          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D15-4165
                 _____________________________

ESTHER ASH,

    Appellant,

    v.

JOHN CAMPION,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Linda F. McCallum, Judge.

                         February 5, 2018


WINSOR, J.

     During a long and contentious divorce battle, the circuit court
held Esther Ash in contempt and ordered her to pay $100,000 to
her former husband, John Campion. Ash appeals, contending the
sanctions order was unlawful.

     Ash and Campion lived as a married couple for several years
before separating in 2012. Campion initiated divorce proceedings,
and the trial court entered a mutual injunction prohibiting each
party from “physically or verbally harass[ing], molest[ing], or
disturb[ing] the other” by phone or text message. The couple
finalized the dissolution, but animosities persisted, culminating
with Ash’s sending Campion a slew of vitriolic text and voicemail
messages. Some of Ash’s less outrageous texts called Campion an
“evil, sick person,” who “alienate[d] a child from [his] father” and
who deserves to “rot in federal prison.” Other messages—unfit for
print here—said far worse.

    Concerned that Ash would continue sending incendiary
messages, Campion sought an order enforcing the mutual
injunction. After a hearing, the trial court found Ash in contempt
and ordered her to pay Campion $100,000.

     On appeal, Ash does not defend her conduct. She does not
claim her messages were anything but harassment or that they
were permissible under the injunction. Instead, she argues that we
must reverse the contempt order because the trial court did not
satisfy necessary prerequisites.

      “Contempt sanctions are broadly categorized as criminal or
civil contempt.” Parisi v. Broward County, 769 So. 2d 359, 363 (Fla.
2000). The distinction is critical because those facing criminal-
contempt sanctions are entitled to protections not offered to those
facing civil-contempt sanctions. Id.; see also Pugliese v. Pugliese,
347 So. 2d 422, 424 (Fla. 1977) (“[A] determination of whether an
order is civil or criminal must be made.”). In fact, those facing
charges of criminal contempt—“a crime in the ordinary sense”—
are entitled to the same protections as other criminal defendants.
Parisi, 769 So. 2d at 363 (quoting Int’l Union, United Mine Workers
v. Bagwell, 512 U.S. 821, 831 (1994)). The Constitution provides
some of those rights (right to counsel, proof beyond a reasonable
doubt, etc.), id., and our rules of criminal procedure provide still
more, see Fla. R. Crim. P. 3.840.

     There is no question that the trial court fell short of affording
Ash the requisite protections for a criminal-contempt order. And
there is no question that if the contempt order was criminal in
nature, we therefore must reverse. See Wendel v. Wendel, 958 So.
2d 1039, 1040 (Fla. 1st DCA 2007) (“Noncompliance with rule
3.840 constitutes fundamental error.”). Indeed, Campion makes no
effort to defend the order as a lawful criminal-contempt sanction,

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arguing instead that it was a valid civil-contempt order. But we
cannot accept that argument.

     We can consider a contempt fine civil only if it coerces the
defendant into compliance with the court’s order or compensates
the other party for sustained losses. See Parisi, 769 So. 2d at 366;
see also Bagwell, 512 U.S. at 829. We cannot consider this fine a
coercive sanction because it includes no purge provision: there was
nothing Ash could do to avoid the fine after the trial court imposed
it. See Parisi, 769 So. 2d at 366. A punishment (like a $100,000
penalty) might deter future noncompliance (just as prison terms
might deter future crimes), but that does not make it a coercive
civil sanction. Regardless, any valid coercive civil sanction order
must include a purge provision. See id. (“[I]n order to impose a
valid coercive sanction, the trial court must . . . include a purge
provision.”). “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. at
365.

     Nor can we view this fine as a compensatory award. A
contempt order designed to compensate must turn on “the injured
party’s actual loss.” Id. at 366 (quoting Johnson v. Bednar, 573 So.
2d 822, 824 (Fla. 1991)). Campion argues here that the award
sought to compensate him for emotional distress, but the record
does not support that argument. There was no argument about loss
below, there was no evidence about the value of any loss below, and
the trial court made no findings about loss below. Campion himself
testified that he didn’t want compensation (insisting he’d give any
award to charity anyway)—he “just want[ed] it to stop.” Moreover,
the court’s announced purpose was to deter Ash from engaging in
“unacceptable conduct,” and it chose $100,000 only after Campion




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argued “it’s going to take a lot to get her attention.” 1 This was not
a compensatory order.

