Powell v. Washington
5D16-3936
Fla. Dist. Ct. App.Oct 16, 2017Background
- Washington sued GEICO for uninsured/underinsured motorist coverage; GEICO disclosed Dr. Neil Powell as an expert witness.
- Powell objected to Washington’s subpoena duces tecum, claiming Department of Defense employment and a required six-week leave notice, but the court compelled his attendance.
- At deposition, Powell admitted he provided only some requested records and later emailed additional records to GEICO’s counsel.
- Washington discovered Powell’s statement about being the only neurosurgeon east of the Mississippi was false (the Air Force had two). She moved to strike Powell for fraud on the court and sought sanctions against him and his counsel.
- The trial court denied the motion to strike but awarded Washington $4,997.45 in attorney’s fees as a sanction for Powell’s misleading statements.
- The Fifth DCA reversed, concluding the fee award functioned as an indirect criminal contempt sanction imposed without the procedural protections required under Florida Rule of Criminal Procedure 3.840.
Issues
| Issue | Washington’s Argument | Powell’s Argument | Held |
|---|---|---|---|
| Whether Powell should be stricken for fraud on the court | Powell knowingly misled court about employment/status and withheld records, warranting striking and sanctions | Powell’s conduct did not rise to fraud on the court | Trial court did not strike Powell; appellate court did not disturb that finding but focused on sanctions procedure |
| Whether attorney’s fees awarded were a permissible sanction | Fees were appropriate punishment for misleading conduct | Sanction (fees) imposed without proper contempt procedure violated due process | Fee award resembled criminal contempt and was improper because required contempt procedures weren’t followed |
| Whether the sanction imposed required criminal-contempt procedural protections | Washington did not expressly seek criminal contempt but sought punishment; court could impose contempt if procedures followed | Powell argued lack of requisite contempt findings and procedure | Court held that because sanction punished without show-cause, hearing, factual recital, rule 3.840 protections were required and not complied with |
| Whether remand should allow contempt proceedings | Washington sought relief up to and including sanctions | Powell argued procedural defects mandate reversal of fee award | Reversed and remanded; court may proceed on remand but must elect civil or criminal contempt and follow applicable rules |
Key Cases Cited
- Price v. Hannahs, 954 So. 2d 97 (Fla. 2d DCA 2007) (distinguishing civil coercive vs. criminal punitive contempt; fines without purge indicate criminal contempt)
- Berlow v. Berlow, 21 So. 3d 81 (Fla. 3d DCA 2009) (criminal contempt requires strict compliance with rule 3.840 procedures)
- Parisi v. Broward County, 769 So. 2d 359 (Fla. 2000) (constitutional due-process protections apply to criminal contempt sanctions)
- Graham v. Florida Department of Children & Families, 970 So. 2d 438 (Fla. 4th DCA 2007) (failure to follow rule 3.840 constitutes reversible error)
- Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821 (1994) (criminal contempt is a crime in the ordinary sense; punitive contempt implicates constitutional protections)