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Domestic Violence Injunction Was Not Upheld Where It Was Not Supported By Competent Substantial Evidence

February 16, 2016 by  
Filed under Uncategorized

 

 

 

In Leaphart v. James, the Second District Court of Appeals for the State of Florida considered Mr. Leaphart’s appeal of a permanent injunction entered after an evidentiary hearing pursuant to Florida Statute Section 741.30.  The Court reversed the injunction finding that it was not supported by competent substantial evidence.

“At the hearing, James testified that in May 2013, a week after she had moved out of an apartment, her tires and her mother’s tires were flat. In August 2013, James woke up to her “house getting shot up.” In November 2013, her car was vandalized. In February 2014, her car was set on fire. James did not see Leaphart commit any of these acts, but she said that her neighbors had ” seen a black male with all black on doing it” and that “[e]very time something happen[ed,] he went over to one of [her] friend’s house to see if they knew anything.” She said that Leaphart “brought it to their attention” and that “this all started when [she] brokeup with him.” James also testified that Leaphart “busted [her] lip one time” in June 2012 because he had seen her”texting a boy on Facebook,” but she did not include that allegation in her petition for injunction.”
The Court stated that an isolated incident that occurred twenty months before petition was filed was not enough to support the injunction. While the respondent’s car had been vandalized on one occasion and set on fire on another there was insufficient admissible evidence to attribute the vandalism or fire to Mr. Leaphart.  Mr. Leaphart denied committing any of the acts.
“The injunction is not supported by competent, substantial evidence. First, there is no competent evidence that Leaphart committed the acts that occurred in 2013 and 2014. James did not see who committed the acts, and her testimony regarding her friends’ or neighbors’ observations constituted hearsay. See §§ 90.801, .802, Fla. Stat.(2013). Further, the hearsay evidence did not prove that Leaphart committed the acts alleged. It merely established that a black man committed the acts and that Leaphart was talking about the incidents with James’s friends after the incidents occurred. Second, the only act that James witnessed herself occurred in June 2012, when Leaphart “busted her lip.” While this incident constitutes domestic violence under
the statute, § 741.28(2), it is not enough to support an injunction in the absence of other conduct by Leaphart because the incident occurred approximately twenty months before the petition was filed. See Gill v. Gill, 50 So. 3d 772, 774 (Fla. 2d DCA 2010)(“[A]n isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations.”).”

The Court also found that the trial court had violated respondent’s right to due process when it denied a continuance when respondent’s counsel was unable to be present at hearing, went forwards with the hearing, and required respondent to proceed without counsel.

If you need advice concerning a domestic violence injunction and the presentation of evidence to the court you are welcome to contact our offices to arrange a consultation with one of our lawyers.

Disclaimer: The Law Offices of Robert Hanreck, P.A. is based in Miami , Florida and serves clients throughout the State including Miami-Dade and Broward counties. We are licensed to practice law in the State of Florida. This website is intended for informational purposes only and is not meant to constitute legal advice, or solicit clients outside of the State of Florida.