     Rather than serve any remedial or compensatory purpose, the
trial court’s order “simply imposes a flat and unconditional fine,”
meaning it must be “considered a criminal sanction.” J-II Invs.,
Inc. v. Leon County, 21 So. 3d 86, 90 (Fla. 1st DCA 2009); accord
Wendel, 958 So. 2d at 1040. And because the trial court imposed a
criminal sanction without complying with rule 3.840, our
precedent requires us to find fundamental error. 2 Wendel, 958 So.
2d at 1040 (“Noncompliance with rule 3.840 constitutes
fundamental error.”); Hunt v. State, 659 So. 2d 363, 364 (Fla. 1st
DCA 1995) (noting “unequivocal authority holding that
noncompliance with the provisions of Rule 3.840 constitutes
fundamental error”).

    REVERSED.

LEWIS, J., concurs; MAKAR, J., dissents with opinion.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________




    1 The record shows that the court considered Ash’s substantial
wealth in determining the sanction. Ash’s ability to pay is
irrelevant in measuring Campion’s actual losses.
    2 Because we reverse on these grounds, we do not address
Ash’s separate argument that the court should have granted her a
continuance before the contempt hearing.

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MAKAR, J., dissenting.

     In this rancorous and affluent dissolution case, Esther Ash
appeals a $100,000 contempt order arising from her multiple
violations of a 2012 mutual consent agreement saying that neither
she nor her then-husband “shall physically or verbally harass,
molest or disturb the other, in person, by phone, through email or
text messaging.” In flagrant disregard of her agreement, Ash sent
numerous harassing photographs, text messages, and voicemails
that, charitably, can be described as outrageous, profane, and vile.
After a noticed hearing, the trial court entered the contempt order
at issue.

     On appeal, Ash’s appellate counsel asserts a number of issues,
but none were raised in the trial court except Ash’s belated request
for a continuance of the contempt hearing. But it was not an abuse
of discretion to deny a motion for continuance—first made halfway
through the hearing—given Ash’s ongoing pattern of delay by
dismissing her lawyers before important court proceedings and
seeking continuances, four of the trial itself. See, e.g., Cargile-
Schrage v. Schrage, 908 So. 2d 528, 529 (Fla. 4th DCA 2005) (no
abuse of discretion to deny continuance that would have allowed
third attorney in nine months to appear on movant’s behalf). The
trial judge saw firsthand this “fire attorney, seek continuance”
method of avoidance, which occurred on the eve of the scheduled
contempt hearing (this pattern continued on appeal, Ash’s
appellate counsel moving to withdraw shortly before oral
argument because he had been “discharged”). Just before the
contempt hearing, Ash terminated her then-trial attorney
(approximately the tenth to represent her), sending a new one the
next day, who arrived mid-hearing to request a continuance. He
stayed for the rest of the contempt hearing, but didn’t participate,
saying his authority was limited only to appear and present the
motion for continuance. Due to the restrictions Ash placed upon
him, therefore, no objections to the contempt order were presented
and no points preserved for appellate review. And Ash’s counsel

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did nothing thereafter to contest the contempt order, such as a
motion for rehearing or the like.

     Consequently, every issue raised in this appeal as to the
contempt order is new and unpreserved, making our standard of
review one of fundamental error. As we recently said:

    [W]e cannot reverse on this unpreserved claim of error
    absent fundamental error, which is one that “goes to the
    foundation of the case or goes to the merits of the cause
    of action.” Sanford v. Rubin, 237 So.2d 134, 137
    (Fla.1970). An appellate court “should exercise its
    discretion under the doctrine of fundamental error very
    guardedly.” Id. To do otherwise would undermine the
    orderly adjudication of claims and inject a degree of
    arbitrariness into the appellate process.

Yau v. IWDWarriors, Corp., 144 So. 3d 557, 560 (Fla. 1st DCA
2014) (unauthorized award of attorney’s fees not fundamental
error). We noted in Yau that “there are only a limited category of
errors that ‘courts universally allow to be raised for the first time
on appeal because of the very nature of the error’ including subject
matter jurisdiction and judgments entered without notice that
deny due process.” Id. (citation omitted).

     Neither category applies here: the trial court had jurisdiction,
and Ash had notice of the contempt hearing and judgment and was
therefore afforded due process. She was on notice of the hearing,
but nonetheless chose to fire her lawyer at the eleventh hour,
sending a new one with next to no authority to act on her behalf
who arrived mid-hearing; she thereafter failed to contest the
contempt order in the trial court and chose instead to appeal.
Precisely like Yau, who “was on notice of the alleged deficiency in
her pleading and given a full opportunity to explain why her
client’s case should not be dismissed and why no sanctions should
be imposed,” Ash too was on notice of the contempt hearing but
chose essentially to boycott it. Id.

