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noting "[p]roceedings charging contempt for failure to obey an order cannot be used as a method of reviewing the question of the sufficiency of the evidence to sustain the original action"
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Case No. 2D20-1229
03-19-2021
Joseph E. ABDO, Appellant, v. Khalil ABDO, individually and as a shareholder of Social Media, Inc.; Nada Abdo Quill ; Marie Abdo Silva; Social Media Inc.; Social Media Ltd. LLC; and Social Media, Inc. Ltd., Appellees.
Robert E. Biasotti of Biasotti Law, St. Petersburg, for Appellant. Craig L. Berman of Berman Law Firm, P.A., St. Petersburg, for Appellee Khalil Abdo. No appearance for remaining Appellees.
Robert E. Biasotti of Biasotti Law, St. Petersburg, for Appellant.
Craig L. Berman of Berman Law Firm, P.A., St. Petersburg, for Appellee Khalil Abdo.
No appearance for remaining Appellees.
KHOUZAM, Chief Judge.
Joseph E. Abdo (JEA), defendant below, appeals the circuit court's order finding him in civil contempt in this dispute between siblings over ownership of several adult websites and the income they generate. This case has an extensive history in this court, and the underlying facts have been described in detail in our previous opinions. See Abdo v. Abdo, 263 So. 3d 141 (Fla. 2d DCA 2018) ( Abdo I ); Abdo v. Abdo, 284 So. 3d 1101 (Fla. 2d DCA 2019) ( Abdo II ); Abdo v. Abdo, 313 So. 3d 802 (Fla. 2d DCA Jan. 8, 2021) ( Abdo III ). The narrow issue before us in the instant appeal is whether the circuit court properly held JEA in civil contempt for violating the "final judgment after remand" from this court's decision in Abdo II. Because we conclude that the final judgment did not provide clear directions for compliance and exceeded the authority of our remand, we hold that it cannot be the basis for a finding of civil contempt, and we reverse the contempt order.
We begin by emphasizing that "where a court acting with proper jurisdiction and authority renders an order, an aggrieved party's failure to abide by the order may be punished by contempt even if the order is ultimately found to be erroneous." Rubin v. State, 490 So. 2d 1001, 1003 (Fla. 3d DCA 1986). And "[p]roceedings charging contempt for failure to obey an order cannot be used as a method of reviewing the question of the sufficiency of the evidence to sustain the original action." Shadow Lakes Woods, Inc. v. Schneider, 414 So. 2d 3, 4 (Fla. 5th DCA 1982) (quoting Bird v. Johnson, 234 Ind. 555, 130 N.E.2d 29, 31 (1955) ).
However, "[w]hen a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order." DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005). Despite the fact that "a judgment of contempt is clothed with a presumption of correctness, one may not be held in contempt of court for violation of an order or a provision of a judgment which is not clear and definite so as to make the party aware of its command and direction." Id. In other words, "[p]rior to assessing contempt sanctions for a violation of a court order, the trial court must first have issued a clear and unambiguous order or otherwise clearly established for the record the standards of conduct required by the court." Id. at 1094.
Without clear direction on what conduct is required, a contemnor does not have the power to purge the contempt. "The key safeguard in civil contempt proceedings is a finding by the trial court that the contemnor has the ability to purge the contempt." Akridge v. Crow, 903 So. 2d 346, 351 (Fla. 2d DCA 2005). A civil contempt order must also include a purge provision that gives the contemnor the power to avoid the sentence. Lo v. Lo, 878 So. 2d 424, 426 (Fla. 3d DCA 2004) (citing Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla. 1985) ). This is because the purpose of civil contempt is to obtain compliance with an order of the court, not to punish. Id. "Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply. This ability to comply is the contemnor's 'key to his cell.' " Bowen, 471 So. 2d at 1277 (quoting Pugliese v. Pugliese, 347 So. 2d 422, 424 (Fla. 1977) ).
Here, JEA was found in contempt for violating the final judgment by failing to return to Social Media, Inc. (SMI) certain "domains and associated assets" of two foreign corporate entities, Social Media Ltd. LLC (SMLL) and Social Media Inc. Ltd. (SMIL). Although this court previously determined that the circuit court did not have jurisdiction over these foreign entities, see Abdo I, 263 So. 3d at 151, the circuit court concluded that its personal jurisdiction over JEA allowed it to compel him, personally, to return property owned by the corporations. The circuit court reasoned that the entities "were formed for the purpose of (or at least used in furtherance of) an ill-advised plan to evade the jurisdiction of Florida courts by purporting to transfer legal title to entities over which the Florida courts lack in personam jurisdiction." Accordingly, the court "order[ed] defendant, personally, to return legal title to the plaintiff corporation from which he took it, and to not use his status as a shareholder, officer, director, or agent of that company to repeat his misdeed." To accomplish this, the court ordered "the return of the indicia of control of the websites (and all other associated assets including domains) to Social Media, Inc."
