Powell v. Washington

• Court: District Court of Appeal of Florida
• Decided: October 16, 2017
• Docket: 5D16-3936
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

NEIL G. POWELL, M.D.,

Appellant,

v. Case No. 5D16-3936

IRENE WASHINGTON, GEORGE WASHINGTON and GOVERNMENT EMPLOYEES INSURANCE COMPANY,

Appellees.

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Opinion filed October 20, 2017

Appeal from the Circuit Court for Orange County, John E. Jordan, Judge.

Jim McCrae and J. Keith Ramsey, of Holland & Knight LLP, Orlando, for Appellant.

Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellee, Irene Washington.

No Appearance for Appellee, George Washington.

No Appearance for Appellee, GEICO. 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 tecum,

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."

2 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 So. 2d 359, 364 (Fla. 2000) (quoting Int'l Union, United Mine Workers of Am. v.

Bagwell, 512 U.S. 821, 826 (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

3 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.

1 The trial court may proceed with contempt on remand, but it "must elect either civil or criminal contempt and comply with the rules regarding the selected measure." See Berlow, 21 So. 3d at 84.