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     On appeal, Ash seeks to restyle the trial court’s order as one
sounding exclusively in criminal contempt, rather than a civil
contempt order, based on some of the language used (“sanctions”),
the lack of a purge provision, and the former husband’s testimony
that he didn’t want her money and would give a sanctions award
to charity (“I’m not looking to get money out of her.”). But the
“same contemptuous conduct may be the subject of both criminal
and civil proceedings,” and the elusive “distinction between
criminal and civil contempt often turns on the ‘character and
purpose’ of the sanctions involved.” Parisi v. Broward Cnty., 769
So. 2d 359, 363-64 (Fla. 2000) (citation omitted). On this point, the
proceeding below and the contempt order itself were intended
solely to effectuate a civil contempt remedy via the imposition of
sanctions, whose purpose could be compensatory or coercive, or
both. Either are permissible. Id. at 363 (“Civil contempt sanctions
are . . . classified as either compensatory or coercive sanctions.”).

     The clear purpose of the contempt order was “remedial” and
“for the benefit of the complainant [Campion],” making it
quintessentially civil in nature. Id. at 364. It enforced only
individual rights of privacy and dignity, a hallmark of a civil
contempt order. The order did not subject Ash to potential
incarceration, attempt to punish her for her litigation tactics, or
otherwise vindicate the authority of the court; it thereby lacked the
characteristics of a criminal contempt order. Instead, the order
only enforced the parties’ private agreement to not “physically or
verbally harass, molest or disturb” one another.

    Characterizing the civil contempt order as compensatory,
Campion vigorously argues on appeal that the record shows that
Ash’s “willful, profane and repeated” misconduct was “totally
outside the bounds of all common decency,” causing him (and his
family) anguish and severe emotional distress. The evidence easily
shows that Campion suffered substantial harm resulting from
Ash’s contemptuous conduct. Id. at 366. His trial counsel’s
suggestion of ten-thousand dollars apiece for the ten incidents,
each outrageous in its own way, was wholly reasonable on this
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record, the former husband’s non-enforceable pledge to give the
money to charity notwithstanding. One incident, involving
unsolicited pictures Ash sent of the couple’s son appearing severely
injured in a hospital bed at an undisclosed location (turns out he
was getting liposuction in Los Angeles), could alone support a tort
verdict of $100,000 in a civil case. (“I thought it was extremely
cruel . . . I was completely and utterly shocked and traumatized by
this . . . to think that my mother [who was 92 and just suffered a
stroke] and son on the same day were in very, very critical
condition was not something I’ll get over any time soon.”).
Indisputably, the record shows conduct amounting to intentional
infliction of emotional distress, easily meeting the “Outrageous!”
test. Johnson v. Thigpen, 788 So. 2d 410, 413 (Fla. 1st DCA 2001)
(conduct “so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community. . . . [a
case whose] recitation of facts to an average member of the
community would arouse his resentment against the actor, and
lead him to exclaim, ‘Outrageous!’”).

     Where a civil contempt is sustainable as compensatory—as it
is in this case—no purge is necessary. Gregory v. Rice, 727 So. 2d
251, 253 (Fla. 1999) (“Only if the fine is compensatory is it
appropriate to dispense with a purge provision.”). The reason is
obvious: compensatory fines provide recompense for past harm,
leaving nothing to purge. A coercive fine, in contrast, compels
future compliance with an order, an example being a $5,000 fine
for not turning over discovery documents or failing to deliver
property under a marital agreement. Here, Ash claims that the
contempt order was coercive and required to have a purge, but
nothing in the order’s remedial terms was “coercive” as to her
possible future behavior. Instead, the contempt order imposed a
compensatory sanction for her past “willful violations” of the non-
harassment order arising from “her ongoing pattern of repeated
offensive communications directed to [Campion] and his family”
that were “extremely inappropriate, outrageous and unacceptable”
thereby constituting “significant harassment.” As to possible
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future misconduct, the order stated that if Ash “communicates
with [Campion] or his family in a similar manner in the future,
necessitating another motion for enforcement, the Court will
consider imposition of more severe sanctions.” (Emphasis added).
This language imposed no enforceable coercive sanction; it merely
intimates that Ash might be subject to stiffer sanctions if her
behavior were to recur. No purge was necessary, either as to the
compensatory contempt sanction or as to this latter statement,
whose obvious purpose was to warn Ash against repeat behavior.

                                 ***

     This case presents no basis for fundamental error review or
reclassification of the contempt order on appeal as solely a criminal
matter; the order is sustainable solely as a valid compensatory civil
sanction. Further, due process is not denied when a client
disregards the need for orderly judicial proceedings by repeatedly
terminating her lawyers and frittering away their ability to
preserve potential legal errors and advocate on her behalf.
Principles of judicial restraint, which reserve fundamental error
analysis for only the truly meritorious cases, require affirmance of
the contempt order, short of which flouting court orders and
provoking disorderly adjudication are rewarded.

                  _____________________________

Esther Ash, pro se, Appellant.

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




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