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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11679
Non-Argument Calendar
____________________
MICHAEL FLOYD,
an individual,
Plaintiff-Appellant,
versus
ZACHARY E. STOUMBOS,
an individual,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
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D.C. Docket No. 6:20-cv-00353-RBD-EJK
____________________
Before JORDAN, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
In this chapter of a long-running feud between two
neighbors, we must decide whether Michael Floyd’s malicious
prosecution claim against Zachary Stoumbos survives summary
judgment. At Stoumbos’s urging, state prosecutors charged Floyd
with disorderly conduct, stalking, and aggravated stalking—
charges that they later dropped. But Floyd has not shown a lack of
probable cause to support the criminal case, so we affirm the
court’s grant of summary judgment to Stoumbos.
I.
As the district court put it: “Plaintiff Michael Floyd and
Defendant Zachary Stoumbos were neighbors—though certainly
not in the biblical sense, as there was no love lost between them.”
Floyd and Stoumbos owned adjacent lakefront properties in
Windermere, Florida. Stoumbos, a criminal defense attorney,
lived in a home on his property while Floyd, an Irish national, lived
in the United Kingdom. Floyd’s property was mostly vacant except
for a small shed.
Over a decade ago, the two began fighting over Floyd’s
planned construction of a boat dock on his property. Eventually,
Stoumbos sued Floyd in Florida state court, alleging that Floyd
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built his dock out of compliance with an agreement between the
two. He also claimed that Floyd continued installing cameras near
his property line—despite repeated requests to stop—that filmed
Stoumbos’s property and even inside his house. Undeterred, Floyd
added more cameras on this property line over the next few years,
eventually totaling eighteen.
While this lawsuit was ongoing, another conflict arose.
Floyd placed an outdoor radio on his dock that played loud music
continuously from early morning until late evening. Floyd put the
radio there, he explained, to “deter otters and birds” from “using
the dock as a bathroom.” He also placed a radio in a shed on the
property to scare away would-be intruders, among other reasons.
Stoumbos claims that the noise from the radios was “brutal” and
“life altering.”
Near the end of 2013, Stoumbos decided to take action. He
first called the police, who sent an officer to the property. He told
the officer that he could hear the dock radio from his property,
including from his patio. The officer confirmed that he could hear
the radio from Stoumbos’s property. The officer called Floyd, and
Floyd told him the radio was on a timer and kept wildlife away.
Floyd also said, according to the officer, that it was “not to[o] loud
in his opinion and that he has no intentions of turning it off or
down.”
The music played on. In January 2014, Stoumbos secured
an injunction in state court against Floyd, barring him from playing
music from the radios that could be heard beyond fifty feet away.
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One day after the injunction was entered, Stoumbos called the
police again. The deputy who responded estimated that music was
still “clearly audible” 100 feet away from the dock. He turned the
music off.
Five days later, Stoumbos called the police yet again. A
different deputy responded, although this deputy knew about the
previous visit. This time, the deputy heard music coming from the
shed around 200 feet away. He executed an arrest affidavit for
Floyd. Eventually, the radios “were turned off” in mid-March 2014,
about two months after the injunction.
A state prosecutor filed charges against Floyd for disorderly
conduct and stalking related to the music and cameras. Along the
way, Stoumbos had pressured the prosecutors. Writing on his
attorney letterhead, he requested that the case be “prosecuted to
the fullest extent of the law” and he later sent “an in depth
Memorandum of Law” to the state attorneys and asked for their
thoughts. At one point, he told a prosecutor that he knew the
elected State Attorney and would let him know how the
prosecutors were handling his grievance. He even told a
prosecutor that he would be “very angry” if charges were not filed.
After the prosecutor filed charges, a state court judge found
probable cause for all counts and issued a warrant for Floyd’s
arrest. When Floyd returned to Florida, he was arrested and then
released with instructions not to contact Stoumbos. Several
months later, the prosecutor added another charge of aggravated
stalking based on Floyd’s installation of more cameras near
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Stoumbos’s property in violation of the no contact order. These
extra cameras were 360-degree dome cameras that could save
footage, and at least one contained a sign facing Stoumbos’s
property. The sign read “WARNING 24HR CCTV” and “Images
are remotely stored & monitored for the prevention and detection
of crime.”
Two-and-a-half years after first filing charges, the prosecutor
dropped all four counts. By his assessment, although there was “a
reasonable likelihood of prevailing at trial when the case was
initially filed, that likelihood has decreased substantially through
the discovery process.” He elaborated that it would be hard for the
State to prove that Floyd knew about the court orders, installed the
music or cameras himself, and did not have a legitimate purpose.
After the charges were dropped, Floyd sued Stoumbos in federal
court for malicious prosecution.
When Stoumbos moved for summary judgment, the court
granted the motion. It reasoned that Floyd could not show that
Stoumbos was the legal cause of the proceeding and that there was
no absence of probable cause, both of which are required for a
malicious prosecution claim under Florida law. There was no legal
cause, it said, because Stoumbos did not knowingly provide any
false information and none of his actions were “the determining
factor” in Floyd’s prosecution. What’s more, “probable cause
supported every stage” of the proceeding brought against Floyd.
