NEIL G. POWELL, M.D., APPELLANT,
v.
IRENE WASHINGTON, GEORGE WASHINGTON AND GOVERNMENT EMPLOYEES INSURANCE COMPANY, APPELLEES

Fla. 5th DCA | 2017-10-20
No. Case No. 5D16-3936
■ ORFINGER and EDWARDS, JJ., concur.
233 So. 3d 1156 Florida District Court of Appeal, Fifth District (2017)

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Synopsis

Dr. Powell appeals a trial court's award of attorney's fees against him as a sanction, claiming the court lacked proper procedure. The appellate court reverses, holding that the sanction functioned as criminal contempt requiring strict procedural compliance under Florida Rule of Criminal Procedure 3.840, which was not followed.


Holding

No. The trial court erred in awarding attorney's fees as sanctions without strict compliance with Rule 3.840's requirements for imposing criminal contempt, including an order to show cause, opportunity to respond, a full contempt hearing, and a judgment supported by a recital of the factual basis.


Headnotes

[1] An award of attorney's fees as a sanction for indirect criminal contempt requires strict compliance with Florida Rule of Criminal Procedure 3.840.

[2] Failure to strictly follow the procedural guidelines for indirect criminal contempt constitutes fundamental, reversible error.

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Key Quotes

“[I]ndirect criminal contempt may be punished only after strict compliance with the guidelines set forth in Florida Rule of Criminal Procedure 3.840, ... and failure to strictly follow rule 3.840 'constitutes fundamental, reversible error.'”

Establishes the mandatory procedural requirement for imposing criminal contempt sanctions

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Facts & Procedural History

Dr. Powell, an Air Force neurosurgeon, objected to a subpoena duces tecum in Washington's uninsured/underinsured motorist coverage suit against GEICO,…

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Opinion of the Court
WALLIS, J.

WALLIS, J.

Neil G. Powell, M.D., appeals the trial court’s final judgment granting attorney’s fees and costs to Irene Washington as a sanction. Because the trial court erred by imposing the sanction, we reverse.

This appeal arises from an action by Washington for uninsured/under-insured motorist coverage against her insurer, GEICO, in which GEICO disclosed Powell as an expert witness. Powell initially objected to Washington’s subpoena duces te-cum, asserting that he “is employed by the Department of Defense as the only neurosurgeon east of Mississippi” and “is required to file a formal notice of leave at least six weeks in advance.” Despite the objection, the trial court compelled Powell’s attendance. ■

Washington later discovered that the Air Force, Powell’s actual employer, had two neurosurgeons “east of the Mississippi.” Powell also admitted that he provided only some of the requested records at the deposition and emailed the rest directly to GEICO’s counsel. Accordingly, the trial court ordered Powell to attend a second deposition to provide the remaining records. Based on these facts, Washington moved to strike Powell for fraud on the court and asked that the court sanction Powell and his counsel “for continuously and knowingly perpetrating this fraud on the Court.” Over two separate hearings, the trial court twice declined to strike Powell, finding that his actions did not rise to the level of fraud on the court. However, the trial court ultimately ordered Powell to pay Washington $4,997.45 in fees based on Powell’s “misguided statements that caused [Washington] to double-check on him to determine that, in fact, he wasn’t being completely truthful with us when he was making those statements.”

Although not expressly labeled as such by Washington -or the trial court, the award of attorney’s fees most resembles a sanction for indirect criminal contempt because “the purpose of the fine was to punish [an expert witness] rather than to coerce his compliance,” and “the order contained no purge provision permitting [him] to avoid paying the fine.” See Price v. Hannahs, 954 So.2d 97, 100 (Fla. 2d DCA 2007). “[I]ndirect criminal contempt may be punished only after strict compliance with the guidelines set forth in Florida Rule of Criminal Procedure 3.840, ... and failure to strictly follow rule 3.840 ‘constitutes fundamental, reversible error.’” Berlow v. Berlow, 21 So.3d 81, 84 (Fla. 3d DCA 2009) (quoting Graham v. Fla. Dep’t of Child. & Fams., 970 So.2d 438, 441-42 (Fla. 4th DCA 2007)). “Because criminal contempt is ‘a crime in the ordinary sense,’ imposition of criminal contempt sanctions requires that a contemnor be afforded the same constitutional due process protections afforded to criminal defendants.” Parisi v. Broward Cty., 769 *1158So.2d 359, 364 (Fla. 2000) (quoting Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994)).

Here, Washington moved for, and the trial court awarded, sanctions as punishment without the proper prosecution, requiring, inter alia, an order to show cause, an opportunity to respond, a full contempt hearing, and a judgment supported by a recital of the factual basis. See Fla. R. Civ. P. 3.840. Because the trial court imposed attorney’s fees as sanctions against Powell without the correct procedure or the requisite finding of contempt, we reverse and remand for further proceedings. See Berlow, 21 So.3d at 84; Price, 954 So.2d at 100 (reversing fees as a criminal contempt sanction because “the circuit court did not find [the witness] to be in contempt, and it did not recite a factual basis -for doing so”).1

REVERSED and REMANDED.

■ ORFINGER and EDWARDS, JJ., concur.


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