Law Offices of Robin Bresky Succeeds in Appeal of Permanent Injunction for Protection Against Dating Violence

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August 8, 2018*

The Law Offices of Robin Bresky recently assisted a client in obtaining a per curiam affirmance of a restraining order protecting him against violence by his former girlfriend.

At the trial court level, the Petitioner filed a sworn petition for injunction for protection against dating violence pursuant to section 784.046, Florida Statutes (2017). Based on the evidence presented at the evidentiary hearing, the court found that the Petitioner was a victim of dating violence and/or had reasonable cause to believe that he was in imminent danger of becoming a victim of an action of dating violence by the Respondent, and that an immediate and present danger of dating violence existed. As a result, the trial court granted the petition and issued a permanent injunction for the Petitioner’s protection against dating violence. The court ordered, among other things, that the Respondent have no contact with the Petitioner.

After the Respondent filed her Notice of Appeal, the Petitioner retained our firm to defend the trial court’s issuance of the permanent injunction. In requesting an affirmance of the permanent injunction, we asserted on appeal that the trial court properly exercised its broad discretion in granting the permanent injunction.

We also asserted that the trial court’s decision was clothed with a presumption of correctness where it must be presumed that the permanent injunction was properly based on evidence presented at the hearing. We argued that the Appellant’s failure to provide the appellate court with a transcript of the final hearing was a critical omission because the Appellant, as the party seeking review in the appellate court, bore the burden to submit a record sufficient to demonstrate reversible error. It was incumbent upon the Appellant to provide the evidentiary hearing transcript or an otherwise adequate record for the court to conduct a meaningful appellate review by evaluating the merits of the Appellant’s claims. As a final point, we asserted that the judgment was not erroneous on its face.

To support our position, we relied on case law including Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979), where the Florida Supreme Court held, “In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error. The Applegates correctly point to the lack of a trial transcript or a proper substitute as fatally flawing the appellate court’s ruling.” Another case we relied on was Jackson v. Echols, 937 So. 2d 1247, 1249 (Fla. 3d DCA 2006) (“As the transcript of the hearing or a statement of the evidence is necessary to provide meaningful appellate review of this issue, and the appellant has been unable to provide one, we are unable to determine whether the trial court abused its discretion, and, therefore, we must affirm [the permanent injunction].”).

The Third District Court of Appeal agreed with our arguments and issued a per curiam affirmance of the permanent injunction, citing to Applegate and Jackson. Our firm was pleased to help our client achieve this favorable result that maintains the protections of the permanent injunction.

* Not final until disposition of timely filed motion for rehearing.