42
Fla. L. Weekly D2474bTop of Form
Fla. L. Weekly D2474bTop of Form
Contempt
— Civil — Willful failure to attend and participate in court-ordered
mediation — Compensatory fine imposed following finding of contempt improperly
included losses not caused by underlying contempt — Remand for new hearing on
amount of compensatory fine
— Civil — Willful failure to attend and participate in court-ordered
mediation — Compensatory fine imposed following finding of contempt improperly
included losses not caused by underlying contempt — Remand for new hearing on
amount of compensatory fine
GOZZO DEVELOPMENT, INC., and GREGORY
GOZZO, an individual, Appellants, v. ANNE M. ESKER, Appellee. 4th District.
Case No. 4D16-3734. November 22, 2017. Appeal from the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County; Thomas Barkdull, III and Richard
L. Oftedal, Judges; L.T. Case No. 50-2005-CA-011607-XXX-MB. Counsel: Michael A.
Monteverde and Daniel B. Allison of Bressler Amery & Ross, P.C., Fort
Lauderdale, for appellants. Tara S. Pellegrino and Jacqueline S. Miller of
Broad and Cassel LLP, West Palm Beach, for appellee.
GOZZO, an individual, Appellants, v. ANNE M. ESKER, Appellee. 4th District.
Case No. 4D16-3734. November 22, 2017. Appeal from the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County; Thomas Barkdull, III and Richard
L. Oftedal, Judges; L.T. Case No. 50-2005-CA-011607-XXX-MB. Counsel: Michael A.
Monteverde and Daniel B. Allison of Bressler Amery & Ross, P.C., Fort
Lauderdale, for appellants. Tara S. Pellegrino and Jacqueline S. Miller of
Broad and Cassel LLP, West Palm Beach, for appellee.
(GROSS, J.) This case involves a
civil contempt arising out of a construction defects case commenced in 2005. We
affirm the finding of contempt in all respects. Because the compensatory fine
imposed included losses not caused by the underlying contempt, we reverse for a
new hearing on the amount of the compensatory fine imposed.
civil contempt arising out of a construction defects case commenced in 2005. We
affirm the finding of contempt in all respects. Because the compensatory fine
imposed included losses not caused by the underlying contempt, we reverse for a
new hearing on the amount of the compensatory fine imposed.
After nine years of litigation, the
circuit court issued an order setting a non-binding summary jury trial and
mediation. Appellant Gregory Gozzo was affiliated with both a remodeling
company and a developer that had been named as defendants.
circuit court issued an order setting a non-binding summary jury trial and
mediation. Appellant Gregory Gozzo was affiliated with both a remodeling
company and a developer that had been named as defendants.
Gozzo attended the summary jury
trial as the representative of the remodeling company and the developer. The
summary jury trial produced a favorable outcome for the plaintiffs.
trial as the representative of the remodeling company and the developer. The
summary jury trial produced a favorable outcome for the plaintiffs.
At the later mediation, the
defendants sent a woman who was not a corporate representative and who did not
have the authority to settle on behalf of the defendants.
defendants sent a woman who was not a corporate representative and who did not
have the authority to settle on behalf of the defendants.
The circuit judge issued an order to
show cause to the defendants as to why they should not be held in contempt for
failing to comply with the court’s order regarding the person who was required
to attend mediation. For each party to the lawsuit, the mediation order
required the presence of a person with authority to settle the case.
show cause to the defendants as to why they should not be held in contempt for
failing to comply with the court’s order regarding the person who was required
to attend mediation. For each party to the lawsuit, the mediation order
required the presence of a person with authority to settle the case.
At the hearing on the order to show
cause, Gozzo explained that the woman he sent to the mediation was a home
health aide who had served as a caregiver for Gozzo’s elderly father during the
time prior to his father’s death, had worked sixteen-hour days, and was always
on time. Gozzo acknowledged that she never held a position with the company but
testified that he gave her verbal authority to settle. The home health aide
said that Gozzo told her nothing about the case until after her attendance at
mediation and that she did not have authority to settle. Gozzo testified that
he did not attend the mediation because he had “other things” to do and “other
business” on his plate.
cause, Gozzo explained that the woman he sent to the mediation was a home
health aide who had served as a caregiver for Gozzo’s elderly father during the
time prior to his father’s death, had worked sixteen-hour days, and was always
on time. Gozzo acknowledged that she never held a position with the company but
testified that he gave her verbal authority to settle. The home health aide
said that Gozzo told her nothing about the case until after her attendance at
mediation and that she did not have authority to settle. Gozzo testified that
he did not attend the mediation because he had “other things” to do and “other
business” on his plate.
The circuit court found the defendants
in contempt; as sanctions, the court struck defense pleadings and ruled that
the plaintiff was entitled to recover attorney’s fees and costs “related” to
(1) preparation for and attendance at the summary jury trial, (2) attendance at
mediation, (3) preparation of motions for sanctions and preparation for and
attendance at all hearings related to those motions, and (4) depositions taken
in advance of the contempt hearing.
in contempt; as sanctions, the court struck defense pleadings and ruled that
the plaintiff was entitled to recover attorney’s fees and costs “related” to
(1) preparation for and attendance at the summary jury trial, (2) attendance at
mediation, (3) preparation of motions for sanctions and preparation for and
attendance at all hearings related to those motions, and (4) depositions taken
in advance of the contempt hearing.
