Aron v. Huttoe

• Decision Date: 15 February 1972
• Docket Number: No. 71--843,71--843
• Citation: 258 So.2d 272
• Parties: Dr. Jack D. ARON, Appellant, v. The Honorable Arthur HUTTOE, Judge, Circuit Court, In and For Dade County, Florida, Appellee.
• Court: Florida District Court of Appeals

Page 272

258 So.2d 272

Dr. Jack D. ARON, Appellant, v. The Honorable Arthur HUTTOE, Judge, Circuit Court, In and For Dade County, Florida, Appellee.

No. 71--843.

District Court of Appeal of Florida, Third District.

Feb. 15, 1972.

Rehearing Denied March 15, 1972.

White & Lieberman, Pozen, Pestcoe, Gold & Gold, Miami, for appellant.

Richard E. Gerstein, State's Atty., and Joseph Durant, Asst. State's Atty., for appellee.

Before SWANN, C.J., and PEARSON and BARKDULL, JJ.

SWANN, Chief Judge.

It appears that when Dr. Aron failed to respond to witness subpoenas served on him by plaintiff and defendant for his appearance with certain records at trial, the trial judge recessed the trial and issued a bench warrant for his arrest. Dr. Aron was then contacted by the Sheriff's office and thereafter appeared in court during the trial and without an attorney. A contempt order was rendered. The pertinent parts are as follows:

'This cause came on to be heard before the undersigned Judge upon the Court's Order to have Dr. Jack D. Aron taken into custody and brought before this Court to show cause why he should not be held in contempt for failure to appear as a witness as required by law. The Court after examining the file and evidence presented finds that the said Dr. Jack D. Aron had been duly subpoenaed to appear and testify in the case of W. J. Webb, Plaintiff, and Sammy L. Cromer, et al., Defendants, and to bring with him records pertaining to the treatment of the Plaintiff, Willie Jones Webb: and the attorneys for the Defendants and Plaintiff stated that they both had subpoenaed the aforesaid Dr. Jack D. Aron, because the said doctor failed to appear and the Court was compelled to recess the case; whereupon, subsequent to the recess of the case the doctor appeared and failed to give good cause and satisfactory reason for his failure to obey the subpoenas issued and served upon him.

'It is the finding that the said Dr. Jack D. Aron is in contempt of this Court.

'IT IS ORDERED AND ADJUDGED that the said Dr. Jack D. Aron is sentenced to pay a fine of Three Hundred Dollars ($300.00) or serve thirty (30) days in the Dade County Jail.

'IT IS FURTHER ORDERED that the said Dr. Jack D. Aron shall have twenty-four (24) hours from this date in which to pay the fine or surrender himself to the Dade County Jail.'

The sole point raised by the doctor in his appeal from that order is whether the summary order of contempt violated his right to due process of law, and deprived him of (1) his right to written notice of the alleged contemptuous conduct and (2) a fair opportunity to be heard in defense thereto.

The record shows that when Dr. Aron was questioned by the trial judge he admitted he had received the witness subpoenas and had not responded to their directives. After further questioning the contempt order was entered and the doctor was instructed to make his check payable to the Clerk of the Court.

Rule 1.410(e) R.C.P., 30 F.S.A., provides:

'Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.'

A plausible argument may be advanced for holding that the action of Dr. Aron in failing to respond was contempt under the rule and that the only procedure necessary is under the rule. Appellant rejoinder to that position is that no procedure is set forth in the rule.

We are of the view that such action may be characterized as 'rule contempt' and the proper procedure was the summary procedure followed by the trial judge herein. We think the rule is specifically designed to encompass such actions as those...