McMath v. Biernacki, 776 So. 2d 1039 (Fla. 1st DCA 2001). · Go Syfert
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McMath v. Biernacki, 776 So. 2d 1039 (Fla. 1st DCA 2001). Cases Citing This Book View Copy Cite
“for determining whether an incident creates substantial emotional distress, courts must use a reasonable person standard, not a subjective standard.”
33 citation events (33 in the last 25 years) across 1 distinct court.
Strongest positive: Gregg Shannon v. Christopher Smith, and OBO Charles C. Smith, a minor (fladistctapp, 2019-07-23)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Gregg Shannon v. Christopher Smith, and OBO Charles C. Smith, a minor (2×) also: Cited as authority (rule)
Fla. Dist. Ct. App. · 2019 · quote attribution · 1 verbatim quote · confidence high
no evidence exists in the record that a reasonable person would suffer substantial emotional distress from these incidents.
discussed Cited as authority (verbatim quote) Kenneth B. Wills and Bobbie Akins v. Rashida Wills Jones
Fla. Dist. Ct. App. · 2016 · quote attribution · 1 verbatim quote · confidence high
for determining whether an incident creates substantial emotional distress, courts must use a reasonable person standard, not a subjective standard.
discussed Cited as authority (rule) NISSIM HASAN a/k/a NISSIM HASSAN v. KIMBERLY P. RIVERA
Fla. Dist. Ct. App. · 2022 · confidence medium
A. Appellant’s course of conduct caused substantial emotional distress to the victim “‘For determining whether an incident [causes] substantial emotional distress, courts must use a reasonable person standard, not a subjective standard.’ Thus, the question is not ‘was the victim in tears and terrified,’ but rather, ‘would a reasonable person be put in distress when subjected to such conduct?’” Gonzalez v. Funes, 300 So. 3d 679 , 684 (Fla. 4th DCA 2020) (alteration in original) (internal citations omitted) (quoting McMath v. Biernacki, 776 So. 2d 1039, 1040 (Fla. 1st DCA 2001)…
discussed Cited as authority (rule) LISANDRA GONZALEZ v. SARAI LORRAINE FUNES
Fla. Dist. Ct. App. · 2020 · confidence medium
“For determining whether an incident [causes] substantial emotional distress, courts must use a reasonable person standard, not a subjective standard.” McMath v. Biernacki, 776 So. 2d 1039, 1040 (Fla. 1st DCA 2001).
discussed Cited as authority (rule) SCOTT ALEXANDER JOHNSTONE v. STATE OF FLORIDA (2×)
Fla. Dist. Ct. App. · 2020 · confidence medium
“In determining whether an incident or series of incidents creates substantial emotional distress for a victim, the distress should be judged not on a subjective standard (was the victim in tears and terrified), but on an objective one (would a reasonable person be put in distress when subjected to such conduct?).” D.L.D. v. State, 815 So. 2d 746, 748 (Fla. 6 5th DCA 2002) (citing McMath v. Biernacki, 776 So. 2d 1039, 1041 (Fla. 1st DCA 2001)).
cited Cited as authority (rule) Billy J. Stone v. Teresa A. McMillian
Fla. Dist. Ct. App. · 2019 · confidence medium
McMath v. Biernacki, 776 So.2d 1039, 1040 (Fla. 1st DCA 2001).
discussed Cited as authority (rule) Scott Anthony Mitchell v. Taylor N. Brogden
Fla. Dist. Ct. App. · 2018 · confidence medium
See Ashford-Cooper v. Ruff, 230 So. 3d 1283, 1283 (Fla. 1st DCA 2017) (“[T]here was no evidence that the repeated calls and texts Appellant made to Appellee to try to get in touch with her husband caused Appellee— or would cause a reasonable person in Appellee’s position— substantial emotional distress.”); David v. Schack, 192 So. 3d 625, 628 (Fla. 4th DCA 2016) (reversing stalking injunction after finding reasonable person would not suffer substantial emotional distress when respondent “banged on [petitioner’s] door” and left a letter and payment); Plummer v. Forget, 164 So. 3…
discussed Cited as authority (rule) Michael Paulson v. Sarah Rankart (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2018 · confidence medium
McMath v. Biernacki, 776 So. 2d 1039, 1040 (Fla. 1st DCA 2001).
discussed Cited as authority (rule) JOSHUA GIVENS v. WILLIAM HOLMES
Fla. Dist. Ct. App. · 2018 · confidence medium
See Touhey v. Seda, 133 So. 3d 1203, 1204 (Fla. 2d DCA 2014) ("Each incident of stalking must be proven by competent, substantial evidence to support an injunction against stalking."); Thoma v. O'Neal, 180 So. 3d 1157, 1159 (Fla. 4th DCA 2015) ("A trial court's order granting a permanent injunction is reviewed for competent substantial evidence.") (citing McMath v. Biernacki, 776 So. 2d 1039, 1040-41 (Fla. 1st DCA 2001))).
cited Cited as authority (rule) Terrance J. Pickett v. Holly C. Copeland
Fla. Dist. Ct. App. · 2018 · confidence medium
Thoma v. O’Neal, 180 So. 3d 1157, 1159 (Fla. 4th DCA 2015) (citing McMath v. Biernacki, 776 So. 2d 1039, 1041 (Fla. 1st DCA 2001)).
discussed Cited as authority (rule) Austin v. Echemendia
Fla. Dist. Ct. App. · 2016 · confidence medium
