12 Fla. L. Weekly Supp. 422a
Insurance — Personal injury protection — Discovery — Depositions — Failure to appear — Error to impose sanction of attorney’s fees and costs against nonparty expert witness for failure to appear at deposition without finding witness in contempt — Fact that witness declined option of having contempt hearing does not obviate need for finding of contempt to support imposition of sanctions — Further, award of sanctions was premature where witness was not given opportunity to comply with order granting motion to compel entered three days earlier
DR. HOWARD A. HOCHMAN, Appellant, vs. HARTLEY CHIROPRACTIC CENTER, on behalf of Tammi Williams, Plaintiff/Appellee, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant/Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 03-5075AP-88A. UCN522003AP005075XXXXCV. December 1, 2004. John A. Schaefer, Judge. Appeal from Order Awarding Sanctions, Pinellas County Court, Judge Karl Grube. Counsel: Dr. Howard A. Hochman, Tampa, Appellant, pro se. Angela Stone, 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 record1 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.
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1State 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.
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