ROBERT LENTINO vs TORIANNE MCKINNEY

• Court: District Court of Appeal of Florida
• Decided: June 3, 2022
• Docket: 21-2155
• Status: Published

Opinion

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 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

2 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.