JAMES V. MCELHINEY, APPELLANT,
v.
ASH PROPERTIES, INC., A CORPORATION, APPELLEE
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The court held that a fine payable to the clerk is improper for civil contempt and prospective attorney's fees cannot be awarded without contractual or statutory authorization.
Appellant voluntarily dismissed his cause of action, leading to a finding of civil contempt. The trial court awarded costs and attorney's fees to appe…
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WIGGINTON, Judge.
This is an appeal from a final judgment, entered pursuant to a voluntary dismissal of appellant’s cause of action, finding appellant to be in civil contempt and awarding costs and attorney’s fees. We affirm the finding of contempt and award of attorney’s fees, as costs, to appellee, but reverse as to the award of costs made payable to the Clerk of the Circuit Court and also as to the award of prospective attorney’s fees to appellee.
First, the trial court erred in imposing upon appellant a fine payable to the Clerk of the Circuit Court as punishment for his contempt. The procedure followed here was for civil contempt and contemplates that the remedy belongs to the party wronged. Griffin v. Griffin, 375 So. 2d 1086 (Fla.1st DCA 1979).
Second, the trial court erred in ordering appellant to pay appellee’s attorney’s fees through the presentation of the evidence should appellant refile his suit. Attorney’s fees may be awarded only under three circumstances, viz: “(1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property.” Miller v. Colonial Baking Co. of Alabama, 402 So. 2d 1365 (Fla.lst DCA 1981). None of the above circumstances is present here.
Accordingly, the judgment is affirmed in part and reversed in part.
JOANOS and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Carlyle v. Carlyle, 438 So. 2d 176 (Fla. 1st DCA 1983)…y fine” payable to the party injured as a result of contemnor’s contemptuous conduct. South Dade Farms v. Peters, 88 So. 2d 891, 899 (Fla.1956) and Langbert v. Langbert, 409 So. 2d 1066 (Fla. 4th DCA 1981); compare McElhiney v. Ash Properties, Inc., 411 So. 2d 291 (Fla. 1st DCA 1982). Such a fine may be imposed, the amount imposed being measured by the damages suffered and proved with reasonable certainty. Griffin v. Griffin, 375 So. 2d 1086 (Fla. 1st DCA 1979); see also National [*178] Exterminators, Inc. v.…
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Medina v. Medina, 461 So. 2d 1028 (Fla. 5th DCA 1985)…only under three circumstances: 1) pursuant to a contract; 2) pursuant to a valid statute; and 3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property. McElhiney v. Ash Properties, Inc., 411 So. 2d 291 (Fla. 1st DCA 1982). Here, the authority to award attorney’s fees to the wife arises by virtue of § 61.16, Florida Statutes (1983) which provides: The court may from time to time, after considering the financial resources of both parties, order a p…
Authorities Cited
- Miller v. Colonial Baking Co. OF Ala. & Am. Motorists Ins. Co., 402 So. 2d 1365 (Fla. 1st DCA 1981)
- Griffin v. Elsbeth E. Griffin, 375 So. 2d 1086 (Fla. 1st DCA 1979)