Floyd now appeals.
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II.
We review a grant of summary judgment de novo. Josendis
v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1314 (11th
Cir. 2011). On summary judgment, we must view the evidence
and make all reasonable inferences in the light most favorable to
the nonmoving party. Lehman v. Lucom,
727 F.3d 1326, 1330
(11th Cir. 2013).
III.
To show malicious prosecution under Florida law, a plaintiff
must prove six elements: “(1) The commencement or continuance
of an original criminal or civil judicial proceeding. (2) Its legal
causation by the present defendant against plaintiff who was
defendant in the original proceeding. (3) Its bona fide termination
in favor of the present plaintiff. (4) The absence of probable cause
for such proceeding. (5) The presence of malice therein.
(6) Damage conforming to legal standards resulting to plaintiff.”
Burns v. GCC Beverages, Inc.,
502 So. 2d 1217, 1218 (Fla. 1986)
(quotation omitted). “If any one of these elements is lacking, the
result is fatal to the action.”
Id. (quotation omitted).
To show the fourth element, a plaintiff must prove that the
proceeding was “initiated by the defendant without probable
cause,” meaning that we evaluate probable cause from the
perspective of the malicious prosecution defendant.
Id. at 1219
(emphasis added); see also Alterra Healthcare Corp. v. Campbell,
78 So. 3d 595, 603 (Fla. Dist. Ct. App. 2011). Here, that is
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Stoumbos. And under Florida law, probable cause is “a reasonable
ground of suspicion, supported by circumstances sufficiently
strong in themselves to warrant a cautious man in the belief that
the person accused is guilty of the offense with which he is
charged.” Burns,
502 So. 2d at 1219. Proving the lack of probable
cause is an “onerous requirement.”
Id.
Floyd cannot meet that onerous requirement. When
relevant facts are undisputed, we may decide probable cause “as a
question of law.” Alamo Rent-A-Car, Inc. v. Mancusi,
632 So. 2d
1352, 1357 (Fla. 1994) (quotation omitted). Floyd cannot show that
Stoumbos lacked reasonable suspicion, supported by the
circumstances, for any of the four counts. 1 As a result, his
malicious prosecution claim fails. 2
A.
We first address disorderly conduct. Under Florida law, a
conviction for disorderly conduct can result from acts that “affect
the peace and quiet of persons who may witness them.”
Fla. Stat.
§ 877.03.
Stoumbos had probable cause to believe that Floyd violated
this statute. Floyd does not dispute that music played from the
1We do not decide whether probable cause must exist for all four counts
because “no Florida court has taken a firm stand on this question.” Hall v.
Sargeant, No. 18-80748,
2020 WL 1536435, at *27 n.30 (S.D. Fla. Mar. 30, 2020).
2 We need not consider whether Floyd also failed to show legal cause.
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dock during daylight hours and from the shed at regular intervals.
Nor does he dispute that Stoumbos and the investigating officers
heard music from Stoumbos’s property, some distance away from
the radios. The parties dispute the exact distance and the exact
decibel level, as well as how disruptive the noise was. But we need
not decide those facts to find probable cause. Stoumbos had, at
minimum, a reasonable suspicion that someone’s (his family’s)
peace and quiet was affected, and this suspicion was supported by
the fact that music was played for long stretches at discernible
volumes on Floyd’s property. That’s enough for probable cause.
The officer’s probable cause finding bolsters this conclusion.
That an officer “clearly stated that there was probable cause to
arrest” is some evidence of probable cause. Southland Corp. v.
Bartsch,
522 So. 2d 1053, 1056 (Fla. Dist. Ct. App. 1988). Here, the
officer who completed the arrest affidavit for disorderly conduct
wrote on the affidavit that he could hear music 200 feet from the
shed, and his report refers specifically to his “probable cause.”
The same goes for the probable cause findings of the
prosecutor and state judge. The filing of an information
“constitutes evidence of reasonable grounds for the prosecution.”
Colonial Stores, Inc. v. Scarbrough,
355 So. 2d 1181, 1185 (Fla.
1977). The prosecutor’s information here not only charges Floyd
with disorderly conduct, but also specifically referenced “playing
loud music.” Likewise, the “Probable Cause Order” issued by the
state court judge—after examining the affidavits and exhibits—
buttresses the fact that Stoumbos himself had probable cause.
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B.
We next turn to the three stalking charges. In Florida, a
person commits the offense of stalking when he “willfully,
maliciously, and repeatedly follows, harasses, or cyberstalks
another person.”
Fla. Stat. § 784.048(2).
Floyd’s repeated, continual playing of loud music and
multiple camera installations at the property line underlie these
stalking charges. We must decide whether Stoumbos could
reasonably suspect that these actions were willful, malicious, and
harassing under the statute.
