Opinion
No. 84-1224.
June 19, 1985. Rehearing Denied July 30, 1985.
Appeal from the Circuit Court for Broward County; Joseph E. Price, Jr., Judge.
Glen Rafkin of Young, Stern Tannenbaum, P.A., North Miami Beach, for appellants.
Richard M. Birnbaum, Ft. Lauderdale, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellees.
We affirm in all respects but find the evidence which was before the trial court to be too speculative to support the compensatory fine of $330,000 for contempt. Accordingly, we reverse and remand with direction for rehearing solely upon the question of the amount of the compensatory fine. The parties may, of course, engage in further prehearing discovery.
It is not our intent to place appellees in a Catch 22 position by requiring them to meet their burden against recalcitrant parties which, or who, refuse to produce or disclose discoverable information. We feel comfortable that the Florida Rules of Civil Procedure provide adequate sanctions to handle any further problems that may arise in this area.
DOWNEY and GLICKSTEIN, JJ., concur.
LETTS, J., dissents in part.
I am not convinced that the Rules of Civil Procedure provide an attainable remedy in this case. The admittedly recalcitrant appellants have, in my view, abused the judicial process to the point where they will only stop when hit hard in the pocket-book.
I certainly do not include appellate counsel in this criticism.
There can be no doubt that a trial court has the power to punish a "contemnor" by imposing a compensatory fine. See National Exterminators, Inc. v. Truly Nolen, Inc., 86 So.2d 816 (Fla. 1956). However, as the Supreme Court noted in that case, the damages must still be reasonably ascertained. In the case before us now, testimony was adduced to prove up the damages, but it was, to be kind, sketchy and perhaps geographically inappropriate.
Black's Law Dictionary appears to spell it "contemn er."
Yet the inexactitude of proof was occasioned by the discovery violations and contemptuous acts of the appellants who now benefit by their own egregious wrong in successfully having the money damages set aside.
Though not cited by the appellees, I have dug up two Federal cases which basically hold that:
A defendant whose wrongful act creates the difficulty is not entitled to complain that the amount of the damages cannot be accurately fixed.See Austin v. Parker, 672 F.2d 508 (5th Cir. 1982) and Rynveld v. Dupuis, 39 F.2d 399 (5th Cir. 1930).
Accordingly, I would affirm in toto.