Santiago v. Towle, 917 So. 2d 909 (Fla. 5th DCA 2005). · Go Syfert
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Santiago v. Towle, 917 So. 2d 909 (Fla. 5th DCA 2005). Cases Citing This Book View Copy Cite
“the sparse evidence adduced, even if believed, indicates that mr. santiago did not make any overt act that would have placed ms. towle in imminent danger, but rather only shouted and made hand gestures.”
21 citation events (21 in the last 25 years) across 1 distinct court.
Strongest positive: Titsch v. Buzin (fladistctapp, 2011-04-13)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Titsch v. Buzin (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2011 · signal: see · quote attribution · 1 verbatim quote · confidence high
the sparse evidence adduced, even if believed, indicates that mr. santiago did not make any overt act that would have placed ms. towle in imminent danger, but rather only shouted and made hand gestures.
discussed Cited as authority (rule) Aron C. Tash v. Aaron Rogers and O/B/O Minor Child etc.
Fla. Dist. Ct. App. · 2018 · confidence medium
As we have previously held, “[c]ompetent, substantial evidence must support the trial court’s finding that two incidents of repeat violence occurred.” Russell v. Doughty, 28 So. 3d 169, 170 (Fla. 1st DCA 2010) (citing Shocki v. Aresty, 994 So. 2d 1131, 1132 (Fla. 3d DCA 2008); Clement v. Ziemer, 953 So. 2d 700, 702 (Fla. 5th DCA 2007); Santiago v. Towle, 917 So. 2d 909, 910 (Fla. 5th DCA 2005)).
discussed Cited as authority (rule) Cannon v. Thomas
Fla. Dist. Ct. App. · 2014 · confidence medium
See, e.g., Russell v. Doughty, 28 So.3d 169, 170 (Fla. 1st DCA 2010) (holding that yelling profanities and threats at the petitioner, even after a previous battery by respondent against petitioner, was not sufficient for a finding of “repeat violence” without evidence that respondent took an action creating a “well-founded fear that violence was imminent”); Santiago v. Towle, 917 So.2d 909, 911 (Fla. 5th DCA 2005) (holding that a respondent’s statement to a third party that he “had a gun and was not afraid to use it” did not constitute an incident of violence because there was no…
discussed Cited as authority (rule) Giddens v. Tlsty
Fla. Dist. Ct. App. · 2012 · confidence medium
See, e.g., Power v. Boyle, 60 So.3d 496, 498 (Fla. 1st DCA 2011) (“The trial court’s finding of two incidents of violence or stalking required for an injunction under section 784.046 must be supported by competent substantial evidence.”); Murphy v. Reynolds, 55 So.3d 716, 717 (Fla. 1st DCA 2011) (holding that an injunction for pro tection against repeat violence should not have been entered because no competent substantial evidence linked the respondent to the cyberstalking incidents); Russell v. Doughty, 28 So.3d 169, 170 (Fla. 1st DCA 2010) (holding that yelling profanities and threats…
discussed Cited as authority (rule) Levy v. Jacobs
Fla. Dist. Ct. App. · 2011 · confidence medium
See Smith v. Melcher, 975 So.2d 500, 502-03 (Fla. 2d DCA 2007) (“An injunction for protection against repeat violence is properly entered only when there are two incidents of violence within the designated time period.”); Long v. Edmundson, 827 So.2d 365, 366-67 (Fla. 2d DCA 2002) (holding that although incident in which respondent waved a gun and pushed petitioner was sufficient to constitute an act of violence, the threat on petitioner’s answering machine did not qualify as second incident); see also Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006); Santiago v. Towle, 917 So.2d …
discussed Cited as authority (rule) Singletary v. Greever
Fla. Dist. Ct. App. · 2011 · confidence medium
See § 784.011(1); Santiago v. Towle, 917 So.2d 909, 911 (Fla. 5th DCA 2005) (holding that defendant’s statement to third party that he “had a gun and was not afraid to use it” did not constitute an incident of violence because there was no “overt act indicating an ability to carry out the threat or justifying a belief that violence was imminent”); Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990) (holding that telephonic threats did not constitute incidents of violence because there was no evidence defendant did any act to create a fear of imminent violence).
discussed Cited as authority (rule) Tiger v. Marcus
Fla. Dist. Ct. App. · 2010 · confidence medium
And, while Marcus testified that Tiger verbally threatened him on August 7th, in the absence of some overt act demonstrating that violence is imminent, a verbal threat does not constitute an “assault.” See, e.g., Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006); Santiago v. Towle, 917 So.2d 909, 911 (Fla. 5th DCA 2005).
discussed Cited as authority (rule) Russell v. Doughty (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2010 · confidence medium
See Shocki v. Aresty, 994 So.2d 1131, 1132 (Fla. 3d DCA 2008); Clement v. Ziemer, 953 So.2d 700, 702 (Fla. 5th DCA 2007); Santiago v. Towle, 917 So.2d 909, 910 (Fla. 5th DCA 2005).
cited Cited as authority (rule) Shocki v. Aresty
Fla. Dist. Ct. App. · 2008 · confidence medium
Santiago v. Towle, 917 So.2d 909, 910 (Fla. 5th DCA 2005).
discussed Cited as authority (rule) Clement v. Ziemer (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2007 · confidence medium
Moreover, this case is controlled by Santiago v. Towle, 917 So.2d 909, 910 (Fla. 5th DCA 2005) which discussed requisites for an injunction from section 784.046, Florida Statutes (2005).
cited Cited "see" Sorin v. Cole
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See Santiago v. Towle, 917 So.2d 909 (Fla. 5th DCA 2005).
Retrieving the full opinion text from the archive…
Alejandro SANTIAGO, Jr., Appellant,
v.
Kelly TOWLE, Appellee.
5D05-151.
District Court of Appeal of Florida, Fifth District.
Dec 2, 2005.
917 So. 2d 909
Monaco.
Cited by 12 opinions  |  Published