(Fla. 5th DCA 2003) (evidence of emails, voicemails, and phone conversations which were not threatening, hostile or abusive, and incidents of both parties dining at the same restaurant where the respondent never approached petitioner and petitioner did not testify that she was placed , in fear did not amount to repeat violence); Corrie v. Keul, 160 So.3d 97, 98 (Fla. 1st DCA 2015) (evidence that respondent yelled threats regarding possessing a gun and taking petitioner’s home, chased petitioner’s dogs, and took pictures of petitioner’s guests was insufficient to support injunction); Powe…
cited Cited as authority (rule) James Thoma v. Tamekia O'Neal
Fla. Dist. Ct. App. · 2015 · confidence medium
McMath v. Biernacki 776 So.2d 1039, 1040-41 (Fla. 1st DCA 2001).
cited Cited as authority (rule) Slack v. Kling
Fla. Dist. Ct. App. · 2007 · confidence medium
Ravitch v. Whelan, 851 So.2d 271, 273 (Fla. 5th DCA 2003); McMath v. Biernacki, 776 So.2d 1039, 1040 (Fla. 1st DCA 2001).
discussed Cited as authority (rule) Werner v. Scharlop
Fla. Dist. Ct. App. · 2004 · confidence medium
See §§ 784.046(1)(b), 784.048(1)(a), 784.048(2), Fla. Stat. (2002); McMath v. Biernacki, 776 So.2d 1039, 1040 (Fla. 1st DCA 2001)(holding that objective, reasonable person standard must be applied in determining whether conduct created "substantial emotional distress").
discussed Cited "see" Nickesha Reid v. Tachita Saunders
Fla. Dist. Ct. App. · 2017 · signal: see · confidence high
See McMath v. Biernacki, 776 So.2d 1039, 1040 (Fla. 1st DCA 2001) (noting that courts must use a reasonable person standard rather than a subjective standard in determining whether incidents create substantial emotional distress); see also Roach v. Brower, 180 So.3d 1142, 1144 (Fla. 2d DCA 2015) (noting that “without competent, substantial evidence that Ms; Brow-er, the petitioner, suffered substantial emotional distress, the circuit court could not enter an injunction against [the appellant] based upon the stalking statute”).
cited Cited "see" Martin v. Lee
Fla. Dist. Ct. App. · 2017 · signal: see · confidence high
See McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001).
cited Cited "see" M.L. v. J.H.P.
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001); Anderson v. McGuffey, 746 So.2d 1257 (Fla. 1st DCA 2000).
discussed Cited "see" Ravitch v. Whelan
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001) (holding that the record contained no evidence that the cited incidents constituted stalking, nor did evidence exist in the record that a reasonable person would suffer substantial emotional distress from such incidents).
discussed Cited "see, e.g." ERWIN A. LARIOS v. RUTH GUADALUPE LARIOS, etc.
Fla. Dist. Ct. App. · 2023 · signal: see also · confidence medium
However, a “merely speculative fear of future 8 violence cannot be enough to justify the never-ending existence of an injunction.” Id. at 500 ; see also Hobbs, 290 So. 3d at 1096 (“[S]ubjective fear is not enough to maintain a permanent injunction.” (citing McMath v. Biernacki, 776 So. 2d 1039, 1040 (Fla. 1st DCA 2001))).
discussed Cited "see, e.g." Joseph Klenk v. Jessica Ransom
Fla. Dist. Ct. App. · 2019 · signal: see also · confidence medium
Paulson v. Rankart, 251 So. 3d 986, 990 (Fla. 1st DCA 2018) (rejecting argument that respondent’s acts of watching petitioner sunbathe on her deck next door and “creep” around utility meters on the public street were sufficient to support an injunction); see also McMath v. Biernacki, 776 So. 2d 1039, 1040-41 (Fla. 1st DCA 2001) (finding petitioner’s “subjective distress” insufficient to justify injunction where petitioner was uncomfortable around respondent when he tried to talk to her, sent her a letter, and sent flowers and balloons).
discussed Cited "see, e.g." Power v. Boyle
Fla. Dist. Ct. App. · 2011 · signal: see also · confidence medium
Harassment is defined as a series of acts over a period of time “directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(1)(a); Fla. Stat.; see also McMath v. Biernacki, 776 So.2d 1039, 1040 (Fla. 1st DCA 2001) (citing Bouters v. State, 659 So.2d 235, 238 (Fla.1995), for the proposition that a reasonable person standard applies in determining whether an incident causes substantial emotional distress so as to constitute harassment).
discussed Cited "see, e.g." Forrest v. Wilson
Fla. Dist. Ct. App. · 2004 · signal: see also · confidence medium
See § 784.048(2), Fla. Stat. (2003) (providing that "[a]ny person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking ..."); see also McMath v. Biernacki, 776 So.2d 1039, 1040 (Fla. 1st DCA 2001) (applying *125 the competent, substantial evidence standard of review in reviewing an injunction against repeat violence).
Retrieving the full opinion text from the archive…
Brian McMATH, Appellant,
v.
Cathy BIERNACKI, Appellee.
1D99-3670.
District Court of Appeal of Florida, First District.
Feb 2, 2001.
776 So. 2d 1039
Per Curiam.
Cited by 28 opinions  |  Published

