advice on proper standard of review

[brigman]

What is the name of your state? Florida
I am appealing a judgment of contempt with Florida 1st DCA. I found the following two Standards of reviews specifically suitable to my case. Which one should I use: one is saying de novo standard and the other is saying legal error standard for the same situation? Can I use the both?


a judge cannot base contempt upon noncompliance with something an order does not say. Under such circumstances, the standard of review is legal error, not abuse of discretion. Alan v. State, 39 So. 3d 343, 346 (Fla. 1st DCA 2010)


a judge cannot base contempt upon noncompliance with something an order does not say. Under such circumstances, the standard of review is de novo, not abuse of discretion. Wilcoxon V. Moller, 132 So.3d 281, 286 (Fla. 4th DCA, 2014)

 

[quincy]

Your question cannot be answered by members of this forum without practicing law without a license or, for attorney-members, violating their State rules and codes.

To help you with your civil action, I recommend you seek help from an attorney licensed to practice in your own jurisdiction.

Is this a defamation claim? Your post seems familiar.

 

[Taxing Matters]

I am appealing a judgment of contempt with Florida 1st DCA. I found the following two standards of reviews specifically suitable to my case. Which one should I use: one is saying de novo standard and the other is saying legal error standard for the same situation? Can I use the both?

A couple of observations. The portion you quoted from the Alan case is not from the majority opinion but from Judge Benton's partial concurrence and dissent. Thus that quote would not be particularly good to use because it is not binding case law; its value would be persuasive only. Second, the two standards are the same: a review for "legal error" is another way of saying the decision gets de novo review in those circumstances. And indeed, both quotes ultimately rely on the same case for the standard to be applied: Keitel v. Keitel, 716 So.2d 842, 845 (Fla. 4th DCA 1998), which interestingly enough states the standard in a concurring opinion rather than a majority opinion. Because the statement of the standard is part of the majority opinion in Wilcoxon and that is also the more recent case and given that the standard is stated as being the same in all the cases anyway, the Wilcoxon case may be the better choice. I cannot say that for sure, however, as I do not practice in Florida nor have I fully researched the particular issue you have.

As the standard on this particular point seems pretty clear in the Florida case law it may not ultimately much matter which one you use. If the requirement was not clearly stated in the order, the standard of review for the contempt is going to be de novo/legal review.

I cannot tell you how to write the brief or tell you what case to cite; there might be some other case out there that is better to use than any of these. But my point here is that you have to carefully read at the cases you are quoting from to determine how good the quote is that you want to use. Statements from the holding of the majority opinion are case law binding on the lower courts and thus are much better to use than quotes from concurring or dissenting opinions; while concurring and dissenting opinions are helpful for their persuasive value if you have nothing better, the strongest statements to use are going to be from majority opinons where you have them.

 

[brigman]

Taxing matters, thank you!
Quincy, this is my first time posting in this forum

 

[brigman]

It is on child support, Quincy.

Taxing matters, I was planing to cite Wilcoxon but tempted towards Alan as it was from 1st DCA. However, your advice helped me, thank you one more time.

 

[quincy]

It is on child support, Quincy.

Taxing matters, I was planing to cite Wilcoxon but tempted towards Alan as it was from 1st DCA. However, your advice helped me, thank you one more time.

Thank you for answering my question.

There apparently are a lot of contemptuous people in Florida.

Was the order of contempt not clearly defined so it was hard to follow?

 

[brigman]

Thank you Quincy, I got the response already from Taxing matters.