Weinstein, In re

• Decision Date: 20 January 1988
• Docket Number: Nos. 87-0230,87-0275,No. 85-13572DF,85-13572DF,s. 87-0230
• Citation: 518 So.2d 1370,13 Fla. L. Weekly 238
• Parties: 13 Fla. L. Weekly 238 In re Louis J. WEINSTEIN, In re Case
• Court: Florida District Court of Appeals

Page 1370

518 So.2d 1370

13 Fla. L. Weekly 238

In re Louis J. WEINSTEIN,

In re Case No. 85-13572DF.

Nos. 87-0230, 87-0275.

District Court of Appeal of Florida,

Fourth District.

Jan. 20, 1988.

Louis J. Weinstein, Hollywood, pro se.

Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Amy L. Diem, Asst. Atty. Gen., West Palm Beach, for appellee.

STONE, Judge.

Appellant, an attorney, was twice held in direct contempt during the conduct of a civil jury trial for disregarding the orders of the trial court that he rise when making objections. On the first day of trial, the court, after commenting on his difficulty in hearing, advised the appellant:

THE COURT: I sustain the objection.

Next time you address the Court and don't stand up, I'm going to get a little tougher about that. That is about four times that I reminded you.

MR. WEINSTEIN: Okay.

On the following morning counsel again failed to rise when addressing the court. The record reflects the following warning:

THE COURT: Mr. Louis Weinstein.

MR. WEINSTEIN: Yes, sir.

THE COURT: Sir, the next time that I have to tell you to stand up when you address this Court, I'm going to hold you in direct contempt of this Court. Do you understand that?

MR. WEINSTEIN: Yes, Your Honor.

THE COURT: I have done it about four or five times already. This is the first time this morning, and you continue to refuse to stand up.

MR. WEINSTEIN: I'm sorry, Your Honor. I'm not doing it intentionally.

When appellant again failed to stand when making an objection, the trial court ordered him to show cause why he should not be held in contempt. Appellant argued that his conduct was not intentional, but added, "[B]ut I don't see--with all due respect, I don't see the difference if you can hear me."

The trial court held appellant in contempt noting that he had been warned on the previous day and four or five times on that day. The court sentenced appellant to a fine of $250.00 or three (3) days in jail.

On the third day of trial, the record reflects the following exchange:

THE COURT: Mr. Weinstein, I have a hard time believing this. I have just a difficult time believing that you insist upon remaining seated at your table after I have held you in contempt yesterday and fined you $250.00

I have repeatedly told you about it. I just find it almost impossible to believe that you insist on doing this. You have come in here 14 minutes late today and held up the whole thing and remained seated there.

I didn't say a thing the first times you objected this morning and you remained seated, but I just can't run a courtroom if you insist on just directly and flagrantly violating my orders.

MR. WEINSTEIN: Your Honor, I apologize again. I'm not doing it purposely, Your Honor.

Here's the problem I have. If I remain seated--I mean, if I have to stand up, sometimes I can't get up fast enough or sometimes I'm writing.

....

THE COURT: I'm going to give you an opportunity to show me cause this morning why you shouldn't be held in contempt.

To this Mr. Weinstein responded:

MR. WEINSTEIN: I'd like to put some things on the record.

First of all, I'd like to note that throughout this trial Mr. Buschmann has not stood up on many occasions and you have never censored or fined him.

Second of all, it is not intentional. I have told you I am not doing it intentionally. I wouldn't flagrantly disobey your order. But I do have a problem standing up quick enough.

I'm at the peril of either not objecting because I can't get up soon enough and letting the jury hear something they're not supposed to hear, or standing all the time and then I can't take notes if I'm standing.

Then when I stood you got mad that I was standing yesterday.

I just don't think you are being reasonable with me, Your Honor. I don't--with all due respect, I don't think you're being reasonable.

Mr. Buschmann on several occasions has not stood up when he made objections and you never once reproached him.

I don't see--I mean, you have a right to run the courtroom the way you want, but if you can hear the objection, I don't see what substantial difference it makes whether I'm standing or sitting.

And most of the judges in this courthouse allow you to sit or stand. They don't specifically require you to stand up when you make an objection or else you're in contempt.

And this was not intentional at any time. I'm--I don't want to get you angry at me or prejudice my client's case. I just have trouble standing up fast enough to make the objection.

First of all, I'm sitting there and I'm writing, taking notes on what the witness is saying. Then I have got to decide whether what the witness is saying is objectionable. Then I have to decide if it is do I object. Then I have to stand up.

I mean, if I have to stand up every time I object, there's no way I can properly object to all the questions that are objectionable.

