Ramos v. N. Star Entm't Firm, LLC
| Decision Date | 29 April 2020 |
| Docket Number | No. 4D19-675,4D19-675 |
| Citation | 295 So.3d 803 |
| Parties | Jorge RAMOS, Appellant, v. NORTH STAR ENTERTAINMENT FIRM, LLC, and 1101 S. Federal Highway, LLC, Appellees. |
| Court | Florida District Court of Appeals |
Michael B. Manes of Michael B. Manes, P.A., Plantation, for appellant.
John P. Seiler and Richard J. Zaden of Seiler Sautter Zaden Rimes & Wahlbrink Fort Lauderdale, for appellee North Star Entertainment Firm LLC.
Appellant Jorge Ramos appeals the trial court's order of direct criminal contempt and a sentence of sixty days in jail, based upon the court's finding that Ramos, a witness in a proceeding, had committed perjury. Because the court weighed conflicting evidence, as well as relied on out-of-court evidence, and the appellant never admitted the falsity of the statements, the court erred in finding Ramos in direct criminal contempt. We reverse.
This case arises out of a landlord tenant dispute between North Star Entertainment Firm, LLC and 1101 S. Federal Highway, LLC (Landlord). North Star claims to be the rightful tenant to Landlord's property pursuant to a commercial property lease agreement. Ramos was a witness at a temporary injunction hearing regarding their dispute. He was a former owner/manager of North Star and current owner of the entity Crew Today, LLC. In 2016, an original lease was entered into between Crew Today, LLC, and Landlord. Pursuant to the lease, Landlord allowed Crew Today, LLC to use its liquor license. Ramos then created North Star to operate a disco on the leased property. After North Star was created, Ramos and Landlord proceeded to transfer the liquor license to North Star in a questionable manner.
In 2017, Ramos ran into financial trouble. As a result, Ramos involved Mr. Raphael Baruch (Baruch) in North Star with a split in the profits and the business. This split is the subject of a verbal dispute between Ramos and Baruch. According to North Star's K-1 tax forms from 2017, and the agreements between Baruch and Ramos, Baruch ultimately acquired approximately sixty percent of North Star from Ramos. Later, Baruch and Ramos had a falling out and Baruch terminated Ramos as manager of North Star. Thereafter, Ramos became the manager for Landlord. Ramos terminated the lease between Crew Today, LLC and Landlord. Landlord then brought a separate eviction action against Crew Today, LLC. North Star sued Landlord for breach of contract, fraud, misrepresentation, unjust enrichment, and quantum merit. North Star sought emergency relief from the trial court regarding the eviction through a verified motion for a temporary injunction and to inspect and preserve property.
At the temporary injunction hearing, Ramos at one point testified regarding questionable documents he submitted to the Florida Department of Business and Professional Regulation (DBPR) to obtain a liquor license. The court raised its concern that Ramos' testimony was perjured. Ramos' attorney, who was present, apprised the court that in light of its concern he would direct Ramos to "take the Fifth." The trial court responded that the documents were signed by Ramos under oath and submitted to the DBPR. The court asked Ramos' attorney why Ramos should not be held in direct criminal contempt because of documents Ramos submitted to the DBPR. A discussion ensued and the court decided to defer ruling on the contempt until he reviewed the transcript. The hearing continued.
At the conclusion of Ramos' testimony, the court advised Ramos that he was holding him in direct criminal contempt and addressed the reasons for the ruling. The court asked if Ramos had grounds why he should not be held in contempt. Ramos' attorney argued against the reasons given by the trial judge. The court stated that it would hold Ramos in direct criminal contempt. Ramos' attorney argued that other evidence would show that Ramos was not lying. The court stated that it would defer ruling on sentencing to allow for mitigation evidence to be presented.
On the next day, the trial court issued the order adjudicating Ramos guilty of direct criminal contempt. Then the following day, the trial court held a hearing allowing Ramos to present excusing or mitigating circumstances for his sentence per the order. The court then sentenced him to sixty days in jail. Ramos appeals the court's judgment and sentence.
Preliminarily, we note that the trial court erred in its procedure for holding Ramos in direct criminal contempt. Florida Rule of Criminal Procedure 3.830, governing direct criminal contempt proceedings, requires that:
Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against the defendant and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances.
