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Article by Michael Hyman in Today’s Daily Business Review: “Injunction Petition Against Ornery Condo Resident Sends Important Message”

Michael-Hyman-srhl-lawAn article authored by the firm’s Michael L. Hyman was featured as the “Board of Contributors” expert guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “Injunction Petition Against Ornery Condo Resident Sends Important Message,” focuses on a recent petition for an injunction stemming from pre-pandemic confrontations between a current and a former community association board member.  Michael writes that the case illustrates how associations and their directors should proactively address bellicose residents.  His article reads:

. . . The initial incident that led to the petition for the injunction, which was granted by the circuit court but eventually overturned on appeal, took place at a Broward County condominium in December 2018. That was when Patrick Gagnon, a member of the community’s board of directors, was accosted by prior board member Joseph Cash. A second incident later in the same month involved Cash allegedly yelling at Gagnon, calling him a liar and cursing at him.

dbr-logo-300x57Two months later in February 2019, Gagnon alleged that Cash confronted him two times, 45 minutes apart, yelling and cursing about new trees installed by the association that blocked the view from his condominium.

The final encounter leading to the petition took place one week later when Cash came across Gagnon and a group of guests in the parking lot with a car parked in Cash’s reserved space. This transgression prompted Cash to start yelling at Gagnon while also moving his car close to the group and revving his engine. Cash then rode in the elevator with Gagnon and his guests, culminating with Cash allowing the guests to exit but blocking Gagnon, all the while yelling and cursing at him.

Gagnon’s petition for an injunction filed shortly thereafter stated he felt unsafe and called the police to report the incident. His plea for injunctive protection from stalking against Cash was granted by the lower court, but the decision was appealed to the state’s Fourth District Court of Appeal.

The Fourth DCA panel focused on the legal definitions of stalking and harassment, which is “a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” It cited prior rulings finding a course of conduct requires multiple acts that are separated by time or distance, and concluding: “[T]o be entitled to an injunction for stalking, the petitioner must allege and prove two separate instances of stalking.”

The opinion found that two or more acts, which are part of one continuous course of conduct, are legally insufficient to qualify as separate instances of harassment.

To qualify as stalking under the statute, the opinion also notes that the conduct must cause substantial emotional distress and serve no legitimate purpose.

“[W]hen viewed through the lens of the statute and the case law interpreting it, Cash’s conduct falls short of what is necessary to obtain an injunction. While Cash’s profanity and accusations of lying might have been offensive to Gagnon, perhaps even defamatory, this speech does not fall within a ‘course of conduct’ that allows for injunctive relief,” the panel concluded.

The appellate court found Cash’s actions served the legitimate purpose of conveying various complaints to an association board member about condominium-related events.
“Even though these complaints were voiced in an intemperate, crude, and uncivil manner, this does not entitle Gagnon to an injunction,” the panel concluded.

Additionally, while Gagnon alleges four instances of stalking occurred during the parking lot dispute, the Fourth DCA concluded these events were one continuous episode.

“[T]he incident where Gagnon says Cash followed him up the elevator and blocked his egress to berate him could be a qualifying incident sufficient to constitute stalking when paired with another… [T]he rest of the alleged conflicts are merely uncomfortable neighborly disputes that do not rise to the level of stalking,” the panel concluded in its decision to reverse the injunction against Cash.

Even though the injunction was reversed on appeal, the petition and ensuing litigation over the alleged incidents sent an important message to Cash and others in the community of the potential consequences of hostile and belligerent confrontations with board members. The cantankerous resident was forced to answer for his actions and mount a legal defense before the circuit and appellate courts, presumably consuming a great deal of his personal time and costing him a substantial sum in attorney’s fees. . .

Michael concludes by noting that today’s highly polarized political and social climate, not-to-mention the widespread societal pandemic fatigue, mandate that board members and their associations remain vigilant and respond when necessary to incidents of flared tensions involving hot-tempered residents. He also notes that communities would also be well advised to ensure they have sufficient Directors and Officers insurance coverage, which defends and protects association directors from potential legal and financial liabilities.

Our firm salutes Michael for sharing his insights into the takeaways from this recent case with the readers of the Daily Business ReviewClick here to read the complete article in the newspaper’s website (registration required).

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