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.
4
