Ash v. Campion, 248 So. 3d 1274 (2018)

June 28, 2018 · District Court of Appeal of Florida, First District · No. 1D15–4165

248 So. 3d 1274

Esther ASH, Appellant,
v.
John CAMPION, Appellee.

No. 1D15-4165

District Court of Appeal of Florida, First District.

June 28, 2018

William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant.

Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, and Harold E. Patricoff of Shutts & Bowen LLP, Miami, for Appellee.

Lewis, J., concurs; Makar, J., concurs in result with opinion; and Bilbrey,^* J., concurs with opinion.

ON MOTION FOR CLARIFICATION OR, IN THE ALTERNATIVE, FOR REHEARING

* Judge Bilbrey was substituted for an original panel member in this proceeding after the initial opinion issued.

Per Curiam.

We deny Appellee's alternative motion for rehearing, but grant clarification of our prior opinion. The order of contempt is reversed, and the cause is remanded to the trial court for further proceedings. See Young v. Wood-Cohan , 727 So.2d 322 (Fla. 4th DCA 1999) (reversing and remanding criminal contempt for further proceedings where insufficient notice was provided); H.K. Dev., LLC v. Greer , 32 So.3d 178, 186 (Fla. 1st DCA 2010) (reversing and remanding order of civil contempt for "findings as to actual damages and entry of an order tailoring any sanctions accordingly").

Makar, J., concurring in result.

I concur as to the relief granted, which is to remand and allow for the remedy of compensatory damages for civil contempt as initially contemplated and ordered by the trial court, payable to the husband due to the wife's violations of the mutual injunction. H.K. Dev., LLC v. Greer , 32 So.3d 178, 184 (Fla. 1st DCA 2010) (noting that monetary sanctions cannot be construed as criminal in nature if "the moneys are ordered to be paid, not to the fisc, but to a private party"). A remand is appropriate for cases in this procedural posture, where an appellate panel cannot agree on whether actual damages were established thereby allowing for an evidentiary hearing. See id. at 186 (remanding "for findings as to actual damages and entry of an order tailoring any sanctions accordingly"). To that extent, I concur in a remand consistent with Greer . Double jeopardy principles may prevent another criminal contempt charge for the same conduct, but nothing prevents the pursuit of a compensatory, civil contempt order under the circumstances.

Bilbrey, J., concurring.

I fully concur in granting clarification but not rehearing. Had I been on the initial panel in the case, I might have decided differently. The original majority and dissenting opinions both raise good points and I agree that this is a close call. But I believe my predecessor's opinion in this case is entitled to deference, and since I do not perceive the decision to reverse as a "substantial departure from established law," I do not think rehearing is appropriate. See Gretna Racing, LLC v. Dep't of Bus. and Prof'l Reg. , 178 So.3d 15, 31 n. 10 (Fla. 1st DCA 2015) (on motion for rehearing) (Bilbrey, J., concurring). Clarification is appropriate, however, because the original opinion would have reversed without providing either a possible remedy for Appellee to be compensated for his actual losses, including attorney's fees, if a finding of civil contempt was contemplated by the trial court, or an opportunity by the trial court to punish Appellant for her outrageous conduct if a finding of criminal contempt was intended.