GEORGE SMITH AND MILDRED SMITH, APPELLANTS,

v.

ALFRED L. SCHLANGER AND DOROTHY SCHLANGER, HIS WIFE, APPELLEES

LETTS, Judge.

A witness, subpoenaed to testify at trial, refused to do so, telling the judge he had not been paid for his expert services. The trial judge, in effect, released him from his subpoena over objections. Nevertheless, we affirm.

When the witness took the stand, he immediately squabbled about his fee with counsel who had hired him. That same counsel argued to the judge that the witness had been sent a witness fee along with the subpoena and was only “being called as a factual witness.” To resolve the dispute, counsel asked the judge to set a reasonable fee but she “refuse[d] to engage in the negotiation of a contract between you and an expert whom you want to employ.” Referring to an impending lunch break, the judge also said: “We’re going to resume at one-thirty. At [that time] you either have an expert or you don’t, but I will not enforce the subpoena. So [the expert] either appears voluntarily [at one-thirty] or he’s not here.” In truth, when the lunch break ended, the expert did not re-appear and the trial resumed without him.

The appellants aver that the witness had been sworn in, was called not as an expert, but only as a factual witness to authenticate and lay the foundation for the admissibility of certain reports the witness had prepared in the ordinary course of business. The appellants, therefore, maintain that the witness should not have been released from his subpoena. In response, the appellees assert, unconvincingly, that the language employed by the judge did not “release or excuse [the expert] from the subpoena served upon him” and that the appellants failed to recall him to the stand at one-thirty. We reject that argument, but agree with the alternative contention that the error, if any, was not preserved because no proffer was made of either the expert’s testimony or the reports themselves. We conclude that any error committed was not preserved for appeal and we affirm.

We find no merit in the remaining point on appeal.

AFFIRMED.

DELL, J., concurs.

GLICKSTEIN, C.J., dissents with opinion.

GLICKSTEIN, Chief Judge, dissenting. There is no question in my mind that the trial court released the recalcitrant witness from his subpoena. The record reflects the following: JOHN HENDERSON was called as a witness by the Defendants and, after having been first duly sworn, was examined and testified as follows: THE WITNESS: I have an objection, Your Honor, to being called as a witness. THE COURT: Okay. What’s your name?

THE WITNESS: John Henderson.

THE COURT: All right. Who was calling you as the witness? MR. SATURN: Defendant.

THE COURT: Are you under subpoena?

THE WITNESS: Yes, I am.

THE COURT: All right. What’s your objection? THE WITNESS: I’m an expert witness and was retained by Mr. Smith to give expert opinions as to the condition of his house and have never been paid for that. THE COURT: Okay. You rendered the report to Mr. Smith at some time? THE WITNESS: Yes, ma’am.

THE COURT: Were you paid for that service? THE WITNESS: No, I was not.

THE COURT: Are you being paid to come to court today? THE WITNESS: No, I am not.

THE COURT: Okay.

MR. SATURN: Your Honor, with the subpoena there went a witness fee. Mr. Henderson is being called as a factual witness, given the fact that he inspected the roof at the time the house was closed and also during the guaranty period. THE COURT: I am going to be setting a reasonable fee or you are going to reach some agreement within the next five minutes for his services or I’m going to excuse him from the subpoena. After additional dialogue, the trial court said, in para materia: THE COURT: If you want to present his testimony today regarding his reports, you are asking him to render expert testimony. You can’t subpoena an expert to court. He’s free to go and I’m not going to enforce that subpoena. I believe it was error for the trial court to do so, and under the circumstances reflected by the record required no further action by plaintiffs’ counsel. The witness could and should have sought appropriate protection from the effect of the subpoena if he believed plaintiffs were taking advantage of him. The trial court’s action legitimized what I perceive to be inappropriate conduct by the duly subpoenaed, present witness.