The defendants appealed the portion
of the order striking the pleading. This court affirmed the imposition of the
sanction. See Gozzo Development, Inc. v. Professional Roofing Contractors,
Inc., 211 So. 3d 145 (Fla. 4th DCA 2017).
of the order striking the pleading. This court affirmed the imposition of the
sanction. See Gozzo Development, Inc. v. Professional Roofing Contractors,
Inc., 211 So. 3d 145 (Fla. 4th DCA 2017).
A successor judge presided over the
hearing on the plaintiff’s attorney’s fees and costs. That judge entered
judgment for $122,518.78 in attorney’s fees and $32,735.91 in costs, plus
pre-judgment interest.
hearing on the plaintiff’s attorney’s fees and costs. That judge entered
judgment for $122,518.78 in attorney’s fees and $32,735.91 in costs, plus
pre-judgment interest.
A trial court whose decree has been
violated has “the power to impose a compensatory fine to the extent of the
damages suffered by the injured party.” South Dade Farms, Inc. v. Peters,
88 So. 2d 891, 899 (Fla. 1956). The contempt that is punished must actually
cause the loss being compensated. To the extent that such causation is absent,
a fine is punitive rather than compensatory. “[T]here must always be concern as
to the extent a sanction is punitive. That is because the procedural safeguards
for punitive sanctions are more stringent than for remedial sanctions.” Huber
v. Disaster Solutions, LLC, 180 So. 3d 1145, 1149 (Fla. 4th DCA 2015); see
Nical of Palm Beach, Inc. v. Lewis, 981 So. 2d 502 (Fla. 4th DCA 2008).
violated has “the power to impose a compensatory fine to the extent of the
damages suffered by the injured party.” South Dade Farms, Inc. v. Peters,
88 So. 2d 891, 899 (Fla. 1956). The contempt that is punished must actually
cause the loss being compensated. To the extent that such causation is absent,
a fine is punitive rather than compensatory. “[T]here must always be concern as
to the extent a sanction is punitive. That is because the procedural safeguards
for punitive sanctions are more stringent than for remedial sanctions.” Huber
v. Disaster Solutions, LLC, 180 So. 3d 1145, 1149 (Fla. 4th DCA 2015); see
Nical of Palm Beach, Inc. v. Lewis, 981 So. 2d 502 (Fla. 4th DCA 2008).
Where contempt arises from the
willful violation of a court order, the Supreme Court has long required that
contemptuous conduct cause the loss being recompensed by a compensatory fine.
In Hanna v. Martin, 49 So. 2d 585, 587-88 (Fla. 1950), the Supreme Court
reversed that portion of a damage award not caused by the violation of an
injunction order; the Court held that the measure of damages for disobeying the
injunction order “should be limited to the actual damages sustained” by the
party aggrieved by the violation of the order. Id. at 587.
willful violation of a court order, the Supreme Court has long required that
contemptuous conduct cause the loss being recompensed by a compensatory fine.
In Hanna v. Martin, 49 So. 2d 585, 587-88 (Fla. 1950), the Supreme Court
reversed that portion of a damage award not caused by the violation of an
injunction order; the Court held that the measure of damages for disobeying the
injunction order “should be limited to the actual damages sustained” by the
party aggrieved by the violation of the order. Id. at 587.
Thus, “if compensation is intended,
the [compensatory] fine must be based on evidence of the injured party’s actual
loss” and the loss must be “suffered as a result of the contemptuous
conduct” in violating the court’s order. Parisi v. Broward County, 769
So. 2d 359, 366 (Fla. 2000) (internal citations omitted) (emphasis in
original); see also Levey v. D’Angelo, 819 So. 2d 864, 868 (Fla. 4th DCA
2002).
the [compensatory] fine must be based on evidence of the injured party’s actual
loss” and the loss must be “suffered as a result of the contemptuous
conduct” in violating the court’s order. Parisi v. Broward County, 769
So. 2d 359, 366 (Fla. 2000) (internal citations omitted) (emphasis in
original); see also Levey v. D’Angelo, 819 So. 2d 864, 868 (Fla. 4th DCA
2002).
The compensatory fine imposed here
was flawed because it included attorney’s fees and costs related to the summary
jury trial. The defendants’ contempt — the willful failure to attend and
participate in the mediation — could not have caused damages incurred
prior to the contempt. We therefore reverse the award of attorney’s fees and
costs and remand for a new hearing, where compensation is limited to attendance
at and preparation for the mediation, preparation of motions for sanctions and
preparation for and attendance at all hearings related to those motions,
depositions taken in pursuit of the contempt sanction, and preparation for the
new damages hearing.
was flawed because it included attorney’s fees and costs related to the summary
jury trial. The defendants’ contempt — the willful failure to attend and
participate in the mediation — could not have caused damages incurred
prior to the contempt. We therefore reverse the award of attorney’s fees and
costs and remand for a new hearing, where compensation is limited to attendance
at and preparation for the mediation, preparation of motions for sanctions and
preparation for and attendance at all hearings related to those motions,
depositions taken in pursuit of the contempt sanction, and preparation for the
new damages hearing.
Affirmed in part, reversed in part,
and remanded. (WARNER and TAYLOR, JJ., concur.)
and remanded. (WARNER and TAYLOR, JJ., concur.)
* * *