[*1040] Scott A. Snavely of Bajoczk & Fournier, Tallahassee, Attorney for Appellant.

Cathy Biernacki, pro se.

PER CURIAM.

Brian McMath, the appellant, seeks review of a Final Judgment of Injunction for Protection Against Repeat Violence. As the record contains no evidence of repeat violence to justify the trial court's issuance of an injunction, we reverse.

Section 784.046, Florida Statutes (1999), authorizes an injunction for protection for victims of repeat violence. The statute defines repeat violence 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." See § 784.046(1)(b), Fla. Stat. (1999). Violence means "any assault, battery, sexual battery, or stalking by a person against any other person." See § 784.046(1)(a), Fla.Stat. (1999). Section 784.048(2), Florida Statutes (1999), provides that anyone who "willfully, maliciously, and repeatedly follows or harasses another person" commits the crime of stalking. The term "harass" is defined as a series of acts over a period of time "directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose." See § 784.048(1)(a), Fla.Stat. (1999). For determining whether an incident creates substantial emotional distress, courts must use a reasonable person standard, not a subjective standard. See Bouters v. State, 659 So.2d 235, 238 (Fla.1995).

The two incidents cited by the appellee in her petition for injunction do not meet the statutory definition of repeat violence. She lists the receipt of a letter from the appellant as one incident occurring within six months of her petition. The second incident is her report to a police officer that, on several occasions, the appellant sent her flowers and balloons. These incidents do not show that the appellee had a well-founded fear that violence was imminent. See Johnson v. Brooks, 567 So.2d 34 (Fla. 1st DCA 1990). The appellee admits that the appellant never threatened her. Additionally, neither of these incidents involved an assault, battery, or sexual battery; therefore, the incidents must meet the definition of stalking to qualify as repeat violence.

The record is devoid of any evidence that the incidents constituted stalking. No evidence exists in the record that a reasonable person would suffer substantial emotional distress from these incidents. The record reveals that the appellee does not feel comfortable around the[*1041] appellant. In response to why the appellee was afraid of the appellant, the appellee stated that the appellant did not understand her and had made several attempts to talk to her. While these attempts may cause subjective distress to the appellee, there is no competent, substantial evidence that the attempts to talk to the appellee would cause a reasonable person to suffer any emotional distress.

Thus, no statutory basis exists for granting injunctive relief based on the incidents cited in the appellee's petition. No competent, substantial evidence exists that the appellee suffered repeat acts of violence. See Anderson v. McGuffey ex rel. McGuffey, 746 So.2d 1257 (Fla. 1st DCA 2000) (holding that statutory elements not met where no evidence of repeat violence exists); Russell ex rel. Russell v. Hogan ex rel. Hogan, 738 So.2d 1003 (Fla. 2d DCA 1999); Johnson, 567 So.2d at 35. Accordingly, we reverse the trial court's final judgment imposing an injunction against repeat violence.

REVERSED.

KAHN, BROWNING, and LEWIS, JJ., concur.