Threatening remarks without overt acts is not enough for an injunction against repeat violence

In BANKS, v. MCFARLAND, 39 FLW 2155b (Fla. 1st DCA) in case No. 1D13-5825 in an opinion filed on October 13, 2014, an appeal was filed apparently without any review of prior case law. Once again, the DCA found error in the trial court's entry of an injunction against repeat violence pursuant to section 748.046, Florida Statutes (2013) where the evidence revealed threatening remarks alone without an accompanying overt act of violence that would have created a well founded fear that violence was imminent. Reversed.
Full opinion follows:
(PER CURIAM.) James Banks appeals the issuance of a temporary injunction for repeat violence against him based upon the complaint of Kim McFarland. We reverse.
Appellant and his spouse lived across the street from and had an acrimonious relationship with appellee and her spouse. The trial court entered the injunction against repeat violence pursuant to section 748.046, Florida Statutes (2013), based upon testimony from appellee and another neighbor that appellant yelled at appellee, “I will shoot and kill all of you” and “I'll F you up,” in addition to making other ugly remarks and taunts and engaging in intrusive behavior.
The “repeat violence” necessary to obtain an injunction under the statute includes “assault,” which, in turn, requires proof of an intentional and unlawful threat to do violence, the apparent ability to do so, “and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat. (2013). The case law is replete with instances of persons making nearly identical threatening remarks as appellant's, which did not warrant an injunction because they were not accompanied by overt acts that would have created a well-founded fear in the victim that violence was imminent. See Titsch v. Buzin, 59 So. 3d 265 (Fla. 2d DCA 2011); Gagnard v. Sticht, 886 So. 2d 321 (Fla. 4th DCA 2004); Perez v. Siegel, 857 So. 2d 353 (Fla. 3d DCA 2003); Cirillo v. Jones, 84 So. 3d 1174 (Fla. 4th DCA 2012). See also Sorin v. Cole, 929 So. 2d 1092 (Fla. 4th DCA 2006); Johnson v. Brooks, 567 So. 2d 34 (Fla. 1st DCA 1990); Power v. Boyle, 60 So. 3d 496 (Fla. 1st DCA 2011); Russell v. Doughty, 28 So. 3d 169 (Fla. 1st DCA 2010); Santiago v. Towle, 917 So. 2d 909 (Fla. 5th DCA 2005).
There was no showing of an overt act below. We find nothing to distinguish the case at bar from those cited above.
REVERSED. (PADOVANO, THOMAS, and CLARK, JJ., CONCUR.)