia v. Collazo, 178 So. 3d 429 (Fla. 3d DCA 2015).
Nor does an unelaborated allusion to this Court’s “inherent authority” or the
allegedly “frivolous” petition suffice to support such a motion. And finally,
motions for costs are filed in the lower tribunal, not in an appellate court. Fla. R.
App. P. 9.400(a); Superior Protection, Inc. v. Martinez, 930 So. 2d 859, 860 (Fla.
2d DCA 2006).
The motion for appellate attorney’s fees and costs is denied.
IV. Conclusion
The Court shares the trial court’s sympathy for both (a) Ms. Raulerson’s
difficult and stressful position as an employee of BLO—a law firm in a truly
acrimonious dispute over insurance claims and the defense of accusations
amounting to insurance fraud—and (b) her verified allegations regarding Mr. Font,
such as crude comments, a possible drone, wasted time under subpoena, and
threats of Bar proceedings or criminal charges for her or her law firm’s conduct.
The trial court’s assessment that “if those things were said to you, then you were
the victim of bullying at the very least,” is completely accurate.
BLO and Mr. Barnard, clearly frustrated by Mr. Font’s “filing of motions
typically exceeding 500 pages in length,” and “filing the defamatory affidavit in
over a dozen cases,” resorted to prose long on diagnosis and short on particular
15 facts, in drafting the petition.11 And many of the acts alleged in the petition would,
if true, obligate the attorney making the allegations to report the acts to The Florida
Bar. See Rules Regulating The Florida Bar 4-8.3, “Reporting professional
misconduct.”
It is also true that an attorney relatively new to the practice of law and high-
conflict litigation (though the very term, when used as a reference to conduct
between counsel rather than parties, is inimical to professional practice) should
develop a “thick skin,”12 but such an attorney is also entitled to refer improper
conduct by opposing counsel to the Bar and, in a particular case, to the presiding
judge. The trial court was correct that these would be a forum for determination of
“a lot of what you would like me to decide based on your pleadings.”
For these reasons, we affirm the trial court’s order of dismissal.
11 “Mr. Font’s invective has been ‘brewing’ and escalating since then to an alarming level, consistent with behavior exhibited by narcissistic psychopaths who cannot stand to lose ‘control.’ From a big picture, Mr. Font’s conduct relates to frustrated power and control over [Ms. Raulerson], cases being handled by [BLO], and his own wounded narcissistic ego.” 12See Before the Bar, Student Lawyer, In Brief: Developing a thick skin, ABA For Law Students (Oct. 1, 2013), https://abaforlawstudents.com/2013/10/01/brief- developing-thick-skin/, (last visited June 21, 2018).