Carter v. Malken (Fourth DCA, January 4, 2017)

The trial court entered an injunction against Malken for stalking.  The Fourth District reversed because Carter “failed to prove at least two incidents of harassment.”

Carter’s petition alleged that Malken: (1) broke into a house previously owned by his mother and removed valuables (Carter was not present during this); and (2) at a later date, threatened to “kill him, grabbed him and pushed him.”  At the hearing, Carter alleged two additional incidents: (3) that Malken came to Carter’s home with police pursuant to a court order; and (4) that Malken made several accidental “pocket dialed” phone calls to Carter.  The trial court granted the injunction,

In reversing, the District Court observed that an injunction based on stalking requires proving “repeated” incidences of malicious following or harassment.  “Harassment” requires a “course of conduct . .  . which causes substantial emotional distress and serves no legitimate purpose.”  Conduct it legitimate if “there is a reason [for it] other than to harass the victim.”

The District Court held that the four alleged acts failed, as a matter of law, to constitute stalking.  The first allegation, that Malken went to the house to remove valuables, lacked the “willful and malicious intent to cause [Carter] substantial emotional distress.”  The third allegation, that Malken went to the home with police pursuant to a court order, could not be interpreted by any “reasonable person . . . as malicious or harassing.”  The fourth allegation, regarding pocket dialing, could not be found to have caused emotional distress under a “reasonable person standard.”  Finally, the District Court expressed doubt regarding the veracity of the second allegation, but stated that even if it was true, the single incident would not be sufficient to prove stalking.  Thus, the injunction was improperly entered and, therefore, reversed.