PIERRE MARC MALEK

v.

MARGUERITE MALEK

Third District Court of Appeal State of Florida

Opinion filed February 21, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1371 Lower Tribunal No. 19-17942 ________________

Pierre Marc Malek, Appellant,

vs.

Marguerite Malek, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jason E. Dimitris, Judge.

Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for appellant.

Paul A. McKenna & Associates, P.A., and Paul A. McKenna, for appellee.

Before EMAS, SCALES and MILLER, JJ.

PER CURIAM.

2

In this ongoing dissolution of marriage case, appellant Pierre Marc Malek (“Husband”) challenges a July 21, 2022 order requiring him to complete fifty hours of community service as a sanction for trying to disrupt the dissolution proceedings by shooting and maiming appellee Marguerite Malek’s (“Wife”) cats with a pellet gun. We reverse because the trial court’s inherent power to sanction a litigant does not extend to the imposition of a penal sanction without compliance with the procedural requirements of Florida Rule of Criminal Procedure 3.840.

I.

Relevant Background This dissolution proceeding commenced in 2019, and on August⁶, 2020, Wife obtained from the trial court a domestic violence injunction against Husband. Among other allegations, Wife’s motion asserted that Husband sought to intimidate Wife by threatening to kill her pet dogs. The relevant injunction language reads as follows: Violence Prohibited. [Husband] shall not commit, or cause any other person to commit, any acts of domestic violence against [Wife]. Domestic violence includes: assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury or death to [Wife] or any of [Wife’s] family or household members who is residing in the same single family dwelling unit with [Wife]. Husband shall not commit any other violation of the injunction through an intentional unlawful threat, word or act to do violence to the [Wife].

II.

Analysis While a trial court has “considerable latitude” to impose a sanction to address a party’s abuse of the judicial process, Tramel v. Bass, 672 So. 2d 78, 82 (Fla. 1st DCA 1996),2 the trial court’s inherent power to sanction a

1 See State Farm Mut. Auto. Ins. Co. v. Swindoll, 54 So. 3d 548, 552 (Fla. 3d DCA 2011) (holding generally that a trial court may impose a sanction against a party who acts in bad faith or engages in inequitable conduct); Favreau v. Favreau, 940 So. 2d 1188, 1189 (Fla. 5th DCA 2006) (holding that a trial court has the inherent authority to prevent the abuse of court procedure by barring further pro se filings); JP Morgan Chase Bank v. Combee, 883 So. 2d 330, 331 (Fla. 1st DCA 2004) (holding that, in the absence of a transcript, a trial court’s dismissal of a case with prejudice as a sanction comes to the appellate court with a presumption of correctness); Tramel v. Bass, 672 So. 2d 78, 83 (Fla. 1st DCA 1996) (affirming the trial court’s striking a litigant’s answer and entering a default against him as a sanction for fraud upon the court as “the trial court must be accorded considerable latitude in dealing with serious abuses of the judicial process”); S.Y. v. McMillan, 563 So. 2d 807, 809 (Fla. 1st DCA 1990) (holding that the trial court has inherent authority to control the conduct of its proceedings by authorizing the shackling of a juvenile offender).

2 Indeed, trial courts may impose attorney’s fees against a litigant for bad faith conduct, irrespective of whether a statute or rule authorizes attorney’s

If after complying with the procedural requisites of rule 3.840 (which include an order to show cause, an answer, an arraignment, and a hearing at which the contemnor has the right to counsel and to compulsory process), the trial court renders a judgment reciting the facts constituting the contempt and finds and adjudicates the contemnor guilty, a trial court may impose a sentencing sanction that includes incarceration. See Haeussler v. State, 100 So. 3d 732, 733 (Fla. 2d DCA 2012). Here, the fifty hours of community service imposed by the trial court constituted an alternative to incarceration; hence, Husband was entitled to the same constitutional protections

fees. See Pub. Health Tr. of Miami-Dade Cnty. v. Denson, 189 So. 3d 1013, 1015 (Fla. 3d DCA 2016). A trial court may strike a pleading or dismiss a case in response to litigant misconduct. See Ledo v. Seavie Res., LLC, 149 So. 3d 707, 710 (Fla. 3d DCA 2014); cf. Kozel v. Osterndorf, 629 So. 2d 817, 818 (Fla. 1993) (setting forth six factors a trial court should consider before dismissing a case with prejudice based on attorney misconduct or error). A trial court may also exercise its sanction power to bar pro se filings. Favreau v. Favreau, 940 So. 2d 1188, 1189 (Fla. 5th DCA 2006).