HERMAN BALZAM, APPELLANT,
v.
STANLEY COHEN, APPELLEE
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This case involves an appeal from a final judgment and a contempt order related to a partnership dispute. The appellate court affirmed the finding of contempt but vacated the daily fine due to a lack of evidence on damages, and reversed the award of attorney's fees, finding no basis for it under Florida law.
1. The court found the appellant in contempt but vacated the daily fine because there was no evidence presented regarding the damages suffered by the appellee due to the appellant's non-compliance. 2. The court reversed the award of attorney's fees, as there was no statutory or contractual basis for such an award, and the exception for partnership dissolution suits did not apply.
[1] Appellate review of sufficiency of evidence is precluded when the trial transcript is not included in the appellate record and the appellant has not supplemented the reco…
[2] A finding of civil contempt for willful refusal to obey a court order is permissible.
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Establishes why the court could not review the sufficiency of the evidence for the initial judgment.
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Join FLexlaw to unlock all legal intelligenceFollowing a non-jury trial, the court found the appellant and appellee were partners and ordered the appellant to allow the appellee access to the bus…
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OWEN, WILLIAM C., Jr., Associate Judge.
Following a non-jury trial, the transcript of which has not been made a part of the record, the trial court entered a final judgment in which it found that appellant Bal-zam and appellee Cohen were partners under an oral partnership agreement which called for them to jointly acquire the stock of a corporation known as Surfside Deli King, Inc., by which corporation they were employed to operate the corporate owned delicatessen. The judgment ordered Bal-zam to permit Cohen on the business premises and awarded to Cohen such damages as he had sustained while wrongfully excluded from the business, the amount to be determined by a subsequent accounting. Despite his awareness of the mandatory requirements of the final judgment, Balzam continued to refuse Cohen access to the business premises. That conduct resulted in post trial proceedings in which Balzam was found to be in contempt, the penalty for which was a fine of $1,000.00 a day until Balzam complied. The separate appeals from the judgment and from the contempt order have been consolidated.
Balzam’s first two points essentially attack the sufficiency of the evidence to sustain the court’s judgment. Because the record before us does not include a transcript of the trial proceedings,1 and the appellant has been afforded an ample opportunity to supplement the record, Fla.R. App.P. 9.200(f)(2), appellate review of these points is precluded. Brown v. Householder, 134 So. 2d 801 (Fla. 2d DCA 1961).
Appellant next contends that the court erred in finding Balzam in contempt of court and in imposing a fine of $1,000.00 per day for Balzam’s failure to permit Cohen access to the business premises. No error is shown as to the finding of Balzam to be in contempt for his willful refusal to obey the mandate of the final judgment.
However, the amount of a civil contempt fine imposed by a trial court for contempt of its order should bear a reasonable relationship to the damages, if any, suffered by the party in whose favor the order was entered. See National Exterminators v. Truly Nolen, 86 So. 2d 816 (Fla.1956); Langbert v. Langbert, 409 So. 2d 1066 (Fla. 4th DCA 1981); Schoenthal v. Schoenthal, 138 So. 2d 802 (Fla. 3d DCA 1962); but see Florida Coast Bank of Pompano Beach v. Mayes, (Fla. 4th DCA Case No. 81-2272, Opinion filed December 29, 1982) [FLW 210].
At the hearing which resulted in the order of contempt there was no evidence as to the amount of damages, if any, suffered by appellee Cohen as a result of Balzam’s wilful refusal to abide by the injunctive provisions of the final judgment. We therefore vacate that portion of the order of contempt which levied upon appellant Balzam a fine of $1,000.00 per day. Upon remand the court shall be at liberty, upon appropriate notice and hearing, to further consider the amount of fine or other sanction to be imposed upon Balzam for his contempt of the court’s judgment, for which purpose the court may take such further evidence as it deems appropriate.
Appellant’s final point is directed to the provision of the final judgment directing that both parties and/or the corporation pay to Plaintiff’s counsel reasonable attorney’s fees.2 We find this point also has merit. The general rule, so often stated in the jurisprudence of this state, is that the prevailing party may not recover attorney’s fees in the absence of a statutory or contractual basis for such an award. See, e.g., Adler v. Adler, 365 So. 2d 411 (Fla. 3d DCA 1978).