First, Stoumbos could reasonably suspect that Floyd’s
actions were willful and malicious. No one disputes that Floyd
intended to play the radios and install the cameras. Indeed, the fact
that it happened on Floyd’s property is enough to suspect
willfulness. Whether these actions were malicious is a closer
question. On summary judgment, we must assume that Floyd
intended for the music to deter wildlife and intruders, as he claims,
and that he installed the cameras to prevent crime.
But the relevant question is not what Floyd intended—it is
how Stoumbos could have reasonably perceived the actions given
the circumstances. Context is vital: the neighbors had a long
history of bitter squabbles and retaliatory actions. In fact, they
were embroiled in civil litigation at the time of the music and extra
cameras. Moreover, the number and placement of the cameras—
near the property line—support at least a suspicion of ulterior
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motives in their installation. The same goes for the radio’s timing
and volume. Altogether, the circumstances support a reasonable
suspicion of maliciousness.
Second, Stoumbos could reasonably suspect that these
actions constitute harassment. The stalking statute defines
“harass” as engaging “in a course of conduct directed at a specific
person which causes substantial emotional distress to that person
and serves no legitimate purpose.”
Fla. Stat. § 784.048(1)(a).
Courts have clarified that “emotional distress” refers to an
objective, reasonable person standard. Bouters v. State,
659 So. 2d
235, 238 (Fla. 1995). For probable cause, Stoumbos needed to only
suspect—not prove—such objective emotional distress. He could
here. Floyd’s actions were close enough to the kind of repeated
conduct that Florida courts have found create emotional distress
under the stalking statute. See, e.g., Robertson v. Robertson,
164
So. 3d 87, 88 (Fla. Dist. Ct. App. 2015); Johnstone v. State,
298 So.
3d 660, 665 (Fla. Dist. Ct. App. 2020).
Like our “maliciousness” analysis, Stoumbos could suspect
that Floyd directed his actions at him (not the otters) without
legitimate purpose. In assessing legitimate purpose, we can
consider the actions collectively because stalking “is a series of
actions that, when taken individually, may be perfectly legal.”
Huch v. Marrs,
858 So. 2d 1202, 1203 (Fla. Dist. Ct. App. 2003).
Moreover, we judge not only Floyd’s actions, but also “the manner
they were performed.” Johnstone, 298 So. 3d at 665.
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In the context of the neighbors’ ongoing fights, Stoumbos
could reasonably question Floyd’s extensive measures. Music may
effectively deter animals or intruders, but the alleged harassment
stemmed from its volume and incessantness. And cameras
logically deter crime and have other uses, but the alleged
harassment came from their ever-growing number and position on
the property line. The manner by which Floyd performed these
actions casts doubt on the legitimacy of their purpose.
Of course, we do not decide whether Floyd actually stalked
Stoumbos. Whether his conduct was malicious, harassing, or
without legitimate purpose is not before us. In fact, when the
prosecutor dropped the charges, he cited concerns with proving
some elements of stalking at trial. Even so, Stoumbos could have
reasonably suspected that Floyd’s actions were stalking. That’s
sufficient for probable cause.
Aggravated stalking requires something more: stalking after
a “court-imposed prohibition of conduct toward the subject person
or that person’s property.”
Fla. Stat. § 784.048(4). The prosecutors
charged Floyd with two counts of aggravated stalking. One count
was based on a violation of three court orders: the initial injunction
limiting the music and two later orders compelling compliance.
The second aggravated stalking count was based on the “no
contact order” entered after Floyd’s arrest.
Probable cause existed for both aggravated stalking charges.
For the latter “no contact” order, no one disputes that cameras
were installed after the order. As explained above, Stoumbos could
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reasonably suspect that the installation of these cameras—
especially given the escalation of the neighbors’ feud—constituted
stalking. He also could reasonably suspect, based on the cameras’
positions and signage, that they filmed him, and that this filming
violated the “no contact” order. The prosecutor even visited
Floyd’s property to inspect the cameras himself before adding this
charge, underlining the existence of probable cause.
Probable cause also exists for the injunction violation. Floyd
does not dispute that loud music played after the injunction. He
does claim, however, that he did not know about the injunction
when the officer visited shortly after it issued. This argument fails
on multiple fronts. To start, it does not explain any violation of the
later orders to comply with the injunction—Floyd admits that he
received a certified copy of the order one day after it was entered.
Even if Floyd never knew about the injunction, no one disputes
that his attorney attended the injunction hearing. That alone
would be enough to create reasonable suspicion that Floyd knew
about the court’s order.
In short, probable cause existed from Stoumbos’s
perspective for all three stalking charges and the disorderly conduct
charge. The undisputed facts create a reasonable suspicion, under
the circumstances at the time, that Floyd committed those crimes.
For all charges, the probable cause findings by the officers,
prosecutor, and state judge support this conclusion. After all,
probable cause is generally “not a high bar.” See J.J. v. State,
312
So. 3d 116, 119–20 (Fla. Dist. Ct. App. 2020) (quotation omitted).
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* * *
We AFFIRM the district court’s order.
