Not Enough Evidence for Stalking Injunction

In the case of Kevin Touhey versus Frank Seda, a judge issued an injunction for protection against stalking based on the following facts:

Mr. Seda filed a sworn petition for injunction for protection against stalking. In his petition, Seda stated that he has been afraid of Mr. Touhey since January 2012 as a result of Touhey repeatedly attempting to contact Seda and because Touhey threatened and harassed him and his employees. At the hearing on the petition, however, Seda testified that the alleged stalking occurred only since about late September 2012, when Touhey's son pulled a gun on Seda. Seda claimed that Touhey sent him a text message at that time, stating “[W]e can resolve this problem.” Seda admitted that he had dinner with Touhey and was a guest at Touhey's home on various occasions between March 2012 and June 2012.

The judge asked Seda to provide specific examples of the alleged stalking, to which Seda testified that Touhey called and visited his office, asking Seda's employees about his whereabouts. Seda did not indicate that any threats were made; rather, he claimed that Touhey was trying to intimidate him. Seda testified that he “fears for [his] life” as a result of the incident with Touhey's son, though only Touhey, not his son, was named in the petition.

Seda produced three witnesses to support his stalking claims, which primarily involved indirect contact. All three witnesses worked with both Seda and Touhey in some capacity. The first witness testified that he did not have any firsthand knowledge of the alleged incidents. The second witness testified that Touhey went to Seda's office once and called the office twice in the past month but made no threats and simply asked for Seda. And the third witness testified that he was not aware of any stalking.

Mr. Touhey appealed the judge's decision to issue an injunction against him, and the court of appeals agreed with Touhey for the following reasons:

1. The evidence presented at the hearing established only a single incident of “following,” which was not malicious.

2. A reasonable person would not suffer “substantial emotional distress” as a result of Touhey visiting once and calling twice to inquire about Seda's whereabouts or the single text message following the incident with Touhey's son.

3. Based upon Seda's testimony at the hearing, it appears that his fear and distress actually stemmed from the incident with Touhey's son.

4. Touhey had a legitimate purpose for trying to get in touch with Seda. Mr. Seda and Touhey's wife were business partners, and Mr. Touhey worked for his wife and handled some of the management responsibilities of the business. Seda and Touhey's wife were in the process of dissolving their business relationship. Thus, Mr. Touhey had a legitimate purpose for attempting to contact Seda, as Mr. Touhey participated, to some extent, in Seda's business.

Because the evidence was not sufficient to prove that Touhey stalked Seda, the court of appeals reversed the injunction for protection against stalking and ordered the lower-court judge to dismiss the injunction.

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