The appellant was again held in contempt, the court stating:

THE COURT: All right, sir. Let the record reflect that during this commentary by Mr. Weinstein of putting his things on the record he continued to turn his back on the Court. His voice is heavy with sarcastic inflection. The expressions on his face are not pleasant expressions and I can't--I can't find where there is any good cause why he should not be adjudged in contempt of this court.

I'm certain that when you go before the District Court of Appeal, they don't allow you to sit, they allow you to stand.

Now, if you have a physical problem, that's different, or if you have an age problem where you're too old, that's different and we'll talk about it. But I don't see that here.

Here I see sarcasm and deliberate refusing to stand. Now, whether it is deliberate, you keep telling me it is not, but then you tell me you can't see what difference it makes what you do when I gave you a specific order at the beginning of the trial and I repeatedly reminded you about it. I don't know how to get it across to you.

You're the first person, and I've been judging for over 17 years I guess, and you're the first lawyer that I can't get it across to that they have to stand up to address the Court. I don't know why.

And I'm certainly not mad at your client. If I was mad at your client, I would, maybe if I ever got mad at your client, I would mistry this and recuse myself. I wouldn't do that to your client.

But I'm just concerned, and so I'm going to find you are in contempt of this Court once again. Do you have anything you wish to say as to why you shouldn't be sentenced at this time other than what you've said?

Following additional comments by counsel on sentencing, the court ordered appellant a fine of $1,000.00 or thirty (30) days.

After advising appellant of his right to appeal within thirty (30) days, the court told him to turn himself over to the Sheriff if he failed to pay the fine by 5:00 p.m. on that afternoon.

Appellant contends that his acts do not constitute contempt. He further claims that the court abbreviated his time to appeal and that the written judgment is incomplete in that it does not contain a statement of the facts.

A judgment of contempt comes to this court with a presumption of correctness. State ex rel. Garlovsky v. Eastmoore, 393 So.2d 567 (Fla. 5th DCA 1981); Krueger v. State, 351 So.2d 47 (Fla. 3d DCA 1977).

Contempt of court has been defined in many ways, including: "[a]n offense against the authority or the dignity of a court or of a judicial officer....," Ex Parte Earman, 85 Fla. 297, 95 So. 755 (1923), "[a]ny act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity....," Ex Parte Crews, 127 Fla. 381, 173 So. 275 (1937), or as "[d]isobedience to the Court, an opposing or a despising the authority, justice, or dignity thereof," South Dade Farms, Inc. v. Peters, 88 So.2d 891 (Fla.1956) (quoting Oswald, Contempt of Court, page 5). See also Krathen v. State, 310 So.2d 381 (Fla. 4th DCA 1975); Kleinfeld v. State, 270 So.2d 22 (Fla. 3d DCA 1972) cert. denied, 275 So.2d 251 (Fla.1973). In Kleinfeld, a contempt judgment was upheld where counsel, in disregard of numerous requests and orders of the trial court, had continued to engage in a series of repetitive motions:

Proceeding "not wisely but too well", Othello, Act V, Sc. 2, appellant, an attorney, forgot in his probably otherwise commendable zeal for his client that "any breach of an attorney's duty to maintain the respect due by him to the court is a contempt of court," 6 Fla.Jur., Contempt, Sec. 12, p. 569; he was undeterred by the admonition of Florida Civil Trial Practice, 2d Ed., Sec. 25.11, 8., that one of the "remedies for misconduct" on the part of "the trial lawyer" is a "contempt citation for misconduct continued after warning"....

Id. at 22.

In Wells v. State, 471 So.2d 620 (Fla. 5th DCA), dismissed, 478 So.2d 54 (Fla.1985), a contempt judgment was upheld where counsel violated an order limiting the time for closing argument:

Any time an officer of the court openly disregards a court order, no matter how insignificant the order may seem, he obstructs the administration of justice. In Ward v. State, 354 So.2d 438, 439 (Fla. 3d DCA 1978), the court stated:

The orderly conduct of a trial requires that a defendant and his attorney obey the rulings of the trial judge and appeal those rulings which are objectionable. A refusal to obey the rulings of a trial judge on the ground that the ruling is improper may result in the inability of the courts to administer justice.

Appellant submits that his conduct in disregarding the trial court's twenty-minute limit on his closing argument does not constitute contempt of court as that phrase is defined in Krathen v. State, 310 So.2d 381 (Fla. 4th DCA 1975). This court quoted Krathen's definition with approval in State ex rel. Garlovsky v. Eastmoore, 393 So.2d 567 (Fla. 5th DCA 1981). Clearly, as we noted in State ex rel. Garlovsky v....