[*910] Elizabeth E. Berenguer, of Elizabeth E. Berenguer, P.A., Orlando, for Appellant.

No Appearance for Appellee.

MONACO, J.

The appellant, Alejandro Santiago, Jr., appeals the granting of a permanent injunction for protection against repeat violence rendered in favor of the appellee, Kelly Towle. Because the record does not support a finding of two incidents of violence or stalking, as required by the applicable statute, we reverse.

Section 784.046, Florida Statutes (2005), grants a victim of repeat violence the right to seek a protective injunction. Violence is defined by the statute as "assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person." § 784.046(1)(a), Fla. Stat. (2005). Repeat violence is defined as "two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member." § 784.046(1)(b), Fla. Stat. (2005).

In order to support an injunction against repeat violence, each purported act of violence must be founded upon competent, substantial evidence. Forrest v. Wilson, 889 So.2d 124 (Fla. 1st DCA 2004). In the present case while there may arguably exist some evidence of one incident of violence against Ms. Towle, there does not appear to be supporting evidence for a second incident.

Mr. Santiago and Ms. Towle are neighbors. Unfortunately, they are involved in an acrimonious civil dispute over a fence. Ms. Towle alleged in her petition three incidences of violence, all apparently growing out of the fence controversy. Only the first incident involved physical contact, however.

The initial incident purportedly occurred prior to the commencement of the civil case. Ms. Towle claimed that Mr. Santiago threw a liquid on her. The nature of the substance is unclear, but it appears to have been harmless because Ms. Towle did not allege or prove any injury from the event. Other than her petition statement, the trial court did not receive any evidence from Ms. Towle to prove this allegation. She suggested that she had three witnesses to the event, but none testified, and no testimony, including testimony from Ms. Towle, concerning the event was proffered at the hearing. Mr. Santiago denied throwing any liquid at or on Ms. Towle.

The second incident asserted by Ms. Towle involved Mr. Santiago pulling up next to her in her car, making an obscene gesture, and shouting obscenities. The sparse evidence adduced, even if believed, indicates that Mr. Santiago did not make any overt act that would have placed Ms. Towle in imminent danger, but rather only[*911] shouted and made hand gestures. That is, there was no allegation of reckless or careless driving or the like that might demonstrate that the vehicle was being used violently. Mr. Santiago denied the incident and provided a time card from his place of employment showing that he was at work at the time of the alleged confrontation.

The final assertion of repeat violence arises out of Ms. Towle's claim that a neighbor told her that he was told by Mr. Santiago that he had a gun and was not afraid to use it. Mr. Santiago denied making the statements.

While the first activity alleged by Ms. Towle, that involving the throwing of a liquid, could qualify, if proved, as an incident of violence under the statute, it appears that no evidence to support the claim was offered. The second incident, that involving a hand gesture and obscenities, is simply not an act of violence as defined by the statute. The only possible act prohibited by the statute that might encompass this allegation is an assault. But an assault is "an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent." See § 784.011, Fla. Stat. (2005). Here, there was no allegation of a threat, and there was no substantial evidence submitted that could support that part of the definition of an assault requiring a well-founded fear that violence was imminent. See, e.g., Lifka v. State, 530 So.2d 371 (Fla. 1st DCA 1988). Finally, the incident based on the neighbor's telling Ms. Towle that Mr. Santiago had a gun and was not afraid to use it does not constitute an act of violence, unless there is an overt act indicating an ability to carry out the threat or justifying a belief that violence was imminent. See Gagnard v. Sticht, 886 So.2d 321 (Fla. 4th DCA 2004). See also Long v. Edmundson, 827 So.2d 365 (Fla. 2d DCA 2002); Johnson v. Brooks, 567 So.2d 34 (Fla. 1st DCA 1990).

We, therefore, reverse and remand with instructions to vacate the injunction entered against Mr. Santiago.

REVERSED and REMANDED with instructions.

SAWAYA and PALMER, JJ., concur.