Menke v. Wendell
188 So. 3d 869
| Fla. Dist. Ct. App. | 2015Background
- Petitioner Menke petitions for a writ of certiorari to quash a contempt and sanctions order arising from a discovery dispute in the Wendells’ suit against Menke’s LLC investment venture.
- No final order on the underlying motion to compel; no transcript or formal order in record; only a court appearance record with notes.
- The September 23, 2014 hearing referenced items 8–9 of the production requests but did not yield an entered order granting/denying the motion to compel.
- Months later, Wendells sought contempt and sanctions for failing to produce items 8–9 by two weeks, leading to a contempt order fining $20,000 and threatening stricken pleadings for nonpayment.
- The order lacks a purge provision, damages evidence, or Menke’s ability-to-pay evidence, and rests on an absence of a proper compel-order rather than a clear, definite directive.
- The court grants certiorari and quashes the contempt/sanctions order as departing from the essential requirements of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contempt was properly based on a non-existent order. | Wendells contend there was a granted motion to compel. | Menke asserts no order was entered granting/denying the motion. | Yes; no order, thus no basis for contempt. |
| Whether the sanction was authorized or properly structured. | Wendells argue $20,000 is compensatory for losses. | Menke argues no proof of damages or ability to pay; no purge provision. | No; sanction invalid for lack of purge, damages proof, and proper basis. |
| Whether certiorari review is proper for prejudgment civil contempt in an ongoing proceeding. | Contempt order affects ongoing proceedings. | N/A beyond record. | Properly reviewable under certiorari; order quashed. |
Key Cases Cited
- Reder v. Miller, 102 So. 3d 742 (Fla. 2d DCA 2012) (contempt requires violation of the letter of an order, not its spirit)
- Wilcoxon v. Moller, 132 So. 3d 281 (Fla. 4th DCA 2014) (cannot base contempt on implications not in the order)
- Ross Dress for Less Va., Inc. v. Castro, 134 So. 3d 511 (Fla. 3d DCA 2014) (orders must be clear and definite to impose compliance)
- Allstate Ins. Co. v. Biddy, 392 So. 2d 938 (Fla. 2d DCA 1980) (sanctions must permit purge and be aimed at compliance)
- Parisi v. Broward Cnty., 769 So. 2d 359 (Fla. 2000) (coercive vs. compensatory contempt; purge requirement)
- Boby Express Co. v. Guerin, 930 So. 2d 842 (Fla. 3d DCA 2006) (sanctions must bear relation to harm; consider contemnor's resources)