Although it appears the circuit court was attempting to reach a fair result, it is unclear how JEA in his individual capacity was supposed to provide access to corporate assets owned by the corporate entities. "A general principle of corporate law is that a corporation is a separate legal entity, distinct from the persons comprising them." Gasparini v. Pordomingo, 972 So. 2d 1053, 1055 (Fla. 3d DCA 2008). Specific factors must be pleaded and ultimately proven to "pierce the corporate veil." See id.; Abdo I, 263 So. 3d at 149. This court held in Abdo I that the operative complaint had failed to allege sufficient facts to pierce the corporate veil. 263 So. 3d at 150. The complaint failed to establish that the foreign corporations were mere instrumentalities of JEA or that JEA "dominated and controlled [SMLL and SMIL] to such an extent that the corporation's independent existence, was in fact nonexistent and the shareholders were in fact alter egos of the corporation." Id. (alteration in original) (quoting WH Smith, PLC v. Benages & Assocs., 51 So. 3d 577, 582 (Fla. 3d DCA 2010) ). Without clear direction on how to comply, JEA did not have the "key to his cell"—the ability to comply and thereby purge the contempt.
Moreover, the record does not establish who actually controls access to the assets JEA was ordered to deliver. Khalil Abdo was the only witness who testified at the contempt hearing. JEA was not present. Khalil testified that the assets at issue had not been returned to SMI and that the passwords to associated merchant and operating accounts had been changed without his permission, blocking his access to the accounts. But he also testified that JEA's son, Joe M. Abdo, was the holder of the operating account. When asked whether that meant that the account was not controlled by JEA, he responded, "He controls his son, all of it." Khalil later filed an affidavit stating that it is Hovik Dzhambazian—not JEA—who "is controlling the servers, the domain registrations, the login credentials and merchant account." Considering this conflicting evidence from the one witness who testified at the contempt hearing, it becomes even more unclear how JEA was supposed to purge the contempt.
But there is another, more important reason that the contempt order cannot stand: the court improperly exercised jurisdiction and exceeded its authority on remand. "[A] void order, i.e., one that is beyond the court's power" stands in contrast "with an order which is merely erroneous because it is legally or factually incorrect." Synchron, Inc. v. Kogan, 757 So. 2d 564, 566 (Fla. 2d DCA 2000). "[D]isobedience of a void order, judgment, or decree, or one issued by a court without jurisdiction of the subject-matter and parties litigant, is not contempt." Id. (alteration in original) (quoting State ex rel. Everette v. Petteway, 131 Fla. 516, 179 So. 666, 671 (1938) ); see also Steffens v. Steffens, 593 So. 2d 1156, 1158 (Fla. 2d DCA 1992) ("When the trial court sought to enforce ... provisions of the final judgment through contempt proceedings against appellant, it lacked the jurisdiction to do so because it had no personal jurisdiction of appellant when the final judgment was entered.").
And "[n]o principle of appellate jurisdiction is more firmly established than the one which provides that a trial court utterly lacks the power to deviate from the terms of an appellate mandate." Fla. Digestive Health Specialists, LLP v. Colina, 202 So. 3d 94, 96 (Fla. 2d DCA 2016) (quoting Mendelson v. Mendelson, 341 So. 2d 811, 813-14 (Fla. 2d DCA 1977) ). "That is, 'upon the issuance of our mandate, the trial court is without authority to take any action other than to compose an order carrying out the terms of the mandate.' " Id. (quoting City of Miami Beach v. Arthree, Inc., 300 So. 2d 65, 67 (Fla. 3d DCA 1973) ).
As already mentioned above, the circuit court's final judgment directly conflicts with our prior holdings by which it was governed and, in effect, improperly seeks to exercise jurisdiction over SMLL and SMIL. In Abdo I, which addressed the sufficiency of the jurisdictional facts alleged in the operative complaint, there is a lengthy discussion explaining why the court lacked personal jurisdiction over SMLL and SMIL, including why the alter ego theory had not been sufficiently alleged in order to pierce the corporate veil. 263 So. 3d at 144-50. In Abdo II, this court held that the constructive trust, imposed after the close of evidence at trial, was overbroad in part because it sought to bind SMLL and SMIL and their assets when the court did not have jurisdiction over those entities. 284 So. 3d at 1102-05. We explained that "[n]o court can make a decree which will bind any one but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree." Id. at 1103 (quoting Humphrey v. Deutsche Bank Nat'l Tr. Co., 113 So. 3d 1019, 1020 (Fla. 2d DCA 2013) ).
On remand from Abdo II, the circuit court entered the final judgment, again attempting to assert jurisdiction over SMLL and SMIL through JEA individually based on a theory of in rem jurisdiction over the websites and income streams at issue. However, in Abdo III—a recent opinion addressing several other orders entered following the final judgment on remand—this court rejected the circuit court's exercise of in rem jurisdiction. Abdo III, 313 So. 3d 802. Although we acknowledge that the circuit court did not have the benefit of Abdo III when entering the contempt order, we nonetheless find the opinion instructive because it is directly based on our holdings in Abdo I and Abdo II. In Abdo III, we noted that "these most recent orders appear to be an attempted 'end run' around our holdings in Abdo I and Abdo II" because they deviated from our mandates. Id. Applying the same reasoning here, we conclude that the final judgment exceeded the circuit court's authority on remand and sought to improperly exercise jurisdiction, making it an improper basis for contempt.
Accordingly, because the final judgment did not provide clear directions for compliance and exceeded the circuit court's authority on remand, we conclude that it cannot be the basis for a finding of civil contempt, and we reverse the contempt order entered against JEA.
Reversed.
ROTHSTEIN-YOUAKIM and STARGEL, JJ., Concur.