An exception to this general rule was recognized in Cooper v. Fulton, 158 So. 2d 759 (Fla. 3d DCA 1963), cert. disch., 165 So. 2d 161 (Fla.1964), for cases where one of several co-partners is forced to bring suit for dissolution and accounting. Although appellee relies upon the Cooper case in support of the award, it is clear that in this case appellee Cohen did not seek a dissolution of the partnership. To the contrary, Cohen sought and obtained mandatory injunctive relief by which the partnership remained intact and Cohen was granted equal access to and operation of the business and its assets. While the court did direct that an accounting be had, that provision of the judgment has only the effect and intent of permitting a delayed determination of the damages which Cohen sustained while improperly excluded from the business. In our opinion the Cooper exception does not apply to this case and the provisions of the final judgment awarding appellee an attorney’s fee from appellant or from the business is reversed. See Tobin v. Lefkowitz, 367 So. 2d 682 (Fla. 3d DCA 1979).
Affirmed in part, reversed in part, and remanded.
. Initially, the trial of this matter commenced before Judge George Orr, the transcript of those proceedings being included in the record. After Judge Orr recused himself, the case was apparently tried de novo before Judge Joseph Gersten who entered the judgment. None of the testimony before Judge Orr was considered by Judge Gersten. It is the testimony before Judge Gersten which is not included in the record.
. The award of attorney’s fees was not for services rendered in the contempt proceedings. See Lake Worth Utilities Authority v. Haverhill Gardens, Ltd., 415 So. 2d 125 (Fla. 4th DCA 1982).
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Johnson v. Bednar, 573 So. 2d 822 (Fla. 1991)…KOGAN, Justice. We have for review Johnson v. Bednar, 552 So. 2d 928 (Fla. 4th DCA 1989), based on conflict with Balzam v. Cohen, 427 So. 2d 329 (Fla. 3d DCA 1983). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. In 1983 petitioners sold to respondent the capital stock of a water-conditioning business. Their agreement contained a non-competition clause prohibiting them from engaging in…1 / 2
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Fla. Coast Bank OF Pompano Beach v. Mayes, 433 So. 2d 1033 (Fla. 4th DCA 1983)…t’s power to impose coercive fines was not ruled upon in South Dade Farms. Id., at 896. Langbert merely held that since the fine involved there was compensatory, it must be reasonably related to damages suffered by the other party. Balzam v. Cohen, 427 So. 2d 329 (Fla. 3d DCA 1983) holds that a fine imposed in a civil contempt proceeding must be related to actual damages suffered by the aggrieved party, citing National Exterminators v. Truly Nolen, 86 So. 2d 816 (Fla.1956); Langbert; and Schoenthal v. Schoen…
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Fineberg v. E.B. Kline, 542 So. 2d 1002 (Fla. 3d DCA 1988)…costs to settle and dissolve the partnership. Even though an assessment of attorney fees is proper where a partner is forced to bring suit for dissolution and accounting, A.J. Richey Corp. v. Garvey, 132 Fla. 602,182 So. 216 (1938); Balzam v. Cohen, 427 So. 2d 329 (Fla. 3d DCA 1983), such was not the case here. The parties had agreed to the dissolution and the judicial sale was to be held in order to facilitate that dissolution. When this court overturned the first sale, the necessity for making adjustments t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. Householder, 134 So. 2d 801 (Fla. 2d DCA 1961)
- Langbert v. Langbert, 409 So. 2d 1066 (Fla. 4th DCA 1981)
- Nat'l Exterminators, Inc. v. Truly Nolen, Inc., 86 So. 2d 816 (Fla. 1956)
- Cooper v. Fulton, 158 So. 2d 759 (Fla. 3d DCA 1963)
- Schoenthal v. Sylvan Schoenthal, 138 So. 2d 802 (Fla. 3d DCA 1962)
- Fulton v. Cooper, 165 So. 2d 161 (Fla. 1964)
- Adler v. Etta Mae Adler and Joan Berk, 365 So. 2d 411 (Fla. 3d DCA 1978)
- Alvin E. Tobin, M. A., P. A. v. Lefkowitz, 367 So. 2d 682 (Fla. 3d DCA 1979)
- Hreha v. Hreha, 415 So. 2d 125 (Fla. 4th DCA 1982)
- Lake Worth Utils. Auth. v. Haverhill Gardens, Ltd., 415 So. 2d 125 (Fla. 4th DCA 1982)