"The provisions of rule 3.830 define the essence of due process in criminal contempt proceedings and must be scrupulously followed." Hutcheson v. State , 903 So. 2d 1060, 1062 (Fla. 5th DCA 2005) (citations omitted). In Hutcheson , the defendant was confronted with his allegedly perjurious statement but was cut off by the trial court before he could give an explanation. The court held that the trial court did not meet the procedural due process requirements of the rule. "Where a claim of false or perjured testimony is involved, the accused must, prior to the adjudication of guilt , be given an opportunity to present evidence of excusing or mitigating circumstances." Id. (citations omitted) (emphasis added). See also Peters v. State , 626 So. 2d 1048 (Fla 4th DCA 1993).
Because the trial court did not provide an opportunity for Ramos to present the evidence of explanation prior to finding him in contempt, the court failed to strictly follow the procedures of the rule and that failure would independently necessitate a reversal. However, as the findings of the trial court did not support direct criminal contempt, we review the merits of the judgment.
The standard of review of a direct criminal contempt conviction is abuse of discretion. Michaels v. Loftus , 139 So. 3d 324, 327 (Fla. 3d DCA 2014). "While a judgment of direct contempt is entitled to a presumption of correctness, it must be supported by the record." Smith v. State , 954 So. 2d 1191, 1194 (Fla. 3d DCA 2007) (citations omitted). "The contempt power should always be exercised with judicial restraint." Emanuel v. State , 601 So. 2d 1273, 1274 (Fla. 4th DCA 1992).
"In order to be considered direct criminal contempt, all of the acts underlying the contemptuous conduct must be committed in open court in the presence of the judge, ‘where all of the essential elements of the misconduct are under the eye of the court [and] are actually observed by the court.’ " Plank v. State , 190 So. 3d 594, 606 (Fla. 2016) (citing In re Oliver , 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948) ). If the judge relies on statements and testimony from others regarding their knowledge about the contemptuous acts, then the misconduct is no longer considered direct criminal contempt. Id. " ‘[T]he judge must have personal knowledge of [the misconduct] acquired by his own observation of the contemptuous conduct.’ " Id. (citing In re Oliver , 333 U.S. at 275, 68 S.Ct. 499 ).
In State ex rel. Luban v. Coleman , 138 Fla. 555, 189 So. 713, 714 (1939), the supreme court held that in order for perjury to constitute contempt of court, "it must appear that (1) the alleged false answers had an obstructive effect, (2) there existed judicial knowledge of the falsity of the testimony, and (3) the question was pertinent to the issue." The supreme court further explained that:
In most of the cases in which perjury or false swearing has been held to constitute a contempt, the falseness of the statements or allegations made under oath was either admitted or so clearly shown, generally from the contemner's own statements, as to be apparently beyond question. Where, however, the falsity of the testimony is denied and is a matter merely of inference of opinion, the court should not weigh the conflicting evidence in a contempt proceeding, but should leave the alleged contemner to be punished criminally if guilty of perjury. In other words, the contemner is entitled to a jury trial if the facts are substantially disputed, and the court cannot take judicial knowledge that the testimony or allegation is false.
Id. at 715. (Emphasis added.)
In Emanuel v. State , 601 So. 2d 1273, 1275 (Fla. 4th DCA 1992), we addressed direct criminal contempt based upon perjury and concluded that unless it was admitted, it could not be punished through contempt. The defendant, at a suppression hearing, testified contrary to the testimony of two state witnesses and claimed that he did not consent to a search while the other witnesses said that he did. Upon review of the trial court's order finding the defendant in direct criminal contempt for committing perjury, this court determined that the trial court erred. Id. The strict standard of proof necessary to establish judicial knowledge of the falsity of the testimony is "satisfied only where the witness admits the falsity or other circumstances demonstrate beyond question the false nature of testimony." Id. at 1275. (Emphasis added.) Because of due process concerns, this court stated that "in the ordinary situation where perjury is suspected, a state prosecution for perjury is the preferred alternative." Id. at 1275. We recognized that it is the trial judge's responsibility to judge credibility and decide factual disputes. But Id. at 1275 (referring to Coleman , 189 So. at 714 ).
The trial court found four...
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