County Civil Court: INSURANCE
– Expert witness - sanctions – trial
court erred as a matter of law in imposing sanctions without finding expert
witness in contempt – award of sanctions was premature as expert witness was
not given the opportunity to comply with the order compelling expert to present
himself for deposition - Order Awarding Sanctions reversed. Hochman v.
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
DR. HOWARD A. HOCHMAN,
Appellant,
vs. Appeal No.03-5075AP-88A
UCN522003AP005075XXXXCV
on behalf of Tammi Williams
Plaintiff/Appellee,
vs.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant/Appellee.
_____________________________________________/
Opinion
Filed___________________
Appeal from Order
Awarding Sanctions
Judge Karl Grube
Dr. Howard A. Hochman
Appellant, pro se
Attorney for
Plaintiff/Appellee
ORDER AND OPINION
THIS
CAUSE came before the Court on appeal, filed by Dr. Howard A. Hochman, from
the Order Awarding Sanctions Against Dr. Hochman, entered November 17, 2003, in
which the trial court sanctioned Dr. Hochman in the amount of $554.00, for
attorney’s fees and costs, to be paid to counsel for the Plaintiff, Hartley
Chiropractic Center, on behalf of Tammi Williams (Hartley). Upon review of the briefs, the record[1]
and being otherwise fully advised, the Court reverses the trial court’s
ruling.
The only issue presented on appeal is whether the trial court erred in imposing sanctions on Dr. Hochman, a nonparty expert witness, without finding Dr. Hochman in contempt. As set forth in the parties’ briefs, Hartley filed a motion to compel and a motion for sanctions following what Hartley asserts was “Dr. Hochman’s refusal to give testimony and complete failure to appear [for deposition].” The trial court granted both motions, but declined to find Dr. Hochman in willful contempt. In imposing sanctions, the trial court found that Dr. Hochman declined the option of having a contempt hearing.
Without the need to address Dr. Hochman’s actions in the proceedings below, the Court finds that the trial court erred, as a matter of law, in imposing sanctions without finding Dr. Hochman in contempt. See Pevsner v. Frederick, 656 So.2d 262 (Fla. 4th DCA 1995)(holding that sanctions may not be imposed against a nonparty in the absence of finding of contempt). The fact that Dr. Hochman was given the “option” of having a contempt hearing does not obviate what findings must be entered by the trial court to support its imposition of sanctions.
Additionally, the Court finds that the award of sanctions was premature in this case since Dr. Hochman was not given an opportunity to comply the trial court’s Order Granting Plaintiff’s Motion to Compel, entered November 14, 2002, which ordered Dr. Hochman to “present himself for deposition within thirty days of this order.” As the facts set forth in Pevsner demonstrate, a finding of contempt is premised on the willful disobedience of a trial court’s order. See id.; see also Knorr v. Knorr, 751 So.2d 64, 65 (Fla. 2d DCA 1999)(finding that “a party may be held in contempt only if he has willfully disobeyed a directive of which he has been placed on notice”). It is undisputed that Dr. Hochman complied with the trial court’s direction by appearing for his deposition within thirty days, on December 9, 2002. Accordingly, for the foregoing reasons, the Court finds the Order Awarding Sanctions must be set aside.
ORDERED AND ADJUDGED that the Order Awarding Sanctions Against Dr. Hochman is reversed and this cause is remanded for action consistent with this Order and Opinion. It is further,
ORDERED AND ADJUDGED that Hartley’s Motion for Attorney’s Fees and Dr. Hochman’s Motion to Dismiss Claim for Attorney’s Fees and Motion for Sanctions are denied.
DONE AND ORDERED in Chambers,
at
___________________________________
JOHN
A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Dr. Howard A. Hochman
Pual Puzzanghera, Esquire
Robert Oxendine, Esquire
[1] State Farm, the named defendant below, did not file a brief. Neither Dr. Hochman nor Hartley filed an appendix in support of their respective arguments. The “record” consists solely of the appealed orders. The vast majority of the discussion in the briefs is unsupported in the record. The Court recognizes the expense entailed in transcribing hearings but the different positions taken on the factual background of the case is not available for review. If the Appellant’s description of the facts is accurate, then counsel’s conduct is disturbing. If the Appellee’s description is accurate, then upon a finding of contempt the sanctions should be much greater.