Hampton Manor, Inc. v. Fortner , 141 So. 3d 1260 ( 2014 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
HAMPTON MANOR, INC., ETC., ET AL.,
Appellant,
v. Case No. 5D12-3568
JOYCE FORTNER,
Appellee.
________________________________/
Opinion filed July 11, 2014
Appeal from the Circuit Court
for Marion County,
Jack Singbush, Judge.
Michael E. Rodriguez, of Michael E.
Rodriguez, P.L., Tampa, for Appellant.
Christopher J. Roberts and Joel J.
Ewusiak, of Ewusiak & Roberts, P.A.,
Safety Harbor, for Appellee.
BERGER, J.
Hampton Manor, Inc., Hampton Manor of Pasco, Inc., Hampton Senior
Management, Inc., Hampton Manor North, LLC (hereinafter, collectively, "Hampton") and
Peder Johnsen, appeal an order for civil contempt, which was entered when the trial court
found that Hampton CEO, Johnsen, had willfully and intentionally failed to prepare the
required Form 1.977 Fact Information Sheet after final judgment was entered in favor of
appellee, Joyce Fortner, on her Whistleblower Act claim. We affirm the order in all
respects except for the imposition of the $4,000 fine.
"[T]he primary purpose of a civil contempt proceeding is to compel future
compliance with a court order. A civil contempt sanction is coercive in nature and is
avoidable through obedience." Chetram v. Singh, 937 So. 2d 716, 718-19 (Fla. 5th DCA
2006) (quoting Gregory v. Rice, 727 So. 2d 251, 253 (Fla. 1999)). "While there is a broad
arsenal of coercive civil contempt sanctions available to the trial court, . . . to be a valid
civil contempt sanction the contempt order must include a purge provision." Parisi v.
Broward Cnty., 769 So. 2d 359, 365 (Fla. 2000) (citing Gregory, 727 So. 2d at 254).
"Without this critical protection, there is a danger that the contempt sanction could be
transformed from a civil to a criminal contempt sanction without any other underlying
procedural protections attendant to criminal proceedings." Id. (citing Int'l Union, United
Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994); Pompey v. Cochran, 685 So.
2d 1007, 1013 (Fla. 4th DCA 1997)). Thus, a fixed fine with no conditions is considered
a criminal sanction because the contemnor has no subsequent opportunity to reduce or
avoid the fine through compliance. Id.In the present case, as relates to the imposition of the $4,000 fine, the written
contempt order provides:
Mr. Johnsen may purge this contempt order upon payment of
the $4000 fine to the Sheriff for delivery to the Clerk of this
court, and the full completion of the four (4) fact information
sheets required by the judgment . . . .
However, the transcript of the proceedings before the trial court clearly demonstrates that
the $4,000 fine was not intended to be a means by which Johnsen could purge his jail
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sentence, but rather it was intended to serve as a coercive sanction for failing to complete
Form 1.977. The trial court's oral pronouncement confirms this conclusion:
The fact information sheets are plain and unambiguous. It’s
the judgment of the court that that’s not all that was required.
The forms were not complete. And I order to coerce your
performance, which is required, and in the manifest interest of
preserving the integrity of the judicial system, the court
imposes a fine of $4000 to be payable to the clerk of court.
The court, as a further sanction, will find entitlement to
attorney’s fees for bringing this action, and will reserve
jurisdiction to conduct an evidentiary hearing on that should
the parties not agree and payment not be made.
Further, the court believes that the egregiousness of your
failure to comply with the court’s order mandates that as a
further coercive sanction, that you be remanded into the
custody of the high sheriff of Marion County, or one of his duly
constituted deputies, where you shall be held at the Marion
County Jail for a period of 15 days.
You may purge your contempt and be released from
incarceration prior to that time upon completion of the forms
that were not completed. Notice by your counsel that that has
been done will be sufficient.
To the extent there is a conflict between the oral pronouncement and the written
order, it is the oral pronouncement that controls. See Romero v. Romero, 916 So. 2d
952, 954 (Fla. 3d DCA 2005) ("Since the written contempt order failed to accurately reflect
the circuit court's oral rulings, we reverse and remand to the circuit court."); Xavier J.
Fernandez, P.A. v. Sun Bank of Tampa Bay, 670 So. 2d 1106, 1107 (Fla. 2d DCA 1996)
("Reversal is required where the final judgment is inconsistent with the trial court's oral
pronouncements.").
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Although the trial court has the discretion to impose a $4,000 fine as a coercive
sanction, it was required to provide Johnsen with an opportunity to purge the fine by fully
completing the Form 1.977 Fact Information Sheet for each Hampton entity. Because the
fine imposed was fixed and unconditional, we agree with Hampton that it was not
coercive, but rather punitive, and improperly transformed the fine from a civil contempt
sanction to a criminal contempt sanction. See Parisi, 769 So. 2d at 365. This was error.
Accordingly, we reverse the order of civil contempt as it relates to the payment of
the $4,000 fine and direct the trial court to refund the fine upon completion of the
disclosure forms. Additionally, on remand, the written order shall accurately reflect the
trial court's oral pronouncements, including a provision allowing the fine to be purged
upon completion of the forms.
AFFIRMED in part, REVERSED in part, and REMANDED with instructions.
TORPY, C.J., and SAWAYA, J., concur.
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